The issue of sexual assault on campuses and how to best combat these incidents is a highly debated topic among legal professionals. How should these crimes be handled and what can colleges do to protect their students?
In this episode of Planet Lex, host Daniel Rodriguez speaks with Northwestern Pritzker School of Law Professor of Law Deborah Tuerkheimer about campus sexual misconduct. Deborah shares that historically universities have not handled issues of sexual assault well and that the significance of the problem is still being assessed as we look at how institutions of higher education respond to these situations. She talks about the 2011 “Dear Colleague” letter issued by the U.S. Department of Education Office for Civil Rights on how campuses should handle sexual misconduct and provides insight into how the document represents a shift in the way the federal government approached the issue. Deborah explains what Title IX is and how it helped establish that sexual harassment can create a hostile environment. In addition to the civil and criminal systems, she discusses what campuses can do to help those affected by sexual misconduct and why disciplinary responsibilities fall squarely on campuses to ensure that affected students are able to continue their education. Deborah closes the interview with her perspective on what else the federal government can do to bring adequate attention to these issues and the impact that the “Dear Colleague” letter has had on our nation’s campuses.
Deborah Tuerkheimer joined the Northwestern Pritzker School of Law faculty in 2014 after serving as a professor of law at DePaul University since 2009. Professor Tuerkheimer received her undergraduate degree from Harvard College and her JD from Yale. She teaches and writes in the areas of criminal law, evidence, and feminist legal theory. Her book, “Flawed Convictions: ‘Shaken Baby Syndrome’ and the Inertia of Injustice,” was published by Oxford University Press in 2014. She is also a co-author of the casebook “Feminist Jurisprudence: Cases and Materials” and the author of numerous articles on rape and domestic violence. After clerking for Alaska Supreme Court Justice Jay Rabinowitz, she served for five years as an assistant district attorney in the New York County District Attorney’s Office, where she specialized in domestic violence prosecution. Tuerkheimer was elected to the American Law Institute in 2015, an esteemed group of judges, lawyers, and legal scholars dedicated to the development of the law.
Planet Lex: The Northwestern Pritzker School of Law Podcast
Sexual Misconduct on Campus
Intro: Welcome to Planet Lex. The podcast of Northwestern Pritzker School of Law with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away, Dan.
Daniel B. Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex, podcasting from the Northwestern Pritzker School of Law in Chicago, Illinois. My name is Dan Rodriguez, your host.
My guest today is Professor Deborah Tuerkheimer, one of my colleagues. Her research focuses on criminal law, evidence and feminist legal theory.
Deborah’s book, ‘Flawed Convictions: “Shaken Baby Syndrome” and the Inertia of Injustice,’ was published in 2014. She is also a co-author of the casebook on ‘Feminist Jurisprudence: Cases and Materials’, and the author of numerous articles on rape and domestic violence.
Before Deborah became a Law Professor she served for five years as an Assistant District Attorney in the New York County District Attorney’s Office where she specialized in Domestic Violence Prosecutions.
She was elected to the American Law Institute in 2015, and she is an adviser to the project on sexual and gender-based misconduct on campus project. Later this month, she will participate in the New York Times Higher Ed Leaders Forum. So I am delighted to have Professor Tuerkheimer with us today. So welcome.
Deborah Tuerkheimer: Thank you very much. I am glad to be here.
Daniel B. Rodriguez: Sadly, not a day goes by where there isn’t more news, information, salacious or otherwise about the predicament and the problem of campus sexual assault. In 2014, The White House, the Obama Administration issued a set of guidelines for dealing with sexual misconduct on campus under Title IX and outed as it were 55 college campuses: Harvard, UC Berkeley, and a gust list of campuses, a list not to be on to be sure of universities that had not been dealing adequately with matters of sexual assault on campus.
In 2015, there was the release of a quite influential documentary film, ‘The Hunting Ground’, which detailed as a documentary problems of sexual assault in university campuses, and yesterday, Baylor University, the President was fired or I suppose demoted, technically speaking the football coach was fired, all of which stemmed from a report issued that detailed, in excruciating detail problems of sexual assault on that campus. So what’s going on? Give us a sense of the nature and the scope of this problem that we read about and talk about on a regular basis.
Deborah Tuerkheimer: Well, it is a huge problem, and I think that the significance of the problem is still being discovered as we look closer at universities and their responses to this.
At the same time, I think that this response is evolving, and we are very much in a period of flux. We now understand that historically universities were not dealing well with this issue, but I don’t know that we have yet kind of hit upon the right balance between aggressively pursuing complaints of sexual assault and sexual misconduct and ensuring that those accused of this kind of misconduct and these kinds of crimes are given the process that they are due. So this is a moment I think of very much transition.
Daniel B. Rodriguez: So this is the moment. So I have detailed what’s happened over the course of the last three years. Of course, much more has happened than what I described. But there’s a certain sense one might have certainly the uninitiated that, well, something happened in 2014, and all of a sudden comes the Obama Administration to the rescue as it worked to help, solve in more direct ways this problem of sexual assault on campuses, but the problem didn’t begin in 2014. I don’t know it from your work and the work of others, there was a sense that something happened so significantly that particular year that occasioned this. So what explains this burst of public and governmental attention to what has certainly been a problem for a long, long time on our college campuses?
Deborah Tuerkheimer: I guess I want to talk about a few factors. One, we need to go back to 2011, this was the year that the Office of Civil Rights (OCR) issued what’s known as the Dear Colleague Letter, which really sort of changed in many ways I think how the Federal Government was treating this issue.
So what we already knew, even before 2011, is that sexual harassment can create hostile environment, and so, when one student would sexually harass another that would constitute a violation of Title IX.
Daniel B. Rodriguez: Well, can I just jump in on that, so our listeners understand kind of the framework. When you say that we knew that from years before, it’s not simply is a description of what sexual harassment or hostile environment is in the abstract, these are legal phrases of art. So could you tell us a little bit both about what Title IX is, but also how it is we came to know the sexual harassment, it could create a hostile environment.
Deborah Tuerkheimer: Yeah. So Title IX comes out of the 1972 education amendments. It prohibits sex discrimination in institutions of higher education that receive Federal Funding. So that’s sort of the basic premise.
Pioneering work by feminist legal scholar Catherine McCann, I think, led to this understanding that sexual harassment can be discrimination, sex discrimination. And so that really changed the way that courts approach this issue and ultimately change the way OCR approach the issue.
Daniel B. Rodriguez: Deb, can you talk a little bit more about precisely what has been the impact on our nation’s college campuses of the Dear Colleague Letter and the efforts on the part of OCR and the Obama Administration?
Deborah Tuerkheimer: I think it’s been revolutionary. I mentioned that there was activism leading up to the issuance of the Dear Colleague Letter as I understand it. But perhaps even more importantly we’ve seen just dramatic, dramatic activism and student efforts around this issue post 2011 when the Dear Colleague Letter was issued.
So, in 2013, you have two UNC students filing a Title IX complaint that’s really become sort of a model in this area. These students became activists, they formed End Rape On Campus, Know Your IX. Another organization was formed by an Amherst student and a Yale student, and these groups have really worked hard to keep this issue front and center. They have done policy activism, they have helped students on campus know their rights, and so I think there is catalytic effects here, and that the Dear Colleague Letter really catalyzed this student activism, at the same time, students are doing everything possible to ensure that OCR keeps pushing here.
Daniel B. Rodriguez: This may be completely off-the-wall, but let me ask you this. Do you think that wave of student activism that grows directly out of this movement to combat sexual harassment, sexual assault is contributing some ways to the larger wave of student activism that we have seen truly in the last couple of years on a number of issues; Black Lives Matter, Safe Spaces and Microaggressions, I mean the whole panoply of student activism.
Deborah Tuerkheimer: I wouldn’t venture to make a claim as to cause an effect, but I do think it’s interesting to observe that this is happening on a much wider level too, and that students are very much engaged in what’s happening on campus in ways that administrators are confronting daily.
Daniel B. Rodriguez: And Title IX again, although enacted in 1972, it’s remarkable from again, focusing on the timeline that three decades go by before a presidential administration really focuses all the muscle of the Federal Government on these particular issues. Was there a back story to that in some ways that explains why it emerged really as recently as two years ago that the administration — well, actually, in your timeline, five years ago, really focused its energies on this problem?
Deborah Tuerkheimer: Well, I think that this is an issue that advocates for survivors were pushing on. My understanding is that there was quite a bit of movement behind the scenes to sort of get this issue front and center.
Again, in 2011, this really did become central to OCR’s approach to the problem. So as I said we already knew that sexual harassment could create a hostile environment, but in this Dear Colleague Letter in 2011 OCR made very clear that a single instance of, for instance rape, could also be sufficiently severe to create a hostile environment. And so, whether schools knew it or not, this was going to give rise to a duty so to speak to eliminate the harassment, to prevent its recurrence and to address its effects. So schools were placed on notice in 2011 if they weren’t on notice before, that this was a problem that OCR was going to take very seriously and there were some very specific requirements outlined in this Dear Colleague Letter that OCR has since been very aggressive about enforcing.
Daniel B. Rodriguez: Let me ask you a question about the prevalence. In the documentary that I mentioned at the beginning of the introduction, ‘The Hunting Ground’, much is made of the statistic that one sees not only in the literature but in the press, one in five women, it is said, will be sexually assaulted during the course of their time in college. I take it that that’s a very controversial statistic, but at the same time it’s been extremely impactful in one mention; what do you make of that?
Deborah Tuerkheimer: Well, it is controversial, and depending upon how the question is asked, so what is the definition of sexual assault or sexual misconduct that say survey respondents are being asked to address depending on who is asking the question you get different numbers.
And so, the one in five has been very much attacked by folks who believe that that overstates the extent of the problem, but even more recent surveys by organizations like the American Association of Universities has found that this is quite a significant problem. If it’s not one in five, it’s a big enough problem that no one is suggesting we ought not to be concerned about it.
Daniel B. Rodriguez: Is the problem worsened? Is the folks who study this suggest that the number of sexual assaults using whatever the definition is growing in our college campuses?
Deborah Tuerkheimer: I haven’t seen evidence to that effect, I think that what is happening is that we are becoming more aware of the problem and that victim survivors are becoming more willing to come forward to report.
In some cases even to identify what happened to them as being sexual assault, where in past years, certainly in past decades I think a lot of this went on and it wasn’t perceived as rape and it certainly wasn’t acted upon.
Daniel B. Rodriguez: So just let me push that a little bit, is that because these crimes, and I want to come back in course of our discussion to really dwell on what it means to say these are or not crimes, but these assaults were not reported or underreported or the college campuses were not dealing with reported instances. I suppose the answer might be, many of those things, but what explains the growing number of reported instances of sexual assault in recent years?
Deborah Tuerkheimer: Right, I think it’s all of those things. I think that in many instances that sense of violation wasn’t fully appreciated, and so, while survivors of some sexual assault might be able to recount with some precision what happened to them, not necessarily was this recognized as a problem that had any kind of solution. And so, these would often go unreported when they did go reported, and this is I think part of the reason that OCR ramped up its efforts.
Schools were doing little to nothing and we’re learning more-and-more about that as survivors come forward and describe what happened in the kind of hostility with which they were met when they tried to find some sort of redress on campus.
Daniel B. Rodriguez: So I want to come back to this documentary in 2015, ‘The Hunting Ground’ and not long after the documentary came out, a number of Harvard law professors signed a letter, a fairly large number of fairly diverse — ideologically diverse group and all that, not only raising some objections to some of the depictions in the documentary but more generally about what they saw as perhaps overreaction and distancing from how to deal with sexual assault issues on campus and the criminal justice system. Could you say a little bit about that?
Deborah Tuerkheimer: Yeah, I mean, I think what happened apparently is that the faculty made a decision not to dismiss this particular student from the law school after the school’s administrative board had recommended that he be dismissed, this is a student by the name of Brandon Winston, who was featured in ‘The Hunting Ground’. So the law faculty — many members of the law faculty believed and wrote a letter to this effect that the film really inaccurately portrayed what had happened.
I think what’s interesting, and you made reference to this earlier, is what happens in the wake of this letter is that the filmmakers write in a statement to the Harvard Crimson and the newspaper on campus that these professors demonstrated public bias in favor of an assailant and that that contributed to a hostile climate at Harvard Law. And so, hostile climate suggests that this might be a problem of sexual harassment. Sexual harassment is defined at Harvard as unwelcome conduct of a sexual nature including verbal conduct that is sufficiently persistent, pervasive or severe as to create a hostile environment.
So I want to be clear that as far as I know there was never a complaint of sexual harassment filed with Harvard’s Title IX office but one member of the law faculty Jeannie Suk wrote a fascinating piece in ‘The New Yorker’ suggesting that she’d been told by an administrator that people had inquired about this possibility, raising the prospect of real chilling effects.
Daniel B. Rodriguez: You’ve written a lot about this and most recently in the ‘New York Times’ and let me quote back what you’ve said and may be you can elaborate a little bit on this because this really frames very nicely, your own description of the problem and the imperative of solving the problem at the campus-wide level, you say and I quote: “Institutions of higher education cannot substitute for a functioning criminal justice system, where the interests of the State are vindicated. Nor should they attempt to replicate the civil justice model, in which a plaintiff sues the defendant to vindicate her own interests.”
There is more, but let me just focus on that. So we have in our system now redress of some sorts for individuals who commit crimes. You used the word “rape” before to describe on truly awful species of sexual assault, certainly rape is a crime in every jurisdiction in the United States. The fact that it happens on a college campus does not provide any sort of immunity or protection from a perpetrator of that particular crime.
So there is as it were in the criminal justice system a way of investigating and prosecuting folks who commit those crimes. And just to continue in that quote that I just read there is a civil redress, there are damages available. So we have the criminal justice system, imperfect as it is; we have the civil justice system, imperfect as it is; why isn’t that enough? Why aren’t we talking about reforms to the criminal justice system, the civil justice system rather than talking about things that college campuses should do?
Deborah Tuerkheimer: And I want to make it clear that I think we should be talking about reforms to the criminal justice system as well, but the reason that that’s not enough and we do need to be talking about campus specifically is that Title IX prohibits sex discrimination and really requires institutions to provide educational opportunities that are equal from men and women, and when something like sexual assault or sexual misconduct occurs, there is an obligation to deal with that to ensure that those students are able to continue with their education.
Daniel B. Rodriguez: So let me ask a more specific version of that question. If a campus had what in your view was a comprehensive effort to inform members of its community, students, faculty, staff, what have you, about redress that’s available in the criminal justice system and also redress that’s available in the civil justice system for sexual assaults and sexual harassment, would that meet the standards and the requirements of Title IX of the Civil Rights laws?
Deborah Tuerkheimer: No, it wouldn’t. I mean, OCR has made that clear and I absolutely agree with that guidance. There are interim measures that schools can take to ensure that survivors of say sexual assault are able to proceed to go to their classes, to go to the dining hall, not to see the attacker, perhaps there are counseling needs, perhaps there are special dispensations that schools can give with regard to academic requirements. So a host of issues that really schools and only schools are situated to address.
So yes, I think that there should be more cooperation between institutions of higher ed and local law enforcement, but that’s not going to substitute for the need to really build up an apparatus that can address this problem on campus too.
Daniel B. Rodriguez: One of the objections as you well know, because of course you have been involved in precisely this debate. One of the objections that’s voiced on the part of individuals about moving some of these very difficult issues out of the criminal justice system or if not entirely out of the system then putting them squarely in the hands of college administrators, is that college administrators under the structures of Title IX and other legislators cannot substitute for prosecutors for the structure of the criminal justice system. There are no requirements of due process under law or at least their different requirements; there are no right to counsel. Indeed again, if I could quote you writing ‘The New York Times’ you say and I quote “In the movement to address sexual assault, we should not ask college administrators to become prosecutors or plaintiffs’ attorneys. Nor should we expect academic institutions to compensate for glaring deficits in the criminal justice system’s response to rape on and off campus.”
So what about those objections, that college administrators even well-meaning cannot replicate in any significant way the criminal or even the civil justice system?
Deborah Tuerkheimer: One observation is that some of this misconduct does fall short of meeting the criminal definitions of let’s say rape. So there’s a lot that goes on campus that really does fall squarely within kind of the disciplinary apparatus and for those kinds of cases —
Daniel B. Rodriguez: Could you give an example?
Deborah Tuerkheimer: Sure. So for instance, there may be harassing behavior, stalking like behavior that may or may not satisfy a criminal definition, certainly isn’t rape and certainly it doesn’t involve any kind of physical assault that campus officials may need to deal with and may need to deal with to ensure that a victim of that sort of behavior is able to proceed with his or her education.
So it’s inevitable that administrators I think are going to have to make credibility determinations, administrators are going to have to investigate some of these cases. That said, the endgame is not retribution, the endgame is not punishment for punishment’s sake. This really is a mandate to educate and to educate on both sides.
So what comes out of all this might be expulsion in the most serious cases. It might be suspension, but it might be something that looks very different from what we’ve come to expect of say criminal justice sanctions.
Daniel B. Rodriguez: You pointed out before that now for a number of years that the Federal Government through the Obama Administration has put enormous amount of public scrutiny, and again, the muscle of the Federal Government to deal with these issues. The Dear Colleague Letter sanctions this list of 55 colleges and universities, so you’d imagine that with all of the spotlight trained on colleges that there would be enormous improvement in even the short period of time, but as recently as yesterday, there was sort of the uncovering of a whole web of extraordinary and indeed tragic difficulties and deficits at Baylor University run by the way by an extraordinarily experienced individual Ken Starr in a conspiracy of silence. So I guess my question is, what else could the Federal Government do to get the adequate attention on the part of our nation’s colleges and universities?
Deborah Tuerkheimer: Well, Baylor is an extreme example of what I think the government has perceived as being a very widespread problem. So I think in some ways, it’s an important reminder that this effort on the part of OCR and this effort on the part of advocates to bring sexual assault on campus sort of out of darkness is a really important one. Now as to why this went on at Baylor and even in 2016 this seemed to have been a huge issue. I can’t answer that, I certainly think though that the fact that Baylor commissioned this law firm to write the report is assigned that some of this pressure is actually fruitful. This is now something that is out in the open. People have been talking about Baylor for some time and this is I think comes as no surprise to people who have been following what’s been going on there. But now there has been some accountability and there will continue to be accountability, there are lawsuits pending and I think it’s a slow movement, but again, this is sort of a seismic shift in the way that we are dealing with this problem.
Daniel B. Rodriguez: So actions have consequences, we can certainly see that. So if we regard this as an extreme example, the sweeping under the rug phenomenon, which is a problem, may not be unique to Baylor. There is a different kind of predicament, and that is, well-meaning college campuses and well-meaning administrators who are looking for guidance about how to deal with these particular issues, how to engage in investigation, how to put together processes.
I mentioned before there are no due process protections, well, of course that’s an exaggeration. Colleges aspire to have protections of due process and fair treatment and all of that, and I know that you are actively involved on this project that’s been carried out by the American Law Institute, a group of lawyers looking at legal reform to help us set up a set of guidelines for college campuses to deal with issues of misconduct.
Could you talk a little bit about the promise and prospects of that movement?
Deborah Tuerkheimer: Sure. I mean, the goal is prompt, equitable procedures and fair to both sides. Obviously that is more difficult to realize in practice than it is to aspire to. But, I think everyone involved recognizes that campus tribunals cannot and should not replicate the criminal justice system. That kind of process is simply not realistic in terms of what schools can afford to provide.
That said, we can learn a lot from the panoply of protections that are given to criminal defendants and perhaps import some of what we know of what can lead to accurate outcomes and import those to the campus setting.
So for instance, a few examples, it may not be that cross examination as criminal defendants are entitled to at is what we should have available in these campus proceedings but something that allows for questioning of complaining witness, something that allows a respondent to put questions to his or her accuser might well be needed. The role of advisers, lawyers or non-lawyers, is I think a very difficult issue, because of course, many or most schools cannot afford to provide that kind of counsel to complainants and respondents.
What OCR has made very clear is that there’s got to be equity. So if one has an adviser, the other is certainly entitled to an adviser as well. But this gives you some sense of how complicated all of this is and how difficult it is to establish certainly across-the-board a set of guidelines that’s going to work for small schools and big schools and public schools and private schools, religious schools and non-religious schools. And I think that the track that the ALI Project that you mentioned is on, is exactly the right track and that this cannot be a one-size-fits-all approach.
There are some guidelines that we can talk about and a framework that hopefully will help schools to come up with something that works well, but it’s going to look different from one institution to another.
Daniel B. Rodriguez: Well, let me just press on that, I mean that certainly makes a lot of sense, setting a set of best practices doesn’t mean that again, one-size-fits-all. On the other hand, looking at it from the vantage point of students and staff members who run the risk of going to college campuses and being the victims of sexual assault, it ought not to matter where they happen to go to school about whether or not they can be protected against sexual harassment on campus.
Deborah Tuerkheimer: Well, right, and I think that the idea is that protection is going to be realized and that’s a promise that has to be realized for students, but what it looks like in the particulars may vary. So I think you’re right to say that when someone enters college, the expectation should be that this is an environment where sexual assault is certainly not rampant. We may not be able to eliminate it altogether but we can certainly do a lot at the front-end to sort of educate and to prevent and then on the backend to ensure that universities are taking this seriously and are doing exactly what Baylor didn’t.
Daniel B. Rodriguez: There’s this train of thought as you know among a wide constituency of individuals, many of whom work in university settings, and as it happens many of whom are law professors, a concern about, I wouldn’t necessarily call it the overreaction to the problem of sexual harassment and assault, but the concern that in this day and age where the problem is so significant in which we are searching for answers to what the processes should be that we may in fact disregard individual’s constitutional rights or more generally we might create, and here I have to segue to a professor who works on our campus, although not in our law school, and that’s Laura Kipnis, who wrote a now notorious essay called ‘Sexual Paranoia Strikes Academe’, which I am sure you have read, which makes more than one point, but makes one essential point that this effort to basically clamp down on sexual behavior and sexual predators on campus may profoundly unsettle ordinary human behavior.
So she writes this essay, and as you know, then there is an investigation, a Title IX investigation as it happens in to her writings and then well, all hell breaks loose with respect to that.
So I am not asking you particularly to comment on the Kipnis controversy, but just on this general thread that one hears that we are going overboard and that we really are running the risk of violations to academic freedom and the like by virtue of these efforts.
Deborah Tuerkheimer: I mean, I think some of this falls into the category of backlash against a significant effort on the part of student activists and survivors to sort of reconfigure the approach. I think that some of this is inevitable. The pendulum swings one way, it swings another way, and we are trying to settle on that right balance.
I did want to note that in the wake of this Dear Colleague Letter we saw the growth of organizations like End Rape On Campus, like Know Your IX, these students, activists, survivors have really ensured that this issue has stayed front and center, and that it’s going to be addressed. And so I guess I am not all that surprised that there would also be a significant discussion of whether we are overcorrecting, and I think that that’s a very important question.
I think it’s one that, again, the ALI Project is considering very seriously, how do we strike the right balance, how do we pursue these allegations with vigor and with seriousness, and at the same time protect the rights of those who are accused. I just don’t know that there’s anyone who doesn’t think that that’s a balance that has to be struck and that those rights of the accused aren’t also hugely important.
Daniel B. Rodriguez: There’s an even deeper critique, as you know, and whether it’s voiced most forcefully by Professor Kipnis or by critics of the American Law Institute’s Model Penal Code Project, which I hope you will say a word about or others, and that even more critical thread suggests that all of these efforts are likely to have a chilling effect on, let’s face it, what they regard as ordinary sexual relations among adults on college campuses and in another settings, the over-criminalization of certain behavior and all of that.
So it sort of goes beyond the tradeoff issue and really goes to the heart of whether or not we have gone too far in the direction of the Nanny State, as the saying goes. What’s your take on those critiques?
Deborah Tuerkheimer: Well, I think we see them most acutely arise in the affirmative consent debate and that’s come up, as you mentioned, in the Model Penal Code Reform context. The ALI has a separate project ongoing that deals with reforming the provisions on sexual assault, and there’s been I would say a fair amount of consensus that the force requirement in criminal law, that about half the states retain in some form or another.
Daniel B. Rodriguez: Could you describe a little bit about what that is?
Deborah Tuerkheimer: Yeah, sure. So the force requirement is an element of rape in many jurisdictions and traditionally it was an element of rape, full stop. The idea is that nonconsensual sex alone does not define rape, but rather nonconsensual sex with the use of force is what makes —
Daniel B. Rodriguez: So these as such — obviously these are all awful scenarios, but these are scenarios that distinguishes maybe between someone who is unconscious and has sex versus someone who is, again forcibly, raped and what’s the definition of force and coercion in that context.
Deborah Tuerkheimer: Right. And so we say no means no, but it turns out that in many jurisdictions still saying no and having intercourse happen anyway doesn’t make the intercourse rape; you would have to say no and then have force be used on top of it, some sort of physical force.
And so there’s been a movement, a reform over the past decades, but I think it’s accelerating to eliminate that force requirement, that it’s archaic, and that it really is non-consent that is at the heart of sexual assault.
It’s not to say that everyone agrees, but I think that that’s become less controversial than the question of how we define consent, because of course if you move away from a force requirement, then the definition of consent really does matter a lot.
Daniel B. Rodriguez: And what is the present state of play with respect to the efforts at reforming the Model Penal Code in that regard?
Deborah Tuerkheimer: So the ALI just a few weeks ago, the membership voted against a definition that resembles affirmative consent, it’s not exactly affirmative consent, but I think it’s fair to say that there was enough opposition to the idea of importing that to the criminal law context that the membership did not want to go that route.
I should add that a few jurisdictions, a handful already have affirmative consent definitions on the books. So for instant Wisconsin, Vermont, New Jersey, those are states that actually have criminalized sex without affirmative consent, and the sky has certainly not fallen in those jurisdictions. That said, it doesn’t seem as if at this point — well, certainly the ALI is not poised to move in that direction.
I would say, since we are talking about campus, what’s interesting is to see that affirmative consent definitions have proliferated on campus, and so there really is this disconnect between the way that we are defining rape or sexual assault in the campus setting and the way that we are defining it for purposes of the criminal law. And there may be good reasons for that, but it’s something that I think we should attend to, that at this point there is a growing gulf between the way we are understanding this crime on campus and off of it.
Daniel B. Rodriguez: Well, it brings us back to, as I suggested before, some critics who say that the campuses have gone way too far, and so you hear about this and you can tell me whether this is a common objection that there are some college campuses that in the effort to move toward an affirmative consent requirement are really requiring a verbal statement of yes before sexual intercourse. And that’s been, as you know, widely caricatured and maybe even mis-described with respect to some college campuses, but is it in fact the case that some campuses are moving in that direction?
Deborah Tuerkheimer: No, I don’t think so. I think it’s really easy to parity the concept of affirmative consent, but verbal and nonverbal indications of some sort of willingness to engage in sexual conduct are what these schools are looking for.
Daniel B. Rodriguez: I want to return to the controversy at Northwestern involving Laura Kipnis and particularly her sort of self-description of the experience that she had. And let me begin by saying that truly no one would make or has made an argument about sympathy with individuals who have been found to be guilty, whether under campus procedures or in the criminal or civil justice system of assaults.
What Professor Kipnis says on behalf of individuals who have been subject to Title IX investigations as she argues for her speech is that there really is a tension at the heart of many of these issues involving, not so much harassing conduct, but speeches and writings and all of that, that there is a sacrificing on the part of university’s free speech values.
She says in a piece in The Chronicle of Higher Education entitled ‘My Title IX Inquisition’ that, and I quote, “My Midwestern Torquemadas,” and then goes on to talk about the investigation on the part of the campus.
Again, no interest for our purposes in talking about that particular controversy, but more of a general question, do you think that we are really running a risk of tilting the balance in a wrong direction between free expression and open, unfiltered expression of ideas on our college campuses on the one hand and a certain paranoia, again to use her words, about sexuality and sexual expression on our college campuses?
Deborah Tuerkheimer: I think it’s certainly important to bear in mind that there can be tensions in this area. Now, we know that speech is not absolute, but this is something to navigate. I don’t feel all that worried that the pendulum has shifted too far, that we are tilting too far in the wrong direction, because there was such a need for correction in this area.
So we can take isolated instances and quibble about whether the reaction was right or not right, misguided or not misguided, but I think overall the movement that we are seeing toward addressing this problem is overdue, and as long as we are continuing to have these conversations about what is at stake and keeping the full picture in mind, as Laura Kipnis reminds us to do, I think we will probably settle in the place that we need to settle.
Daniel B. Rodriguez: Professor Tuerkheimer, I want to thank you for being our guest. Before I do that let me put for our listeners a pitch in for her incredible work and also the work of the number of extraordinarily distinguished legal scholars and scholars from other areas about this important issue and thank her for her efforts on behalf of the American Law Institute Project and many other of these developments. It will be not only fascinating to witness, but very important to witness and participate in, as we think about these issues to come. So thank you for being here with us.
Deborah Tuerkheimer: Thank you for having me. I enjoyed our conversation.
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