I’ve just had the opportunity to read the University of Lethbridge’s recently adopted Revised Sexual Violence Policy. On the one hand I’m bound, by what I’m supposed to do for a living, to point out in what respects it’s a dog’s breakfast. But on the other I want to acknowledge that coming up with a policy that isn’t going to be a dog’s breakfast is mission impossible. And yet a university that doesn’t have such a policy is just asking for a whole lot of pain. These drafters were facing the standard difficulty of putting into words what a sensible person should already know. But these things are written for the not-so-sensible person. Or at least the one who might, however briefly, take leave of his senses.
First the minor quibbles:
Section 3.3 acknowledges that consent can be communicated by conduct. But 3.3.2 insists that consent be clear – by which I assume is meant unambiguous – and explicit. Presumably, then, the drafters concede that there are mere gestures that can be explicit signifiers of consent. I assume they’re thinking of something like a crooked finger. But what about a fetching come-hither look? Unfortunately such looks are not unambiguous.
I’m assuming the drafters were trying to be sensitive to the fact that being required to say yes every three seconds can be pretty off-putting for both parties. But does the wording they chose achieve what it sets out to? I’m worried that it does not.
Second, section 3.3.3 requires that there be consent at each change in the kind of activity being proposed. But it offers no guidance on how to individuate kinds. I’m assuming they’re talking about moving from, say, vaginal intercourse to anal. But aren’t there identifiable kinds within each of these kinds? Failing to offer an ontology of kinds leaves it open for the respondent to testify that, “Look, she said rear entry was okay. How was I to know she meant fingers only?”
Third, section 3.7 uses the word “targeting”, which I’m pretty sure is somebody’s lame attempt to say something inclusive but succeeds in saying nothing at all. I’d suggest an alternative if I had any idea what she was trying to say, but I don’t.
The more serious difficulty, however, is 3.7.2, which seems to do away with the mens rea requirement and replaces it with the “impact” of the suspect behaviour on the complainant. So picture the following:
Complainant: He was staring at my chest, and that made me very uncomfortable.
Investigator: Well, do you have anything to say for yourself?
Respondent: No, but here’s my certificate from the CNIB.
If my reading of 3.7.2. is correct, the respondent’s blindness is no defense.
This is just the standard problem with (what might be called) cognitive over-reach, not unlike expelling a second-grader for pointing a finger and saying “bang”. It’s a problem because all it takes is two or three cases like this for the entire initiative to be held in risible contempt. Though by no means perfect, I think a much more defensible strategy would be to replace victim-impact with the man-on-the-Clapham-omnibus test. Since because of his blindness the professor was not the man on the Clapham omnibus, that test couldn’t be applied, and so the complaint would fail, as I think we’d all agree it should.
The same objection can be raised to 22.214.171.124. And I’d urge a similar way to repair it. She comes to his office and he spends the entire interview staring at her chest. A clear case of leering, if there ever was one! She comes to his office wearing sandals and he spends the entire interview staring at her feet. She might feel uncomfortable. And he might very well have a foot fetish. But he’s innocent of leering because very few of the men on the Clapham omnibus have a foot fetish. To think otherwise, i.e. that he should be convicted of leering, is to court the contempt I’m supposing we all want to avoid.
Alright, that was me trying to be helpful. But there’s a more general comment that’s asking to be made, though it may be less helpful, or maybe not helpful at all:
One of the reasons why the abortion debate is so intractable is because its participants, on both sides, have carved up the world into two and only two kinds of things, a piece of property or a property-owner. But the fetus doesn’t seem willing to squeeze itself into either of those two categories. Well, says Camille Paglia, human sexuality is like that too. It’s messy.
We can try to take the messiness out of human sexuality. Certain cultures and sub-cultures have been trying to do just that, with varying degrees of success, since we emerged from the cave. And apparently there’s a movement afoot today within some university communities, including our own, to join them.
It’s the fashion. And like any fashion – be it sartorial, political, or moral – it comes and it goes. If you find yourself rolling your eyes over the current bout of Victorianism, just sigh and recite the Serenity Prayer. Or Kipling’s If. Or better yet, the Desiderata. Or best of all, the Sufi reminder that, “This too shall pass.”
At the end of the day – and sometimes even in the middle of it – people need to just get on with having sex. These self-appointed supervisors, though well-intentioned, should reflect for a moment on how they get on with it, and then on whether they’d even bother if it was going to be under the glare of their fellow watchers. Under every watcher regime, be it Apartheid in South Africa or ISIS in Mosul or Big Brother in the prescient mind of George Orwell, humans find a way to be human.
Eventually the watchers get watched. And then they get taken out.
They say hell hath no fury like a woman scorned. As Alek Minassian recently demonstrated, yes it does.