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It Doesn't Matter What Your Reason Is for Not Having Sex -- Unless You're at Michigan by Susan Kruth

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Last week, the Internet turned its attention to the University of Michigan's (UM's)policy on sexual violence. The College Fix's Derek Draplin reported on the policy, which defines "sexual violence" broadly to include not only assault and coerced sex acts, but also criticism and not having sex with the purported victim.

UM's policy says:

Examples of sexual violence include: discounting the partner's feelings regarding sex; criticizing the partner sexually; touching the partner sexually in inappropriate and uncomfortable ways; withholding sex and affection; always demanding sex; forcing partner to strip as a form of humiliation (maybe in front of children), to witness sexual acts, to participate in uncomfortable sex or sex after an episode of violence, to have sex with other people; and using objects and/or weapons to hurt during sex or threats to back up demands for sex.

Funny -- I thought that choosing not to have sex was everyone's prerogative. But this policy suggests that under some circumstances, a partner is entitled to sex. Even reading an intent requirement into the policy, it means that if a student's decision not to have sex with his or her partner is motivated by a desire to make that partner feel bad, then that choice is invalid -- and potentially punishable.

To be clear: The way this policy is written, there theoretically exists at the University of Michigan some circumstances in which not consenting to sex is against the rules.

This is utterly unconscionable, and, frankly, insane. It is the absolute last message we should be sending to college students. It is especially surprising considering many advocates' recent focus on the importance of obtaining enthusiastic consent. No one is ever entitled to sex.

Also troubling is the policy's mention of "criticizing the partner sexually." Unless such criticism is part of a pattern of behavior that constitutes harassment, or unless the statements constitute defamation or an invasion of privacy, students cannot be punished for speech just because it might hurt their partners' feelings. It's horrifying even to contemplate how the university would investigate sexual criticism among students.

Draplin wrote that university spokesman Rick Fitzgerald offered two points in defense of the policy. First, he "said the abuse definitions on the website are not used to arbitrate campus sexual assault claims." But a link on the same page as these definitions is a link to "Guidelines." The guidelines restate some of the terms and definitions on the "Definitions" page and then state:

"Students who threaten, harass or abuse anyone are subject to the University judicial process through the Statement of Student Rights and Responsibilities."

With respect to Mr. Fitzgerald, talk is cheap. The fact is that students who take the time to read the website will be left with the reasonable expectation that they will be subject to discipline if they are found to have committed sexual "violence" as defined by the university in the provision quoted above.

Fitzgerald's second defense was that the policy's definitions should be considered in context:

"The definitions of behaviors of violence... describe most accurately what occurs in an abusive relationship," he said in an email.

Those behaviors not in the context of violence are not abusive. A reader of this site would recognize that it's described as one behavior in the context of a pattern of behaviors to maintain power and control over an intimate partner.

Is that right? No. A reader of the site would, in fact, see its warning that "[d]omestic violence can be a single act." And it is easy to see how a normal (though obviously not ideal) pattern of behavior could fall under this policy.

Maybe students do know what sexual violence really looks like. But in that case, why bother having a policy at all? What this overboard policy does is allow for selective enforcement and disciplinary action against students who haven't done anything morally or legally wrong. It should not reassure students to hear from a university official that the written definition of "sexual violence" is not actually a complete and precise one. Due process requires that students have notice of what behavior is prohibited, and this policy either fails to provide that notice (if one believes Fitzgerald) or provides an indefensible set of rules. Neither option is acceptable.

Sadly, some readers might not even be surprised that this policy exists. Already this fall, the Foundation for Individual Rights in Education (FIRE, where I work) has reported on Ohio State University's requirement that partners agree on why they are having sex, and the University of Missouri's statement that asking someone to engage in a sexual act (that is, asking for consent) "will not be tolerated." These sloppily-drafted rules are the result of universities scrambling to be seen as institutions that take seriously the issue of sexual assault and harassment, but in fact failing to take it seriously enough even to write a coherent policy.

The University of Michigan should be embarrassed that in this case, its desire to keep students safe has resulted in a policy that tells its students what they can't say to or keep from their partners.

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