Sexual assault

Commenter HH disagrees with my condemnation of Nancy McDermott's essay, The Triumph of the Maternalists:

I would have to disagree with your evaluation of that article. Some of it is a bit of a strech but the general charge seem reasonably solid.

The way in which sexual assault is handled now on some US campuses is just ridiuclous. It seems a trading of the rights of the accused because more convictions are desired.

HH is, I think, mistaken in three ways.

First, granting arguendo that some US campuses handle sexual assault in a ridiculous manner, such a premise does not prove the author's thesis that we are somehow destroying autonomy, rationality, or Enlightenment values. People and institutions do stupid shit all the time without destroying civilization as we know it.

Second, I don't know that any US campus actually does handle sexual assault in a ridiculous manner. I'm not saying I know they don't, but I've never seen a news report of anyone unjustly accused or convicted of sexual assault on a college campus. (Note that unjustly convicted is different from wrongly convicted.) I have, however, seen a fair number of news reports where rather obvious sexual assault was un- or under-prosecuted, and the victims harassed and bullied for reporting the assault. I could be swayed by evidence here, but I haven't yet seen it.

The most important mistake, however, is a fundamental misunderstanding of what colleges and universities are. I touched on this point in my previous commentary, and I want to expand it now.

A university is not a commons; it is a professional environment. Every professional environment has norms and standards that go beyond universal legal norms. McDermott highlights one such norm: Maternalistic authoritarianism

has so imbued the culture of American college campuses that students accused of sexual misconduct are routinely deprived of their rights, considered guilty until proven innocent, deprived of representation and not permitted to give evidence on their own behalf. The Office of Civil Rights, the US government’s oversight body governing Title IX (the provision that banned discrimination on the basis of sex), recently praised the University of Montana’s definition of sexual harassment, which was so broad it included verbal conduct regardless of the intention of the speaker or whether anyone was offended. The Office of Civil Rights called this a ‘blueprint’ for other policies around the country.

As I said before, I've seen no evidence that students are ever, much less, routinely deprived of their rights. (What makes McDermott's article atrocious is that she presents a controversial position as established fact.)

McDermott juxtaposes her charge of deprivation of rights with a mention of the University of Montana's definition of sexual harassment and the Office of Civil Rights' approval. But the university's definition has nothing to do with any procedural rights mentioned in the preceding sentence. More importantly, the university's definition is completely appropriate for a professional environment. People in a professional environment assume obligations to the other members that go far beyond the negative legal limitations and procedural requirements applied to autonomous citizens in the commons. When people join a professional organization, they must necessarily surrender part of their individual autonomy: they must work toward not their own personal goals, but toward the goal of the organization or institution.

I can write the most vile and hateful opinions on this blog, and the United States and my own state will not lift a finger to punish me. If someone brings a criminal charge against me, they must satisfy procedural and substantive requirements before the court will punish me; even if I did the deed, if it cannot be legally proven, I will not be punished. If, however, I were to write vile and hateful things about my coworkers, my employer would be perfectly justified in firing me not for committing a crime, but for violating the basic standards of professionalism. And if one of my coworkers and I have a conflict, my employer must resolve the conflict; they cannot just say (as the court can say), "Not proven: work it out yourselves." Finally, my employer has to maintain a professional environment, even if a specific act does not actually harm anyone. Even if nobody really cares, I cannot walk into work in raggedy cutoffs and a dirty tank tee-shirt. (Yes, it is true that in a capitalist society, employers and other organizations routinely leverage their legitimate right to maintain a professional environment to oppress their workers, but the necessity of a professional environment still stands.)

When you enter any professional environment, you have a positive obligation to learn what it means to be a professional in that environment, and you have a positive obligation to act professionally. Ignorance is no excuse, and lack of specific harm is no excuse.

We have dismantled the legal structures barring women from fully participating in civil society. Women may not be legally barred from any occupation or any social role. However, although we have dismantled the legal barriers, there are still profound social barriers that push women out of many areas of civil society. The most egregious of those social barriers is sexual harassment. Because it tends to discourage women from full civic participation, it is intolerable. If you do not know that sexual harassment is a real problem, you are not merely ignorant, you are willfully ignorant. If I have offended you, good.

It doesn't matter if you did not intend to harass your coworker when you said to her, "Nice ass!" It doesn't matter that that particular women did not take offense at your comment. The comment itself is still unprofessional. If you worked for me, and I heard you say that, even if I didn't fire you on the spot, you would have to eat a ton of shit to keep your job. If you think I'm an asshole for that stance, good. I like being an asshole to sexist douchebags.

(McDermott also condemns California for restricting certain legal procedures, "the right [of victims] to refuse interview, deposition or discovery requests" from defendants charged with rape. But our legal procedure was not handed down by God. Equality under the law does not depend on every crime having the exact same set of procedural guarantees, especially when there is overwhelming evidence that procedures such as interviews, depositions, and discovery have been used not to seek justice but to harass, intimidate, and discourage women from prosecuting accusations of rape.

Here's a tip for you guys: if you think it's consensual, but the situation might be misconstrued as assault, DON'T HAVE SEX WITH HER. If you don't trust her not to fabricate a charge of rape, DON'T HAVE SEX WITH HER. If you think these standards will prevent you from ever having sex again, hold a seashell to your ear: you will hear the voices of 3.5 billion women breathing a sigh of relief and gratitude.)

We men, with our privilege, have the positive obligation to bend over backwards to include women in civil society. If you do not accept this obligation, then fuck you. The only "right" you're losing is the right to treat women as less than human beings.