Thursday, May 11, 2017

Retroactively Withdrawing Consent

Following are more of my thoughts on Laura Kipnis's discussions of university sexual harassment and assault policies in Unwanted Advances. All the obvious content warnings.

I had an opportunity to hear Laura Kipnis speak about her book at Simon Fraser University last week. Most of what she said was a repeat of material from the book, but I noticed a few new things. In the Q&A, for example, she made a few comments about a couple high-profile cases of sexual harassment and assault allegations in academia I hadn’t previously heard her speak about—she thinks Geoff Marcy was “hung out to dry”, and that he wasn’t a sexual harasser, just someone who “touched people in ways that made them uncomfortable”. (You can read about the "uncomfortable touching" alleged here. One instance perfectly matches President Trump's famous self-report.) She also cautions against rushing to judgment against John Searle, since accusers sometimes lie. (You can read some of the many, many allegations she thinks might all be lies here.)

(Side note: read this piece on Marcy on the challenges to bringing complaints. It is a useful corrective to the picture Kipnis paints of overzealous administrators jumping at any chance to punish accused wrongdoers. It also connects to my point last week about how many of the problems Kipnis finds with Title IX processes—e.g. transparency—are things student activists are on her side about, e.g. here:
A cynical take is that the forces that allowed Marcy to harass women for so many years — his prestige; his ability to bring in funding; the employment protections he enjoyed as a tenured professor; the outdated, onerous, and secretive nature of sexual harassment investigations — are not anomalies of an outlying department, but in many cases defining traits of academia. Undoing these advantages, some experts say, will spur the next big wave of legal battles on college campuses. (emphasis added)
End side note.)

I took the occasion, at Kipnis's talk, to ask a question about a running theme in the book, which she also discussed in Vancouver—the idea of “retroactively withdrawing consent”. According to Kipnis, contemporary sexual panic has codified this dangerous possibility. “Sexual consent can now be retroactively withdrawn (with official sanction) years later,” she writes on p. 91, “based on changing feelings or residual ambivalence, or new circumstances. Please note that this makes anyone who’s ever had sex a potential rapist.” (See also her similar remarks on p. 122.)

Kipnis often describes sexual assault allegations in these terms. She says that there was a consensual sexual encounter, and then, months or years later, someone “retroactively withdraws” consent, converting what had previously been a permissible sexual encounter into an assault. Her language suggests a kind of "backwards causation"—one can reach back into history and create rapes that weren't there by removing the consent. The implication: this absurd metaphysics is being embraced by campus activists, demonstrating both their intellectual depravity and their danger.

But why is Kipnis so confident that, in these cases, there was consent in the first place? After all, there is such a thing as a nonconsensual sexual encounter where the victim doesn’t think of it as such at the time, or doesn’t decide to report it at the time. There is such a thing as being coerced, manipulated, or bullied into a sexual relationship. When this happens, one is quite likely to keep quiet about it at first, either for fear of repercussions, or out of failure to understand what has happened.

Take an example. Suppose someone is coerced into a nonconsensual relationship by a manipulator. She feels awful about it, but only gradually realizes the violent nature of the harm she’s suffered. She is ambivalent about making a report—once she understands how she was abused, she doesn’t want to let them think their behaviour was acceptable. But she knows that many people won’t believe her story, or will blame her for it, and she doesn’t want to go through all of that in public. But eventually—when she sees someone else telling a similar story about the same manipulator, say—she does decide to make a report.

These are my stipulations about a hypothetical thought experiment. My view is that these are pretty realistic stipulations; I think stories like this are common. But everyone should agree that they are possible. But—and here's the challenge I put to Kipnis at her talk—cases like this will look, from the outside, just like the cases Kipnis describes in which a party to a consensual relationship "retroactively withdraws" consent. So I asked her: how can you categorically assert that the cases you discuss are cases where there was consent?

Kipnis agreed that "there are tough questions about what is and what isn't consent," admitting that she's not sure where to draw the line, but took it to be obvious that in the cases she discussed, there had been consent. She recounted a story from her book (pp. 15–6), about a male student who was found by his university to have verbally and emotionally coerced a female student into performing oral sex on him. "This was a case," Kipnis said, "of consent where somebody changed her mind and decided that it had been a nonconsensual experience." (This was new—consent was not asserted in the book. Kipnis also said in the talk that the male student was expelled—the book said he was temporarily excluded.) She also repeated her characterization from the book of Peter Ludlow's relationship with a Northwestern graduate student as a consensual one. But the considerations she cites in favour of this interpretation are ones equally consistent with the coercion hypotheses.

Kipnis is not very impressed by worries about coerced sexual activity. (In this interview, she endorses the "old-fashioned" view that it's only rape if you use physical force to compel sex.) About the student found to have verbally and emotionally coerced another student into oral sex, she writes:
The ruling was that he should have known that consent had to be "voluntary, present and ongoing." For campus officials to find this kid responsible for "emotional coercion" not only means prosecuting students for the awkwardness of college sex, it also brands an eighteen-year-old a lifelong sex criminal—all college applications now ask if a student has been found responsible for "behavioral misconduct" at a previous institution, and demand the details. ... If incidents like these are being labeled sexual assault, then we need far more discussion about just how capacious this category is becoming, and why it's in anybody's interests. (16)
I don't know the specifics, but even from Kipnis's one-sided description (as she says on pp. 15–16, she never includes the complainants' sides of the stories), this student doesn't come off looking good. Verbal and emotional coercion is absolutely a thing. Maybe the complainant just made up these allegations. It's possible to be a vindictive liar who wants to hurt your ex-boyfriend. Maybe he was just being "awkward", and he wasn't being a threatening and manipulative asshole. But Kipnis hasn't given any reason beyond her own assertion, based only on one side of the story, to think this is so. It seems she doesn't think she needs to—she thinks that putting the phrase "emotional coercion" in scare quotes is enough to show that this student was treated unfairly. Speaking as someone who knows a thing or two about emotional coercion: it's not.

Kipnis says more about the Ludlow case. Although she is well aware that her description of Ludlow's relationship with a graduate student as consensual and romantic is contested, she repeats the assertion many times in the book (and again in last week's talk). She is clearly under the impression that she has strong evidence that there was a consensual relationship. For example, she has, via Ludlow, a copy of the email and text correspondence between him and the student. "What would it mean," Kipnis writes, in one of the more bizarre non sequiturs in the book, "to not consent to sending a thousand texts and emails?" (p. 95) I don't know how seriously she intends that flippant remark, but it is suggestive of that pillar of rape culture—the fallacy that if one has consented to anything, then one has consented to everything. The fact is, all of the evidence offered in the book about that relationship is consistent with the coercion hypothesis. (I'm also in a position to assert—though not to argue—that some of the evidence offered is given in an extremely misleading way, given the broader context that Kipnis choose not to share.)

So the fact that in these cases universities sided with the complainants does not imply that they're countenancing notions of "retroactive withdrawal of consent". They are taking seriously retroactive reports of non-consent. (And "retroactive" there doesn't add anything interesting to the meaning—reports about things in the past are always in the relevant sense "retroactive". If my bike gets stolen today, I may make a "retroactive theft report" tomorrow.)

Contrary to Kipnis's scaremongering rhetoric, if you've ever had consensual sex, that doesn't mean you're at risk of becoming a retroactive rapist due to a partner's retroactive withdrawal of consent. That's not a thing anyone real believes in.

77 comments:

  1. http://newbostonpost.com/2016/04/01/judge-rips-brandeis-for-handling-of-sexual-assault-case/

    ReplyDelete
    Replies
    1. Hi Anonymous, I'm not sure what point exactly you're gesturing at here, but I can say a few things about this case. You're pointing to a story in a conservative news outlet that about a case similar to the ones Kipnis is complaining about. Indeed, she mentions it herself on pp. 8–9, repeating many of the talking-points in the piece you link.

      This is an example where one student accused another, Doe, of sexual assault. Brandeis issued him a disciplinary warning and required him to undergo an educational program. Doe sued.

      This piece describes what seem to me to be four central claims about Brandeis's handling of the case:

      1. Brandeis inappropriately leaked the confidential findings, leading to harm.
      2. Doe had been in a long-term relationship with the student who would become his accuser. They remained friends for four months after their breakup, until his ex-boyfriend, "began to change his thinking" about the relationship, and decided he'd been assaulted.
      3. The special examiner who performed the investigation's biography played a significant role in Title IX policy in 2011.
      4. The examination was unduly secretive, and Doe wasn't told the nature of the charge or allowed to retain counsel.

      Of these, only (2) has anything to do with my post here. If (1) is true that is obviously a significant injustice, and, I would think, be appropriate grounds for a lawsuit. I have been quite clear (including in this post, and the one I linked in it) that I do not support the secrecy implicated in (4). (3) strikes me as irrelevant; I don't understand why it's mentioned here.

      So that leaves (2). This does look like a case that Kipnis would describe as a "retroactive withdrawal of consent". I do not find that description compelling, for the reason explained in this post. It is certainly possible for someone to engage in abusive and nonconsensual sexual activities, with a long-term partner, and for that partner not to realize until months later that this is what happened. Do you agree that it is possible?

      You may want to ask me now whether I agree that it's possible for someone to lie about their past relationship and say it wasn't consensual even if it was. But don't ask me that because I've been very clear that I do. (Read the post again if you disagree.) When a complaint comes in like this, it's the job of the investigation to determine which scenario is likelier. That's not always going to be an easy job, but that just is the job.

      So I don't see anything in this article that makes me rethink the points in my post. In this case too, the idea that we're assuming there's such a thing as "retroactive withdrawal of consent" in these cases is just propaganda.

      Delete
  2. The Kipnis lecture you refer to is this one.

    http://www.sfu.ca/humanities-institute/public-events/archive/2016-17/intellectual-freedom.html

    I find it reassuring that the person who selected the name for the html file chose "intellectual-freedom" because to me, that is an important value for academia.

    I value your opinion, so I wonder how you feel the lay person should respond to Marcy's alledged Trump-like behavior (grabbing p u s s y)? As I understand it, that was purely he-said/she-said in terms of evidence, related more than 8 years after the event, which meant that the statue of limitations (3 years for UC's policies) had expired, and also UC lacked jurisdiction, so do you think a professor should be punished in that case? And if not punished by the official procedures, then by public opinion or peer rebuke?

    I am not actually asking about Marcy's case specifically, but more a hypothetical case in which that (described above) was all the Title IX officer had.

    If I ask myself, then I figure I have very little go on, and if I just had to guess, I would tend to guess that the female graduate student is telling the truth and the male professor is lying, because the woman has little incentive to report such an event and the man has a lot of incentive to deny it. So if I am forced to render a judgement based upon a preponderance of bias, then my bias is to believe the claim, but if my judgement is to be based upon a preponderance of evidence, then I would say there is no evidence, there are only contradictory claims. The easy way out would be for me to render no judgement but dismiss on technicalities: jurisdiction and statue of limitations.

    But I value your opinion and would like to to read it, if you have the time. Maybe it is worth an entire post.

    ReplyDelete
    Replies
    1. Hi Anonymous,

      I am not intimately familiar with the details of the Marcy case—I'm mostly going on the two or three news pieces I've read on it. I'm also not intimately familiar with the federal and university-specific rules that govern this kind of situation. I don't know, for example, if the usual obligation to investigate assault and harassment is waived if the alleged misconduct occurred too long ago.

      I do know that Marcy seemed to have a long history of misconduct, which was widely known about, but for which there had been no sanction, because no one was willing to take the professional risk of making a formal complaint. So the hypothetical you're asking me to consider, where we're just looking at a single person's testimony about events from eight years ago, is quite far removed from this real-life case, and from any real-life case I've heard of.

      I guess I don't really know what to think about this case. (I don't even have super strong opinions about what the appropriate sanction is for more conventional findings of assault.) I agree with your assessment that, unless there's some particular reason things are unusual, it doesn't seem very likely that someone would just make something like this up. If I were the investigator, I'd want to ask some follow-up questions, and ask the accused for their perspective too. But if we're imagining that for some reason this is impossible, and all I have to go on is the one standalone allegation, I guess I think it's probably likelier than not to be true. (I wouldn't call this "preponderance of bias"—it's a genuine preponderance of evidence, it's just that there's only a tiny amount of evidence either way.)

      I could probably be convinced out of this stance, but my gut reaction is that no very severe sanction would be warranted, for an isolated case that only slightly probably happened, from eight years ago. I'd want it to be entered into a confidential record—it's very relevant evidence, should a future complaint under more conventional circumstances come up. So I guess that's my answer? Talk to them, make sure it's known that this complaint happened and was taken seriously, make sure we're all clear that this is unacceptable behaviour, and be pretty ready to believe further allegations that come up later?

      Again, I want to stress, this is a pretty strange thought experiment we're imagining. In the real world, we'd do an investigation and get way more evidence.

      Delete
    2. I am fascinated by this hypothetical's illumination of your views on what constitutes evidence. It's important because at some point an investigator is asked to determine the "preponderance of evidence" whatever that might mean. Philosophers must have much to contribute to this.

      I feel there are two individuals claims, basically "he grabbed me" and "I deny that." But claims are not evidence, or are they?

      Perhaps their testimonies could be considered evidence? Do you think? So if she vividly describes "his unusually long fingernails slowly coursing through her hairs on the unshaven left upper thigh as the grand father clock tolled 9:15PM" and he only states, "I deny that." Is that evidence of one's truthfulness compared to the other's? (Some feel detailed testimony is more likely to be true.)

      It's also interesting that you feel that one he-said/she-said complaint would be very relevant evidence to a future (second) complaint. My lay person feeling is, "of course you're right!" but then I remember that in western jurisprudence we specifically do not allow prior unproven charges to influence a current case before a court. Convictions yes, but not accusations. So should Title IX procedures discard that rule? And if so, why?

      I think there's some Bayesian analysis that some might try to apply to these cases. Again, hypothetically, let's suppose (only for sake of argument here) that in an excellent and relevant study, it was found that 1% of women much like the claimant falsely accuse men in similar he-said/she-said situations, should we apply that "bias" (or call it "Bayesian prior") to the particular case before the officer? If we do, are we basing the assessment on the preponderance of evidence?

      I don't think this is a strange thought experiment. I think it is both a common circumstance and exactly the particulars of the case you alluded to, of Marcy and the graduate student in Hawaii. The investigation did not turn up way more evidence. The only other evidence was testimony of two witnesses from the dinner table that couldn't recall anything out of the ordinary about the night in question (8 years after the fact). That does not exonerate Marcy of that charge, but it does make the thought experiment similar to the actual case.

      Delete
    3. I actually have quite a lot of thoughts about what counts as evidence. My new book, coming out next month, defends an idea a number of contemporary epistemologists have been interested in the past couple of decades, according to which one's evidence is everything that one knows.

      I think sometimes, when one receives testimony, one comes to know the thing told. I'm in Scotland right now. If you believe me, you know that I'm in Scotland right now; so your evidence includes the fact that I'm in Scotland. Sometimes, however, knowledge is harder to come by—this is often the case when there is conflicting testimony. A says the vase just fell on its own, and B says that A knocked it over. Maybe I can't know what actually happened, but I do have some evidence. I do know some things. I know, for example, that A says the vase just fell on its own. And I know that B says that A knocked it over. Those two facts—facts about who said what—are among my evidence. I also may have more evidence: I may know that A lied to me yesterday about a similar circumstance, and I know what kind of track record B has in testimony of this sort. I know some things about how the testimony was delivered: who was able to include which details, whether their respective stories are internally consistent, etc. Maybe all told, the total evidence supports believing B.

      The reason I think the hypothetical you're considering is quite different from the Marcy case is that there were many allegations against him, from many different people. So there's quite a lot of evidence.

      Delete
    4. Ah, thank you. I was partitioning the Hawaii dinner alone (with the disputed Trumpian behavior) for the hypothetical case in order to focus the discussion here, but you were thinking of the entirety of the case. That explains our differing evaluations of how plausibly authentic my hypothetical was.

      I look forward to reading your upcoming book, although I expect it will go over my head and I will need to consult the dictionary every page. Does it have a working title that you are willing to post already? And an ETA?

      You wrote that Kipnis said that she thought Marcy was "hung out to dry" and that makes me wonder, "Who does she think was doing the laundry?" University administrators? Faculty member(s) of his own department? Current students? Former students? Astronomers from other universities? Reporters? Activists? Did she indicate who and why? (Since you acknowledge that you're not especially familiar with the case, I am not asking for your assessment but instead whatever you may have heard Kipnis say. I acknowledge that her knowledge of that case (Marcy) may be too incomplete for her to feel comfortable commenting at length on it.)

      Given your philosopher experience, how should a person (J) behave in the following?

      Let's imagine an astronomer, call this person J, knew Marcy and also one or more of his accusers. Let's also assume that J (via one or more accuser) knows the case has been completed and that the University has sanctioned Marcy but has not revealed the sanction to anyone but him. Obviously J can confirm that Marcy was still working as a professor. Does J have a moral or ethical obligation to go to the press (and hence to the court of public opinion) to have the case revealed? Prior to that does someone (the University officials?) have an obligation to inform the accusers (or the public) of the outcome and the sanction(s)? Suppose one or more of the accusers (or a third party like J) knows but is not satisfied with the sanction?

      When I think about these issues, I am reminded of some of the reasons why (most) real trials are public events.

      Coincidentally there is a philosophical issue here (in Title IX land) that also relates to some of the bigger Trump events of late. Secrecy causes some people to behave in ways that don't make sense and cannot make sense, to those that do not know the secrets.

      P.S. I hope you are enjoying Scotland.

      Delete
    5. Information on my book is here:
      https://global.oup.com/academic/product/contextualising-knowledge-9780199682706?q=jonathan%20ichikawa&lang=en&cc=gb

      I don’t think that, in general, I’d think it was a great idea to go public about cases that have been resolved quietly. Maybe in special circumstances that might be warranted, I don’t know. It’d depend on a lot of things.

      Kipnis’s discussion of Marcy at Simon Fraser was quite brief. Someone in the audience pointed out that, since Kipnis was relying on anecdotes instead of more quantified data, it’s relevant to consider anecdotes that pull in the opposite direction—cases where harassment and assault were not taken seriously enough, despite clear harm that was being done. The audience member said that he’d spent some time talking to faculty members in Berkeley Astronomy about the Marcy situation, and that they had emphasized that there had been a long history of complaints, but no action taken.

      Kipnis said that she had looked into the Marcy case, and that, in her opinion, he wasn’t a harasser, just someone who touched people in ways they didn’t appreciate. I believe she used the word “hugger” to describe him. (I think, but am not sure, that she may have made a point of saying that there was no evidence of quid pro quo harassment.) She said that, in her opinion, he was “hung out to dry”—that’s a quote, I’m pretty sure—but didn’t specify by whom.

      Delete
    6. Thanks for taking the time to expand on what you heard Kipnis say.

      It may be a glass-half-full situation for some people to feel that "no action had been taken" to correct Marcy's touchiness and on the other hand, the written record is that he had been admonished by department chairpersons on a few occasions, almost at regular intervals. (half-full = "admonishment is action" and half-empty = "admonishment is not action") I think there is mention in the file of complaints brought to Marcy's attention in 2001, 2006, 2011, 2013, and then 2014. The 2013 warning was for pre-2011 behavior, reported anonymously, and may have been a lead up to the 2014 case that forced his retirement in 2015.

      It's clear in the file that the Title IX officials were seeking any misbehaviors that followed, not preceded, the 2011 warning. No such events (after 2011) are discussed in the file.

      It's possible that Marcy had mended his ways and no longer misbehaved after the 2011 warning.

      Alternatively, it also possible that some additional specific allegations existed in 2014-2015, waiting in secret and kept from officials, but that the faculty and Marcy independently or collaboratively agreed for him to retire instead of continuing the harm of more investigations. But that (the possibility of additional misbehaviors after 2011) is absolutely nothing but speculation on my part.

      We will not know what really happened in the Marcy drama until Oliver Stone makes a documentary movie. ;)

      Delete
    7. Here seems to me an issue, Jonathan. If "evidence" is "what we know at the time", think about what people know and don't know in a sexual encounter. If a man takes some unexpected, unpredictable or surprising action, even short of forceful action, a woman has no "evidence" as to whether or not he is a rapist, or a guy who "won't take no for an answer."

      I can sympathize with then, say, having a guy who was - let's not be too graphic - performing one action on you, to which you were receptive and responsive, and then spontaneously performing another action, and being concerned he might be dangerous. But to call that sexual assault seems like an unfair conclusion, especially if she decides to passively surrender, lay still, say nothing (having been warned of how frequently assault occurs, wrongly, and of the toxicity and danger of men), and later define the behavior as an assault. That would seem to be an error.

      And likewise imagine a man, with the evidence available, say, being in a relationship with someone, having had sexual encounters before, having an experience with a partner where both are emotional, or neither are, or their personal willingnesses to sex fluctuate, or both indicate interest, and then some new behavior - say, pulling hair without asking first, in the moment - gets no response, or gets feigned enjoyment or submission - and no indication of discontent or objection - that man has no evidence available to know that he "is" committing "sexual assault." If he had it, and might stop with it, but was not given that evidence, is he culpable?

      Delete
    8. In addition, I don't know how successful we will be in asking ordinary people to be epistemologists of the boudoir. Inexperience is one factor, with college students. Intoxication is another. Both make it easy to misread, difficult to convey clearly.

      Beyond that, even sober adults have difficulties. That's where Kipnis' more Freudian model seems fair. We are all opaque to ourselves, we do not have perfect self-knowledge, we often misinterpret others' behavior and intentions, we project our feelings onto them, and sometimes we don't know what we want, or pursue things we don't "truly" want. Psychotherapists train partly as analysands, to "do their work" and submit themselves to scrutiny enough to ensure that they don't consistently misinterpret or misconstrue the meanings and intentions of their patients. Even with that training, questioning one's own "counter-transference" is a constant practice.

      Delete
    9. I don't know what to say to above anonymous' comments. They seem like very compelling points.

      Delete
  3. I agree with Kipnis about Marcy. I think you're being a bit slick about conflating the "touching" that Kipnis is most likely talking about with the implausible episode that might be compared to Trump. Marcy denied the incident in Hawaii and I'm sure Kipnis, like me, does not believe he did it.

    ReplyDelete
    Replies
    1. I don't know what you mean by "slick". Here's the allegation I had in mind:

      According to her account to Berkeley’s Office for the Prevention of Harassment and Discrimination, she was at a post-colloquium dinner with her graduate department at the University of Hawaii when Marcy placed his hand on her leg, slid his hand up her thigh, and grabbed her crotch.

      As you point out, Marcy denied having done this. (Donald Trump has also denied doing this.) You can believe Marcy (or Trump) if you want to, but I really don't see that that's well-supported by the evidence. The complainant would have nothing to gain from lying about it, if it didn't happen—while Marcy has every reason to do so if it did. And it fits well with the picture of Marcy described by many people cited in the piece I linked.

      And I want to emphasize, this is only the most egregious of the many harassment allegations against Marcy. Kipnis's own stated view is that he "touched people in ways that made them uncomfortable". How she combines this with supposing that he's not guilty of sexual harassment, I don't know. (Perhaps she thinks that it's only harassment if it's quid pro quo—this might fit well with her stated view that it's only rape if it involved physical force.)

      Delete
    2. By "slick", I meant the insinuation that Kipnis was sorting grabbing a woman's crotch without her consent under merely "touching people in ways that make them uncomfortable". You can believe that story if you want (I think the evidence is weak and the story is wildly implausible); I'm just saying that Kipnis was not excusing or minimizing that behavior. What she is talking about is things like supportively touching someone's shoulder during a conversation about personal matters.

      I've looked at the case, including the documentation of the Berkeley investigation, very closely. Marcy is right when he says, "There was no sex, no intention for sex, and no abuse of power that resulted in damaging any of the complainants’ careers." (He has not even been accused of these things.) I think it's that sort of thing that Kipnis is also thinking about. It's not just that there was no quid-pro-quo; it's that there was nothing that a reasonable person would consider a hostile work environment.

      If you're interested, I've written a lot about the Marcy case at my blog. Here's a place to start.

      Marcy violated policies at Berkeley that are intended to prevent sexual harassment (or, more likely, from the University's point of view, accusations of sexual harassment). He did not actually commit sexual harassment. One might compare accounting procedures that are intended to prevent fraud, or safety procedures in a laboratory intended to prevent accidents. Violating these policies does not in itself constitute fraud or cause an accident, but an employer has a legitimate complaint with people who do so.

      That is, Marcy violated policies, not women. That's an important distinction to make when thinking about whether or not his career should have been ended, i.e., whether or not he was "hung out to dry".

      Indeed, I believe that some of Marcy's students "retroactively withdrew" their friendship (under peer pressure from gender activists). None of his behavior would have been inappropriate with a friend. In fact, it's important to keep in mind that about half of the complaints against him were made by people who merely saw him behave "inappropriately" and this made them (i.e., the witnesses) uncomfortable.

      Delete
    3. I don't care to get into an argument about the specifics of the Marcy case. I'll just say that I strongly disagree with you. The number of people who are alleging harassment over decades defies dismissal in the way you are suggesting. I note that in some of the cases a few minutes' googling got me to, there are records of complaints that were made at the time, which disrupts the hypothesis that they were ginned-up after-the-fact inventions of "gender activists". Some are described here.

      Delete
    4. OK. Thanks for responding. I don't think there's any question that Marcy had long cultivated a particular kind of interpersonal style. We would have to get into the details to decide whether forcing Marcy out of science was the right thing to do. But it's tangential to your broader concerns about Kipnis's ideas, I guess.

      It's probably true that Kipnis and I disagree with you (and many others) about how much "discomfort" people in science should have to tolerate. Or how much of an effort it should take to maintain one's own boundaries.

      One of the problems is that brilliant scientists are famously "socially awkward". This can express itself in many ways, some of them sexual. There are lots of stories that suggest that, in today's climate, people like Feynman and even Einstein would not be tolerated. Or perhaps they would themselves find the current conditions intolerable. Either way, it's a loss to science. The question is whether it is necessary, i.e., whether the discomfort that repressing such personalities avoids is great enough to make it worth it.

      The Devil, like I say, is in the details though. Thanks again.

      Delete
    5. Jonathan,

      You've been a professor for a number of years, right?

      Imagine a senior professor of your department had advised or mentored dozens of graduate and undergraduate students over a couple decades.

      Now imagine that another faculty member at another University started sending emails to those students that asked "in confidence" if they had had any good or any bad experiences with that professor, your colleague.

      Would you recoil in disgust at such behavior of a vigilante? Or could there be circumstances in which such behavior was warranted?

      Isn't there something like the Kantian test? (I recall Kipnis' book invokes this in another context.) What if everyone did that?

      Or even if everyone doesn't, what if we as an academic community celebrate those that do that instead of repudiate their unofficial investigations?

      Delete
    6. I just had a long comment eaten by the commenting system, so apologies for the curtness of this reply. But your claim that it's a loss to science if it doesn't tolerate harassers (you can substitute whatever term you like for the people we're discussing) is highly dubious. People are also leaving science because of the harassers--for instance, the woman in the story Jonathan linked who said that after Marcy touched her breast she just wanted to get her Masters and leave--and there's no reason to think that the contribution of the harassers outweighs the contribution to science that those people would've made, if they hadn't left. And in a climate where it was clear that harassment wasn't tolerated, it's likely that many of the harassers would develop a different interpersonal style, that didn't involve this sort of sexual expression, and so their contributions wouldn't be lost after all.

      I personally don't think we should set our policy strictly in terms of how much science gets done and ignore the harm done to those who have to deal with this sort of sexual expression (this applies to other sorts of science policy too), but in any case, it's not clear that your argument succeeds on its own terms.

      Delete
    7. The only thing that also seems worth pointing out here prominently is that if there is as much evidence against Marcy as Jonathan suggests, he would have been found "guilty"/responsible under the pre-OCR standard, and would be found guilty even with the benefit of due process/procedural rights. So the issue was not with the prior system, but with failure to enforce it, and reluctance of people to speak up for other reasons.

      Delete
    8. Hi Matt, I'm happy to discuss this. But I will insist on not construing my argument as tolerant of harassers. I was arguing for tolerance of discomfort with behaviors that we would, thereby, not be construing as a harassment--because they don't, finally, produce a hostile work environment for reasonable people. It's the threshold for harassment we're talking about, if we are.

      What Kipnis and I are suggesting is that these stories are not sufficient grounds to kick people out of a field 20 years later. They may very well be sufficient grounds to push back at the time. (And many of the stories do in fact include such pushback, which generally had the desired effect.) In an important sense, we're also saying is that being hugged too warmly, or even having your breast touched once, by what you can't be sure wasn't an accident, isn't a reason to leave science either.

      I can easily think of good reasons to leave science. I.e., behaviors that constitute a hostile work environment, which then are a good reason to kick someone out of science if they perpetrate them. Touching someone's breast whenever you (and not they) like and threatening to use your power to destroy their career if they don't let you keep doing it should not be tolerated, no matter how brilliant the person doing it is.

      Delete
    9. Re: Anonymous 12:54 p.m., a few things:

      1. If power dynamics obtain in all settings, having a faculty member ask students for "concerning" stories about a colleague is likely to exert some coercive pressure, isn't it? Or is power sometimes not a determinant?
      2. Isn't it likely some complaints might be due to a personal grudge or subjective perception?
      3. Isn't even the asking of the question through backchannels likely to exert a corrosive effect on a person's reputation by raising suspicion?
      4. Isn't it very easy for whisper campaigns to start, especially in academia?
      5. How do we know that colleagues might not recruit or flatter or bribe or otherwise influence students in order to draw them into a smearing project for other reasons?

      There are a ton of variables in all of these situations beyond the less-than-handful that have been applied within an ideologized framework based on false facts and premises.

      Delete
    10. I agree with much of Thomas' points above. However, I am concerned about American society's tending toward a nominal sanction of firing an employee or forced resignation for a first offense (or first adjudication simultaneously of more than one offense). Add to that the social media mob and you've got two potentially unreasonable punishments, which will make everyone fear being accused. This fear (the other side of the coin of Kipnis' "paranoia") will remove many good things from academia. Or I should write "are removing" or even "have removed" from academia.

      The following are too risky for faculty now to do with students and were regularly practiced in academia. (The list is incomplete. Even if you never did one of these, my point is that in my experience I would say these were common, and now are less so and are practiced with a greater fear of accusation resulting from them. In the following list, imagine N faculty and M students, with N>0 and M>1, e.g. N=2 faculty members and M=3 students.)

      Late night meetings at a cafe, drinking, dancing, back packing, going to the beach, swimming, boating, hot tubbing or hot springing, bachelor or bachelorette parties.

      Also inadvisable now, with N=1 and M=1, is being in the following at the same time:

      An office with the door closed, a car, a private boat, a hotel room, or a campsite.

      You may feel these were never advisable. With this paranoia and the stakes so high (the nominal sanctions that I mentioned) and the standards of proof as they appear to be in some cases, it's a different environment now.

      Although your work environment may not include these behaviors, some research fields do.

      I am willing to give up the first category of faculty-student mingling (somewhat grudgingly) - but losing the second group will hurt academia in very fundamental ways, and it will reduce opportunities more for under-represented minorities, e.g. females in my field, than the majority.

      If one scientific field adopts a paranoid distrustful culture and another does not, the fun, innovative, creative types will enter or remain in the latter and avoid the former.

      Delete
    11. "I will insist on not construing my argument as tolerant of harassers."

      Well, in the first version of this comment I typed out something along the lines of "socially awkward people with a certain style of interpersonal style which expresses itself sexually in a way that is unwelcome," but it was awfully awkward, and I didn't feel it worthwhile.

      As for this: "we're also saying is that being hugged too warmly, or even having your breast touched once, by what you can't be sure wasn't an accident, isn't a reason to leave science"--who are you, or Laura Kipnis, to lay down rules as to what unwanted sexual conduct people should have to tolerate? And it was pretty clear from the article, if you read it, that the people who were subject to this conduct at SFSU did push back, and their concerns were ignored. It's also clear that Marcy's conduct was ongoing, not something that had simply happened 20 years before. (The allegations from SFSU were 20 years old because that was when he was at SFSU.)

      I won't be continuing this conversation, partly because I think everything that needs to be said has been--people can find out the details of Marcy's case themselves--but mostly because it's very difficult for me to post here, for some reason.

      Delete
    12. There is a case at SFSU where Marcy appears to have engaged in a conversation and email exchange about his behavior. I'm not sure how that can be interpreted as "ignoring" the concerns.

      The problem is that there's no simple way to settle it. If someone has a sense of humor that others find offensive, it's not immediately clear that he should shut up. Likewise, if someone has an interpersonal style that some people find uncomfortable, that in itself doesn't mean they should change who they are. No one has right never to be offended, nor even never to be creeped out. People have a right not suffer ongoing abuse.

      It's this environment whey discomfort and offense have become show stoppers that some us are worried about.

      Delete
    13. "Late night meetings at a cafe, drinking, dancing, back packing, going to the beach, swimming, boating, hot tubbing or hot springing, bachelor or bachelorette parties.

      Also inadvisable now, with N=1 and M=1, is being in the following at the same time:

      An office with the door closed, a car, a private boat, a hotel room, or a campsite."

      That list is absurd, it's way too libertine. If you're hot-tubbing with students no older than 22, you know, eye roll.

      At the same time, academia does seem structurally "into" some of these things - the routine MLA interviews in hotel bedrooms, perched on the edge of a bed? There are some "libidinal investments" to reflect on.

      I recommend you watch this - http://www.nbc.com/saturday-night-live/video/hot-tub-lovers/3505918?snl=1

      Delete
    14. I think Thomas makes a good point. I can extend it.

      In some implementations of Title IX and Title VII, the respondent is not told the specific charge or the complainant's name. Only that "complaints have been made about their behavior."

      Such implementation policies create incentives for bad behaviors (lying) and institutional malpractice (Universities caring more about anonymity than truth). The corrosion of trust among colleagues is the worst part.

      If potential complainants are assured such anonymity, they realize that they can attack the reputation of one of their colleagues with impunity and with the full power of the organization behind them. They know that if they stick to he-said/she-said accusations, they cannot be proven as liars. And in a "never question the victim" attitude supported strongly by the community, they also hardly risk much backlash if the promised anonymity fails.

      If more than one individual is willing to conspire to lie or exaggerate, they can have someone fired because of a supposed "pattern of behavior," or behavior that didn't stop after he was warned.

      Alternatively, the threat of doing any of the above can be an effective form of blackmail, either perpetrated by a student on a professor, or by a department chairperson on a professor.

      Rebutting this by stating that you have never heard of such outlandish things actually happening only reinforces the concern for the effect on academia. It is happening, you never hear about it, and hence you blame its victims as being paranoid celebrants of due process that are part of the problem resisting sexual harassment.

      This sets up a conflict between two types of people: those that trust that Title IX implementations are doing a lot of good (Professor Ichikawa) and those that have experienced it first hand and know that it is being abused (Kipnis).

      Delete
    15. I'm getting pretty tired of people saying I say things I haven't said. I almost didn't approve this last comment for this reason. I've said very clearly, I am opposed to the secretive abuses of power that seem to characterize some Title IX investigations, in part because I do not trust that Title IX implementations are doing a lot of good.

      I won't approve further comments saying false things about me. They are tiresome and distracting to me, and confusing to readers.

      Delete
    16. Re: Anonymous5/13/2017 12:45:00 AM

      Thank you for asking those rhetorical questions. They are good ones.

      You didn't mention it, but I had another thought:

      The deterrent to one faculty member "researching" another one in the way I suggested is that it is so unseemly, only a very rare self-righteous person would do it. And even then it could be interrupted by one of the students rightly interpreting the email request as one for "digging up dirt" on the targeted professor and report it as such. One way to work around that would be to demand "utmost confidentiality" and another would be to circulate a "climate survey of the department" to all members and alumni of a department without naming the targeted individual specifically, but then sifting out any feedback addressing that person for follow up investigation.

      "Sexual paranoia strikes academe" was a good title!

      Delete
    17. Professor Ichikawa,

      Thank you for approving my comment and responding to it. Doing so has allowed you to be on the record clearly: you "do not trust that Title IX implementations are doing a lot of good." In good faith I thought you were of the opposite opinion, that you thought while some aspects of Title IX were doing good, others were not. I think all reasonable people would agree with the latter, and I imagine you are a reasonable person.

      I apologize for misrepresenting your position and for costing you the time to reply to correct my error.

      My point is that each abuse of Title IX changes a faculty member (or student), and potentially many faculty members or students that hear of it, from an "ignorance is bliss" trusting attitude to a more hardened and distrusting one.

      Delete
    18. I certainly think that Title IX administrators have done some good things and some bad things. I do not take it on trust that they are doing good things. I agree with the complaints that they are often insufficiently transparent, and not motivated by fairness or correctness. I am absolutely convinced that these investigations are sometimes—probably often—run in ways that are designed to protect the university from scandal and/or liability, rather than to find out what actually happened and respond appropriately.

      The main point of one of my previous posts was that these complaints about Title IX investigations are very common among student anti-rape activists.

      Delete
    19. OK, now I just need to recalibrate my understanding of what we (or Jonathan and Kipnis) are disagreeing about.

      I think everyone agrees that sexual harassment and assault are bad things about which something needs to be done, both in general, and in specific cases. The Title IX apparatus is certainly doing something about it. No doubt, it has rightly punished some people. Some innocent people have no doubt also been "hung out to dry" unfairly. Finally, some guilty parties have no doubt gotten away with what they have done. That's all under Title IX as currently practiced.

      Is the real point of dispute not whether Title IX is doing more harm than good or more good than harm? That is, isn't Kipnis arguing that women would actually be safer if they were not "protected" by Title IX but educated in a more traditional way about the risks of sex and ways to mitigate them, and that men, certainly, would be at a lower of risk of being wrongly accused and disproportionately punished? And that this climate would be much healthier all around than the what she calls the "paranoia" of the current Title IX regime. And much better able to solve problems as they arise?

      So, if we take the Marcy case again, we might all agree that his behavior was "problematic". But if we also all agree that the behind the scenes intrigues that occasioned the Berkeley investigation and the subsequent media push to get him to resign was disproportionate, and that a different way of pushing back would both have been more effective and more fair, and better for science, then I don't think we're really disagreeing about very much.

      I don't personally think Marcy was guilty of sexual harassment, but I do think our way of dealing with harassment issues (going all the way back to the 1990s) caused a lot of damage, including to the women that he made uncomfortable. I think telling them (as Title IX does) that they were, in fact, harassed is a mistake. By this I don't mean that they should have just "taken" it. I mean they should have found him sufficiently unthreatening to deal with it locally and informally.

      Delete
    20. Thomas, I don't come anywhere close to agreeing with what you suggest might be common ground about Geoff Marcy. I don't see how you could think that I, or others who have expressed disagreement with you on this thread, do.

      Delete
    21. Here's what I suggested:

      1. Marcy's behavior was "problematic".
      2. It was handled poorly.
      3. The final outcome was disproportionate.
      4. A better way can be imagined.

      I take it that it's especially point 3 you disagree with. That is, you think that justice was finally done in 2015. Or, perhaps, like some of Marcy's critics, you think he got off easy by keeping his emeritus status, for example, or even his no doubt substantial pension? That is, perhaps we could agree that

      3. The punishment did not precisely fit the crime (it was either inadequate or excessive). At the very least, it came too late.

      If 4 means something better than letting it go on for 20 years and then just putting him out to pasture in ignominy, I thought we would agree that (as per 2) that wasn't the best way to do things.

      The Marcy case was a Title IX process, to it's an example of the pros and cons of these processes. I thought we could simply agree that it doesn't constitute an ideal way of handling such matters.

      Delete
    22. Thomas, you seem to think that per Title IX, matters of mere offense are thereby legally codified as harassment. But nothing in Title IX makes it such that matters of mere discomfort are thereby matters of sexual harassment. That's just not what the standard is under the law. Unwanted conduct of a sexual nature (i.e., sexual conduct which causes discomfort in that it is unwanted) does not rise to the level of harassment unless it is sufficiently severe and pervasive to create a hostile environment, or reasonable interferes with equal access to educational programs. You can read about the standard here: https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf

      It seems pretty important to me to get clear on this because everyone agrees there are problems with how Title IX is implemented, but that's an entirely different question from what the law says, or does, and unless you know what the law says, it's hard to get clear on where the folks on the other side of this actually stand on various issues (like how harassment ought to be responded to).

      Delete
    23. Kathryn Pogin - from your posts you seem to be knowledgeable beyond most in Title IX. So I am surprised that you write "unwanted" instead of "unwelcome" which Title IX and VII use. Many popular posters use "unwanted" but it is imprecise and inaccurate to do so.

      Delete
    24. I'm not sure where I left that impression. I generally insist on the "severe and pervasive" standard. The criticism of the Title IX regime is precisely that it enforces a much lower one. This has also affected the social science of harassment, especially the study of harassment in college and STEM. What is counted as harassment in surveys is often far short of severe; and each case is counted regardless of frequency.

      The most radical case of this is the recent study of the climate at the University of Texas. The report says: "The terms employed in this study are used in the context of social science research, and not in their legal context. They are not intended to indicate that the responses of results of the survey constitute or evidence a violation of any federal, state, or local law or policy." Within this "social science" framework, it is able to conclude that 15% of the female undergraduates at UT Austin have been raped.

      The researchers are of course part of the Title IX apparatus, closely allied with it. The worry here is that the behaviors that these women experienced can become the basis of Title IX proceedings by which the "perpetrators" are then expelled as, indeed, "rapists". But what they did was not rape by any legal or commonsense standard.

      The same would go for still milder behavior for which they might be expelled for "assault" or "harassment". I believe the legal standard gets it right. And it's on that standard that Title IX gets it wrong.

      Delete
    25. Exactly right, Thomas.

      Delete
    26. Thanks for the reminder Anonymous -- I referred to the welcomeness standard elsewhere below, but spoke imprecisely above.

      Thomas, you seem to be conflating a number of things. Social science research on harassment is separate, of course, from "the Title IX apparatus," and so far as I can tell it's not closely allied with it in any meaningful sense that helps your case. Jennifer Freyd, for instance, is one of the more prominent social science researchers working on related areas, and of course she has been exceedingly at odds with the way Title IX is implemented in a number of cases (advocating against broad mandatory reporting policies, for instance) -- indeed, that is the very focus of her research. She's certainly not alone among social scientists, particularly those who have worked closely with student activists.

      But aside from that, and focusing on the particular study you cited, isn't the fact that the language is clarified and qualified evidence against the idea that the behaviors in that study are thereby being construed as legally actionable under Title IX?

      And further yet, of course language surrounding assault under civil rights law needs to be disambiguated from language under criminal law because in certain jurisdictions the criminal law does not match up with civil law, e.g., https://www.theguardian.com/society/2016/apr/27/oral-sex-rape-ruling-tulsa-oklahoma-alcohol-consent (and in some cases, of course, rightly so! It's important to have avenues of redress for protecting equal rights and it's also important to be extraordinarily cautious in exercising state power in a manner that can result in imprisonment).

      And lastly, don't forget that institutions are responsible under Title IX for maintaining environments in which students are not subject to sex discrimination. A university community might maintain a culture of pervasive sexism such that students are repeatedly subject to demeaning treatment on the basis of sex without any particular individual harassing anyone (say, Joe calls Jane a sexist slur, then in her next class, Jim tries and fails to grope Jane, then in her next class, Bob yells sexist insults at her -- it might very well be that none of that on it's own is tantamount to harassment, but that doesn't entail the university isn't on the hook for the collective impact). To that extent, it is valuable for social science research to look at patterns of behavior that can give rise to hostile environments even when the behavior is not harassment per se.

      But also, I think the best information we have is that students are not broadly being expelled for sexual assault even when found responsible for it (most get suspensions, less than a third it seems are expelled), e.g., http://www.huffingtonpost.com/2014/09/29/campus-sexual-assault_n_5888742.html

      Delete
    27. Hi Kathryn. There is certainly some independent research out there. I am familiar with Freyd's work and have been impressed so far. Not incidentally, the work of hers that I've seen (with Marina Rosenthal and Alec Smidt) has found a very low rate of faculty-on-student harassment in science (for women: 1.44 on a scale from 0 to 72).

      In the UT case, however, the research reported was released at a press conference in which the Title IX coordinator also participated. I think there is an enormous overlap of interests between social science research in this area and Title IX administration. Indeed, UT paid almost 2 million dollars to fund the project, certainly as part of its Title IX effort (and certainly something that will be reported to OCR to show how serious they are), and not as an exercise in pure social science, insulated from practical interests.

      As a critic of Title IX, I of course acknowledge (and never forget) that institutions have been given certain responsibilities. I simply disagree that it is wise to interpret those responsibilities the way they are currently being interpreted.

      I don't believe that college campuses are generally populated by pervasively, and severely sexist students. I think Joe, Jim and Bob are probably ordinary assholes and Jane (and her friends) can probably handle them. Or maybe there's something about Jane other than her gender that is triggering these men to call her bad names or make clumsy moves on her. Who knows? I don't think our default go-to explanation for why she's getting this treatment should be "systemic" sexism that the institutions are responsible for (by, for example, "training" all men in the appropriate treatment of women.)

      Fortunately, not everyone is getting expelled, as you point out. But I would hope that a Title IX investigation that concludes that someone is rapist would in fact expel that student. That's why it's important to keep words like that precise in their meaning.

      Delete
    28. PS: From the UT report's acknowledgements: "Our gratitude and appreciation goes out to UT Austin CLASE Stakeholder Group chair Associate Vice President and Title IX Coordinator LaToya Smith and fellow members Director J.B. Bird, Captain Charles Bonnett, Associate Vice President Chris Brownson, Chief David Carter, Chief Information Office Bradley Englert, Clinical Coordinator Leah Leeds, Chief Compliance Officer Paul Liebman, Pro-gram Manager Linda Millstone, Associate Director Katy Redd, Assistant Vice President Jessica Sentz, Teaching Assistant Fatma Tarlaci, Assistant Chief Don Verett, and Associate Professor Lynn West-brook for their commitment and tireless energy developing recruitment and promotional efforts that led to a successful fall survey launch.

      Chris Kaiser, director of public policy for the Texas Association Against Sexual Assault (TAASA) and Aaron Setliff, director of public policy for the Texas Council on Family Violence (TCFV), receive our immense gratitude for their superb legal prowess and guidance."

      When I say the research is allied with the apparatus, this is the sort of thing I mean.

      Delete
  4. I find your rebuttal of Kipnis' description of Ludlow's relationship with the grad student particularly non-compelling. Unless you have a case that Kipnis actually *made up* the quotes in question and the many references to the romantic relationship between Ludlow and the grad student and her very active role maintaining that relationship, then I really don't think you have a case. No, consenting to one thing in a sexual relationship does not mean consenting to anything, but I think these emails speak quite strongly against the idea that the relationship was wholly or largely coercive. Also, keep in mind that the woman in question wasn't even *his* grad student, so it's not like he had any direct power over her.

    I'd also say that while one could argue that Kipnis' description of of Ludlow's encounter with the undergrad depends on her simply offering a differing reading of events, a version one may or may not buy, her case that Ludlow's relationship with the grad student was consensual is on far more solid ground.

    Kipnis offers a particularly strong argument that the Title IX investigator's twisted the narrative here to rule in favor of calling this anything like a case of sexual assault. The investigators were clearly so attached to this ideology of vague "power differences" utterly nullifying clearly expressed consent that they basically railroaded a finding of guilt in Ludlow's case.

    Now if you have any evidence that Kipnis has made up or twisted the report to suit her narrative, please, let me know. I have no interest in defending a lie. But if we're working from the same set of reports, I'd say your interpretation is way off base.

    ReplyDelete
    Replies
    1. I want to tread lightly here. I'm deeply uncomfortable with the fact that these private exchanges are being discussed in the public domain at all. But since I can't change that, I'll just say two things:

      1. I disagree that the quotes and paraphrases Kipnis offers amount to a strong case that there was a consensual romantic relationship, and that the graduate student played an active role in maintaining it. Many of the examples she cites struck me as total non sequiturs. To give one example, on p. 94 she says the student asked Ludlow to stop seeing another woman that he was seeing, and says that this shows there must have been a romantic relationship. I find this bizarre for at least two reasons.

      First, I just don't see why Kipnis thinks only romantic partners would ever say things like this. Kipnis tells us none of the context, so the reader has to imagine all the many possible ways this could go. Suppose for instance that someone I am close to and spend a lot of time with is dating someone who is violent and abusive, towards him and towards me. Then I might well ask him to stop seeing her, regardless of whether he and I are in a romantic relationship.

      Second, even if, as the picture Kipnis is suggesting has it, they had a relationship with roles approximating those of typical romantic relationships, that's no evidence against the allegation that it was coerced and nonconsensual. If one were bullied into a romantic script, it's to be expected that one would play out some of the conventional romantic roles.

      2. You ask if I have additional non-public evidence about the situation. I do. I have seen much more of the context than has been made public. My own opinion is that yes, Kipnis is representing things in a very misleading and inaccurate way, even separately from the interpretive issues gestured at above. But in my public writing about the book, I've made the decision to focus only on publicly accessible considerations. I don't want anybody to have to "just take my word for it". So I'm not trying here to make the case that Kipnis's description of the evidence is inaccurate. I'm just answering your question by reporting my opinion that it is.

      Delete
    2. "Now if you have any evidence that Kipnis has made up or twisted the report to suit her narrative, please, let me know."

      One problem with this case is that responding to this request, which is made frequently, would require those who could do it to further violate the privacy of the students in question. Already, despite the paper thin uses of a pseudonym in various contexts, the identities of the students are widely known. If we respond in detail we simply add to the gossip and public humiliation.

      Let me say this: I have direct knowledge that the book attributes a number of actions and statements made by real people to a non-existent composite person, with no indication from Kipnis that she is creating a composite figure, and completely severed from relevant context. Others with axe to grind have told me similar things about other parts of the book. Kipnis is an unreliable narrator.

      Delete
    3. The scenario you describe in part 1 seems quite contrived. You're saying that the plaintiff could have in thought that this other woman was being abused, and that she therefore tried to instigate a breakup to protect the other woman. Your evidence for this scenario is...what?

      This is a weak argument, at least as it stands. Even under the "preponderance of evidence" standard, a defendant is still a defendant, entitled to some presumption of innocence. Which means speculative scenarios like you've offered for holes in the plaintiff's case are not sufficient for establishing a defendant's guilt. Now if there's actually evidence in the record supporting that scenario, that would be a different story, but so far, I've seen none of Kipnis critics offer actual evidence of the falsifications they accuse her of.

      Also, I don't share your discomfort that the private exchanges were made public. As far as I'm concerned, that ship sailed when the exchanges were used in a quasi-legal proceeding that was used to terminate the Ludlow's employment and effectively end his career. Maybe Ludlow really did have it coming, but the evidence for this and the process by which this was reached really ought to be transparent. Otherwise, it really does come to "take my word for it", and I simply don't think that's adequate, given the seriousness of the accusations and the consequences for the accused.

      Obviously, I like Laura Kipnis work, and hence, I lean in her favor, but I don't take her word blindly either. If her critics offered actual evidence rather than throwing shade, I would definitely be open to hearing out that side.

      Delete
    4. I think you misunderstood the scenario I was trying to point out: I was imaging that my friend is dating someone who is abusive to him and/or to me. Then I might ask my friend to stop seeing her—for his benefit and mine, not for hers—even though I’m not dating any relevant parties. The version you thought I was saying also seems possible, although I agree it’s a bit less plausible. At any rate, my point was to show that Kipnis’s attempt to demonstrate a romantic relationship is inconclusive, because it is consistent with interpretations like this one. I’m saying it’s possible, not that it’s true.

      Maybe I need to be clearer about the dialectic I am engaging in in this post. I am not trying to argue in this post that Ludlow is guilty and was rightly terminated. (I’m not saying I don’t think this—I’m just not trying to argue it now.) I am trying to argue in this post that Kipnis’s discussion of “retroactive withdrawal of consent” is unwarranted, and that she fails to make the case she think she does about the Ludlow case. So in this context, the burden of proof rests with Kipnis, not with me. She wants to affirmatively assert that there was a consensual romantic relationship. I am saying she hasn’t earned that conclusion. (I am not saying that I have earned the opposite conclusion, that there was no consensual romantic relationship.) If Kipnis had written, “this looks like it was probably a consensual romantic relationship to me,” she would not be vulnerable to the objection that I am making. But she said, both in the book, and to my face when I asked her about these issues, that these cases were definitely consensual. That’s what I’m (here) complaining about.

      Delete
    5. re: Nicole Wyatt's "Kipnis is an unreliable narrator"

      In my lifetime, I have had a few experiences in which I was directly involved and then read the description of events elsewhere. In all cases, and this includes simple and uncontroversial events, the description did not match my first hand, eye witness account. Even allowing for the general fact that different people witness the same events differently, and even allowing for the possibility of my own errors, I conclude that expecting ANY narrator to get a story correct is expecting too much. And errors do not generally impeach an entire narrative.

      Kipnis may have reasons to create composite characters and even to include disinformation. I don't recall if she acknowledges such in her new book. Sometimes these techniques are used to masked identities or avoid law suits.

      Delete
    6. Nicole Wyatt,

      Is it not a normal technique to create a "composite" for the sake of illustration, without meaning to do violence to real people, especially if it keeps them from having their identities revealed? And/or is it possible that - maybe - there are enough similar cases all over the country that people recognize a detail that resembles their own and might wrongly think it to be taken from their experience?

      Delete
    7. "Is it not a normal technique to create a 'composite' for the sake of illustration"

      Without judging whether this is what happened in this particular case, it is decidedly not normal to create a composite character without acknowledging that the character is composite, particularly in a work of advocacy journalism as opposed to literary non-fiction.

      Delete
    8. Perhaps it's not a composite character, but a real person whose permission Kipnis requested, and because there are details in which people recognize themselves and their own dramas, they are wrongly attributing some deception to her?

      Delete
    9. Kipnis has the facts wrong. One example, but not the only one, is that she thinks that one person did a, b, c, when in fact no one did a and different people did b and c. Given how much significance Kipnis places on many of the events she gets wrong, these mistakes matter. But because explaining in detail everything she has wrong would require a massive violation of privacy, its not going to happen. Which means that all the *anonymous* posters can come along and claim that people "wrongly think it to be taken from their experience", or that mistakes happen but that doesn't mean the overall narrative is false.

      This is what's so pernicious about Kipnis's book. She has behaved unethically, but no one can demonstrate that to all these people who desperately want to believe her without behaving equally unethically.

      Jonathan is doing a fine job showing that even if we take the facts to be as stipulated Kipnis's interpretations don't hold water, and so this is really a distraction anyway. I'm making this my last comment on the matter.

      Delete
    10. What a cheap evasion. I know Kipnis is wrong, but I can't tell you why in any detail. You just have to trust me. But we don't trust you. Trust me, we don't.

      Delete
    11. That doesn't convince me. If this is about cases at Northwestern, then Kipnis could only write and surmise based on the information available in the public record. If other details were private and off-limits, she had no way of writing about them or even knowing about them.

      What seems more pernicious is that nit-picking details and errors in Kipnis' book seems like a way to keep the focus on her and her "unethical" or "pernicious" behavior, to prevent us from questioning whether the Title IX enforcement and machinations might themselves be unethical or pernicious.

      Delete
    12. If this is about cases at Northwestern, then Kipnis could only write and surmise based on the information available in the public record. If other details were private and off-limits, she had no way of writing about them or even knowing about them.

      You obviously haven't read the book. As Kipnis says, she relies extensively on documents that have not been made public, but instead were given to her privately by Peter Ludlow.

      Delete
    13. Yes, and these records were part of the case record of NU's termination proceeding. They are rebuttal evidence against the charges. If the charges are public, the rebuttal evidence should be also. That's the way fair proceedings work. We don't have secret trials in this country, with secret evidence.

      Delete
    14. So she relies on evidence provided only by one party, and doesn't seek out accounts of others, or give them an opportunity to rebut the evidence she's been provided?

      Delete
    15. Anonymous, I get the impression from the tone of voice I feel like you'd read that comment in that you think you're making some kind of clever tu quoque point or something, but if so it is lost on me. Are you under the impression that Title IX investigations rely on evidence provided by only one party and don't seek out competing accounts? Do you think that's what happened in Ludlow's Title IX hearing? Do you think that's what happened in Kipnis's Title IX hearing?

      Delete
    16. We don't have secret trials in this country, with secret evidence.

      So I want to say a couple of things about this. First—and I'd thought this was obvious—Peter Ludlow was not being tried for any crime. He was investigated by his private employer for violating his professional obligations. It is true that some of the things he was accused of were in fact illegal, but this wasn't a law enforcement investigation.

      Second, relatedly, the idea you suggest, Anonymous—that in cases like these, the evidence should be made public—is I think more radical than you think it is. Consider an analogy. Suppose I make a serious plagiarism allegation against one of my students; a university disciplinary process ensues, and we each present relevant evidence to the university's investigators. They conclude that yes, this was a serious case of plagiarism, and sanction the student, perhaps by expelling them.

      Do you think in such a case it would be proper for the evidence I presented to the university panel to be made public? I don't. Much of it remains protected by privacy law; we can imagine versions of the case where much of it is embarrassing and personal to me or to the student.

      You may have seen that Doe, the graduate student Kipnis discusses at length filed a lawsuit yesterday against Kipnis and her publisher. I wrote about it here: http://blog.jichikawa.net/2017/05/laura-kipnis-and-harper-collins-have.html

      The lawsuit includes a summary of the Doe's description of her relationship with Peter Ludlow. According to her version of the story, he fixated on her before she even became a student, cultivating an inappropriately personal relationship, and exerted persistent sexual pressure on her, despite her stated preference to keep their relationship professional. She also alleges that he raped her and that she declined to file a formal complaint for fear of negative professional consequences, but that she was finally convinced to do so when she heard about other allegations against him.

      Suppose for the purpose of argument that Doe's allegations are true. If so, her complaint was appropriate, and a genuine service to the profession. She did not think—nor should she have thought—that her complaint would or should have resulted in having intimate details of her relationship and her life history being aired and debated by strangers in her professional orbit. If she had, she'd've been, one assumes, less likely to come forward. And if other people in similar situations come to think that this is what happens to people who speak out when they've been victimized, then they will be much likelier to keep quiet when they have been victims of sexual misconduct.

      I am sure that that's the result that some people want. But I am not among them.

      Delete
    17. You make a good argument above Jonathan in your 5/17 comment.

      The secrecy of proceedings has both good and bad aspects.

      There are at least two sides to every story.

      The Title IX procedures are flawed and probably cannot be fixed, even with a lot of time and effort by well-meaning wise people empowered by a consensus of students, faculty, administrators, legislators, and the public.

      An incomplete but practical solution that should please everyone is to limit the number of people (accusers and accused) that enter the Title IX system. That is where Kipnis' world view holds a lot of practical wisdom: adjust behaviors in real time. Also, develop a culture that supports that adjustment to behavior.

      Delete
  5. If you have time and inclination, could you set out a bit about what you have in mind by consent and coercion.

    ReplyDelete
  6. I am unclear why it matters if there was a romantic relationship between Ludlow and the graduate student. Even if this is true and consensual, sexual assault can still happen. After all, this is the reason why marital rape is now considered a crime. Consenting to 99 instances of consensual sexual relations within a consensual romance has no bearing on the level of consent of the 100th instance of sexual contact. Consent has to be given for every instance.

    ReplyDelete
    Replies
    1. I agree also, in some very narrow principled way but feel "no bearing" is hyperbolic.

      I think there's a relevant analogy that you may not agree with.

      The truthfulness of 99 accusers has no bearing on the truthfulness of the 100th accuser. Or does it?

      How about the statistical relevance of "99% of accusers are truthful" (just for sake of argument) to any particular case?

      Delete
    2. It matters because the specific claim being made against Ludlow is that he coerced the plaintiff into a relationship. Kipnis found evidence against this claim in the records of the case itself.

      Now if the case had been that the had a consensual relationship, and that Ludlow had sexually assaulted her in the course of that, then your point would be absolutely valid. That's not what Ludlow was charged with, however.

      And, honestly, this emblematic of the kind of smears that are thrown at Kipnis. It's being claimed that she's defending classic rape myths, such as the claim that you can't be raped once you're in a relationship with somebody. She's in fact saying nothing of the kind.

      Delete
    3. I think Illinois is a yes-means-yes state now. And may have been one at the time of Ludlow's hearing (I don't know). It probably was not one at the time of the alleged infractions (again, I don't know).

      I offer it up for discussion: should Title IX proceedings be required to apply the policies that were in effect at the time of the alleged infractions? Or is there a greater good to be achieved by allowing (insisting) that Title IX hearings apply current policies to past actions even if the actions were not against any policy in effect at the time?

      I realize that this is a bit off topic. But not entirely so. I feel it brings up again the question of whether we believe a greater good is achieved by respecting procedures, whatever they are, i.e. do we conceptualize a due process, or whether we feel we know better and will seek extra-judicial sanctions?

      The Title IX office and UC (one could argue) mostly tried to follow procedures, while Marcy's faculty peers sought extra-judicial sanction, a vote of no-confidence in Marcy.

      It's possible that both behaviors are good and justified and correct. Undoubtedly the different groups (Title IX officials, faculty peers) had different bodies of evidence informing their actions.

      To me, the disconcerting behavior is that of the online mob, judging quickly and without the evidence that either the Title IX officials or Marcy's faculty peers had available to them.

      Delete
    4. There were multiple allegations made. One allegation is Ludlow coerced the complainant into a relationship she didn’t want to be in. Another is that he raped her. Zain's point, I think, is that the latter is very serious on its own, and doesn’t rest on the former. But yes, iamcuriousblue is correct that both are relevant to the Northwestern investigation.

      I focused on the former claim in this post because it’s the one where Kipnis explicitly runs her “retroactive withdrawal of consent” line.

      And, honestly, this emblematic of the kind of smears that are thrown at Kipnis. It's being claimed that she's defending classic rape myths, such as the claim that you can't be raped once you're in a relationship with somebody. She's in fact saying nothing of the kind.

      I am being pretty careful in my posts to deliberately source my attributions of views to Kipnis. I haven’t accused her of defending that particular classic rape myth, but I really do think she defends some of them, such as the myth that charming and attractive men don’t rape people, or the myth that it’s not rape if the complainant’s sexual agency is part of the explanation for how it happened, or the myth that if someone is sexually assaulted, they will definitely cut off all friendly contact immediately afterward. These aren’t accusations I’m throwing around willy-nilly—I’m arguing pretty carefully for them in the main text of my posts.

      Delete
  7. A serious questions, Jonathan:

    My understanding is that (a) being manipulative and emotionally coercive (I'm not totally sure I understand that concept) to get sex is not illegal, and (b) universities should apply the same standards to sexual harassment as in the law, which is only concerned with consent. It would follow that being manipulated and emotionally coerced is compatible with consent. You seem to think it is not. Where am I mistaken?

    ReplyDelete
    Replies
    1. Where there is a power differential. So, for example, Bill Clinton and Monica Lewinsky. If it was Monica and Joe Blow that works at the FDA, then I agree with you.

      Delete
    2. 1. Sexual harassment is prohibited under Title VII and Title IX because it is a form of sex discrimination under the law, and sexual assault is prohibited because it constitutes an extreme form of sexual harassment. The standard under Title VII (and Title IX is often understood by way of reference to Title VII) is not consent but welcomeness, so its very unclear consent is the standard under Title IX (if that seems weird, remember the statute isn't concerned with carving out sexual assault in particular--it's concerned with sexual harassment as a form of sex discrimination). A school or employer might craft a policy to comply with Title IX that uses consent to distinguish assault from harassment as a policy matter, but it need not (and probably should not, given some of the differences) use the same language that would carve out sexual assault as a criminal matter. Title IX is to ensure equal access to educational opportunity as a civil right matter, it's not a stand-in for a criminal proceeding.

      2. Being manipulative and emotionally coercive to get sex is not necessarily illegal, but there are certainly ways that can proceed which are illegal.

      Delete
    3. Why think (b)? Organizations can and do set policies for their members that go beyond 'follow the law.' There is nothing preventing a university from insisting that their students have duties to one another beyond the student's legal responsibilities, including regulations of sexual conduct. The university lacks the power to jail people for violations of these policies, but termination or expulsion is well within their purview.

      Your other concern is wide-ranging. Suffice to say that it seems possible for someone to be manipulated to the point where they give permission but do not consent - consider the case of an already emotional suspect being manipulated, lied to, emotionally blackmailed and berated for hours by police until they 'confess.' I think the suspect did not consent to the confession.

      Delete
    4. First of all, universities are only setting these policies because they've been "blackmailed" by OCR and feel forced to comply. It's a quasi-public, quasi-private grey area.

      Beyond that, even if organizations are allowed to go 'beyond' the law, that doesn't mean we should encourage the setting of policies that are unrealistic, dishonest, or unfair.

      Delete
  8. Re: Anonymous 5/14/2017 12:00:00 AM

    That list is absurd, it's way too libertine. If you're hot-tubbing with students no older than 22, you know, eye roll.

    I agree that if one made a regular habit of all of these behaviors, that would be libertine, and quite possibly too libertine. (Let's be clear: I am not advocating the more libertine list for one-on-one interactions.)

    But these activities can and do happen without incident. At conference hotels there is often a pool and hot tub: is a faculty member to leave the hot tub if a student enters? How about the exercise room? or locker room? If the conference is held at a scenic locale and the graduate students ask a faculty member if he or she would like to come along to the beach on the free afternoon, must the faculty member decline the invitation?

    Is it wrong for a faculty member to invite students to his or her home for a dinner party? Or do go together on a skiing weekend?

    Especially for research fields in which field work is essential: Is it wrong for faculty and graduate students to backpack together? If they are at a remote hot spring, must they take turns according to academic development and/or by gender?

    For everything: does it matter whether we are imagining graduate students or undergraduates? I think it does, but only in the sense of "good manners" not in terms of "good defensible policy." The benefits of such experiences to the graduate students are greater than for the undergraduates.

    Thanks for linking to the SNL video. Will Farrel's character asks midway through, "Whose hand is on my cul de sac?" This is the response Kipnis (and Thomas here) argue for: solve it in the moment and move on. Waiting years to file a Title IX complaint is no good.

    Leaving the hot tub much earlier would have been better, but he was kept there by his romantic tension with his girl friend. Again, Kipnis' point is that sex is complicated.

    If he had left the hot tub at his first discomfort (at the moment the other couple entered the water apparently without the first couple's consent), and filed a report with the conference organizers, then what do we wish for their response to be?

    A) "I'm sorry you were offended. Now grow up and handle these things yourself..."
    B) "Thank you for reporting this behavior. We will open a case, interview everyone involved, bully the conference hotel to provide surveillance video (because we cannot subpoena it), and also make some discrete inquiries of others at the conference if they had any uncomfortable interactions with the accused. We are also reviewing our hotel selections for future conferences."

    ReplyDelete
  9. You either have agency or you don't. You either accept the responsibilities of citizenship in the community governed by laws, or you don't.

    That's the simple way to describe it. The complex way to describe it is to accept that democracy and self-government are based on illusions, that people are rulers and ruled, dom and sub, slave and master, that love takes many forms and "moral responsibility" deserves to be subject of mockery.
    That's the logic of De Sade and the sexual political underground.

    "The color is black, the material is leather, the seduction is beauty, the justification is honesty, the aim is ecstasy, the fantasy is death."

    If politics is a discussion of shared public life, this is anti-politics, nihilism in the name of moral honesty, against the moralism of lies. But beware: if no one is responsible for anything it's left for the strong to rule as they will. The strong may be puritan- "No one is responsible for anything, with the exception of myself and my equally enlightened friends" - or fascist.

    It's amusingly perverse how the philosophy of the anti-bourgeois underground, reactionary, individualist, decadent, sexually wild, emotionally hot and cold, denying anything beyond intimate experience, and therefore opposed to political reforms- Genet opposed prison reforms because prison made him the man he was- has found a home in the academy, made vanilla: non-contradictory.

    The best answer to the Dolezal absurdity is an absurd film by a comedian, a man who is exactly the mixed race person Dolezal fantasized of becoming Get Out is the honest answer to Tuvel, just as DeSade and Candy Darling are the honest answers to men who want to be called women.

    De Sade:
    "...if only you knew this fantasy's charms, if only you could understand what one experiences from the sweet illusion of being no more than a woman! incredible inconsistency I one abhors that sex, yet one wishes to imitate it! Ah! how sweet it is to succeed, ...

    Candy
    "I've been up all night alone, wondering about my identity. Trying to look for an explanation for living this strange, stylized sexuality. Realization cuts feeling off. I try to explain my identity as being a male who has assumed the attitudes and somewhat the emotions of a female. I don't know what role to play."

    Wanting to be something is not being it. https://paisleycurrah.com/2016/04/26/feminism-gender-pluralism-and-gender-neutrality-maybe-its-time-to-bring-back-the-binary/

    Wanting people to see you as you see yourself is one thing. Demanding that people see you as you see yourself and the state putting your demands as law, is fascism.

    Tell me about transgirls and Title IX, about transwomen feminists opposed to abortion (if they don't know any you will soon enough).

    The post above like the arguments I've just mentioned are founded in the politics of fantasy. Rationalism without empiricism, founded on self-reporting. You've underlined Enlightenment humanism in the name of what you imagine is your own enlightenment.

    In the war between philosophers and comedians, comedians always win. Idealists become fascists. Comedians are empiricists.




    ReplyDelete
  10. Obvious typo at the end: "undermined" not underlined.
    And fyi, Kipnis came out of art school. You want to talk about fun. The old days were fun. Another answer to Tuvel, and to you.
    https://www.youtube.com/watch?v=4ehoomjQjfI

    ReplyDelete
  11. If people aren responsible what's the result?

    http://www.telegraph.co.uk/news/2017/05/17/lavinia-woodward-cant-avoid-prison-just-clever/

    ReplyDelete
  12. You are not an intelligent individual.

    ReplyDelete
  13. I actually respect D. Ghirlandaio for trying here. His post ended up as a disaster, but he really poured his heart and soul into this! And at least it was a memorable disaster.

    ReplyDelete