NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
Celibacy is probably not a feasible option for most undergraduates, but students at Duke University may want to consider it anyway. Duke's new rules governing sexual misconduct and coercion are so vague, subjective, presumptive of guilt, and oblivious to the dynamics of consensual sexual relations that they pose a risk of prosecution even for students engaging in innocent foreplay. Sexual misconduct at Duke includes "inappropriate (or non-consensual) touching," as well as rape; "inappropriate touching" and "acts of a sexual nature" that require clear consent include ("but are not limited to") touching and "attempted touching" of an "unwilling person's" erogenous zones, "either directly or indirectly."
I don't know what constitutes a non-consensual, indirect, attempted touch, but I wouldn't try it at Duke, where actionable "coercion" may be unintentional and merely inferred, or imagined, by a self-proclaimed victim: "Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion." This suggests that students risk inadvertently committing sexual offenses if they engage in sex with classmates perceived as physically or psychologically weaker, less intelligent, or simply less popular. How might presumptively powerful students avoid unintentionally exploiting this "unintentional atmosphere of coercion?" The university explicitly "mandates that each participant obtains and gives consent in each instance of sexual activity."
A committee of virginal bureaucrats would be hard pressed to draft a more ridiculous policy than this: "Consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions and words," the policy explains. But, students are warned, "(R)elying solely on upon non-verbal communication can lead to miscommunication," which can lead to expulsion, suspension or other disciplinary actions. A well-meaning student may be charged with a sex offense for making an innocent, incorrect assumption: so, "(i)t is important not to make assumptions," the Duke policy advises. "(I)f confusion or ambiguity on the issue of consent arises anytime during the sexual interaction, it is essential that each participant stops and clarifies, verbally, willingness to continue."
Anyone who remembers or has read about the sexual correctness controversies of the early 1990s will recognize Duke's giant step back to the future. In 1992, now defunct Antioch College promulgated a absurd and widely ridiculed "Sexual Offenses Policy" that required students to stop and ask explicit verbal permission to proceed to "each new level of sexual activity ... The person(s) who initiate(s) the sexual activity is responsible for asking for consent ... Body movements and non-verbal responses such as moans are not consent." The Daily Show was born too late for Antioch, but not for Duke...
Schools: Duke University