Academic freedom is a longstanding and generally well-supported right. In terms of its underpinnings, the obvious foundation is freedom of expression—the right to express views and ideas without being silenced. In the case of academic freedom, the expression is (obviously enough) in an academic context. It is typically taken as being more than just protection regarding making specific claims in that it is supposed to provide fairly broad protection in such matters as selecting books, developing curriculum and so on. It is also supposed to protect professors (tenured professors at least) from being fired or punished for expressing their views (in legitimate ways—it is not a license to say anything without consequences).
Stereotypically, defenders of academic freedom are seen as leftists. However, in somewhat recent years, some conservatives have come forth to accuse “the left” of restricting the academic freedom of conservative thinkers in accord with the doctrines of political correctness. While such matters are overstated in the usual hyperbole of politics, there are enough incidents of faculty being punished for holding views that are regarded as politically incorrect. For example, Mike Adams was apparently denied promotion to full professor on the basis of his political engagement rather than a legitimate lack in his qualifications. There have also been proposals to use a standard of academic justice to replace academic freedom. While the idea of justice certainly sounds nice, the proposal is to substitute an ideological test in place of the general right—in short, academics could research what they wished, provided that it is consistent with the specific ideology. As might be suspected, I have written at length in opposition to this proposal. There have also been proposals from “the left” regarding trigger warnings and these proposals also provide a potential threat to academic freedom—a subject I have also written about.
While I am typically cast as being on “the left”, I take a consistent position regarding academic freedom—namely that I support it. Since I am consistent, this support extends to fellow professors whose views I disagree with—while I think they are wrong, I hold that they have as much right as I do to express these views. Even when (or especially when) they are regarded as “politically incorrect.”
One interesting problem of academic freedom arises for state colleges and universities. While even for-profit schools receive money from the government, state schools receive funding from the state—as decided by the state legislature. While academic institutes, they are subject to the control of the state government. To use a concrete example, Florida’s state legislature recently passed a law changing the general education requirements for all state schools, thus requiring faculty and administrators to implement the changes.
Given that the state government is (in theory) acting in accord with the “will of the people” and that the schools are funded with state money (that is, the people’s money), it is not unreasonable to believe that the state has the right to impose a degree of control over the schools. A rather important question is the extent to which the state should impose on academic freedom. As might be guessed, people answer this question based largely on their ideology.
As noted above, some of the loudest voices crying out for academic freedom these days are coming from the right. Somewhat ironically, one of the harshest impositions on academic freedom in recent years has come from that same right. To be specific, a senate panel of the Michigan senate banned courses at public schools “that promote or discourage organizing efforts.” The penalty for doing so is $500,000.
The University of Michigan was accused of breaking this rule because it offers courses on the history of labor. State Rep. Al Pscholka (who chairs the house panel controlling higher education funding) said, “I believe in academic freedom, and you’re going to have difficult subjects that you’re going to cover at any university. But this is a case where I think we’re almost encouraging labor disputes, and I don’t think that’s appropriate.” Interestingly, Pscholka praised the Supreme Court’s ruling on the Hobby Lobby case as a victory for religious freedom.
This view of liberty is hardly surprising. As Mill noted in his classic work on liberty, people tend to not operate based on a consistent principle regarding what should be allowed and what should be restricted. Rather, people decide based on what they like and dislike. As such, it is hardly a shock that folks on the left and right praise freedom when it is protecting something they like while being quite happy to restrict freedom when it involves something they do not like. But, as one might say, the law is the law and consistency of principle seems to lack legal weight.
That said, there is still the question of whether the state has the right to make such an imposition. As noted above, one avenue of argumentation is that since the state provides the funding and the schools are public institutions, then the state government has the right to dictate to the universities in regards to the content of their courses.
If this line of reasoning is strong, then this would be a general principle and not one just limited to the Republicans of Michigan wanting to keep courses on labor off state campuses. So if a state legislature passed laws forbidding teaching business courses or courses in religion, then that would be acceptable under this principle. It would also be acceptable for a law to be passed banning the teaching of Western history, Western values, anything that is seen as endorsing “the patriarchy”, and anything that is positive about white males and so on. That is, this principle would allow the state to impose the ideology of the day onto the state schools.
I think it is obvious that Pscholka and the others who support the rule in question would be adamantly opposed to the ideology of their opposition setting the content for public schools. As such, it is probably fair to say that they do not actually have a general principle regarding the degree of state control over state schools but rather do not like the idea of the schools teaching about labor. In short, the “principle” is that the school should not teach what they do not like—which is hardly a principle.
I would also be opposed to a leftist agenda being opposed onto state schools, but on the basis of a principle of academic freedom—in this case that the state should not impose ideological restrictions (left or right) on public schools.
Taking the day off to celebrate the greatest country in all the possible worlds by running a 5K and perhaps blowing stuff up. Leibniz would approve as would Thomas Jefferson.
Let us take a moment to pity the lesser nations. Okay, back to the fireworks!
In my previous essay, I ended by noting that while college men are the victims of sexual assault by college women, this matter is rarely mentioned. It certainly does not get the attention of the mainstream media. Perhaps because this would run afoul of the current media narrative regarding the rape epidemic on campus.
Of course, it might be claimed that men cannot, in general, be victims of women. One common view is that men are not at all picky about sex and a man would be fine with a woman taking advantage of him while he was drunk or unconscious. Or, somewhat less extreme is the view that while a man might not be fine with it, he would not be too put out by it. He might feel some embarrassment if the woman was unattractive or might be angry if she gave him a STD, but he (some might claim) would not be psychologically harmed in the way a woman would be harmed. The gist is that men are psychologically incapable of being raped by woman—that is, a man would always consent or, at the very least, would not be very bothered by the sex.
Even if this were true (which it is not), the fact that a victim of a crime is not as upset as other victims might be would not seem to make it less of a crime. To use an analogy, if Sally is a stoic and is not very upset when her car is stolen, this does not make it any less of a theft than if she was distraught over the loss. As such, even if men are not as bother by women, this would not entail that men are not or cannot be victims. In any case, as will be shown, men are generally not cool with being assaulted by women—despite the bravado and stereotypes.
Another approach is to argue that men and women are fundamentally different so that women cannot (in general) rape men. Some people think that a man cannot become erect if he does not wish to do so and hence it is impossible for a man to have heterosexual intercourse without his consent. However, this view is on par with claiming that men have an ability to “shut down” an erection when it is a case of “legitimate” rape. This is, unfortunately, no more true than the claim that a woman can shut down a pregnancy when she is the victim of a “legitimate rape.”
Yet another counter is to claim that while women could sexual victimize men, it does not happen that often—if at all. This would, if true, be wonderful. Sadly, it is not true.
While it is rarely discussed and never seems to grab headlines, college men are subject to sexual victimization by college women and are emotionally harmed by it. While men are often presented as happy to have sex with anyone at any time, this is not true and men can be as hurt by sexual victimization as women. So, to claim that a man wants to be raped by a woman is just as awful as claiming that a woman wants to be raped by a man. While it might be true of some, it is certainly not true of most.
In a mostly ignored study, 51.2% of college males reported being sexually victimized (ranging from unwanted sexual contact, to sexual coercion to rape). Naturally, given that sexual violence is often unreported and men are extremely likely not to admit to being assaulted by a woman, the number of cases could be quite large. But, of course, it is not possible to make an estimate since this would require claiming to know what is unknown. This does not, of course, stop some people from making estimates about unreported assaults on women.
Interestingly, being “made to penetrate” is not legally classified as a form of rape. Thus, by this definition, a woman forcing a man to have sex with her is not rape. But if a man commits the same act with an unwilling woman, it is rape. This seems to allow sexual victimization of men by women to be dismissed as less serious than the victimization of women by men, all by definition. To use an analogy, this would be like saying that when a man steals from a woman, it is theft. When a woman steals from a man, it is involuntary lending.
While men are generally not subject to being forcibly raped by women, women do pursue other tactics that mirror those of male rapists including selecting victims who are impaired or unconscious. If having sex with a woman by these means is rape, then having sex with a man by these means should also be rape.
It might also be claimed that women are not inclined to sexual violence. While the stereotypes cast men as victimizer and women as victims, the terrible truth is that sexual violence is equal opportunity. As the National Geographic reported, a study determined that males and females commit roughly the same amount of sexual violence by the time they reach the age of 18. This is certainly consistent with the claim that college men are subject to sexual assault by women. As such, evil does not discriminate based on sex.
At this point I might be accused of having nefarious motivations or of playing the old “victim switch” tactic to get men off the hook. However, my goals are merely to insist on a consistent standard when it comes to sexual assault and to call attention to an important truth: sexual victimization is an equal opportunity crime. I am not asserting that we should dismiss or ignore the assaults on women. Rather, I am saying that we should not be blinded to the fact that men are victims as well. If the campus rape epidemic is going to be stopped, we cannot be concerned with just the victims who are women and just the victimizers who are men.
The Supreme Court has continued along its “corporations are people that are more important than you” march with its recent ruling about the right of corporations to impose religious values on its employees. Beyond condemning the ruling, I have nothing new to say, but will re-post two posts I wrote earlier about the matter:
In the case of Hobby Lobby, CEO David Green and his family claimed that their and Hobby Lobby’s freedom of religion is being “substantially burdened” by being compelled to provide insurance that would cover “morning-after pills” and IUDs for employees who wanted such them. The Greens claim that these specific types of contraception prevent implantation of fertilized eggs and are thus equivalent to abortion, which they regard as being against their religious beliefs. There are also those who oppose contraception regardless of the type on religious grounds.
The legal foundation for this challenge is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.
From a moral standpoint, this exemption does seem acceptable if it is assumed that freedom of religion is a moral right. After all, there should be a presumption in favor of freedom and the state would need to warrant such an intrusion. However, if it can do so properly, then the imposition would be morally acceptable. The stock example here is, of course, limitations on the right of free speech.
From both a moral and legal standpoint, there seem to be two main points of concern. The first is whether or not a for-profit corporation is an entity that can be justly ascribed a right to freedom of religion. The second is whether or not such the contraceptive coverage imposes a substantial burden on the free exercise of religion. Obviously, if a corporation cannot be justly ascribed this right, then the second concern becomes irrelevant in this context. However, since it is a simpler matter, I will address the second concern first and then move on to the main point of interest regarding corporations and religious freedom.
For the sake of the discussion, I will assume that those bringing the lawsuit are sincere in their claim that contraception is against their religion and that this is not merely cover for an attack on Obamacare. I will also assume that their religious belief is about the use of contraception.
On the face of it, being compelled to follow the law would seem to not impose any substantial burden in regards to such a belief. After all, those impacted by the law are not required to use contraception. This would, of course, be a clear imposition on their freedom (religious and otherwise). They are also not required to directly give their employees contraception. This could be seen as an imposition by giving them a somewhat direct role in the use of contraception. However, they are merely required to provide a health plan that covers contraception for those who are exercising their freedom to choose to use said contraception. As such, the burden seems minimal—if it exists at all.
It might be objected that to be forced to have any connection to a means by which employees could get contraceptives would be a significant imposition on the corporation. The rather obvious reply to this is that the corporations pay employees with money that can be used to buy contraceptives. So, if an employee would use contraception, then she would most likely just purchase it if it were not covered by her insurance. In cases where the contraceptive medicine is being used for medical reasons (as opposed to being used as contraception) the employee would probably be even more likely to purchase it (which raises the question of whether such use counts as using contraception in a way that would violate these religious beliefs).
As such, if a corporation can insist that health care plans not cover contraception on the grounds that they would be forced to play a role in situation in which an employee might get contraception by means connected to the corporation, it would seem that they could make the same claim in regards to the paychecks they issue. After all, paychecks might be used to acquire all manner of things that are against the religious views of the corporation’s owner(s). This is, of course, absurd and would be a clear violation of the rights and freedoms of the employees.
As such, the second issue is easily settled: being compelled to offer insurance that covers contraception is not a substantial burden on the religious beliefs of corporations.
As noted above, the corporations that are challenging Obamacare on the matter of contraception are doing so on the legal basis of the is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.
Since the act applies to person who hold religious beliefs, it is tempting to simply assert that corporations are not people and hence not covered by the act. However, in the United States corporations are taken to be people in regards to the law.
In fact, the status of corporations as people was critical in the Citizens United ruling that banned restrictions on corporate spending in politics. The general idea is that since a corporation is a person and a person has a right to free speech, then a corporation has the right to free speech.
Given this precedent (and argument), it would certainly seem to follow that a corporation has the right to freedom of religion: Since a corporation is a person and a person has a right to freedom of religion, then a corporation has the right to freedom of religion. This would thus seem to settle the legal matter.
There is an easy and obvious way to reduce this sort of “corporations are people” reasoning to absurdity:
Premise 1: A corporation is a person (assumed).
Premise 2: Slavery is the ownership of one person by another.
Premise 3: The 13th Amendment to the United States Constitution forbids slavery.
Conclusion: The ownership of a corporation is forbidden by the constitution.
This seems completely airtight. After all, if corporations get the right to free speech and the right to religious freedom because they are persons, then they also get the right not to be owned because they are persons. Naturally, this will seem silly or absurd to the very people who easily embrace the notion of corporation personhood in the case of unlimited campaign spending. However, this absurdity is exactly the point: it is okay to own corporations because they are not, in fact, people. They also do not get the right to free speech or religious freedom because they are not, in fact, people.
It could be countered that corporations are very special sorts of people that get certain rights but can be denied other rights in a principled way. Obviously enough, those who own corporations and their defenders might be inclined to hold that corporations get the rights that are useful to the owners (like the right to free speech) but do not get a right that would be a serious problem—like the right not to be owned. However, there is a serious challenge in regards to doing this in a principled manner (and the principle of what is good for me is not a principled principle). That is, the problem is to show that corporations are entities that can justly be ascribed freedom of speech and freedom of religion, but not freedom from ownership. Ironically, as I will endeavor to argue, claiming that corporations are such that they can be justly ascribed the qualities needed to ground a right to freedom of religion would also seem to involve claiming that they have the qualities that would forbid ownership.
In order to exercise religion and thus be entitled to freedom of religion, an entity would seem to require the capacity for religious belief. Belief is, of course, an intentional mental state—a belief is about something and it is mental in nature (although the mental might be grounded in the physical, such as in a nervous system). Being legal fictions, corporations have no mental states and no intentional states. That is, a corporation has no beliefs—religious or otherwise. As such, a corporation is not entitled to freedom of religion—since it has no capacity for religious belief.
This could be countered by claiming that the owner of the corporation provides the intentional states of the corporation. In the case of religion, the religious beliefs of the owner are the religious beliefs of the corporation. Thus, the personhood of the corporation rests on the personhood of the owner. However, if the corporation has the identical mental states as the owner, then it is the owner and vice-versa. While this would handle the freedom of religion matter, it would entail that the corporation is not a separate person in regards to freedom of speech and that ownership of the corporation would be ownership of the owner. If the owner is the sole owner, this would be fine (a person can self-own)—but if the corporation is owned by stockholders, then there would be a problem here since owning people is unconstitutional.
It could be replied that the above is mere philosophical cleverness (as opposed to the legal cleverness that makes a corporation a person) and that the beliefs of a corporation are simply those of the owner.
The obvious problem is that this would entail that the corporation does not have a religious belief that it can exercise. To use an analogy, if the Supreme Court ruled that my left running shoe is a person that I own like a corporation and that thus has my religious beliefs as its own, this would obviously be madness. My shoe, like a corporation, does not itself have any beliefs—religious or otherwise. The mere fact that I own it and it is legally a person does not grant it the capabilities needed to actually possess the foundation for the right to religious freedom. Or speech, for that matter—thus also showing that the idea that corporations have the capability to engage in free speech is absurd. What they do is, in effect, serve as legal puppet “people” manipulated by the hands of actual people. Obviously, if I put an actual puppet on my hand, it is not a person. Likewise, if I create a legal entity as my puppet, it is still not an actual person—its beliefs are just my beliefs and its words are just my words.
The actual person who owns a corporation has the rights of a person—because she is a person. Thus, the owner of a corporation can contend that her religious freedom has been violated. But it is absurd to claim that a for-profit, secular corporation can have its religious freedom violated—it is simply not an entity that can have its own religious beliefs. This distinction between the owner and the corporation certainly seems fair. First, the owner still has all her rights. Second, having a distinction between the owner and the corporation is exactly the point of many of the laws government corporations (such as finances).
If someone insists on claiming that the corporation is not a legal puppet and that it has the capabilities that provide a foundation for these freedoms, then they would run afoul of the argument regarding the ownership of persons. After all, an entity that can hold religious beliefs would thus seem to be a person in a meaningful sense that would forbid ownership.
Thus, the dilemma seems to be this: if a corporation is a person and thus gains the rights of being a person, then it is unconstitutional to own a corporation. If a corporation is not really a person, then it is legal to own it but it is not entitled to the rights of a person, such as freedom of speech and freedom of religion.
Not surprisingly, most sexual assaults on women in college occur when the women are intoxicated. One reason for this is obvious: an intoxicated person is far more vulnerable to sexual predators than a sober person. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on the matter from the standpoint of morality.
From an oversimplified moral (and also legal) standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus here will be on the impact of intoxication on a person’s ability to given consent. To be a bit abstract, the philosophical concern here is about what might be called the person’s consent agency (or agency of consent). Roughly put, this is the capacity of the person to give proper consent. What counts as proper consent will no doubt vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree considerably about this matter. However, it should suffice for the purposes of this brief essay to go with an intuitive view of proper consent which involves the person having the capacity to understand the situation and the ability to consciously agree. Setting aside the complexities of the matter, I will now turn to the discussion of intoxication.
Intoxication is, obviously enough, a proportional impediment to agency of consent. Or, in plainer terms, the drunker a person gets, the less capable she becomes of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree (or, as people say, being drunk makes you stupid). When the person has no consent agency at all, having sex with that person would clearly be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the rather important matter of sorting out at what point consent agency is lost. As with all such things, there will be a significant gray area between the paradigm cases and this area will be the most problematic. I will get the easy paradigm cases out of the way first.
One paradigm case is that in which the perpetrator intentionally intoxicates his victim using what is known popularly as a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so she can take my wallet when I am unconscious, she has committed theft. This would seem to be indisputable.
Another paradigm case is that in which the perpetrator is an opportunist: he does not drug his intended victim with a “date rape” drug, but finds someone who has rendered herself unconscious or incapacitated through intoxication. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out in a drunken stupor and someone takes my wallet, she has committed theft. Naturally, I could be justly chastised for being so careless—but this would not change the crime.
A third paradigm case is that in which a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. So much for the clear cases, now is the time for the grey territory between being unimpaired and being unconscious due to intoxication. Somewhere in this large territory lies the point at which a person loses her consent agency and is incapable of actual consent.
One obvious problem with finding the boundary at which consent agency ends is that this point might occur well before a person has lost the capacity to engage in behavior that would indicate clear consent by an unimpaired person. For example, an intoxicated woman might say “yes” to a request for sex or even actively initiate the act and then actively and enthusiastically participate. Despite the appearance of consent, the woman might actually be incapable of consent—that is, she can engage in consent behavior but has actually lost the capacity to consent.
If this can occur, it would create a serious moral and practical problem: how can a person tell when another person is capable of consent behavior without being able to give actual consent? This would obviously be important for the person interested in sex as well as those involved in any legal proceedings that might follow.
It might be countered that as long as a person can engage in consent behavior, the person still has agency of consent. That is, the apparent consent is actual consent. This does have considerable appeal in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a proper “yes” or merely “yes” behavior without true consent. It also would provide a clear basis by which potential witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. This view could be seen as a presumption that behavior indicates agency.
This view does have considerable appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted into the drive through). When I wake up the next morning and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.
It is worth noting that a decent person would certainly take into account apparent intoxication and out of a sense of ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would hardly be theft. Likewise, if a woman is drunk but making it clear she wants to have sex with a man, the decent thing for the man to do is refuse, escort her safely home and, if necessary, guard her from the less virtuous when she passes out. However, if he accedes to her request, it would seem odd to claim that she had been raped.
One might also raise the point that it is better to err on the side of caution and assume that a person who is impaired to almost any degree has lost the capacity for consent, regardless of the person’s behavior. This, however, seems to be too low of a standard and there is the practical problem of recognizing such a low level of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.
The last matter I will consider is a scenario in which both parties are intoxicated. In some college sexual assault hearings the man has countered the charge by asserting since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is certainly sound. To be specific, if sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they are raping each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.
In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that legitimately makes the person accountable for his (or her) actions. As with the agency of consent, this can be impaired in varying degrees or completely eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability.
Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting another person or not. Thus, if two people are both too intoxicated to consent, they are also both too intoxicated to be culpable.
The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol.
If this is the case, then when a man and a woman have sex while both are adequately intoxicated, they are raping each other. However, there seem to be few (any?) cases of women charged with raping men—or both parties being charged with rape. Even a cursory search of the web will reveal that men are (almost) uniformly presented as the aggressors while women are the victims. However, if drunken sex constitutes rape, then it would seem that college men are also being raped—by definition. Yet there is little or no concern or outcry regarding this. I will address this matter in my final essay on this subject.
One of the basic lessons of philosophy dating back to at least Socrates is that terms need to be properly defined. Oversimplifying things a bit, a good definition needs to avoid being too narrow and also avoid being too broad. A definition that is too narrow leaves out things that the term should include. One that is too broad allows in too much. A handy analogy for this is the firewall that your computer should have: if it doing its job properly, it lets in what should be allowed into your computer while keeping attacks out. An example of a definition that is too narrow would be to define “art” as “any product of the visual arts, such as painting and sculpture.” This is too narrow because it leaves out what is manifestly art, such as movies and literature. As an example of a definition that is too broad, defining “art” as “that which creates an emotional effect” would be defective since it would consider such things as being punch in the face or winning the lottery as art. A perfect definition would thus be like perfect security: all that belongs is allowed in and all that does not is excluded.
While people have a general understanding of the meaning of “rape”, the usual view covers what my colleague Jean Kazez calls “classic” rape—an attack that involves the clear use of force, threat or coercion. As she notes, another sort of rape is what is called “date” rape—a form of assault that, on college campuses, often involves intoxication rather than overt violence.
In many cases the victims of sexual assault do not classify the assault as rape. According to Cathy Young, “three quarters of the female students who were classified as victims of sexual assault by incapacitation did not believe they had been raped; even when only incidents involving penetration were counted, nearly two-thirds did not call it rape. Two-thirds did not report the incident to the authorities because they didn’t think it was serious enough.”
In some cases, a victim does change her mind (sometimes after quite some time) and re-classify the incident as rape. For example, a woman who eventually reported being raped twice by a friend explained her delay on the grounds that it took her a while to “to identify what happened as an assault.”
The fact that a victim changed her mind does not, obviously, invalidate her claim that she was raped. However, there is the legitimate concern about what is and is not rape—that is, what is a good definition of an extremely vile thing. After all, when people claim there is an epidemic of campus rapes, they point to statistics claiming that 1 in 5 women will be sexually assaulted in college. This statistic is horrifying, but it is still reasonable to consider what it actually means. Jean Kazez has looked at the numbers in some detail here.
One obvious problem with inquiring into the statistics and examining the definition of “rape” is that the definition has become an ideological matter for some. For some on the left, “rape” is very broadly construed and to raise even rational concerns about the broadness of the definition is to invite accusations of ignorant insensitivity (at best) and charges of misogyny. For some on the right, “rape” is very narrowly defined (including the infamous notion of “legitimate” rape) and to consider expanding the definition is to invite accusations of being politically correct or, in the case of women, being a radical feminist or feminazi.
As the ideological territory is staked out and fortified, the potential for rational discussion is proportionally decreased. In fact, to even suggest that there is a matter to be rationally discussed (with the potential for dispute and disagreement) might be greeted with hostility by some. After all, when a view becomes part of a person’s ideological identity, the person tends to believe that there is nothing left to discuss and any attempt at criticism is both automatically in error and a personal attack.
However, the very fact that there are such distinct ideological fortresses indicates a clear need for rational discussion of this matter and I will endeavor to do so in the following essays.
A thoughtful and well-reasoned article on the college rape crisis by Michelle Goldberg was recently published by the Nation. Reading through the article caused me to reflect on the various issues, most especially the matter of the role of colleges in handling sexual assault and rape cases.
When a student is alleged to have assaulted or raped another student, the purported victim can report the matter to the police or bring the matter to the attention of the college (or both). For legal (and moral) reasons, colleges should not ignore such reports and so a college has to take some action.
While colleges vary, it is common practice for colleges to handle allegations of sexual assault and rape internally in a manner rather similar to academic misconduct hearings: a hearing is held with a panel composed of faculty members and administrators. Since the panel is not a court of law, it (presumably) does not have the authority to impose criminal or civil penalties as an actual court could. Rather, the panel typically decides whether or not the accused student should be subject to disciplinary action, with the highest penalty usually being expulsion. As might be imagined, there are some obvious problems with this approach.
The first is a practical problem: while many schools do have their own police forces, faculty and administrators are generally not trained to properly investigate and judge such matters. To use myself as an example, while I can teach classes, serve on committees and so on, the skills needed to conduct a detailed and proper forensic investigation of an alleged assault/rape is not in my professional toolkit. I am a philosophy professor, not a detective or CSI professional. I would, if I was assigned to such a panel, do my best—just as a detective somehow assigned to teach my class would presumably do her best.
There seem to be two main solutions to this problem. One, which seems the most sensible, would be for colleges to cede authority over these crimes to the actual legal system. That is, the role of the college would be to assist the purported victim in reporting the alleged crime to the police. Naturally, the college can also have an important role in providing support to the purported victim. There is, however, the concern that such crimes are not always properly addressed by the authorities.
The other would be for the college to ensure that those handling the incidents would be properly trained professionals. This could be done by hiring such professionals or by training existing faculty and administrators in how to handle such cases. This would run into the practical concern regarding cost (schools would, in effect, have to support their own “CSI” staff and detectives).
The second is also a practical problem with a moral component. A college has a vested interest in protecting its reputation and protecting itself legally and financially. In a practical sense, this leads to a conflict of interest that can influence the rulings of a panel. In a moral sense, this can lead to justice not being done in regards to finding the truth and ensuring that wrongdoers are punished and the innocents are not.
As before, there seem to be two solutions to the problem. One is to remove the handling of such cases from colleges. The other is to take steps to ensure that such internal panels act for the sake of justice rather than trying to protect the reputation of the college. I would say that the former option is the better choice.
The third is a moral problem with two aspects. One aspect is that purported victims sometimes report that a college’s handling of the situation is yet another violation—a traumatic and harmful experience rather than a professionally conducted act of justice. Obviously enough, subjecting someone to such an awful experience is morally incorrect. The second aspect is that alleged perpetrators sometimes report that the college’s handling of the situation is a kangaroo court devoid of due process. If such charges are true, they would certainly be cases of wrongdoing.
Once again, there would seem to be two solutions. One is to have such cases handled by the actual legal system. There is, however, the problem that it is not uncommon for purported victims to report poor handling of such cases—which is yet another matter of moral concern and a very serious problem. Some have even argued that colleges should continue to handle such cases because the actual legal system has failed the purported victims so badly. That is, colleges might be bad at this, but they are sometimes better than the legal system. This certainly points to a clear need to address the legal system—there is little sense in handing off the handling of such cases to a system that is no better.
The second is to rework the college system to try to ensure that the purported victims are treated with proper respect while also ensuring that the alleged perpetrators are given a fair hearing in accord with due process. This, needless to say, would prove challenging—but it is a challenge that must be met if colleges are to continue in this role. If the legal system is doing a poor job, then it would be even more important for colleges to revamp their systems.
The third problem is also a moral problem with legal aspects as well. As many critics of the current system have noted, there is the moral and legal concern with the basis for the college’s authority to handle such cases. As the usual example goes, colleges do not handle cases in which a student murders another student—that is a matter for the police. By analogy, the same should apply to sexual assault and rape—those are actual crimes. While a college does have academic authority over students as well as a degree of disciplinary authority, a college would certainly seem to lack the legal and moral sovereignty needed to claim authority over serious crimes (even if it had the resource and competence to run its own legal system). As such, it would seem that a college would overreach its authority in attempting to handle criminal cases such as sexual assault and rape. That said, there can still be a legitimate role for colleges to play in such matters.
While a college certainly should not have the authority to impose criminal (or even civil) punishments on students (that is, a college should not be able to maintain jails or conduct executions), a college does have some legitimate authority over students. To be specific, a college has a (hopefully) clearly defined sphere of authority based on the agreement between the student and the institution, as spelled out in the rules and policies of the college. The college does also have the legitimate authority to impose certain penalties within a fairly limited sphere. The outer limit of these penalties is, of course, expulsion from the university.
Such authority is intended to allow colleges to have some degree of control over student behavior—after all, without the capacity to punish, authority does not amount to much. There is also presumably the purpose of maintaining a safe and non-threatening learning environment. This is what justifies punishing students who disrupt this environment. In some cases, maintaining this environment can require expelling students.
Because of this legitimate function, a college can justly claim the right to hold a hearing for a student accused of sexual assault or rape. However, this should not be in place of a criminal trial. Rather, it should be in addition to the criminal trial. The purpose of the college hearing would be to determine whether the alleged perpetrator should be, in addition to whatever punishment imposed by the legal system, subject to discipline by the college.
While it might be tempting to insist that an alleged perpetrator who is found innocent by a court of law should also be exempt from college discipline, it must be remembered that the requirements of a criminal court are supposed to be very rigorous, with an assumption of innocence and a standard of proof set at beyond a reasonable doubt.
It can be argued that the standard of proof for a college disciplinary hearing should be lower than that of a criminal court (as civil courts have a lower standard of proof). After all, the standard should be higher when a person might spend years in jail as opposed to being disciplined by a college. For example, an incident might be such that it seems reasonable to believe that something wrong occurred, yet the evidence is simply not enough to establish proof beyond a reasonable doubt. In such a case, an alleged perpetrator might avoid jail yet perhaps be justly expelled from college.
If this view is accepted, then there are the practical and moral problems of determining the standards of evidence and the appropriate punishments. At this time, many colleges accept a very weak standard—that of “more likely than not.” That is, if the panel members (who are, as noted above, usually not trained in such matters) believe that it is more likely that the alleged perpetrator committed the misdeed than did not, then the person is guilty. As might be imagined, some critics of this standard regard it as far too weak and in stark contrast with the usual principle that it is better for the guilty to go unpunished than for the innocent to be unjustly punished.
In regards to the punishments, there is also considerable controversy. It could be argued that even the worst punishment that a college can offer (most likely expulsion) would still not be enough. While this might be true, it would not be a good reason to grant colleges more power to punish—after all, if the punishments were sufficiently severe, then the standards would need to be equally high. It can also be contended that some punishments, such as expulsion, would be too harsh given the weak standard.
It must be noted that sorting out the standard and the punishments is distinct from the issue of whether or not a college has legitimate authority to discipline students accused of sexual assault or rape. I certainly hold that a college has the authority to impose disciplinary action even on a student found not guilty by a criminal court—much as a civil court can impose a penalty on someone found not guilty by a criminal court. However, I have not given sufficient thought to the standard to be used and the punishments that would be just. It might be the case that the punishment should be linked to the standard—that is, the weaker the standard, the weaker the punishment.
It can also be argued that there is behavior that is not covered by the law but can be justly covered by a college’s policies. For example, cheating on tests is usually not a criminal offense, but it does provide grounds for discipline in a college setting. Likewise, some sexual or sex-related behavior might not be considered criminal, yet still be legitimately regarded as problematic enough to warrant discipline from a college. That is, the behavior is perhaps not technically illegal, but not tolerable behavior for a student. To use an analogy, some colleges have dress-codes that forbid attire that would not violate the usual laws relating to public indecency.
To close, my considered position is that colleges should obviously not be handling criminal cases—these should be turned over to the police and the actual legal system. However, colleges can legitimately hold hearings on allegations of sexual assault or rape and subject students to disciplinary action up to and including expulsion. There are, however, important practical and moral considerations that must be addressed and these include:
- Ensuring the competence and impartiality of the college panel members conducting the investigation and hearing.
- Ensuring that the standard of proof adopted (such as “more likely than not”) is just.
- Ensuring that the punishments are just.
- Ensuring that the applications of the standards and punishments are just.
- Ensuring that both the alleged perpetrator and purported victim are treated with respect and get due process.
If these considerations can be properly addressed, then such a system can be legitimately regarded as just—at least within the specific context.
In my previous essay, I discussed the subject of trigger warnings. The basic idea is that a trigger warning is an explicit notification that what a student is supposed to read, view or hear might be upsetting or trigger a post-traumatic stress disorder reaction.
Some universities (such as Oberlin College, Rutgers, the University of Michigan and University of California, Santa Barbara) have considered student requests for these trigger warnings. Oberlin briefly posted a guide urging professors to “be aware of racism, classism, sexism, heterosexism, cissexism, ableism, and other issues of privilege and oppression. Realize that all forms of violence are traumatic, and that your students have lives before and outside your classroom, experiences you may not expect or understand.”
I, as discussed in the earlier essay on this subject, believe that students have a right to know the contents of a class in advance and that I am, as a professor, still bound by the requirements of civility and compassion. As such, I do endorse the idea of professors informing students about potentially upsetting material within their classes. That said, I do have some concerns about the imposition of “guidance” upon faculty by, most likely, administrators.
One point of concern is that the sort of guidance suggested by Oberlin (which might not be representative of the things to come) would strike some as being a manifestation of a “politically correct” ideology that is “fixated” on sensitivity and –isms of various stripes. While claims about the dominance of political correctness in academics is overblown, the imposition of such guides would certainly not help the reputation of the academy in regards to the importance of ideological neutrality in the classroom.
An obvious counter to that concern is to contend that the guides are not politically correct impositions and to see them as such would be a manifestation of the overblown suspicion that preys on those of a certain opposing ideology. Another obvious counter is that such guidance is neutral in regards to ideology and merely aims at protecting students from emotional trauma. A third counter is that the classroom is a suitable place for the imposition of ideology onto a captive audience (though most would not put it quite this way).
While I agree that claims about political correctness dominating the academy are exaggerations, I do think that the sort of guidance presented by Oberlin do send a message about ideology that is not helpful to the reputation of the academic field. I am, of course, opposed to the view that the classroom should serve as a place of ideological indoctrination. As a philosopher, my objective is to teach students how to think and not to preach to them what they should think. Naturally, I do recognize the potential problem with instilling the principles of academic inquiry and learning (honesty, a respect for reason, valuing truth, tolerance, and so on) while maintaining the view that ideologies should not be imposed in the classroom. After all, it might be argued that this is an ideology.
A second point of concern is that while “guiding” faculty in regards to trigger warnings is not imposing a restriction on academic freedom (that is, it does not forbid faculty from including material) it does do at least two negative things. One is that it does make a value judgment of the material and implies that such material is not suitable for all students. As such, it seems to suggest that faculty should, perhaps, not include such material. Another is that it is the first trickle in what might grow into a stream that erodes academic freedom. To lay out the progression, it is not unreasonable to see guidelines gradually evolve into suggestions which then, over a few years, become actual restrictions. As such, it seems sensible to stop the trickle well before the possible flood.
The obvious reply to this concern is that it the feared evolution might never take place—that is, there would be no expansion from guidance regarding trigger warnings to “ism based” restrictions on what faculty are permitted to include in their classes. This is a reasonable point in that to simply assume that the slide must be inevitable would be to fall into a slippery slope fallacy. That said, there does seem to be a clear and reasonable path from guidance to actual restriction and thus this is still a matter of legitimate concern.
A third point of concern is a practical one, namely that students will find ways to exploit trigger warnings in various ways. As some examples, students might use trigger warnings as an excuse to skip classes, as excuses to avoid doing coursework or as a way to wheedle a higher grade (based on an appeal to emotional trauma). It could be rather difficult to prove that a student was illegitimately exploiting trigger warnings. There is also the concern since trigger sensitivity is linked to various –isms a professor who decided to question a student’s triggers could find herself accused of various –isms (such as sexism or racism). Professors also generally prefer to not delve too deeply into the emotional issues of students—we are, after all, generally not trained therapists or counselors and professionalism requires a certain emotional distance.
One objection is that students would not exploit such trigger warnings. The obvious counter is that some certainly would. Another objection is that a system could be created to verify triggers in order to ensure that excuses are legitimate. While this would be possible, this would entail more bureaucracy and still would not do much to deter exploitation.
A third objection is that allowing some students to exploit the system is an acceptable price to pay to allow students to avoid triggering material. This might be true—although it does raise the obvious question of whether avoiding triggering material is even a legitimate reason to miss class, etc.
It could also be countered that the avoidance of trigger material would not provide a legitimate excuse for missing class, avoiding certain coursework, etc. While this is certainly possible, this would cause one to wonder about the value of trigger warnings—that is, there would seem to be something odd in acknowledging that something is potentially traumatic enough that people must be warned while also holding that students are not excused if they elect to avoid the potential trauma. It could be countered that the purpose of the warning is not to allow avoidance but to allow students the chance to be prepared for the incoming trauma. This could be good enough, although it does invite a debate about the value of trigger warnings.
In closing, I do agree that students should be informed about course content and that a professor should be polite and compassionate in regards to letting students know about potentially traumatic material. However, I do have concerns about administrators imposing guidelines and mandating trigger warnings.