Assault is Assault is Assault

I am afraid that I have been neglecting this blog.  To make up for that, below is an op-ed I wrote for the Diamondback here at Maryland.  Here is the link –  http://www.diamondbackonline.com/opinion/article_a14b0cca-79be-11e4-afc5-134f59c4878e.html/?mode=multimedia (I am sure that the Diamondback folks would appreciate it if you clicked on their link).  This little piece came out of my hearing University President Loh on the Kojo Nnamdi show talk about not wanting to call sexual assault, an assault. To quote him “So one of the things that we have to address is — there’s no question that sexual contact is an offense. And whether it should be labeled whether the term should be an assault or, i.e. a rape under the language of the Maryland law or whether it should be a sexual offense….the question is whether or not to label a sexual contact an assault or whether to label it as an offense.” (http://thekojonnamdishow.org/shows/2014-11-10/university_of_maryland_president_wallace_loh). This really got me thinking that I should take a look at the actual policy; I’ve been practicing law long enough to recognize when another lawyer is playing with shifting definitions.  So I looked at it and so can you, it is available at – http://www.umd.edu/Sexual_Misconduct/files/SM-Policy-Oct-2014.pdf. And what I read really bothered me….hence the op-ed below.  Enjoy!!

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University President Wallace Loh should be commended for the steps he has taken to address sexual misconduct and relationship violence. The approved changes to the university’s sexual misconduct policy send a strong message about stalking, relationship violence, sexual exploitation and sexual harassment. The new mandatory sexual assault prevention training, the bystander training and the increased staffing to address the needs of student survivors of sexual violence are all laudable, and the community should be proud of these initiatives. However, the sexual misconduct policies and procedures Loh approved that define “sexual assault” as penetration and nothing else and “sexual contact” as everything else are contrary to the lived experiences of sexual violence survivors, misleading to the community and contrary to the generally accepted meaning of those terms. The University Senate must address these issues and revise the proposed policies to create categories of sexual assault that reflect the lived experiences of survivors using language that allows the university’s reporting to be transparent and meaningful. Every first-year law student learns the common-law definition of assault: “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact” (Black’s Law Dictionary). Loh apparently has forgotten that lesson because, unless the senate substantially revises the new sexual misconduct policy that officials approved, students who are groped without their consent, are stripped of their clothing without their consent or experience an attempted rape will not have experienced a sexual assault. They will have experienced something called “sexual contact.” Under the proposed guidelines, the term sexual assault is reserved only for those students who experience nonconsensual sexual penetration — rape. To call what these students experience something other then sexual assault requires ignoring generations of jurisprudence in criminal law. More importantly, it denies the lived experiences of these students. “Sexual contact” does not reflect the experience of a woman who has just escaped from her would-be rapist, nor does it encompass the violation felt by a student stripped of his or her clothing when he or she is incapable of consenting. The term is inadequate and even insulting in its pedestrian nature. Furthermore, “sexual contact” is overly broad and lumps attempted rape, uninvited grinding at a party and the frotteurism that so many women experience on public transportation into one category. These are three very different offenses, and they should be treated as such by the university. However, all three fall under the “sexual contact” clause, which is defined as “any unwanted intentional touching of the intimate body parts of another person or yourself; causing another to touch your intimate body parts; or the disrobing or exposure of another without consent. Intimate parts may include genitalia, groin, breast, or buttocks, or clothing covering them, or any other body part (including your own) that is touched in a sexual manner. Unwanted sexual contact includes attempted sexual intercourse.” The paragraph is remarkable as it squishes so many different offenses into the seemingly inoffensive category of “sexual contact.” This makes the university’s reporting of the number of “sexual contact” offenses unclear and misleading. The average reader will assume that crimes such as attempted rape would be called a “sexual assault” by the university, as it is in the majority of states. The senate has an opportunity to correct this and to create categories of sexual assault that reflect the experiences of survivors with language that permits the university’s records to be transparent and purposeful. The senate should continue to move this university forward and revise Loh’s policies.