What university sexual assault policies really say

Via Daily Nous, Michael Tooley [Correction: Daily Nous has updated their post to say that the article is written by one James Murphy, but hosted on Michael Tooley’s website] has written an account of the ongoing issues at the Colorado philosophy department. And while I’m not going to touch any of the claims about the department or its members with a ten foot pole, I do want to comment on the backdrop that Tooley Murphy provides for his discussion. Tooley Murphy argues that universities have adopted increasingly expansive definitions of sexual assault which criminalize many normal sex acts and sexual situations. He writes:

And it’s worth commenting on this, I think, because it’s worth being clear on what university sexual assault policies actually say. This is the full context of the quote from the National Women’s Health Information Center:

Sexual assault and abuse is any type of sexual activity that you do not agree to, including:

Inappropriate touching
Vaginal, anal, or oral penetration
Sexual intercourse that you say no to
Rape
Attempted rape
Child molestation
Sexual assault can be [emphasis added] verbal, visual, or anything that forces a person to join in unwanted sexual contact or attention. Examples of this are voyeurism (when someone watches private sexual acts), exhibitionism (when someone exposes him/herself in public), incest (sexual contact between family members), and sexual harassment.

The intent in the above passage is clearly not to suggest that any unwanted sexual attention counts as sexual assault.

The quote provided from Notre Dame University is not from their sexual assault policy. It is from a website dedicated to discussion of student wellbeing:

Most states are consistent with a definition of rape. In Indiana, rape occurs when a person knowingly or intentionally has sexual intercourse, defined as an act that includes any penetration of the female sex organ by the male sex organ, when the other person is compelled by force or imminent threat of force, is unaware that the sexual intercourse is occurring, or is so mentally disabled or deficient that consent to intercourse cannot be given. (Being unaware due to intoxication and being mentally disabled or deficient includes intoxication by alcohol or any other drug)

It is important to realize that agreement given while under the influence of alcohol or other drugs is not considered consent. Consent cannot be inferred from silence, passivity, or lack of active resistance.. . .

If the victim is intoxicated she/he may [my emphasis] not be capable of giving consent.

And here is what their actual sexual assault policy says, to clarify this:

Intoxication is not an excuse for failure to obtain consent.

An incapacitated person is incapable of giving consent.  A person is incapacitated if that person is in a physical or mental state such that he or she lacks the ability to make a knowing and deliberate choice to engage in the sexual interaction.  For the purposes of this policy, a person who is asleep or unconscious is incapacitated, without exception.  A person may also become incapacitated due to other factors, which may include the use of alcohol and/or drugs to such a degree that the person no longer has the ability to make a knowing or deliberate choice to engage in the sexual interaction.  When the question of whether the complainant was incapacitated is at issue, the perspective of a sober, reasonable person in the position of the respondent will be the basis for determining whether the respondent should have known that the complainant was incapacitated and thus incapable of giving consent.

The quote from the University of Michigan is, again, not from their sexual assault policy. It is from a University of Michigan website which attempts to raise awareness about the complexity of domestic violence and abuse. That quote is from a discussion of the various, complicated ways in which an emotionally abusive person can cause harm.

The University of Michigan’s sexual assault policy defines sexual assault as follows:

Sexual Assault: Unwanted or unwelcome touching of a sexual nature, including hugging, kissing, fondling, oral sex, anal or vaginal intercourse, or other physical sexual activity that occurs without valid consent.

They define consent as follows:

Consent: Clear and unambiguous agreement, expressed in mutually understandable words or actions, to engage in a particular activity. Consent can be withdrawn by either party at any point. Consent must be voluntarily given and may not be valid if a person is being subjected to actions or behaviors that elicit emotional or psychological pressure, intimidation, or fear. Consent to engage in one sexual activity, or past agreement to engage in a particular sexual activity, cannot be presumed to constitute consent to engage in a different sexual activity or to engage again in a sexual activity. Consent cannot be validly given by a person who is incapacitated. For purposes of this policy, the issue is whether the Respondent knew, or should have known, that the activity in question was not consensual.

And they define incapacitated as follows:

Consent: Lacking the physical and/or mental ability to make informed, rational judgments. This may have a variety of causes, including, but not limited to, being asleep or unconscious, having consumed alcohol or taken drugs, or experiencing blackouts or flashbacks.

From the actual wording of these sexual assault policies, there seems to be very limited evidence for Tooley’s Murphy’s claim that:

Instead, most universities allow that, for example, alcohol consumption can sometimes be so extreme as to make consent impossible. They don’t define all tipsily-drunk sex as assault or rape. So, yes, having sex with a drunk person may count as rape – depends on whether they’re so drunk as to be incapacitated.

Tooley Murphy also asserts that:

But it isn’t clear what the evidence for this systematicity is – given that all that is provided is one (widely criticized even at the time) quote from 23 years ago. The protesters at Columbia University, for example, certainly don’t seem to be benefiting from this widespread bias in favor of accusers. Nor do these women at Berkeley. Nor did these women at UConn.