Legal Politics of Consent

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Wesley Yang:

"Whether judicial powers to surveil and punish are suitable instruments for the pursuit of an emancipatory feminist vision has always been a hotly contested debate within feminism itself. What has long been debated in theory has now been released into the world through interventions aimed at changing that world through an embrace of such instruments. “Feminists now walk the halls of power,” Halley notes in the introduction to her co-authored 2014 book, Governance Feminism. The movement has transitioned, in Halley’s term, “from the megaphone to the gavel,” and must, Halley argues, take on an ethic of responsibility and scrutinize the effects of what they have wrought.

Together, these professors’ work on the new campus sex bureaucracy, consisting of law review articles, open letters, manifestoes, and op-eds written both singly and jointly, is an exemplary instance of the project Halley proposed. That work looks closely at the empirical reality of what has been wrought and reaches a conclusion about its implications. Taken as a whole, the work provides a kind of Rosetta stone of the broader social justice movement of which its subject is a part. The work is sober and restrained and presented without drama precisely because the story it tells is so upsetting and implausible to outsiders, and thus prone to accusations of hyperbole. The gravamen of their work is that, whatever their stated or actual intentions, Title IX feminists are working to superannuate the meaning of consent and embed within the criminal law a principle, subversive to the foundation of the law, that the feelings of the accuser determine the course of the law without reference to any other material fact. As Catharine Mackinnon, the progenitor of the school of feminism from which this movement proceeds, once put it, “Politically, I call it rape whenever a woman has sex and feels violated.”

Lots of people disagree about where to draw the line. But most people would want to draw a line so there is such a thing as consensual sex.

Share →︎ Twitter Facebook Email Link Copied link Title IX activists, including those operating within the Office of Civil Rights in the Department of Education—from whence they issued a letter in 2011 threatening to cut off federal funds from universities who did not get tough on sexual assault—have put in place a system in which it is “commonplace to deny accused students access to the complaint, the evidence, the identities of the witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses,” as Gersen described it in The New Yorker magazine. Though administrative law proceedings routinely rely on constructions of due process that fall well short of those pertaining to criminal proceedings where the freedom of the accused is at stake, in practice the totality of measures adopted by a great many colleges made mounting a defense all but impossible.

The system promulgated a definition of sexual misconduct so expansive that it “plausibly covers almost all sex students are having today,” as Gersen wrote in an article in the California Law Review. It required investigators to start by believing accusers (rather than starting from a place of impartial neutrality), instructed them against using a “reasonable person” test to constrain their judgment of whether sexual conduct regarded as unwelcome constitutes harassment or assault, and required them to reach a finding of wrongdoing if they felt confidence that misconduct had occurred greater than 50+1 percent. It housed the function of adjudicating individual cases within the same office tasked with ensuring compliance with federal government mandates demanding stronger enforcement—aligning incentives in ways hostile to the accused.

A system so designed is “overwhelmingly stacked against the accused,” as Gersen and her colleagues wrote in their original petition. “In this very large continuum of unpleasant interactions that can happen, at some point you draw a line and say, ‘These are consensual, these are not consensual,’” Gersen told me. “Lots of people disagree about where to draw the line. But most people would want to draw a line so there is such a thing as consensual sex.” (