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— his prestige; his ability to bring in funding; the employment protections he enjoyed as a tenured professor; the outdated, onerous, and secretive nature of sexual harassment investigations — are not anomalies of an outlying department, but in many cases defining traits of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 “Sexual consent can now be retroactively withdrawn (with official sanction) years later,” she writes on p. 91, “based on changing feelings or residual ambivalence, or new circumstances.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.