News
Janet Halley gives controversial lecture on sexual assault
By Emily Eisler ’17
February 9, 2017
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On Feb. 3, Janet Halley, the Royall Professor of Law at Harvard Law School, presented the third and final lecture in her series of presentations “Rethinking Campus Sexual Assault,” sponsored by the Arthur Levitt Public Affairs Center. This lecture, “Against Affirmative Consent,” nearly filled the Bradford Auditorium with students, faculty, staff, and outside community members, many of whom had strong feelings on the topic they expressed to Halley during and after the talk.
A main focus of Halley’s presentation was her perceived “problem” of over-inclusiveness in the legal definition of sexual assault on campus, which she feels victimizes innocent men when they are accused of assault in certain manners. This is why she advocates against affirmative consent in legal definitions of sexual assault, though she did state several times that she believed affirmative consent should be a social norm. Affirmative consent is defined as explicit, voluntary, and informed consent by both partners to engage in a sexual act. According to Halley, affirmative consent is a great social concept, but a flawed legal one.
Halley also began her speech by defining sexual assault or harassment as sexual contact that is “unwanted...” “sufficiently severe or pervasive” in the eyes of a “reasonable person.” She went on to explain the different forms of consent, specifically performative versus subjective consent as opposed to positive consent and constrained consent. She also expressed her concern that those accused of sexual assault who are expelled from schools have their lives ruined, a trend she believes to be all too prevalent. According to a 2013 report by the United States Justice Department Office on Violence Against Women on the resolutions of 759 sexual assault cases at 120 colleges and universities, 56 of said cases resulted in expulsion, or 7.4 percent.
Title IX Outreach Coordinator Corinne Smith ’17 said of the lecture series, “I think Janet Halley’s talks provide a unique lens into what she sees as some of the issues that make Title IX Policy and Procedure a challenging area of work. Therefore, I hope that her lecture series has involved those in the wider Hamilton community in a conversation centered around creating the best policy and procedure to serve the entire campus. I am hopeful that Janet Halley’s talks will engage more people in this important and necessary ongoing discussion.” Many people in attendance took issue with Halley’s message. Audrey Darnis ’18 stated about the presentation, “There was a lot that bothered me about Janet Halley’s presentation, but the one thing that she said that has particularly been troubling me was when she said those who claim that sex must include continuous affirmative consent could never possibly have had sex themselves, as it is ‘impossible to have good sex with conPosse Plus Retreat tackles issues of national divisions by Gabriela Foster ’18 News Contributor This past weekend, Feb. 3-5, the Posse Foundation hosted the annual Posse Plus Retreat (PPR) at the Radisson Hotel in Utica, NY. The retreat consisted of a series of themed group discussions and workshops that created safe spaces for dialogue amongst Posse scholars and the greater Hamilton community, with more than 100 non-scholars in attendance. In light of growing national partisan divisions, the focus topic was, “Us vs. Them? Division, Community and Identity in American Society.” Attendees attempted to answer difficult social questions revolving around the idea of growing factionalism stemming from racial, political and economic motivations. Chanel Summerset ’18 (Miami Posse 5) described how the workshops facilitated substantive discussions: “You are supposed to spend a weekend with this group of people trying to initiate and promote conversation about these hard topics. Then, we are supposed to go back to campus and continue those conversations with the rest of the Hamilton community.” Though these deliberations proved difficult, they are necessary to promoting a constructive community discourse. Posse scholars addressed difficult questions including: Why does an “us vs. them” culture exist? Is it becoming more difficult to create a substantive dialogue between conflicting groups? Additionally, the groups evaluated the effectiveness and practicality of compromise, and what violent divisions mean for the future of American society as a whole. According to Director of Opportunity Programs at Hamilton Phyllis Breland, “The discussions went very well, participants were engaged and energized. It is always a powerful accomplishment, when people can feel validated through the expression of their ideas. I have received several emails expressing thanks for the experience.” With the goal of creating a positive impact for the campus community in mind, discussions included over 190 Hamilton students, faculty and administrators. David Dacres ’18 (Miami Posse 5) spoke to the importance of having all members of the Hamilton community involved: “I really enjoyed the amount of faculty members that stayed throughout the two days.” PPR initiated the conversation by having participants identify groups, organizing themselves into groups they belong to and don’t, and analyzing how these groups are perceived by others. Additionally, the groups examined the positive and negative aspects of such stark societal divisions, and how these divides impact participants personally. Closing activities revolved around brainstorming ideas for bringing the productive discussion in Utica back to the Hill. Before leaving, participants divided themselves into groups based on varying personal distinctions, such as race and gender. After splitting into respective groups, each group was paired with another to discuss communication techniques and perceptions moving forward. One closing event stood out to Summerset, recalling the closing activities as one her favorite memories from the retreat. Participants sat in a circle, exchanging positive statements about one another. “After such an emotionally intense weekend, that is a much needed mental break. Also, it gives you the feeling that you may have moved someone with something you said or did without even noticing,” Summerset stated. This year’s PPR marks the 16th year that Hamilton College has partnered with the Posse Foundation. Not only is PPR an opportunity for community members to engage in meaningful discussion, but it also promotes meaningful connections between students, faculty and administrators. tinuous affirmative consent.’ People laughed. I was infuriated.”
Dr. Penelope Dane, Lecturer in Communication, had her own take on Halley’s lecture, “Early on in her talk, I questioned her ethos. The title of her talk, “Against Affirmative Consent,” was itself incendiary. She claimed that she knew nothing about Hamilton College, yet a Harvard Spectator article titled ‘A Call to Arms,’ May 28, 2015, states that Halley met with the Hamilton College’s president to discuss Title IX policies. But, as a scholar and writer who is deeply committed to restorative justice practices, I think she had an important point that there needs to be an option for handling sexual assault and harassment cases outside the confines of our current legal system. I wish she had explored how relying on subjective experience as evidence challenges some of our deeply held western cultural beliefs such as a) there is one objective truth; b) that objective truth is more valuable than subjective experience; c) that justice is the natural and likely outcome once we’ve uncovered the “objective” truth. I think there was potential for her argument to go there, but that is a radical place to go. It is far easier to vilify feminists with ad hominem attacks such as her crass joke that feminists don’t have sex or her suggestion that anyone who disagrees with her doesn’t believe that men have feelings. Halley claimed that believing women’s subjective experience of sexual assault—something feminism has been instrumental in bringing about—threatens the very foundation of the United States’ legal system. Perhaps it does and perhaps that is why rape cases are notoriously difficult to prosecute and why in the rare cases assailants are found guilty that sentences—such as Brock Turner’s—are short and hardly seem to fit the crime.
Overall, I found her argument—current Title IX sexual misconduct policies reflect a misguided radical feminist agenda which both infantilizes women and gives them too much power while penalizing men for “bummer sex” – lacking solid evidence. Her connections between Catherine MacKinnon’s work and sexual misconduct policies from California were spurious at best. Court cases are not built on hypothetical scenarios, yet “hypos” formed the meat of her argument. I would have liked to have seen data or even one case study to back up her claim that male college students in California are being inadvertently demonized by Title IX policies. Is it possible? Of course. But without concrete evidence, I remain unconvinced.
Janet Halley has a Ph.D. in English literature from the University of California Los Angeles and a J.D. from Yale Law School. She is the author of the books Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy as well as Split Decisions: How and Why to Take a Break from Feminism. She teaches family and gender law as well as courses dealing with the intersection of social and legal theory.