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Month: September 2013

Court Rejects Ban on Alcohol Advertising in College Papers
Posted by On Friday, September 27, 2013

Until the U.S. Court of Appeals for the Fourth Circuit’s recent decision limited its reach, the Virginia Alcoholic Beverage Control Board’s (ABC) regulations banned all college newspapers from running alcohol advertising. The ban is part of a comprehensive strategy aimed at reducing underage drinking.

Many colleges and universities take a similar “environmental” or “community-level” approach to combat high-risk drinking. These interventions often enlist retailers and advertisers as allies in prevention efforts. 

But in 2006 two college newspapers affected by the regulation, The University of Virginia’s Cavalier Daily and Virginia Tech’s Collegiate Daily, sued the ABC, claiming the ban violated their First Amendment free speech rights.

The newspapers pointed out that a majority of their readership were over 21 (59-60% of the Collegiate Times‘ and 64% of The Cavalier Daily‘s readers). Therefore, while Virginia had a government interest in preventing underage drinking, the papers’ wide distribution to people over 21 meant that the scope of the regulation was too broad.

In its decision, the Court sided with the college newspapers, acknowledging the state’s interest but rejecting the regulation’s overbroad reach.

“While commercial speech is protected by the First Amendment, there is a ‘commonsense distinction’ between commercial speech and other varieties of speech…[therefore] a regulation of commercial speech will be upheld if (1) the regulated speech concerns lawful activity and is not misleading; (2) the regulation is supported by a substantial government interest; (3) the regulation directly advances that interest; and (4) the regulation is not more extensive than necessary to serve the government’s interest.”

Under this analysis, the Court concluded, “the challenged regulation fails…because it prohibits large numbers of adults who are 21 years of age or older from receiving truthful information about a product that they are legally allowed to consume…Accordingly, the challenged regulation is unconstitutionally overbroad.”

The court also rejected the ABC’s rejoinder that the regulation was justified by the state’s more general interest in combatting abusive drinking, whether by underage or of-age drinkers. The Court cited a previous case that determined “states may not ‘seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, non-misleading advertisements.’”

The ruling, however, did not overturn the regulation itself. It only rejected the regulation as applied to these four-year college newspapers. As commentators have pointed out, where a paper’s underage readership is the majority of its readership, the ban might still apply. A paper at two-year college, for instance, might still be subject to the regulation.

Critics of the ban have lauded the decision as a victory for free speech. Indeed, because school papers operate under tight budgets, the ban had a significant impact on the papers’ finances and thus affected their primary mission of news reporting. According to estimates in The Cavalier Daily, lifting the prohibition would raise advertising revenue by 5 to 8%.

And while harm-reduction specialists may lament the loss of another valuable tool, the research is still divided on the effects of advertising on alcohol consumption. 

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Study Abroad Increases Risk for Sexual Assault
Posted by On Tuesday, September 24, 2013

Last month, University of Chicago student Michaela Cross posted a harrowing account of her study abroad experience in India. “For three months I lived…in a traveler’s heaven and a woman’s hell,” Cross wrote. As a South Asian Studies major who had previously spent time in India, she thought she was prepared. But she wasn’t.

In the short account of her travels, posted on CNN’s iReport, Cross described a study abroad experience that mixed wonder and fear, “half dream, half nightmare.” “I was stalked, groped, masturbated at;” she wrote, “and yet I had adventures beyond my imagination.” 

In one particularly terrifying moment, she remembers “lying hunched in a fetal position, holding a pair of scissors with the door bolted shut, while the staff member of the hotel who had tried to rape my roommate called me over and over…breathing into the phone.”

After returning from abroad, Cross said she was diagnosed with Post Traumatic Stress Disorder (PTSD) and has been unable to attend to classes.

“PTSD strikes me as a euphemism,” wrote Cross, “because a syndrome implies a cure. What, may I ask, is the cure for seeing reality, of feeling for three months what its [sic] like for one’s humanity to be taken away.”

 

Students Abroad

Study abroad is an increasingly large part of undergraduate education at U.S. colleges and universities.

According to the Institute for International Education, in 2010-2011, 273,996 U.S. students studied abroad for academic credit, a slight increase from the previous year. It’s likely that the numbers will continue to grow as leaders and educators tout study abroad as central to education in a global economy.

But Cross’s experience and others like it illustrate that studying abroad does not come without dangers. As students plunge themselves into unfamiliar cities and cultures, they also expose themselves to new dangers.

Indeed, a recent study in the journal Psychological Trauma reports that female undergraduates are three to five times more likely to experience sexual assault while studying abroad than on a U.S. campus, where women are already at a high risk of sexual assault.

The study was the first to measure the prevalence of sexual assault in study abroad programs. Researchers asked women who had studied abroad in the past two academic years to fill out the Sexual Experiences Survey, a widely-used questionnaire for measuring the incidence of sexual assault. The results were startling:

  • 83% of women reported an unwanted sexual experience, 6% an attempted sexual assault, and 4.6% a completed sexual assault.
  • 87% of the nonconsensual sexual contact was committed by nonstudent local residents. 
  • Women studying abroad in Africa and the Americas reported more sexual assaults than those studying in Europe. There was no information on study abroad in Asia.

The researchers speculated as to why the prevalance of sexual assault is higher for students studying abroad.

Some factors might include students’ lack of familiarity with the culture and greater reluctance to go to local authorities for help, both of which make foreign students easier targets for perpetrators.
Researchers also pointed to other factors, such as the large number of study abroad programs in major cities, local stereotypes about American women, and the legal access to alcohol increasing student drinking rates.

Although the study does not offer recommendations for schools running study abroad programs, the high prevalence of sexual assault during study abroad suggests that schools may want to coordinate between their study abroad program and the campus Title IX coordinator.

At the very least, schools should review and update the information they provide students before the students arrive in a host country, establish clear procedures for reporting and handling sexual assault complaints while students are abroad, and make sure students are aware of counseling and other student health services that are available abroad and after students return.

Further Resources

The U.S. State Department has a website that provides student travelers with many valuable resources.

Work Cited

Kimble, M., Flack, W.F., Burbridge, E. (2013). “Study Abroad Increases Risk for Sexual Assault in Female Undergraduates: A Preliminary Report.” Psychological Trauma: Theory, Research, Practice, and Policy, 5, 426-430.

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CampusClarity Wins Gold at the Annual Stevie Awards
Posted by On Friday, September 20, 2013

Think About It won a Gold Stevie Award for Best Training Site at the 11th Annual American Business Awards. Think About It is CampusClarity’s online training program on sexual violence and substance abuse for undergraduates and a compliance resource for college and university administrators.

The Stevies, considered the Oscars of the business world, are open to all U.S.-based organizations. With over 3,200 entries, this year’s awards were a record-breaking size. More than 320 executives from across the country judged the entries.

The award-winning Think About It addresses campus sexual violence and substance abuse through a harm-reduction model that also helps schools comply with the Campus SaVE Act and Title IX.

The program is a collaboration between CampusClarity, a service of LawRoom, and the University of San Francisco’s Division of Student Life. Instructional designers, student affairs administators, and lawyers worked alongside students to develop an effective course that would speak to students’ college experiences.

Think About It includes bystander intervention training, customizable campus policies and resources, state specific laws on sexual and domestic violence, social norming exercises, a comprehensive discussion of consent, and in-depth reports on student attitudes and behaviors.

More than thirty-five colleges and universities nationwide use Think About It to train their students.

Accepting the gold for Think About It were Jeremy Beckman, Chief Instructional Designer at LawRoom, and Peter Novak, Vice Provost for Student Life at the University of San Francisco.

“It means a great deal,” Novak said about the award. “It allows us to further collaborate on prospective projects and to really be of service to university students across the country.”

LawRoom has been a leader in employment law compliance and training since it began in 1994. It has helped private and public companies, non-profits, and government entities comply with employment regulations. This year marked the first time the company participated in the American Business Awards or Stevies.

In addition to winning gold for Think About It, LawRoom also took home silver for its online sexual-harassment training, Lenses

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The University of Montana’s Cautionary Tale
Posted by On Wednesday, September 18, 2013

“A rape-tolerant campus with ineffective programming, inadequate support services for victim survivors, and inequitable grievance procedures threatens every student.” Diane G. Barz, retired Associate Justice Montana Supreme Court, Investigation Report dated January 31, 2012

Yearlong federal investigations of the University of Montana (UM) provide a cautionary tale for colleges and universities about how not to respond to reports of sexual assault. The U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) concluded that UM’s responses to female students who reported sexual assaults were delayed, inadequate, and discriminatory.1

ED’s Title IX compliance review of UM produced “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” The DOJ’s parallel investigation of UM’s Office of Public Safety (OPS) resulted in a “roadmap for reform” that “will stand as a model” for other schools to prevent sex discrimination from interfering with an effective response to sexual assault complaints.

These problems were not confined to UM’s Missoula campus. The DOJ also investigated the Missoula Police Department (MPD) and reviewed over 350 reports of sexual assault made by Missoula women, including UM students, received between January 2008 and May 2012. In the opening paragraph of its May 15, 2013 Letter of Findings, the DOJ concluded that the MPD’s “response to sexual assaults compromise the effectiveness of sexual assault investigations from the outset, make it more difficult to [uncover] the truth, and have the effect of depriving female sexual assault victims of basic legal protections.”

We’ll first look at the underlying problems that contributed to UM’s “rape-tolerant campus” because policies and procedures alone cannot fix systemic problems. Instead, they require an ongoing commitment to effect change in attitudes that turn into action. In later posts, we’ll discuss the specific steps to Title IX compliance laid out in the “blueprint” and “roadmap.”

Acknowledging the Problem
Before the federal investigations, UM had been grappling with its sexual assault problem. In December 2010, a female student reported to the MPD that four UM football players drugged and raped her.2 While the MPD found there wasn’t enough evidence for criminal charges, police informed UM’s football coach about the allegations, but that report was not passed along to UM administrators until a year later.3

In December 2011, Royce Engstrom had been UM’s president for just fourteen months when he received a call about the allegations. Once President Engstrom became involved, UM hired retired Montana Supreme Court Justice Diane Barz to investigate sexual assault reports at UM. Her final report found nine incidents reported between September 2010 and December 2011. Her recommendations included making information and resources on sexual assault readily available, training UM personnel on how to report and respond to sexual assault, and educating students on the consequences of risky behavior.4

Despite Barz’s report, there was internal resistance to acknowledging UM’s sexual assault problem. Around that time, internal email messages showed that UM Vice President Jim Foley questioned UM Dean of Students Charles Couture’s use of the term “gang rape” to describe the December 2010 incident. Foley suggested that Couture should have called it “date rape.” Couture replied, “Jim, I used that term [gang rape] when I accused the four football players of rape . . . because that is what it was.”

Over the next six months, Engstrom had fired UM’s football coach and athletic director, and Foley had stepped down as UM’s Vice President.

But just a month after Justice Barz’s report, two more women complained to UM employees that they were sexually assaulted on the same night by the same male student, but he fled the country after UM’s Dean of Students notified him of the charges and there was a one-week delay in reporting the incidents to local law enforcement.

Sexual Assault Case Reviews
Against this backdrop, the ED and DOJ reviewed UM’s responses to twenty-three sexual assault complaints and ten sexual harassment complaints received by UM over the prior three school years. They found that UM’s delayed and inadequate responses to complaints resulted in students not feeling safe on campus, suffering mental health problems, becoming suicidal, withdrawing from classes, or leaving the University altogether.

A sampling of cases discussed in the ED and DOJ’s Joint Letter of Findings shows that UM’s problematic responses were not confined to a particular area. In one case, the UM official investigating a sexual assault complaint knew that the victim was upset because she repeatedly saw her attacker on campus, but took no steps to protect her. Another sexual assault victim’s roommate reported to their Resident Assistant (RA) that the victim was suicidal. The RA reported this to the Residence Life Office but there was no record of any action taken to ensure her safety. In yet another case, sufficient evidence was found to expel the student accused of sexual assault, but he was allowed to stay on campus for six more weeks to finish the semester. While the victim had left the University shortly after she reported the sexual assault, allowing her attacker to remain on campus may have left other students at risk of assault or harassment.

In two other cases, UM stopped its investigation because it “assumed the victims had stopped cooperating,” even though UM had not received any communication from the victims that they no longer wished to continue with the grievance process.

Given these experiences, it is not surprising that other students were reluctant to report sexual assault because they feared retaliation, or that the University wouldn’t respond, or, if it did, would respond negatively. One student said that University employees said things that indicated they didn’t believe her. Another former student said she didn’t report being sexually assaulted by a football player because they “could get away with whatever they wanted.” Other students, community members, and faculty echoed that assessment, with some people saying that football players were treated like they were “Gods.”5

And the DOJ’s investigation of UM’s campus security revealed another major problem: OPS’s responses to student reports of sexual assault were “marked by confusion, repetition, and poor investigative practices.”

For example, one OPS case narrative focused on the woman’s alcohol-scented breath and “clean and undamaged” clothing. A victim advocate said OPS interviews were “painful” for the victims because they were interviewed by several officers who asked “very personal questions” without warning or explanation of their relevance, and students were also discouraged from filing a police report. Victims who did report their assault to the Missoula Police Department (MPD) had to relive their trauma by answering the same questions because OPS officers didn’t provide MPD with enough information.

Two OPS officers described a sexual assault reported in a university residence hall as “regretted sex.” And OPS Chief Taylor told investigators that the responding officer’s job is to determine if the sexual assault is “provable.” However, as the DOJ found, determining the veracity of the woman reporting a sexual assault before a thorough and unbiased investigation is completed not only indicates a failure to adequately respond to sexual assault, but “is particularly problematic given the data showing that the overwhelming majority of sexual assault allegations reported to the police are true.”6

Based on ample evidence, the DOJ concluded that the OPS’s “failure to adequately respond to reports of sexual assault is due at least in part to gender discrimination.” By discouraging them from reporting sexual assaults to law enforcement, OPS discriminated against women, deprived them of basic legal protections, and put their safety at risk.

Systemic Change
With mounting evidence and media coverage of UM’s sexual assault problems, Missoula City Councilman Dave Strohmaier told over 100 community members gathered to hear from UM and community leaders, “If there are systemic problems with how we are addressing violence within our community then we absolutely need to move aggressively on all fronts to address it.”

As Justice Barz said, a rape-tolerant campus climate threatens every student. So, Title IX requires that when systemic problems discourage students from reporting sexual assault, schools must take “actions … to address the educational environment, including special training, the dissemination of information about how to report sexual harassment, new policies, and other steps designed to clearly communicate the message that the college or university does not tolerate, and will be responsive to any reports of, sexual harassment.”

The ED’s and DOJ’s findings and conclusions in the UM case show that a top-down strategy is the foundation for creating a campus culture that does not tolerate sexual assault, and that other key components of the ED-DOJ strategy are education and effective procedures for handling problems when they arise.

In future blog posts, we’ll dig deeper into the UM investigations and the resulting documents that provide the ED’s and DOJ’s “blueprint” and “roadmap” for schools on how to respond to sexual assault, create a safe learning environment, and avoid becoming a cautionary tale.


1. The settlement agreement relating to the Title IX compliance review among UM, the DOJ, Civil Rights Division, and ED, Office for Civil Rights is set forth in the Resolution Agreement dated May 9, 2013. The settlement agreement between the DOJ and UM Regarding OPS’s Response to Sexual Assault is set forth in the Memorandum of Agreement (MOA) dated May 9, 2013.
2. Another female student reported that she was drugged and raped around that same time but did not want to pursue action against her assailants (Investigation Report dated January 31, 2012).
3. Missoula County Attorney Fred Van Valkenburg discussed the case with a local newspaper reporter, stating “I think that clearly the evidence in the case indicates that what happened was with consent, not without consent,” he says. “There may have been sex with more than one person—that may seem sort of odd to people that someone might agree to have sex with more than one person—but I don’t think because it’s odd makes it automatically a non-consensual situation.”
4. Justice Barz also noted, “I am disappointed with the lack of response from students with knowledge of house parties where the incidents were alleged to have occurred. Some that have been questioned have not been truthful. I believe ‘lying’ is also covered under the Student Conduct Code” (Investigation Report dated January 31, 2012).
5. In August 2012, the New York Times reported pending rape charges against two UM football players, and a “widespread feeling in Missoula that players had been coddled, their transgressions ignored or played down.” In January 2013, running back Beau Donaldson pled guilty to rape and was sentenced to ten years in prison. Quarterback Jordan Johnson was acquitted on rape charges on March 1, 2013.
6. The Letter of Findings cites Kimberly A. Lonsway, Joanne Archmbault & David Lisak, “False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault,” 3 The Voice 1-3, NDAA’s National Center for the Prosecution of Violence Against Women (2009).

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Study Drug and Party Aid: Prescription Stimulant Abuse on College Campuses
Posted by On Wednesday, September 11, 2013

According to the New York Times, in June 2007, freshman Johnny Edwards went to Harvard University’s Health Services clinic complaining about trouble concentrating and studying. A nurse practitioner diagnosed him as suffering from attention deficit and hyperactivity disorder (ADHD) and prescribed Adderall, a stimulant. Six months later Edwards killed himself.

Edwards’s father is now suing Harvard for wrongful death, alleging that the diagnosis of ADHD and the Adderall prescription did not meet medical standards.

For two years, Richard Fee struggled with an addiction to Adderall that doctors prescribed him to treat attention ADHD. He had been in an out of psychiatric care, and kicked out of his house by his parents who feared his violent outbursts.

Fee had been introduced to Adderall in college as study aid, only obtaining a prescription for himself after he graduated to help him with medical school applications.

In late 2011, Fee hanged himself in his bedroom closet. His mother found the body.

These tragic cases highlight the dangers of prescription stimulants.

Like Fee and Edwards, many young people are first introduced to these drugs in college. And like Fee, many students’ first experience with the drug is not under a doctor’s order but under academic pressure. Unlike Fee and Edwards, many students obtain the drugs illegally.

Because of their widespread abuse and potentially dire consequences, schools need to develop policies that directly address the use of prescription stimulants on campus.

“I Feel Like a Genius on It”

Students who don’t have a legitimate medical need often take stimulants to get a leg up academically. Though untested on individuals without ADHD, students claim prescription drugs like Adderall and Ritalin help them concentrate, study longer, or simply stay up later to finish a project. They usually take the drugs during finals week or other times of “high academic stress.”[1]

“Adderall has become to college what steroids are to baseball,” explains Roger Cohen in a NY Times column, “an illicit performance enhancer for a fiercely competitive environment.”

In one study, students described the drugs’ effects glowingly. “I get everything done, quickly. I am crazy on it that way,” said one student. Another insisted he was “so much more productive…It’s just a different level on Adderall.” For other students “stuff just registers better” or “I grasp everything so much easier…I feel like a genius on it.”[2]

Given these drugs’ reputations as academic miracle workers, it’s unsurprising that college students are more likely than their non-college peers to have abused prescription stimulants.[3] The estimates vary, but studies have found as many as 34% of college students use prescription stimulants for non-medical reasons.[4]

The medications are easy to get. Friends and acquaintances are the most common suppliers. Nor does there seem to be much of a stigma attached to the drugs. Instead students often see them as safe alternatives to “illegal” drugs.[5]

That they’re legal, however, does not mean that the drugs are safe, especially when used without a doctor’s supervision. The federal government classifies Adderall, Ritalin, and Concerta (all used to treat ADHD) as schedule II drugs, the same classification as cocaine, methadone, and methamphetamines. According to federal guidelines, schedule II substances have “a high potential for abuse which may lead to severe psychological or physical dependence.”

Indeed, the Food and Drug Administration warns that Ritalin, Adderall, and Concerta can cause heart problems, aggressive behavior, and even psychotic symptoms in children and teenagers.

To make matters worse, students often ingest them in ways that are not prescribed, such as snorting them or taking higher dosages. As one student explained to researchers, Adderall often comes in time release capsules, but “if you mash it up, you get it all at once, like a rush.”[6]

“Cheap Coke”

Some students are less coy about prescription stimulants’ potential for recreational and not just academic abuse. One described Adderall to researchers as “cheap coke. You know you get the same high, but you can get it for like 5 bucks.”[7]

Indeed, while most students cite academic reasons as their motive for abusing prescription stimulants, 22.5% reported they used the drugs to party — not study — longer.[8] Sadly, the consequences of abusing these stimulants as party drugs are now appearing in emergency rooms.

According to the Drug Abuse Warning Network, in 2005 the number of emergency room visits related to “nonmedical” use of central nervous system stimulants like Ritalin, Adderall, and caffeine pills was 5,605. In 2012, it was 22,949. Thirty percent of those visits in 2012 — over 6,800 — involved alcohol.

Studies show that college students who used non-medical prescription stimulants while drinking are more likely than other drinkers to experience alcohol-related consequences. Some researchers speculate that this is because the stimulants hide the depressive effects of intoxication, leading users to drink more.[9]

Users of illicit prescription stimulants are also more likely than other drug users to report taking several drugs, often simultaneously, a dangerous and potentially fatal practice.[10]

Preventing Abuse

Stimulants such as Adderall and Ritalin have important, legitimate medical uses.

But these drugs also lend themselves to abuse by students looking for an academic edge or cheap high. And the potential for abuse will only grow as more students with prescriptions to Adderall or Ritalin (and hence more pills) arrive on campuses.

According to the CDC, between 1997 and 2006, rates of ADHD diagnosis increased by 3% every year. As of 2007, 9.5% of children 4 to 17 years old were diagnosed with ADHD. 66.3% of those children received medication for the disorder.

In fact, studies have shown that colleges students can effectively fake ADHD symptoms based on information available on the web, which might mean that motivated college students are dishonestly obtaining prescriptions.[11]

Unfortunately, abusers of prescription stimulants end up hurting students with legitmate reasons to take the medications. On College Confidential, an online forum for college students, one poster complained that abusers of medications damaged the reputations of students with ADHD:

I have some serious gripes about these bad practices. First of all, we don’t take meds to get ahead. We take meds to level the goddamn playing field by controlling our symptoms and making our minds like one of yours, and these people are just messing it up for us. Secondly, all of this is giving us a bad reputation and personally I’m sick of hearing how kids with AD(H)D are all frauds and cheaters. Abusing medication is repulsive to me.

Cracking down on abuse might help remove the label of “fraud” or “cheater” that also sticks to legitimate users of the medications.

Several schools have already put policies in place to prevent abuse.  Duke University, for instance, includes “the unauthorized use of prescription medication to enhance academic performance” as a form of cheating in its policy on academic dishonesty. Other colleges and universities have begun to require a more rigorous diagnosis before any medication is prescribed.

Regardless of the approach, colleges and universities need to be actively addressing this issue in a sensitive and effective manner.

Works Cited

[1] DeSantis, A.D., Webb, E.M., Noar, S.M. (2008). “Illict Use of Prescription ADHD Medications on College Campus: A Multimethodological Approach.” Journal of American College Health, 57, 315-323, esp. 319.

[2] Ibid.

[3] McCabe, S.E., Teter, C.J. (2007). “Drug use related problems among nonmedical users of prescription stimulants: A web-based survey of college students from a Midwestern university.” Drug and Alcohol Dependence, 91, 69-76.

[4] DeSantis 2009.

[5]Bavarian, N., Flay, B.R., Ketcham, P.L., Smit, E. (2013). “Illicit use of prescription stimulants in a college student sample: A theory-guided analysis.” Drug and Alcohol Dependence, 132, 665-673. DesSantis 2009, 322. Bavarian 2013.

[6] DeSantis 2009, 320.

[7] Ibid.

[8] Bavarian 2013.

[9] Egan, K.L., Reboussin, B.A., Blocker, J.N., Wolfson, M., Sutfin, E.L. (2013). “Simultaneous use of non-medical ADHD prescription stimulants and alcohol among undergraduate students. Drug and Alcohol Dependence, 131, 71-77.

[10] McCabe 2007.

[11] Sollman, M., Ranseen, J.D., Berry, D.T.R. (2010). “Detection of Feigned ADHD in College Students.” Psychological Assessment, 22, 325-335.

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Is an Invitation to Cuddle Consent to Sex?
Posted by On Thursday, September 5, 2013
Jane (11:00 pm):
aww :( come cuddle with mr
Brian (11:01 pm):
I am when you get back hah
Jane (11:04 pm):
yayyy I’m a good cuddler :))
Brian (11:06 pm):
Then ill be expecting nothing less than excellence
Jane (11:10pm) :
are you a gooood cuddler
Brian (11:20pm):
I’m great you better know it

Roughly two hours after this exchange of text messages, Jane let Brian into her dorm room, where she claims he raped her.

The next day, she filed a complaint with the university.

Brian disputed Jane’s account during the investigation. He admitted that they had sex but insisted it was consensual, pointing to the text messages.

The school, St. Joseph’s University, was not convinced and found Brian Harris responsible for sexual misconduct, suspending him for one year.

Now Harris is suing St. Joseph’s and his accuser, Jane Doe, alleging, among other things, that the university panel that heard his case did not properly consider the text messages and therefore the university is at fault for “Rendering a decision…against the clear weight of the evidence.”

We won’t examine the merit of Harris’s legal claims here. The courts will do that. And to be clear, the assault itself was never tried in a criminal court. Harris was found responsible in a university conduct proceeding. His lawsuit is over whether that proceeding was unbiased.

But Harris’s interpretation of the messages he exchanged with Jane reveals a problematic view of consent worth examining more closely.

Defining Consent

According to Harris’s complaint against the school, Jane’s text inviting him to “come cuddddle” is clear evidence of consent.

“In modern parlance,” he explains, “the terms ‘cuddle’ or ‘cuddling’ are synonymous with, inter alia, ‘sex’ or ‘having sex’.” The complaint goes on to suggest this interpretation is “the plain meaning of the text messages.” Thus Jane’s invitations to cuddle are requests for and consent to sex.

In his complaint, Harris also implies that the text sent at 11:00 pm provided consent for actions that took place almost two hours later.

The problem with Harris’s understanding of consent from a campus safety perspective is that it relies on neither clear words nor clear actions.  

Euphemisms like cuddle or the infamous ‘hook up’ are deliberately vague. While perhaps appropriate in casual conversation, these words should not be used to ask or give consent exactly because they lend themselves to misunderstandings. 

Furthermore, even if Jane had texted him ‘let’s have sex’, Harris would still have needed to get her clear consent again several hours later when they were finally face-to-face.  Past consent does not imply future consent.

Clear words and actions should be one of the unbreakable rules students follow before they engage in any sexual activity. 

We don’t want to imply that most sexual assaults are the result of miscommunication. They aren’t. But Harris’s complaint underscores how important it is that students have a clear concept of consent.

When Katherine Bogle was researching her book Hooking Up on college sexual culture, she discovered students held very different opinions about what the term “hooking up” meant –everything from sex to just kissing. In other words, when it comes to getting intimate with each other, students aren’t always speaking the same language, and they may not even know it. A young man may think he’s proposing a good night kiss, while his date thinks he’s asking her to spend the night.

Starting a conversation on college campuses about terms like “cuddling,” “hooking up,” and other modern parlance may not resolve the ambiguity surrounding these terms — in fact it almost certainly won’t — but it might at least force students to acknowledge it.

Further Reading

Bogle, K.A. (2008) Hooking Up: Sex, Dating, and Relationships on Campus. New York: New York UP.

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