Seebach: 'I wanna hold your hand' - is that still all right?

Published October 7, 2006 at midnight

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I recently had dinner with an out-of-town friend, and because he used to work for FIRE, the Foundation for Individual Rights in Education, it reminded me that I'd been meaning to write about Gettysburg College in Pennsylvania and its embarrassing "Sexual Misconduct Policy."

Sexual misconduct is defined as "deliberate physical contact of a sexual nature" without the other person's consent. Everybody would be against that, right? The list of examples, though, might give one pause; it includes "physical contact of a lewd type such as brushing, touching, grabbing, pinching, patting, hugging and kissing."

Granted any of those things could be lewd, but mostly, between friends who know each other well, they aren't.

Still, if proving lewdness is an essential part of the definition, the policy might be defensible, though anyone familiar with the workings of campus judiciaries would do well to worry about how fairly it would be enforced. What tips the policy into farce is the definition of "consent," which means "willingly and verbally agreeing (for example, by stating 'yes') to engage in specific sexual conduct. Furthermore, if at any time either person fails to give "continuing and active consent," the conduct must end.

So imagine a loving couple walking hand-in-hand across campus on a beautiful fall day, saying in turn, "yes, you may continue to hold my hand."

How would they ever talk about anything else?

It would be reasonable to say that if at any point one participant said "no, stop" that request must be honored. But failing to say "yes" continually is not at all the same thing, since it is entirely commonplace behavior even for people just getting acquainted. And who would be constantly asking for permission in the context of an established relationship, or a marriage? I graduated from Gettysburg, in 1960, and things were sure different then. 10 p.m. curfews for girls, no co-ed visitors allowed beyond the dorm lounges, never mind no co-ed dorms. One dean once posted a notice on the dorm bulletin board that said, "There will be no necking in the lounges. Use the battlefield; that's what it's for."

FIRE wrote Gettysburg President Katherine Haley Will in April, saying the misconduct policy "infantilizes Gettysburg's students, trivializes sexual assault by equating it with normal and legal behavior, and gives the administration an unacceptable amount of discretion with regard to enforcement." That about sums it up, but Will pretty much brushed them off by saying she would forward the letter to the group that reviews such policies, but that the college believes "our policies are fully compliant with the law, reflect good practice, and in no way violate the legal requirements applicable to private colleges."

FIRE tried again in August, with a letter from its president, Greg Lukianoff, noting that engaging in "everyday intimate and affectionate behavior," as just about everybody does, strictly speaking, violates the policy. The letter notes that the college administration "has essentially stated that while the policy does exist and is enforced, it has not been implemented against people for merely hugging."

Well, that's certainly a relief; a conviction for "sexual misconduct" puts a serious crimp in career plans, after all.

Alan Charles Kors and Harvey Silverglate formed FIRE (www.thefire.org) after their book The Shadow University appeared in 1998, and they were inundated with hundreds of stories about campus speech codes, lack of due process in students disciplinary matters, tendentious orientation sessions, dormitory rules and the like. The organization has published several guides for students on their rights on campus; it offers legal help to students, professors and campus groups whose rights have been violated; it has won four lawsuits against public universities that had unconstitutional restrictions on speech; it has a blog and a clickable guide that rates institutions' speech codes.

FIRE is valuable because the contest between students and administrators is so unequal. Not only does the institution have more power, since it can punish, suspend or even expel students, but its staff are there for a long while, while the student body changes entirely in just a few years. Maybe after a highly publicized incident or a lawsuit lost, students learn about their rights, but they'll soon be gone and administrators can quietly go back to what they were doing that caused the fuss.

The organization considers academic freedom issues both in and out of the classroom. It is firmly non-partisan in deciding which individuals to support or cases to pursue, though given the lopsided political views at many universities, conservatives are more vulnerable to the kind of abusive practices FIRE opposes. However, it has enough of a track record now that a letter from Lukianoff often leads to satisfactory resolution of a campus problem.

Unfortunately, not yet so at Gettysburg.

Linda Seebach is an editorial writer for the News. She can be reached by telephone at (303) 954-2519 or by e-mail at seebach@RockyMountainNews.com.

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