Thursday, September 5, 2013

Is an Invitation to Cuddle Consent to Sex?

Jane (11:00 pm):
aww :( come cuddle with mr
Brian (11:01 pm):
I am when you get back hah
Jane (11:04 pm):
yayyy I'm a good cuddler :))
Brian (11:06 pm):
Then ill be expecting nothing less than excellence
Jane (11:10pm) :
are you a gooood cuddler
Brian (11:20pm):
I'm great you better know it

Roughly two hours after this exchange of text messages, Jane let Brian into her dorm room, where she claims he raped her.

The next day, she filed a complaint with the university.

Brian disputed Jane's account during the investigation. He admitted that they had sex but insisted it was consensual, pointing to the text messages.

The school, St. Joseph's University, was not convinced and found Brian Harris responsible for sexual misconduct, suspending him for one year.

Now Harris is suing St. Joseph's and his accuser, Jane Doe, alleging, among other things, that the university panel that heard his case did not properly consider the text messages and therefore the university is at fault for "Rendering a decision...against the clear weight of the evidence."

We won't examine the merit of Harris's legal claims here. The courts will do that. And to be clear, the assault itself was never tried in a criminal court. Harris was found responsible in a university conduct proceeding. His lawsuit is over whether that proceeding was unbiased.

But Harris's interpretation of the messages he exchanged with Jane reveals a problematic view of consent worth examining more closely.

Defining Consent

According to Harris's complaint against the school, Jane's text inviting him to "come cuddddle" is clear evidence of consent.

"In modern parlance," he explains, "the terms 'cuddle' or 'cuddling' are synonymous with, inter alia, 'sex' or 'having sex'." The complaint goes on to suggest this interpretation is "the plain meaning of the text messages." Thus Jane's invitations to cuddle are requests for and consent to sex.

In his complaint, Harris also implies that the text sent at 11:00 pm provided consent for actions that took place almost two hours later.

The problem with Harris's understanding of consent from a campus safety perspective is that it relies on neither clear words nor clear actions.  

Euphemisms like cuddle or the infamous 'hook up' are deliberately vague. While perhaps appropriate in casual conversation, these words should not be used to ask or give consent exactly because they lend themselves to misunderstandings. 

Furthermore, even if Jane had texted him 'let's have sex', Harris would still have needed to get her clear consent again several hours later when they were finally face-to-face.  Past consent does not imply future consent.

Clear words and actions should be one of the unbreakable rules students follow before they engage in any sexual activity. 

We don't want to imply that most sexual assaults are the result of miscommunication. They aren't. But Harris's complaint underscores how important it is that students have a clear concept of consent.

When Katherine Bogle was researching her book Hooking Up on college sexual culture, she discovered students held very different opinions about what the term "hooking up" meant --everything from sex to just kissing. In other words, when it comes to getting intimate with each other, students aren't always speaking the same language, and they may not even know it. A young man may think he's proposing a good night kiss, while his date thinks he's asking her to spend the night.

Starting a conversation on college campuses about terms like "cuddling," "hooking up," and other modern parlance may not resolve the ambiguity surrounding these terms -- in fact it almost certainly won't -- but it might at least force students to acknowledge it.

Further Reading

Bogle, K.A. (2008) Hooking Up: Sex, Dating, and Relationships on Campus. New York: New York UP.

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