The recent Title IX Listening Sessions of July 13 2017 sponsored by U. S. Department of Education Secretary Betsy DeVos has prompted this week’s forum at Public Seminar. As part of the process, Secretary DeVos also hosted men’s rights activists who champion the cause of individuals claiming to be falsely accused of sexual misconduct. The prior day, Candice Jackson of the Department’s Office of Civil Rights had made controversial comments which implied that sexual assault charges made by women on college campuses were the outcome of mutual intoxication and post-breakup bitterness. The following day she apologized for being “flippant” and came out as a sexual assault survivor herself. The three critical articles to be published in the coming days arose out of a conversation between three scholars whose work collectively engages gender justice, the psychology of sexual consent, and Title IX.
In the article that follows, Ali Shames-Dawson begins with a discussion of the responsibilities of civil rights and education leadership, its role in facilitating or preventing healthy democratic process, and the possibilities for a deeper understanding of the issue of ‘consent confusion’ through engaging critical social research on gender, culture, and sexual consent.
Everyone is all abuzz about the Jackson-DeVos one-two punch of the week before last: first Candice Jackson discredited 90% of campus sexual assaults as false accusations from drunk women scorned. Then, in her efforts to ‘reassess’ what some call the Title IX overreach, Betsy DeVos met with those who claim to be falsely accused of sexual assault and the men’s rights groups who support them (groups, it should be noted, who also blame women for assaults and oppose the Violence Against Women Act because it unfairly targets men). There are legitimate critiques of the change in disciplinary processes enacted on college campuses since the 2011 Dear Colleague Letter (such as Katie Gentile’s on Public Seminar). But thanks to the Obama administration’s serious treatment of campus sexual assault, not only have tremendous gains been made in encouraging those who have experienced violence to come forward, but the letter and its consequences have ignited fierce and vibrant discussions of what sexual consent is and means, how we learn and teach it, and what personal responsibility and ethical sex can and should be.
While these debates remain contentious, they are productive. Not only do they represent a vital democratic process through which social and legal norms are negotiated and produced, but they also mark the emergence of what constructivist thinkers would call new discursive possibilities. That is, with new ways of talking about things, we find new ways for being and acting in the world. The words and actions coming out of the U.S. Department of Education this past week should set off alarm bells because they put a freeze on this vital social process. To expressly undermine women’s voices in the public sphere is to stall the articulation of social justice. This is fundamentally anti-democratic.
One broad impediment to progress in the gnarled arena of sexual violence and gender inequality is the refusal to squarely encounter tensions, ambiguities, contradictions, and the play of power inherent in the scene of consent. We should be able to trust our civil rights and education leaders to be intellectually sophisticated, emotionally mature, and professional. To do their jobs responsibly, they must be able to tolerate complexity, modeling for the public how to hold it and engage it, rather than resort to simplistic distortions and regressive libel. Moreover, we should expect that they at least attempt to synthesize the social research about sexual violence in the interest of fair and representative policy-making. Needless to say, we should have zero tolerance for fabricated statistics, wherever they come from. What is called for is an astute and nuanced look at the scene of consent and the culture that produces it. What we got from the DeVos Department of Education was a “flippant” dismissal of an era-defining political and social debate, not to mention a show of flagrant disregard for the lives and testimony of women intimately impacted by it.
One of the problems that we cannot ignore here is that sexual assault exists in the popular imagination as a stark, violent event perpetrated by society’s misfits, or the occasional testosterone-addled football player — usually men of color, either way, as Katie Gentile will discuss in her contribution to this forum. In actuality, norms of heterosexual encounters tolerate and reproduce an array of coercive tactics on the part of men, as well as submission on the part of women. Nicola Gavey suggests our problems with sex are built right into our culture’s accepted attitudes about men, women, and sex; she calls this the cultural scaffolding of rape. A highly reputed researcher of the psychology of sexual violence and culture, Gavey explains that traditional ideals of heterosexual romance suggest “a woman’s quiet desire [is] waiting to be awakened by a man’s expert seduction,” and that this idea, and others like it, lay the groundwork for sexual encounters wherein a woman’s desire and interest are absent. (60) On the basis of this cultural myth, a man may interpret a woman’s unwillingness as encouragement to try harder — and quite frankly, a woman may experience her own lack of desire as normal, or confusing, or perhaps something to ‘wait out.’ These myths are manifold, and function in a variety of ways.
Of particular interest is the issue (part myth, part reality, as so often is the case) of token resistance. This describes the belief that when a person responds “no” to an expression of sexual interest, they really means “yes” and intend to eventually engage in sexual activity. One study found that men who believe women engage in token resistance are less likely to judge a coercive sex scenario as date rape, even when in fact it would very much qualify. Further, they were less likely to notice a woman’s verbal refusal than those who don’t believe in token resistance. Clearly, what you believe about sex in the first place conditions what you experience. But what you experience also conditions what you believe: some women (and men, too) do engage in token resistance, saying no but pressing onward toward sex willingly. In one study 39% of female respondents reported engaging in token resistance at least once. But we look again to culture for some reasons why: women may feign resistance because they know they will be socially vulnerable for being too sexually available: he’s a stud, but she’s a slut, and other sexual double standards that are old news by now. It’s the same reason often given for why women struggle to ask men to use a condom. Nice girls don’t.
But even so, does this give anyone, male or female, license to insist on sex after a partner has declined? Does it mean you have been falsely accused when you are held accountable for ignoring when someone says no, or moves your hand away, because you didn’t hear or notice it, or because you decided it meant one thing and not another? Are you in the right because they finally gave in out of fear, or exhaustion, or inebriation? Ms. Jackson is right about one thing: drinking further complicates already complicated issues of consent — but drinking doesn’t make consent a non-issue.
Gender based myths about sexual comportment, and the norms they produce and reinforce, function as heuristics that drive interpretation, decision-making, and behavior in sexual encounters. In this sense, they provide a sort of shorthand that determines next moves, as in a computing process, but that fails to take the full subjectivity of the other into account. Thus a sexual encounter is at risk of becoming a closed system driving toward a certain objective [Score!] rather than an open system that incorporates the unfamiliar and changes course to adapt to it. She said no – system recalibrating – where to next?
It makes sense that human beings in their infinite complexity employ heuristic devices to make decisions, especially in so loaded a context as sex. But we need to keep pushing educators on all levels to generate and teach new ways of thinking about and teaching sexual ethics, not to fight to preserve old ideas that clearly reinforce harmful gender inequality, reinvigorate rape myths, and deny the reality of rape culture. DeVos and Jackson have accomplished all of this with their words and actions last week. Rather than roll back Title IX gains, we need to reinvigorate efforts to promote responsible sexual ethics education on multiple fronts. This would, in fact, protect those who call themselves victims on both sides of the bed.
I was recently at Princeton reunions, where everybody can’t stop asking: “What are you up to these days?” Men in particular would light up when I said I do research on sexual consent. I had a number of thought-provoking and insightful conversations, but a few niggled me with worry and discomfort. Of the latter category, one was especially memorable: “I am totally into this whole new consent thing,” he says, eyes flashing. “You know, just recently I asked girl in a bar, like, hey, how do you feel about a make-out sesh?” And she was like, “Nahh,” and that was great, because we kept talking and then when we did make out, it was super hot.”
Hold up, bro. She said no, and it turned out great? I better clarify. “So you wound up making out, how’s that, after she declined?” His eyes light up again: “Well, she declined at first, and I was like, ok, I’ll get her another beer. Then I asked again, and she was like, more flirty but said no thanks, so I got her another beer. After I got her a few more drinks we had a great drunk make-out sesh and I went home with her. Just gotta make them feel respected…panty-dropper.” He flashes another grin. I suck in my breath, I want to understand where he is coming from but I am feeling derisive: “And keep pushing for your objective while getting her drunk?” He laughs: “Consent is sexy!”
This is a perplexing tale, but not unfamiliar. Easy to find him slimy, because he seems unabashed about using alcohol and pseudo-respect to wear down a woman’s defenses, but it is easy (even if cringeworthily so) to imagine his defense as sound. He heard her boundary and, at that point in time, respected it. “I will not lean in and kiss her now that she has declined.”
Seems righteous enough. He offers her a drink; she says yes. Another offer of a kiss; she says no. He offers another drink; she says yes. Another drink, she says yes. “How did you end up kissing?” I ask. He says she’s wasted by that point and totally wants it. They even go home together – more evidence that she was just playing coy, right? That whole token resistance thing, right? The next morning, he feels like a champ (after all, he played by the rules and won) and she locks herself in the bathroom. “She was in there so long, I just peaced out, because I assumed she wanted her privacy.” I asked at some point how he thinks she felt about the hook-up, and he said, “How should I know? We never talked again. But she seemed to be enjoying herself.” I also asked how he knew she wanted him to go home with her and he said when she left, he just got in the cab with her and she didn’t protest.
We don’t know her side of the story, but we do know that insistence plus inebriation begins to slant and slacken inhibitions (or prohibitions, as it were). We also know that plenty of other gendered dynamics may come into play even when alcohol doesn’t, such as fear of backlash, which functions to keep people behaving according to traditional and socially sanctioned scripts.
The finding that assertive women are met with punitive responses in the workplaces translates easily to many women’s intimate encounters. It has been well documented by experts in the field of gender backlash that women who assert sexual power—and holding a boundary is definitely an assertion of power—experience social and interpersonal backlash because they challenge the gender hierarchy.
We also know, from researchers like Nicola Gavey and Deborah Tolman, journalists like Peggy Orenstein and others, and through hundreds upon hundreds of interviews with women about their sexual experiences, that women often give in to men’s insistence as a way of avoiding rape. Gavey in particular has highlighted that in talking about normal sex, women often describe encounters that are clearly coerced, whether psychologically or physically, but by giving in, the women felt they could preserve some sense of personal safety and control. Others describe giving in to preserve a relationship, or because of guilt, or because of fear of various negative outcomes — but all in response to persistence or outright manipulation after they had already set a boundary, or at least tried to.
So what do we call these encounters? Whom do we hold responsible?
There are reams of research delving into gender-based dynamics, consent behavior, and culture’s influence on developing sexual subjectivity—all of which give us little pieces of the puzzle, helping to lay out the ways in which women’s sexual agency is constrained, how men come to feel entitled to women’s bodies, and identifying the actions of both men and women that keep us in the grips of the myths that shape our bodies and our interactions in deeply problematic ways. Candice Jackson must think it’s beyond her job description to keep up with research, especially when her personal experience and political objectives license her to simply make things up.
As Katie Gentile notes in her essay in this forum, Candice Jackson’s coming out as a survivor herself served to deepen the blow she dealt the day before, rather than soften it. With this admission she says, my rape was legitimate, but almost all claims of sexual assault are not. She joins the chorus of men (President Trump included) who undermine the gravity and ubiquity of coercion and entitlement as part of normative heterosex (Lest we forget: “ You can do anything. Grab them by the pussy.”)
If the term normative heterosex is unfamiliar or feels too clinical, understand that critical theorists of sex utilize this term to highlight that heterosexuality, like all social behaviors, is at least partially culturally constructed rather than based in some sort of essential, natural femininity/masculinity. The deployment of this term is an explicit attempt to undermine and de-naturalize gender based myths about sexual behavior. The point is, normative heterosex operates on the basis of a tangle of cultural assumptions as mundane and ubiquitous as the cracks in the sidewalk. As Leonor Tiefer described it, our dominant cultural sexual attitudes make for an “ ideology that is so implicit and unexamined as to be invisible .”
But research and critical theory has made the invisible visible. Thanks to decades of research, we have insight into how our cultural ethos prioritizes male dominance over female sexual agency; how it paints females as submissive and permissive objects of male desire; and how it privileges male pleasure over female pleasure. And we even understand how these myths serve to direct behavior and disrupt communication. We have narratives and surveys to tell us that for a majority of women, their desire is not autonomous but rather passively responsive to male desire and to a culture of hypersexualization — and in response, we have more research that reveals that people blame women for behaving according to the dictates of culture, and exculpate men and boys because, after all, they naturally have greater sex drive. We know that law itself still harbors the suggestion that as long as she doesn’t fight back she must want it, and that fraternities still teach that even if she does fight back, she may want it anyway.
Meanwhile, the Department of Education’s Office of Civil Rights thinks most women who ‘cry rape’ are making it up.
Instead, as Katie Gentile notes, the words and actions of last week are backlash to Title IX gains, because women are finally being heard. What we do with these emerging stories is critical for the future of gender relations, and, as I argued above, it has implications for the health of our democracy as well.
Let me be transparent about my own position. To paint men as predators would do no good, and I do not wish to do so. Just as it would be absurd to absolve women of personal responsibility in making choices and navigating sexual encounters, including how much one drinks, where one parties, how one practices saying no directly and following through with action. But if we do not examine closely how cultural myths and ideologies function to shape decision-making, clear communication, and ethical comportment, we are lost from the start. From the looks of it, many men don’t know when they are pushing too hard—where, after all, is the edge of misconduct?—and many women don’t know either, let alone why they can’t seem to say no loudly or forcefully enough, or get themselves out of uncomfortable situations.
Consent researchers Zoe Peterson and Charlene Muehlenhard found in 2007 that among women who reported an experience meeting most legal definitions of rape (they explicitly communicated nonconsent to their perpetrator or were too incapacitated to consent), women still doubted whether the experience was actually nonconsensual. Just under half of the respondents (who had experienced nonconsensual vaginal, oral, or anal sex obtained through verbal coercion, incapacitation, physical threat, or force) did not internally perceive the rape as unambiguously nonconsensual even though they had said no, or had been too drunk to say anything. In fact, the more they doubted that they had adequately expressed nonconsent ( even though they definitely did not consent), the less likely they were to label their experiences as rape. In 2015, Peterson and another researcher, Tiffany Artime, replicated and extended this study, finding that rape victims who worried they had somehow expressed consent to the rape experience (again, even though they had said no or been incapacitated) were significantly more likely to blame themselves and wonder if somehow they had not adequately signaled their nonconsent. It would be tremendously useful to have more research on men who are involved in sexual misconduct charges, examining how they understand their behavior and interpret the interaction, but as Katie starkly points out, there can be no statistics if there are no perpetrators.
Social psychologist Deborah Davis has made these complexities the center of her work. In her examination of sexual consent cases (work funded in part by the FBI) she focuses on failures of communication on both sides of disputed sexual interaction, specifically how the indirect suggestion, hint-dropping, mind reading, and non-verbal expressions of consent and non-consent that are often a part of normative sexual encounters serve to promote misunderstanding that can result in honest discrepancies of sexual consent interactions. She and her colleagues also point out that within this “dance of ambiguity,” each partner’s acts (or failures to act) are interpreted in light of sexual scripts that specify how people are expected to act in sexual situations. In particular, she highlights how women’s reliance on indirect means of refusal — changing physical position, remaining silent, turning away, using vague language — may be honestly misinterpreted by male partners, or at least cannot be construed as clear and explicit expressions of nonconsent. On the flip side, men use indirect language to ask permission to proceed with a sexual encounter.
Davis suggests that both parties feel that exposing their desires (or lack thereof) contains risk, so they speak and act largely in code. The trouble lies in the deciphering. So we see how people may signal consent to things they do not fully know they are being asked, or believe they have refused without ever saying no. Davis also points out that distortion is germane to narrative reconstruction: people may remember things they only thought about or intended to say at the time, or when they can’t remember, they earnestly believe that they behaved in ways consistent with how they see themselves. False testimony is more common than we realize — by both men who believe themselves to have received consent, and by women who believe themselves to have demonstrated nonconsent — and far less conscious than we tend to think. This argument is not without its problems (as it still sneakily sidesteps power in important ways), but it elucidates some normative patterns of communication that help us to examine the scene of consent with a more nuanced eye. At very least, it represents an attempt to understand both sides of consent confusion.
What is most important here is that this kind of research creates space for the complexity that Ms. Jackson seems unable to tolerate. If we cannot look at how two people have wildly different accounts of a shared event without branding one of them a liar, we will be forever standing in the same place, dumbfounded and dangerous. Sociologist Jeff Goldfarb points out that democratic progress often gets snagged here. The social condition, Goldfarb stresses, is defined by the tensions that result from the inevitable clash of the multiple realities that represent individual experience: “the dilemma,” he says, “arises when people disagree about the reality, are ambivalent about it, or even want to flee from it.” But the real damage comes when complexity is effaced, when “political actors pretend that the complications of the social condition can be easily overcome.”
And it is easy to overcome something that is not a real problem, as Jackson would have us believe. What she said was devastating. It is a sweeping invalidation and a gross caricature of women’s experiences. But this is no surprise, given that even before she was sworn in she was reputed to have dismissed those who accused Donald Trump of sexual violence as “fake victims.” And in her 2005 book , she complains that workplace sexual harassment laws unfairly cause men to “self-censor themselves to avoid being accused of sexual harassment” (138). She may truly believe that she is standing for the rights of the falsely accused or unjustly suppressed, but it seems she cannot find a way to do so without denigrating women. Besides, it’s too hard to hold in mind the possibility that the problem is bigger than individual responsibility, more subtle than ‘he-said-she-said.’ Instead, she wants to dispense with the whole messy business by giving it the short shrift. The problem is simply drunk chicks who make shit up.
Ariel Levy’s term (and eponymous title of her 2005 book ), female chauvinist pig , comes to mind. According to Levy, “Instead of trying to reform other people’s—or her own—perception of femininity, the Female Chauvinist Pig likes to position herself outside the normal bound of womanhood. If defending her own little patch of turf requires denigrating other women . . . so be it.” To “flippantly” discredit the experiences of 90% of women who claim to have been sexually assaulted performs this underhanded trick, positioning Jackson as an expert with a legitimate experience – a woman who made it out intact, who is decidedly not a victim, as Katie Gentile points out — while aggressively undermining the work and personal experience of countless activists, survivors, researchers and allies. Just as Goldfarb suggests that oversimplification arises in dialogue when partisans wish to flee from uncomfortable tensions and complexities, we can think of Ms. Jackson’s callous remarks as performing a similar psychic function: in casting off women’s experience as ‘not me,’ she gets to jump ship on a tough issue. She can avoid the acute discomfort of recognizing and integrating complexity and difference, especially when it threatens to chip away at the well-protected status quo, her alignment with power, or her sense of her self (or the culture) as blameless. This act of splitting defends against what is intolerable to the conscious self — in this case, how damned complicated and messy this whole consent thing is. And who would want to associate with powerless, hysterical victims anyway?
I too struggle to find language to address such heated and delicate issues. I worry about how blame is cast, how responsibility is taken up or disavowed, and how the rhetoric of victimhood is terribly fraught. I even have sympathy for the accused who have no idea what they possibly could have done wrong. But it’s sloppy and lazy to conclude that their ignorance means that they did nothing wrong. It is rather evidence that we have work to do in dismantling functional cultural myths that provide damaging scripts that undermine communication, celebrate conquest over care, and continue to teach men and women both that women are sexual objects for male consumption. It means we have work to do in teaching our children, adolescents and young adults what constitutes a respectful sexual encounter, what it means to listen and heed another’s wishes, and how to treat potential sexual partners as human beings rather than citadels to be conquered by clever deployment of tactics meant to erode defenses until entry is achieved. And we need to continue to work toward building social and educational cultures where women are not silenced by fear of backlash for being assertive or violating long-outmoded gender norms.
No doubt the falsely accused (between 2-10% of all accused) deserve rights, but I would like to think that representatives of the Office for Civil Rights and the Department of Education could creatively work toward securing those rights without resorting to libel about imagined enemies.
And hey, maybe have a look at the research.
Ali Shames-Dawson is a doctoral student in clinical psychology at the New School for Social Research and an editor of the Sex and Gender vertical at Public Seminar.