Fornication. Sodomy. Adultery. Not so long ago, the U.S. criminalized pretty much all sex outside of marriage. As these laws have been struck down by courts or allowed to settle into obsolescence, it would seem that sexual liberty has been vindicated as an important American value. But while the courts have been busy ushering the government out of our bedrooms, it's been creeping right back in under new pretenses. Gone is the language of morals, tradition, and order—the state now intervenes in our sex lives bearing the mantles of safety, exploitation, and sex discrimination.
"We are living in a new sex bureaucracy," warn Harvard Law School professors Jacob Gersen and Jeannie Suk in an upcoming paper for the California Law Review. Contra court decisions such as Lawrencev. Texas—which decriminalized sodomy in Georgia and affirmed a constitutional right to sexual privacy—"the space of sex" is still "thoroughly regulated" in America, they write. And "the bureaucracy dedicated to that regulation of sex is growing. It operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."
Gersen and Suk's paper, titled "Bureaucratic Sex Creep," is mostly focused on federal overreach with regard to colleges and student sex lives, though they say this is only one realm of such regulatory creep. In great detail, the authors trace the roots of how the feds came to be in the business of encouraging "enthusiastic" sexual communication between teenagers and how everything from forcible rape to unwelcome comments between students became the prerogative of Washington paper-pushers and campus "Title IX coordinators." This "bureaucratic turn" may be "counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment," they warn, while also depriving due process to the accused and encouraging bizarre new sexual norms overall.
The All-Purpose Title IX
When President Richard Nixon signed the Educational Amendments of 1972, thereby unleashing Title IX upon the country, women were still up against some seriously discriminatory practices by U.S. universities. At the University of Virginia, for instance, women were totally excluded from enrolling in the College of Arts and Sciences until 1970. At Georgetown University, married women were barred from attending the school's nursing program. Title IX, which said that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," was concocted as a remedy for such institutionalized discrimination.
The U.S. Supreme Court has described Title IX as "conditioning an offer of federal funding on a promise by the recipient not to discriminate." Under the Civil Rights Restoration Act of 1988 (which was passed despite President Ronald Reagan's veto), all schools receiving any federal financial assistance, whether directly or indirectly, were declared to be bound by Title IX.
By the mid-1970s, the conversation about Title IX and its enforcement largely centered on the elimination of sex discrimination in school athletics programs. This remained a major focus of the law's enforcement throughout the 1990s.
Yet eventually, "grievance procedures initially required … to ensure that individuals would have a place to complain about a school's discrimination have today become a lever by which the federal bureaucracy monitors schools' policies and procedures regulating sexual behavior," write Gersen and Suk in their paper. "How did this come to pass?" It turns on the concept of a "hostile environment." In the 1990s, for a variety of reasons, schools came to understand sexual harassment to be a form of sex discrimination, under the theory that it could make the educational environment "hostile" to the person being harassed.
"The concept of a 'hostile environment' that the school had a responsibility to correct, then, enabled Title IX—a command to schools not to discriminate—to reach not only the conduct of the school and its agents, but also student conduct," Gersen and Suk explain. Colleges started "recast(ing) the grievance procedures as a forum for schools to hear complaints about harassing conduct by students" toward other students.
In recent years, the understanding of school obligations under Title IX has morphed again. In 2011, the Office of Civil Rights (OCR)—the arm of the Department of Education tasked with Title IX upkeep—started including "sexual violence" as a form of sexual discrimination. Until this time, schools handled sexual violence in a variety of ways, with some encouraging students to go directly to police and others more reliant on their own administrative proceedings. But whatever tack schools took, the issue of student-on-student sexual violence was not seen as one related to sex discrimination and Title IX compliance. In issuing compliance guidance to the University of Montana in 2011, however, the OCR stated that any sexual misconduct investigations and disciplinary actions "must meet the Title IX requirement of affording a complainant a prompt and equitable resolution." The guidance made explicit "that a school's discipline process for sexual assault is regulated by OCR's interpretations of Title IX," write Gersen and Suk.
"This is a very significant, even fundamental, shift in OCR's position.
As recently as 2005, OCR stated to a school that it 'was under no obligation to conduct an independent investigation of an allegation of sexual assault if it 'involved a possible violation of the penal law, the determination of which is the exclusive province of the police and the office of the district attorney.'"
Blurred Lines & Bureaucratic Immunity
"Between 1972 and 2011, a statutory ban on discrimination was transformed into a bureaucratic structure consisting of policies, procedures, and organizational forms that regulate sexual conduct," state Gersen and Suk plainly. If adjudicating student sexual misconduct was essential for schools to be Title IX compliant, than OCR suddenly had a new realm to play in: micromanaging and monitoring this adjudication progress.
To this end, the OCR began offering its own definitions of things like sexual harassment, sexual violence, and affirmative consent and strong-arming schools into accepting these definitions as their own. But the definitions leave much to be desired. If you've read any critiques of campus sexual assault stats in the past few years, you probably know that much research in this area if plagued by vague and confusing definitions and conflation of everything from "unwelcome comments about appearance" to violent sexual assault. (You can find some of my previous critiques of this here, here, and here.)
The root of the confusion lies in federal government guidance. For instance, here's a definition the White House offered universities in a model survey on campus sexual violence:
Sexual violence refers to a range of behaviors that are unwanted by the recipient and include remarks about physical appearance; persistent sexual advances that are undesired by the recipient; unwanted touching; and unwanted oral, anal, or vaginal penetration or attempted penetration. These behaviors could be initiated by someone known or unknown to the recipient, including someone they are in a relationship with.
As Gersen and Suk note, "the public debate about Title IX and sexual assault on college campuses gives the impression that the target of this bureaucracy is sexual violence: that is, rape and sexual assault." But the federal government's concept of sexual violence has expanded to include all "unrequested conduct of a sexual nature that is regarded by someone as undesirable."
"These are significant shifts in legal and social understandings," write Gersen and Suk. "The broader the class of conduct that is regulated in the name of regulating sexual violence as a form of sex discrimination, the larger the footprint of the growing sex bureaucracy."
Meanwhile, the federal sex bureaucracy has also found a way to insulate its actions from normal channels of scrutiny.
The 2011 OCR guidance, which came in the form of a "dear colleague letter," was not necessarily binding. But "because the threat of lost federal funds [for non-compliance with Title IX regulations] is a big stick to wield, and because the political climate makes being seen as not opposing sexual violence a public relations nightmare, all universities have complied rather than challenge OCR's actions even administratively, much less in litigation," Gersen and Suk note.
"As a result, the agency achieved complete compliance with its nonbinding guidance document without ever having to defend its reasoning through public comments or judicial review."
Had the OCR gone through the normal rule-issuing process, "unfair aspects could be challenged as a violation of due process requirements of the federal Constitution or as arbitrary and capricious," the Harvard law professors explain.
But when a private institution adopts the very same procedures, there is no federal due process claim because it is not the government acting, nor is there an [Administrative Procedure Act] claim to be made. There is a plausible argument that the government's defunding threat coerces adoption of its preferred procedures and therefore constitutes state action to which due process requirements attach. But as of this date, this claim has not succeeded in court. Thus, the off-loading of government responsibility to new mini-bureaucracies inside schools has made it difficult to subject the federal sex bureaucracy to judicial scrutiny.
Department of Sex Pre-Crime
Under the OCR's 21st century interpretation of Title IX, it is no longer enough for schools to avoid institutionalized sex discrimination.
"OCR now says that compliance with Title IX requires schools to put in place measures that 'may bring potentially problematic conduct to the school's attention before it becomes serious enough to create a hostile environment,'" Gersen and Suk explain in their paper. "Compliance is not merely about putting an end to a hostile environment but also about anticipating and ferreting out 'problematic conduct' that has not yet developed to the level of hostile environment."
In order to meet these demands, schools have been 1) hiring more Title IX coordinators and creating dedicated Title IX compliance offices, 2) pouncing on every Title IX complaint by students, no matter how unfounded, with utmost seriousness, and 3) talking to students a lot about how they should be having sex.
With the first response, "the sex bureaucracy has managed to plant seeds of its own replication within the parties it regulates," write Gersen and Suk, "and the plants are blossoming." The Association of Title IX administrators now has more than 1,400 members.
"In essence, these are privately administered bureaucracies mandated by the federal bureaucracy, deciding liability for sexual conduct that is called criminal but may not be even a civil wrong. Thousands of these mini-bureaucracies now exist," they point out, "occupying an uneasy space between the criminal and the administrative."
This has serious implications for academic freedom, as many U.S. professors have recently found out. The quintessential case is Laura Kipnis, a Northwestern University professor whose Chronicle of Higher Education article criticizing Title IX was itself reported as a possible violation of Title IX; other professors who stuck up for Kipnis also found themselves under scrutiny. But many such instances exist—for more examples, see this recent report from the American Association of University Professors. Given the broad new definitions of sexual of harassment and schools' uber-sensitivity to Title IX compliance, we have both professors and students under investigation for conduct that most people wouldn't blink an eye about. We also have college administrators eager to nip potential claims off at the bud by prescribing to students good sexual etiquette.
Again, OCR has offered guidance here, suggesting that schools address "risk factors" for sexual violence including exposure to pornography, having non-consensual sexual fantasies, or having a "preference for impersonal sex." What this means is that "the federal government requires schools to be involved in constructing sexual norms and putting a stamp of disapproval on sexual practices like impersonal sex, pornography consumption, and sexual fantasies," Gersen and Suk note.
The feds also require schools to engage in "bystander intervention" training programs. The White House Task Force to Protect Students from Sexual Assault explains that sexual bystanders "are a key piece of prevention work." But by bystanders, the government doesn't mean people who actually witness sexual assaults in action or about to occur. Rather, these programs are focused on teaching students about alleged signs that someone is in a risky relationship or that someone may hold sexual attitudes that make them more likely to commit sexual violence, and then encouraging these students to intervene in some way.
"Bystander intervention programs," write Gersen and Suk, "seek to produce the sense that we are all implicated in the sexual environment and in proto-sexual interactions taking place around us. Responsibility for the potential sexual interactions surrounding us belongs to us all. There are no innocent bystanders, and perhaps no fully innocent interactions, because non-problematic sexual behaviors can become problematic. We all must monitor the sexual environment to see if we can investigate and intervene. We are all part of the sex bureaucracy."
Shaping Sexual Norms
Most of us probably wouldn't classify a single unwanted kiss, caress, or remark as sexual assault. But these are included in many modern reports about sexual violence at college, thanks to definitions and model "campus climate" surveys provided by the White House. In spreading these definitions, the government doesn't just ensure that we get surveys showing epidemic levels of sexual violence on campus but also helps shape young people's sexual views.
"To the extent that sexual climate surveys educate students about what (the surveyor or government believes) sexual misconduct is," write Gersen and Suk, "these instruments are another part of the sexual education and reform program, altering (not merely measuring) understandings about what sex is ordinary and what sex is misconduct. The survey pushes these understandings in a particular direction—toward more expansive definitions of sexual violence."
The professors suggest that the federal bureaucracy's concept of sexual violence echoes that of second wave feminist Catharine MacKinnon, who said in 1987: "Politically, I call it rape whenever a woman has sex and feels violated."
The American Association of Universities (AAU) adopted definitions similar to those used by the White House when conducting a large 2015 study on sexual violence at U.S. universities. But the language of the survey jumps back and forth between non-consensual and unwanted frequently when describing sexual misconduct, eliciting the idea that sexual violence turns not on any objective actions on the part of the "perpetrator" or the "victim" but on how the latter feels about it deep in his or her heart.
In both the White House and the AAU surveys, "'unwanted simply becomes the marker of sexual violence," Gersen and Suk write.
Consent, as a word and as a concept, fades. In terms of data reliability, treating these terms in the same breath has the effect of measuring the incidence as an aggregation of nonconsensual and unwanted sexual contact. More importantly, it contributes to individual and ultimately social understandings that unwanted is the same thing as nonconsensual—that we should feel similarly about unwanted sexual contact and nonconsensual sexual contact.
"We have seen notions of nonconsent transform rapidly, from traditional criminal notions of overcoming resistance and acting against someone's will, to regulatory notions of a lack of affirmative agreement, to unwantedness and undesirability," point out the Harvard Law professors. "The consent line moves further with each crop of students across the country taught that they should seek not just agreement to engage in sex but also enthusiasm and excitement."
To try and quash ambiguity, schools and advocacy organizations began stressing to students that a lack of resistance or objection cannot be counted as consent. As this idea gained traction, people began suggesting that out of an abundance of caution, it wasn't enough not to hear a no from a partner, one should focus on obtaining an affirmative (verbal or otherwise) indication of agreement. "Only yes means yes."
But it turned out this didn't change much—students are still super confused about consent (in one study, half of MIT students said it's possible to "accidentally" rape someone). And students were still reporting to schools incidents where one believed the other had indicated agreement and the other did not. So the new line became "enthusiastic" consent. Now students are told that it's not enough for a partner to indicate that something is OK or merely say yes meekly. Now, the consent must be "enthusiastic," "excited," etc.
"Very rapidly," point out Suk and Gersen, "the consent line shifted again in many places to make enthusiasm a requirement of consent itself—anything less than enthusiasm is sexual assault. At each point, an attempt to remain a healthy distance from the cliff's edge results in a change in where the cliff is." With the blurring of the definitions of consent and sexual violence, there's now "a significant disconnect between the current discussions in our country about the epidemic of campus rape" and the activity that is "now routinely investigated as sexual misconduct," Gersen and Suk conclude.