By Mike Dorf
What should we make of the eight scenarios of, by turns, consensual and non-consensual sex that Yale University has published to provide guidance to its undergraduates (and others) about what counts as a violation of the university policy requiring affirmative consent for sexual contact? Reminiscent of a similar policy adopted by Antioch College twenty years ago, the Yale policy has predictably been ridiculed from what we might loosely call the boys-will-be-boys right, as in this (admittedly pretty funny and not all that offensive) parody on Gawker.
I suppose that the best one can expect from the general culture is the tone of the NY Times story on the Yale policy: recognizing the existence of a real underlying problem but still bemused by the efforts of nerds of my generation to formulate a policy for a generation of twerkers whose social world we barely understand, even if (perhaps because?) they are our own children.
Meanwhile, some feminists critique the Yale policy. In addition to the complaint that Yale and many other other colleges have hitherto been too lenient in meting out discipline for perpetrators of non-consensual sex, some feminists have called Yale out for use of the term "nonconsensual sex" rather than rape, which, it is argued, perpetuates the view that some kinds of rape, i.e., "date rapes,"are not so serious as "real" rape.
That's a fair critique of a lot of thinking about rape but I think it's an unfair charge with respect to the Yale policy. The document linked above containing the scenarios acknowledges that some of the scenarios would amount to criminal conduct but others would not. Yale is not saying that some rapes are not real rapes. It is saying that some less-than-fully-consensual sex that would not violate the criminal law is still forbidden by the Yale policy, and so Yalies oughtn't to do it. If anything, Yale should be given credit for taking seriously nonconsensual sexual "encounters" that fall short of rape--at least if the university intends to follow through by enforcing the rules as indicated by the scenarios.
Nonetheless, I would suggest a somewhat different feminist critique of the Yale scenarios: The whole enterprise of providing guidance with multiple scenarios reinforces the widely held view that it is difficult for a man to know when a woman has consented to sex. These scenarios construct sex as something a man gets from a woman but only under certain conditions, and so he needs to be very careful to make sure that the conditions are satisfied, lest he subsequently--and to his surprise--end up in trouble. The need to explain with multiple scenarios suggests that figuring out whether a woman wants to have sex is like evaluating the costs and benefits of a complex package of synthetic collateralized debt obligations.
To be sure, the sixteen protagonists in the Yale scenarios all have androgynous names. Still, even if the scenarios do not reveal whether a man is coercing a woman or another man, or a woman is coercing a man or another woman, we know that the typical real-world case involves a man coercing a woman.
And so, I came away from reading the Yale scenarios with a mix of skepticism and horror. Reflecting the reality of widespread alcohol abuse on college campuses, three of the eight scenarios involve drunk students, and in each case the resulting sexual activity is nonconsensual. But do we really need multiple illustrations to instruct undergraduates on the finer points of "don't take sexual advantage of someone who is pass-out drunk"? And will such fine-grained guidance work on 19-year-olds who are themselves likely to be quite drunk at just the moment when they need to make the relevant judgment?
I'm willing to concede that the answer to the first question may well be yes, and that if so, then I shouldn't be blaming Yale but the wider society. Still, I can't help but think that making things simpler would be a better route. When I was an undergraduate in the 1980s, the feminist rallying cry around this issue was "no means no." Of course there are still plenty of young men (and some not so young men) who didn't get the message, but one would hope that some progress has been made. For the next steps, I would recommend a similar catch-phrase. I suggest "only yes means yes" or perhaps, even more simply, "don't be a creep."