Thursday, August 22, 2019

Campus Sex Bureaucracy And Sex Totalitarianism / "The Revolt Of The Feminist Law Profs"

   Writing in the California Law Review, Gersen and her husband Jacob argued that the creation of a “sex bureaucracy,” as the title of that article christened the system of administrative oversight of student sex lives, entailed “the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others.” The Gersens go on to note that “watered-down notions of nonconsent” embedded into regulation allowed “ambivalent, undesirable, unpleasant, unsober, or regretted sexual encounters to meet the standard.” The system thus “will investigate and discipline sexual conduct that women and men experience as consensual (if nonideal) sex.” The conduct deemed illegal, the Gersens wrote, “plausibly covers almost all sex students are having today.”
   These expansive definitions of wrongdoing were paired with an adjudication system lacking nearly every aspect of fair process. “In recent years, it has become commonplace to deny accused students access to the complaint, the evidence, the identities of the witnesses, or the investigative report, and to forbid them from questioning complainants or witnesses,” Gersen noted in a recent piece in The New Yorker looking back at the changes wrought by the Dear Colleague letter.
   The sex bureaucracy, in other words, pivoted from punishing sexual violence to imposing a normative vision of ideal sex, to which students are held administratively accountable. Georgia Southern University, for instance, explains that “Consent is a voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement.” The California Law Review article culminates in a discussion of a case in which a gay male student was found responsible for sexual misconduct for waking his partner with a kiss (the sleeping cannot consent) and for looking at his partner’s genitals without consent while showering (consensually) with him. 


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