Sampugnaro: Decriminalizing Consent Violations

All-encompassing definitions of sexual assault can stunt important dialogue.

by Emma Sampugnaro | 5/29/18 2:10am

“There is a difference between regretting a sexual encounter and walking away from an experience feeling violated.”

This was an opinion asserted by Paulina Calcaterra ’19 and Katherine Carithers ’20 in their column “In Response to ‘Yes Means Yes,’” and I passionately agree. I agree with their conclusion that the Dartmouth community must do more to address the power dynamics often absent in discussions about consent. However, I disagree that feeling violated should always constitute sexual assault or that sexual assault policies are heading in the right direction.

Before I go any further, I want to assert that people should take all sexual assault victims seriously. Women who have experienced sexual assault have been treated abominably in the past, especially since private interactions are notoriously hard to prove. Sexual assault against men and the LGBTQA+ community is often taken as a laughing matter.

However, this does not justify the un-American “guilty until proven innocent” mentality people have started to apply to alleged perpetrators. Calcaterra and Carithers’s column states that there is a two to 10 percent chance of false reporting in sexual assault accusations. As they remind us, at least 90 percent of these cases are likely true, but no justice system should settle for a 10 percent false conviction rate.

I would like to clarify that Calcaterra and Carithers do not directly address the legality of taking victims at their word. However, there is a growing sentiment suggesting that that should be the case. Venice Ohleyer ’21 in her column “That One Night We Tried” suggests that Greek houses should “[blacklist] any member who has been accused of sexual violence and [prohibit] them from being around others and alcohol.”

Surely, the reputation of one possibly dangerous individual must be secondary to the safety of the Dartmouth community. Unfortunately, zero tolerance policies almost never beget the intended results. A private institution deprioritizing the rights of the accused does not create a safe and transparent culture. Students in Greek spaces should not fear being falsely accused of sexual assault any more than they should be afraid of being sexually assaulted.

Furthermore, institutional policies surrounding sexual assault are predicated upon clear, universally defined lines. Dartmouth defines sexual assault as “unwanted or unwelcome touching of a sexual nature” or any “sexual activity that occurs without valid Consent.” These textbook definitions assume that consent is always a clear-cut yes or no.

But consent is often messier than the tea-pouring, pizza-sharing cartoons first-year students are shown at Orientation. Most sexual assault activists encourage a dynamic consent that can be withdrawn at any time and maintains continual enthusiasm from both participants. While I agree with this principle, sex is also about compromise, and people commonly engage in sexual activities for their partner’s pleasure with varying levels of enthusiasm. There are nuances that cannot be captured by a zero-tolerance policy.

For example, during a sexual encounter, someone may say, “I’m getting tired, maybe we should stop.” But in the throes of passion, their partner pushes on for another minute or two. The first person withdrew consent — and perhaps “maybe” is supposed to be treated as “no” — but is the situation an unintentional violation of consent or is it sexual assault? Is there even such a thing as unintentional consent violation?

In another example, one person didn’t ask if it was okay to start kissing someone. Still, it seemed obvious from visual cues that they wanted it to head in that direction. Then the person who initiated touched an area of the other person’s body and went too far — even though the other person never specified what was too far. The first person had a responsibility to ask, but did the other person also have a responsibility to tell?

Here’s a non-hypothetical example. When I was in high school, a boy used to drive me home from math club and used his car to encourage other activities. I wasn’t okay with what happened, but I might have said yes at some point. What if his definition of consent was that “yes” means that consent is given, as Jillian Freeman ’21 argues in her column “Yes Means Yes”?

Members of the Dartmouth community should hold each other liable to hear and respect their sexual partners. Still, while the above scenarios are consent violations, should they constitute criminal acts? Mistakes and accidentally crossed boundaries are not sexual assault. People can demand apologies without demanding institutional penalties in every case.

There is indeed a difference between regretting an encounter and walking away from an experience feeling violated — but that feeling of violation does not in itself create a legally actionable definition.

I realize that this is an unpopular opinion. In truth, I wouldn’t even be writing this column if I wasn’t a woman of color. Remember the infamous “You’re Not Tripping” column by Ryan Spector ’19 and the backlash that came with it? Many members of this campus have rendered it an environment that is hostile to dissent.

However, when people are too afraid of undermining historically marginalized groups to critically think about a topic, they stunt the conversation — and that is something this campus cannot afford when it comes to the topic of sexual assault.

Sampugnaro is a member of the Class of 2020.

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