Hugs are now ‘sexual assault’ at the University of Virginia

Hugs are now ‘sexual assault’ at the University of Virginia

If you hug your boyfriend and as a result your clothed body (including your breasts) touches him, you could be accused of “sexual assault” through “sexual contact” under the University of Virginia’s broad new “sexual assault” policy adopted to appease the Office for Civil Rights, where I used to work (assuming you do it without explicitly agreeing on the details of the hug). Because U.Va. lumps together touching, “however slight,” and intercourse when it comes to sexual assault, requiring “affirmative” consent for both.  (“Affirmative consent” is a misleading term, and does not include many forms of consent that occur in the real world, and are recognized by the courts, as I explain at this link. The new policy further warns that “Relying solely on non-verbal  communication before or during sexual activity can lead to misunderstanding and may result in a violation of this Policy.” Portions of U.Va.’s policy are reprinted below.).

This is an outrageous violation of students’ privacy rights.

Moreover, making out is now effectively forbidden at the University of Virginia, which has rewritten its Interim Sexual Assault Policy under the impetus of the Education Department’s Title IX investigation. U.Va.’s new policy requires “affirmative consent” (rather than “effective consent,” as before) not just to sex, but also sexual contact, which encompasses touching.  Of course, no one ever says things like “may I touch your breast” before doing so.  These things are welcomed after they begin, not authorized in advance, but the policy effectively forbids step-by-step ratification after the fact (i.e., making out) by banning any touching “however slight” without such authorization, so if you touch your partner an instant before they welcome it, you’ve presumably violated the policy. Conduct should not be banned where it was not “unwelcome,” and not against the victim’s will, since unwelcomeness is an essential element of a Title IX sexual harassment claim (college sexual assault and harassment policies are required by Title IX, which requires that colleges not ignore sexual assaults and other misconduct that constitute unwelcome sexual harassment that is severe and pervasive. U.Va.’s policy is adopted under the rubric of Title IX. For potential constitutional problems created by policies similar to U.Va.’s, see this link.)

U.Va.’s policy provides:

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INTERIM POLICY ON SEXUAL AND GENDER-BASED HARASSMENT AND OTHER FORMS OF INTERPERSONAL VIOLENCE

Pp. 11-12:

1. SEXUAL ASSAULT

Sexual Assault consists of (1) Sexual Contact and/or (2) Sexual Intercourse that occurs without (3) Affirmative Consent.

(1) Sexual Contact Is:

  • Any intentional sexual touching
  • However slight
  • With any object or body part (as described below)
  • Performed by a person upon another person

Sexual Contact includes (a) intentional touching of the breasts, buttocks, groin or Genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; and (b) making another touch you or themselves with or on any of these body parts.

[…]

(3) Affirmative Consent Is: … Active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity.

[…]

A person who wants to engage in a specific sexual activity is responsible for obtaining Affirmative Consent for that activity. Lack of protest does not constitute Affirmative Consent. Lack of resistance does not constitute Affirmative Consent. Silence and/or passivity also do not constitute Affirmative Consent. Relying solely on non-verbal communication before or during sexual activity can lead to misunderstanding and may result in a violation of this Policy…. Affirmative Consent to one form of sexual activity does not, by itself, constitute Affirmative Consent to another form of sexual activity…. Affirmative Consent to sexual activity on a prior occasion does not, by itself, constitute Affirmative Consent to future sexual activity.

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Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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