Rana M. Jaleel
Scene 1: A Feminist Science Studies Graduate Seminar at a State University (2017)
The first-year assistant professor is transmasculine. They ask their students to bring an object to class that shows some entanglement of animality and sexuality. One student offers a photograph of a dragon-headed dildo. A cisgender student dubs this a “sexual assault” and on other occasions describes the experience as “like a sexual assault.” The assistant professor must report to their Title IX office, where they are ultimately compelled to lead a Trans 101 educational session for all faculty on campus. The university is concerned that the assistant professor is engaged in behavior that would be impermissible for “any other man on campus.”
Scene 2: A Performance at a Small Liberal Arts College (2019)
The performer is transfeminine and from the Global South. The performance they deliver is a comment on the legacies of settler empire and global distributions of violence. A white cisgender student later names the event a “sexual assault.” Speaking on behalf of all in attendance, the student alleges that the performer assaulted more than two dozen audience members. Included in this number is the professor—nonbinary, not white—to whom the complaint is addressed. The professor must now report themselves to the university’s Title IX office.1
Scene 3: The US District Court in Kansas (2017)
Jane H., a woman enrolled at Haskell Indian Nations University, an institution under the control and management of the US Federal Bureau of Indian Affairs, accuses two fellow students of rape and seeks relief under Title IX. Judge Thomas Marten dismisses the lawsuit in part because the federal government and the university are immune from damages under the doctrine of sovereign immunity, which holds that the federal government cannot be sued without the express consent of Congress. The decision further holds that the plaintiff’s Title IX is inapplicable because Haskell Indian Nations University is not an institution receiving federal assistance within the meaning of those statutes. The allegations are, in other words, not found to be “properly before the court.” Other civil and criminal forms of redress are not barred in this pronouncement, but Title IX is foreclosed.2
These three scenes require that we hold close two things: trans/queer vulnerability to accusations of sexual assault in educational content (instances that are not facially recognizable as assault but are nonetheless named and investigated through that charge) and legal elisions of Indigenous rape, where a charge wears the familiar skin of sexualized violation (rape) but is actively excluded from the purview of Title IX of the Education Amendments Act of 1972, the federal law that prohibits sex discrimination in federally funded education. In the first, “sexual assault” stretches, and in the second, it vanishes. In the first, entering the classroom or performance hall sets the stage for an “unwelcome yes” (a subjective calculus, the individual’s avowed offense under learning conditions where consent arguably might be presumed) that can be heard by civil law. In the second, the objection to rape proper (the avowed physical violation; and later, the lodging of the administrative complaint; and later still, the paper work filed in court) ultimately cannot. Rather than dismiss these accounts as mere sex panics in the first two scenes or failures of law in the third, is there another way to understand such charges of “sexual assault”?
These sorts of contradictions are not solely examples where social identity or individual relationships alone (professor, tenured or untenured; staff or student; queer or trans or cisgender) stage the scenes above and others like it. These are also stories of settler empire and law, of how bodies of law, civil and criminal, are triggered (or not) by different bodies in different spaces. Ultimately, these are stories about how underlying lines of force animate different bodies in different places—different people in different places—positioning them to make different subjective “sexual” claims. In the above scenes, each perceived violation—named sexual, named assault—is made possible by competing understandings of consent, coercion, and welcomeness: the legal terms of art and social lexicon that recognize sexualized violation. These contestations of meaning play out in what questions drive the inquiry and in this way allow the violation to be named and seen. In the first two scenes, did the students agree to experience or feel OK or even good about what happened in the classroom—was the experience welcome? And in the third, did the US government, regardless of what Jane Doe did or felt, agree to be potentially liable (was the rape charge “welcome” to the government)?
In what follows, I look at how campus bodies become living archives of uneven histories of violence that lie beneath the charge of sexual violation by reading for divergent, transnational genealogies of consent, coercion, and welcomeness in law and policy instruments that would govern sexualized intimacies on college campuses. In particular, I’m concerned with how the idea of the “unwelcome yes”—or how consent can be copresent with coercion—has been taken up in informal and institutional conversations about campus sex. Who gets to talk about what signals welcomeness in sex on campus? What counts as “sex” on campus?
What follows is an account of how property and sovereignty as concepts and claims are staked through the sexualized body, in and through the shifting parameters of what counts as consensual or coercive sex and what creates something that is called sexual welcomeness and recognized as such. What follows is also a call to consider how far we might follow a narrow notion of sexual injury—of what justice we pursue and deny in its name.
With this in mind, I look at not one but two Titles IXs. Each concerns the 2013 Reauthorization of the Violence Against Women Act (VAWA). This legislation contains provisions that impact interpretations of Title IX of the Education Amendments Act of 1972—namely, how campus crime data would be defined for the purposes of mandatory public reporting requirements. The 2013 VAWA also contains its own Title IX, subtitled “Safety for Indian Women.” This Title IX builds on the 2005 VAWA’s inclusion of Tribal Title, when the federal government first recognized “the severity of the violence against Native women” and decided that the “unique legal relationship between the United States and Indian tribes creates a federal trust responsibility to assist tribal governments in safeguarding the lives of Indian women.”3 VAWA’s Title IX recognizes tribal criminal jurisdiction over some instances of domestic/intimate violence regardless of the accused’s Indian or non-Indian status, provided that tribes ensure certain enumerated due process protections.
I use the coincidental titling of the 2013 VAWA’s provisions regarding tribal authority and the Education Amendments Act’s prohibitions on sex discrimination in education as an invitation to probe the versions of consent, sovereignty, and authority that circulate beneath the banner of “violence against women.” This framing animates the workings of both criminal and civil rights law in relation to tribal nations’ continuing negotiations of sovereign authority. It also realigns ongoing debates about sexualized violence on campus—and the meanings of sexual consent and coercion—by employing a transnational frame. From this perspective, I consider the relationships between campus sexual securitization initiatives and tribal nations’ jurisdictional struggles with the federal government. Specifically, I examine how these relationships are actuated in part through antigender and antisexual violence legislation. Further, I consider how such legislation emerges from within transnational interplays of activisms. Such activisms summon multiple genealogies of violence that must be interpreted and harnessed within law. That process in turn shapes the content, meaning, and scope of civil rights and criminal wrongdoing and the enabling language of them—in this case ideas of force, consent, coercion, and that welcome feeling. The problem of sex on campus is not only, as the thinking goes, because consent and its individualized rubrics of transaction underlie liberal visions of sexual freedom, or even because the history of contract in its many iterations has been differentially and unevenly applied.4 How theories of consent, coercion, and now welcomeness have been conceived of, interpreted, and actuated through systems and bodies of law that span national borders and subject areas matters.
Consent, coercion, or welcomeness as sociolegal concepts are formed and felt through the disavowal of imperial, cis-hetero-settler, racial suffering and dispossession that is at once articulated through the interplay of civil law (Title IX of the Educational Amendments Act), criminal law (Title IX of the VAWA), and the rationales for penalizing (or failing to penalize) sexual violations that accompany those systems and bodies of law. This process triggers questions of epistemic authority: Who or what can recognize the presence or absence of “sex” or “good sex”? Who might determine the contexts in which sex or good sex can occur? In other words, who effectively determines what sex and sexualized violence are? What does this mean in settler/colonial spaces, where feelings of “welcomeness”—sexual or otherwise—are made possible by what Jodi A. Byrd, Alyosha Goldstein, Jodi Melamed, and Chandan Reddy call the logics of propriation or “a conception and practice of the proper, propriety, proprietorship, and proprietary claims that instantiates property as a relation to private and public”?5 How are the logics of propriation activated not simply through the pronouncements of law (what it says it does) but through interactions between bodies and processes of law? In other words, how are the meanings of sex, good sex, and welcomeness shaped by—and how do they shape—understandings of the bodies, institutions, and lands that hold our lives?
Through this framing, the stories with which this article begins come into fitful relief. The inaugurating scenes cohere if the adjudication of each categorical claim of sexual violation is understood to labor in the service of establishing permissible sexual arrangements as proxies for permissible property arrangements, realized through gendered, racialized, and colonial intimacies of governance. On college campus and tribal land, authority still speaks in the antiquated language of family, of the parent and the ward: the lingering effects of in loco parentis for the students and the “special relationship” that the US federal government historically claims with Tribal Nations. To this end, I argue that the two Title IXs produce different meanings of sexualized violence that can be tracked by following the divergent genealogies of consent, force, welcomeness, and sex that underlie them. Surfacing other, broader genealogies of consent in this way is an effort not to rehabilitate the liberal subject but to fracture it through the inner workings of law itself. In conclusion, I ask how campus protests—including those that do not at first blush have to do with “sex”—propose other ways of relating and desiring that might offer rubrics for thinking about sex and liberation that combat individuated, cis-hetero, and colonial frameworks of sexual injury and the notion that the institution or the state can provide appropriate forms of redress.
Making the Unwelcome Yes, Part I: The US Sex Wars
Welcome is a feeling. Derived from the Old English wilcuma, the word first described feeling about someone—the person who is coming is pleasing. Later, it became a form of greeting (you will receive a warm welcome), a reaction of pleasure or approval (the decision to proceed was a welcome one), an invitation to do a certain something (you are welcome to join us), or a term used to indicate relief in relinquishing control or possession (you are welcome to it).6
That feeling of welcomeness has long been essential to feminist understandings of “good sex”—an act and aspiration that is not solely defined by the presence or absence of consent. As legal feminist theorist Robin West writes, “Consensual sex, when it is unwanted and unwelcome, often carries harms to the personhood, autonomy, integrity and identity of the person who consents to it—and that these harms are unreckoned by law and more or less unnoticed by the rest of us. The possibility that the liberal valorization of consensual sex that is so central to liberal de-regulatory projects legitimates these harms ought to concern us far more than it has, at least to date.”7 Since West wrote those words, however, antisexualized violence activists have renewed interest in Title IX as a vehicle for combating sexual harassment, including sexual assault. Debates over what counts as prohibited speech or conduct have raged.8 And despite the primacy of consent to liberal law, these debates have turned largely not only on what constitutes consent but also on the appropriateness of consent as a marker of “good sex” (as the appropriate gauge of whether sexualized speech or conduct is wanted or welcome and not simply assented to) as well as the meaning of sex itself (what can legitimately fall beneath the charge of “sex discrimination”). In an attempt to mitigate against the limits of consent and adjust for the perceived lack of sexual bargaining power between “male” and “female” students, some college code of conduct policies, for example, prohibit “unwelcome” sex—regardless of whether consent was obtained.9 A rightful apprehension motivates these discussions and protocols, although it is one that equates, analogizes, and glosses: on the battlefield and in the classroom, in the boardroom and on the assembly line, beneath the objective marker of consent lies a world of coercion that is structurally produced but bears down and manifests in the individual sexual encounter, the pressure to comply. This is the fear of the “unwelcome yes.”
Most feminist, queer, and allied scholarship has viewed the embrace of sexual welcomeness to be a mostly “welcome” one. Suspicious of contractual configurations of consent, these fields have taken up alternate rubrics for assessing “good” sex—suggesting, for example, various ways to center expansive theories of autonomy, agency, vulnerability, or self-possession as the structuring conceit of the inquiry—and in this way rail against viewing sex and desire as transactional.10 Such work has critiqued law’s presumption of a rational subject whose coherence and validity depend on the ability to make wholly informed, emphatic decisions about their sexual lives and encounters, particularly in the moment.11 But even work that is suspicious of determining sexualized violence through the framework of sexual welcomeness has not properly theorized possession—you are welcome to it. More pointedly, while women of color, trans, and Indigenous activists and scholars have long criticized a consent-based model of sexual freedom,12 the move from consent to welcomeness as a sociolegal concept has not been accounted for by contemporary scholars as part of transnational projects of empire—even though the mechanism of their advancement has occurred through the geopolitics of global sexual violence and their attending vicious distributions of labor and property. The gendered, sexualized, and racialized historical formations of property and possession that make contemporary notions of bodily welcomeness thinkable and feelable are in other words largely absent from scholarly and other conversations about sexualized violence, both on and off campus. This is due in part to translations of activisms into law that privilege particular genealogies of feminism. One of the most enduring of these legal feminist frameworks rehearses the old divides of the 1980s US sex wars, pitting sexual danger against the possibility of sexual pleasure.
Emily Bazelon’s New York Times Magazine piece “Return of the Sex Wars,” for example, tracks Title IX controversies on campus through this narrative arc. Here, Janet Halley cautions against “treating sex exclusively as a danger from which women should seek the authorities’ protection,” while Catharine MacKinnon urges an acknowledgment that “women [live] in a state of subordination . . . with pornography, sexual harassment, prostitution, child sexual abuse, domestic violence and rape as core elements in male domination” and would mobilize the whole of state power to correct it.13 Then and now, in US domestic and international jurisprudence, Halley and MacKinnon embody ideological positions that support and are supported by particular configurations in law—in matters of sex, what constitutes force, consent, or coercion?14
From this vantage, however, there are only variations on a theme. The critical roots and routes of this thinking locate the fight on particular terrain: changing the definition of consent, force, or coercion changes the relationship of the state to sexualized violence, including sexual harassment; yet here the violated, sexualized body—however it is defined and treated—is nonetheless the occasion for the liberal state’s reassertion of its own legitimacy. How criminal and civil understandings of rape / sexual assault produce and differentiate who will be in a protective relationship to the state (for all of the problems that entails) and who and what issues will be cast beyond it slip from view. And crucially, interventions by women of color against, for example, what feminist legal theorist Angela Harris terms nuance theory—in which Black women’s experience, including legacies of enslavement, are simply construed as variations of white women’s experience—fall from the record.15 What falls away, too, as I have written elsewhere, is how Global South antirape activisms, themselves part of larger liberation projects, are used to create social and legal understandings of sexual consent, coercion, and welcomeness in the Global North—how the genealogy of the sex wars eclipses and erases how contemporary narratives of force and coercion depend on global distributions of violence that are not limited to the arena of “sex.”16
Elsewhere, feminist legal theorists are quick to note that sexual harassment itself does not have to be sexualized.17 The legal definition of sexual harassment adopted by the Supreme Court provides that legal prohibitions against sexual harassment simply mean that “it is unlawful to harass a person . . . because of that person’s sex,” noting expressly that “harassment does not have to be of a sexual nature.”18 This repositioning of sexual harassment as, among other things, a gendered labor issue and not solely a sexual one loosens the chain of conceptual conflations that culminates in the equation of all forms of sexual harassment with rape or sexual assault. Yet staying within the bounds of law, treating its self-diagnoses—its self-help—as definitive statements of its practice, intellectual terrain, and operations narrows desire to what is sexualized while losing what women of color and Indigenous feminisms as well as queer/trans studies insist: that desire itself is bigger than “sex.” It is rangy, uncontainable, and steeped in the legacies of colonialism, chattel slavery, and cis-heteronormativity.
And there are other ways to read law—not to correct it or provide totalizing alternatives to it but to admit to something else, something that glares even now from the legal record. Following how law shapes gender—who gets to be (or is forced to be) what kind of “woman” per the Violence Against Women Act, who gets to claim “unwelcomeness” and awaken the machinery of civil rights—makes a small window that lets us glimpse how civil and criminal legal responses to sexualized violence are often only truly distinguishable by how they perform mediating work in the service of imperial and settler colonial legacies. Broadening force can, in other words, fold other violence—settler, capitalist, imperial—into sex and subordinate the whole beneath the state-bolstering strictures of civil rights, human rights, and criminal law. A genealogy of force, consent, and coercion that prioritizes the sex wars alone is thus “a history that others have compiled.”19 Recalling instead that Blackness, queerness, transness, indigeneity, and postcoloniality emerge as social historical categories that are produced (and produce propertied whiteness) through a differential, sexualized notion of deviance and danger can teach us about the utility and sociolegal development of terms like welcomeness as antidotes to the issues affixed to consent.
Making the Unwelcome Yes, Part II: Crime, Consent, Civil Rights, and Tribal Sovereignty
Against genealogies of law that culminate in debates about force and sex or labor and access, we might examine the many namings of what comprises “violence against women” in the eponymous Act itself as a way to surface other epistemological reckonings, ones that agitate against sexualized violence while remaining suspicious of the state, its territorial ambitions, and cis-hetero intimacies. Enter the two Title IXs. While the first is (reductively) often couched within the genealogy of the “sex wars,”20 the second Title IX (2013 VAWA) is another story entirely, one of settler colonialism and genocide—a different genealogy of force and sexualized violence.21 It is in part a story of Indigenous feminist organizing attempts to hold the US government accountable for what it has forcibly wrought while enhancing tribal sovereignty.22 As such, Title IX of the VAWA might be at least partially seen as an inheritance of broader struggles for Indigenous sovereignty, such as those of the pan-Indigenous American Indian Movement, which understood “U.S. imperial militarism and U.S. domestic law enforcement as entwined elements of the same power structure,”23 and other activisms that recognize that “under the settler state, government systems are never benign instruments of care.”24 It is part, too, of contemporary Indigenous antisexualized violence organizations like the Seven Dancers Coalition (Haudenosaunee), Sacred Circle, and Cangleska Domestic Violence Program (Oglala), some of which receive grant funding through the US Office on Violence Against Women. These genealogies come into relief when we trace what welcomeness can mean and when and for whom it matters.25
The Violence Against Women Act was originally passed as part of the 1994 Violent Crime Control and Law Enforcement Act. The 1994 Violent Crime Control and Law Enforcement Act is a $30 billion piece of legislation that, as Emily Thuma notes, allocated money to hire one hundred thousand new police officers and build $10 billion worth of prisons across the US. The legislation also applied the “three strikes rule” to a number of federal crimes and terminated funding for prisoners’ pursuit of postsecondary education—all while “earmark[ing] unprecedented federal funding for improving the prosecution of sexual and domestic violence as well as providing services for victims.”26 By these lights, the subsequent changes that the 2013 VAWA inaugurates on campuses and tribal lands could be seen simply as illustrative of a carceral feminist creep—a desire to find solutions to sexual problems through paradigms of punishment and criminal logics administered by the state.27 Yet VAWA’s “universal woman” isn’t cohesive. It is an amalgam of injuries with different standards of recognition and different remedies all grouped under familiar names: sexual assault, domestic violence, human trafficking, stalking, or campus crime. VAWA’s treatment of sexualized violence offers a differentiated vision of sexual welcomeness that stems from different theories and genealogies of the relationships between force, sex, and gender. This vision is fitted within the matrix of laws that distinguish campus spaces from tribal ones. Further, this vision of welcomeness is actuated through the interplays of civil and criminal articulations of law. These interplays are about whose theorizations of what sexual violence is and whose antisexual violence work speaks for all and whose can only speak for some. The focus on sexual welcomeness that some university policies have considered or adopted is undergirded by convolutions in law that trend toward looser and more expansive definitions of what law will recognize as a criminal “sex offense” on campus, while rape at Indian Nations universities can nonetheless fail to register under the auspices of Title IX, a civil law.
Title IX: Education and Crime
The 2013 VAWA amends the 1990 Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act). The Clery Act requires colleges that participate in the federal financial aid program to report crime data to the Department of Education and to publicly disclose campus statistics. The 2013 VAWA Reauthorization amends the Clery Act to mandate campus reporting requirements for incidents of “dating violence, domestic violence, and stalking.”28 Because different jurisdictions differ over the definition of those crimes, the Clery Act has, as Jeannie Suk and Jacob Gersen note, for reporting purposes defined what constitutes a crime. The Department of Education’s 2014 Final Rule implementing VAWA’s changes to the Clery Act makes no bones about it: “All incidents that meet the definitions in [VAWA] must be recorded in an institution’s statistics, whether or not they are crimes in the institution’s jurisdiction.”29 The Clery Act’s definition of “sex offenses” retains lack of consent as an element or essential part of the proscribed violations, but the Department of Education, which administers the law, also states that “all sex offenses that are reported to campus security authority must be included in an institution’s Clery Act statistics . . . regardless of the issue of consent.”30 In this way, VAWA impacts potential Title IX investigations, opening the door, Gersen and Suk argue, to “liability for sexual conduct that is called criminal but may not be even a civil wrong.”31
This expansion, however, is about much more than criminalizing logic per se or ending sexual violence and discrimination.32 Looking at Title IX of the Educational Amendments Act of 1972 in relation to Title IX of the 2013 VAWA shows how legal constructions of—not simply responses to—sexual assault and harassment are mediated by social and institutional relationships that certainly include gender but also federal funding relationships to universities, carceral modes of governance, federal agencies’ relationships to Indian Nations universities, and the disavowed but still animating notions of loco parentis and trust responsibilities that underlie them. Here, accompanying modulations in the relationships between consent and coercion as they traverse bodies of civil and criminal law function as technologies of racialization and settler nationhood consolidation. For as the 2013 VAWA amends the Clery Act in ways that potentially expand the breadth of what might count as criminal sexual(ized) harassment on campus, the possibility of availing Title IX at Indian Nations universities is nonetheless subject to competing doctrines, theories, and bodies of law that do not only preclude the recognition of “rape” or “sexual harassment”—as if these were temporally fixed and self-evident—but materially change what those terms mean. Thus laws like the Violence Against Women Act forward not only differential treatment of those who experience sexualized violence or sex discrimination but also what different understandings of rape and sexualized violence legally are. The takeaway here is not, as a traditional analysis would go, about a failure of law’s calibration—the often recited “discrepancy between female experience and the law’s definition of rape”33—but instead evinces how civil and criminal legal precepts operate within settler nationhood through sexualized bodies, which in turn compromises the utility of legal categories like sex and gender alone as indexes of social justice.
Title IX: Safety for Indian Women
Ruminating on the prevalence of sexualized violence against Indigenous women, former President Obama deemed it “an assault on our national conscience.”34 Muscogee legal scholar Sarah Deer locates the problem elsewhere: in the dilemmas of federal and tribal sovereignty where the tolerance for sexualized violence on Indian lands is “a fundamental result of colonialism, a history of violence reaching back centuries,” where the dynamic of “intrusion on [Indigenous] lands and culture by an external, hostile outsider” is played out “on their bodies and souls rather than on the land.”35 Who gets to talk about what signals (sexual) welcomeness, what fills its shape, and who is undifferentiated by desire, merely a population at risk?
Title IX of the 2013 VAWA, subtitled “Safety for Indian Women,” recognizes tribal criminal jurisdiction over some instances of domestic/intimate violence regardless of their Indian or non-Indian status, provided that tribes ensure certain enumerated due process protections. The recognition of “special domestic violence criminal jurisdiction” has been framed as a “partial Oliphant fix” because it modifies the US Supreme Court’s 1978 decision Oliphant v. Suquamish Indian Tribe. Infamously, Oliphant held that Indian tribal courts do not possess the inherent authority/jurisdiction to prosecute or punish persons who do not have Indian status—in part because of a fear that tribal justice methods would inadequately secure the civil rights of the defendants.36 However, VAWA’s extension of the ability to prosecute or punish those of non-Indian status is an uneven extension of criminal jurisdiction to Indian courts. As Indigenous activists and scholars have emphasized, Title IX of the VAWA does not allow for the prosecution of nontribal members for crimes beyond domestic violence—crimes like sexual assault, child abuse, human trafficking, or nonintimate partner rape.37
This is the backdrop against which the events of Doe H. v. Haskell Indian Nations University unfold—one of jurisdictional entanglement and sovereign denial. Haskell Indian Nations University is one of thirty-two accredited Tribal Colleges and Universities in the US. It is federally funded through the Tribally Controlled Colleges and Universities Assistance Act of 1978 and managed by the Bureau of Indian Affairs, a subset of the Department of the Interior.38 In Doe H. v. Haskell Indian Nations University, under the theory of the sovereign immunity of the United States, civil redress through formal antidiscrimination legislation (Title IX) is foreclosed: the United States government cannot be sued without its consent. Here too lies the actual—and not merely feared—failure to extend rights protections, where civil rights are wielded as weapons to deny tribal sovereignty while the erstwhile civil rights of Indian students are denied through jurisdictional clashes and gaps, frustrating the promise of full citizenship that civil rights guarantees purportedly provide. If the notion of sexual welcomeness might be construed on campus as the individual negotiation of particular histories of force, the withholding of civil rights denies even that individuated reckoning. Contextualizing Title IX’s operations within VAWA lets us see how competing visions of force, sexual violence, and violation are relationally formed, which in turn contour social understandings of what rape socially and legally is (a civil rights violation? a crime? something else?), what sex is, and who participates in its naming and recognition. What form of governance can handle the task of determining proper sexual relations is overlaid and activated through the stories about desire—who and what may be desired, what falls within the domain of sexuality proper, and what does not.
Remaking the Unwelcome Yes
The stories we tell. The three scenes that inaugurate this chapter map some of the ways that sociolegal ideas about sex and desire create the terms and conditions for sex and sexualized violence to exist and be recognized. They pose a set of deceptively simple questions: What counts as sex or even the sexual? And what counts as good sex or bad speech or conduct about sex and how can we tell when it’s being had? But another question quickly follows: How can we surface colonial and cis-heterosupremacist imprinters of desire and in doing so begin to move beyond the language of individuated sexual injury?
In the case of the trans professor’s classroom and the art performance, the objection is not that the actions that occurred were exactly nonconsensual. What students index, however clumsily, by claiming such incidents within the rubric of sexual assault is a more comprehensive vision of what freedom and safety entail—something about what sex is but also about what other politics might look like, who may say what and do what to whom—and where and when. The impulse is beguiling, yet the language of sex and sexual assault holds sway. The narration is suffused with the language of sexualized danger. The door shuts on the suffocating room. Meanwhile, in the Haskell Indian Nation University case, an alleged physical assault cannot be viewed as “properly before” the US District Court. Title IX is no point of entry.
Law matters here: the possibilities it names help secure the social meaning of sexualized violence and in turn what availing antisexualized violence law as a site of justice can accomplish or foreclose. Here, sexual assault or rape becomes both metaphor and simile for strong feelings of dispossession or exploitation (a single art performance becomes “sexual assault” or viewing the image of a dildo is “like a sexual assault”) and also a catchall descriptor for a range of sexualized violations (a picture of a dildo isn’t “sexual harassment” but “sexual assault”). No question or counterargument—Did the student consent to “uncomfortable” learning? Was the content really bad? Could the professor with the image of the dragon-headed dildo have simply engaged the class in a more responsible way?—is broachable, much less persuasive, when the analogic counterpart of those bad feelings (understood here as something “unwanted” and “sexual”) is sexual assault.39 The sight of the dragon-headed dildo and the critique of white supremacy delivered through a femme, trans, brown performance have been declared unwanted, and clarifications or questions to the contrary are crude, even cruel, denouncements of what we already feel and know: a yes can be unwelcome, and within the coercive architectures of the entrepreneurial university, this is incontrovertible.
What is crucial here is how easily sexual consent as a concept is cabined from other forms of consent under coercive circumstances (the consent to be governed, for example, or the consent to the often abysmal conditions of graduate student labor and learning) as if what they index had nothing to do with desire, the welcomeness or unwantedness of the encounter. In the third scene, beyond legal technics, what forecloses Title IX at Haskell Indian Nation University is a failure to recognize other kinds of unwelcome yeses—those that look beyond individual encounters, those that account for the brutal histories that lead to the management of an Indian university by a federal agency. How might those histories be brought into sharper relief?
Here is another story: In the heyday of the 2011 Occupy movement, University of California (UC), Davis, Chancellor Linda Katehi infamously permitted campus security to pepper spray students involved in a related campus protest. Katehi reputedly justified her actions by stating that “the issues from Oakland were in the news and the use of drugs and sex and other things and you know here we have . . . very young girls and other students with older people who come from the outside without any knowledge of their record . . . if anything happens to any student while we’re in violation of policy, it’s a very tough thing to overcome.”40 Here, as Jennifer Doyle notes, the “policy” at issue in this case is Title IX, and here the conceptual integrity of sex and security blur: “A metonymic chain of associations accumulates (Oakland [Black people], drugs, sex, young girls, older people, outsiders, violation) to bring the Chancellor to her fear: ‘older people from outside’ interacting with ‘very young girls.’”41 For Doyle, this blurring is illustrative of “abuses of power and authority as connected to the shape of sexism on college campuses.”42 I’d add that these abuses of power are subtly and not so subtly assembled through (and in turn assemble) the mutable architectures of desire—who is welcome, when, and where—that root and route in and out of law, its bald pronouncements and technical inner workings, in ways that outpace “the shape of sexism” or the rubrics of the security state. The idea of student sex—whether accompanied by a “yes” or “no,” whether welcome or unwelcome—rests on an edifice of political decision-making and the presumed authority of a land grant university’s propertied claims: UC Davis sits on Patwin lands.
The immediate tableau of police, sex, and students and the overwriting of Indigenous land claims describe how the specter of sexualized violence might be mobilized in ways that are less than liberatory; it is a comment on how the university wields Title IX to discipline and erases other relationalities. Yet if the language of dangerous sex is how the university manages protest, it seems worth considering what protest might in turn have to say about “sex.” From this perspective, the pepper spray debacle not only details the disciplining of campus protest by “sex” but can be an invitation to imagine campus protest writ large as generating other visions of “sex” and “welcomeness” and “violence.” Another calculus of consent, coercion, and force lies in campus activisms that are coalitional, embedded, embodied, and responsive to the depressingly routine calculations of a university that has never been in the service of the “public” in its entirety.43 The potential and potentially enthusiastic yes of the students to protest or more with Oakland “outsiders” might make a space where sex and pleasure aren’t anathema to serious political work or learning, where decolonial critiques of the phrase Occupy might also surface. The challenge of the protest is a proliferation and intensification of what hangs between the image of the university as a site of respite and all that must be overwritten, suppressed, and repressed for the thinnest version of student sexual safety to move front and center to preoccupy the administrative imagination.
Campus protests then might be read against the university’s production of what Jennifer C. Nash calls the student as “sexual citizen”—steeped in affirmative consent policies, calls for bystander interventions, and fear of sexual risk and liability.44 This “sexual citizen” is contoured not only by the failures of consent or welcomeness to secure sexual freedom but by the university’s continual amplification and proliferation of sites of vulnerability and risk for those who are expendable (not desired). At UC Davis today, the lack of accessible all-gender bathrooms, the persecution of Students for Justice in Palestine, escalating tuition and fees, student and other campus workers’ exploitation, bare bones “support” for Indigenous, gender, and ethnic studies departments and those within them—the list goes on—create structures of value and desirability and enable a slow, creeping corrosion that consumes what we need to thrive while demanding trust in the benevolence, goodwill, and decision-making capabilities of that and those which would destroy us. Protest on these and related issues can be authoritative challenges to the state and the institution as sites of unqualified remedy. They can also be experiments in other forms of relationality, kinships, and solidarities that leave the heteronuclear family in the dust. As such, they challenge the organizing logics of “sex” that underpin institutional authority: where those in charge always know what to do and will do the right thing, where the family is the location of love, the university a paterfamilias extraordinaire. The challenge of these protests, then—inchoate and contradictory as they will be—might be read productively against the theory of an unwelcome yes that places the scope of sexualized violation as an individualized encounter that circles around the failed negotiation or imposition of an act or speech that represents something named “sex.”
If we build backward, through the activisms and law that bring us to a critical discussion of welcomeness, protest within the political economy of the university may be construed and fostered as an implicit challenge not only to any assumption that sexualized violation could ever be fully cognizable with the adoption of an appropriate legal standard but to the idea that “the sexual” itself is not always a concept under construction—that multiple, conflicting demands that spring within and beyond its name don’t tell a better truth than the desire for a single meaning might. Using campus protest to retheorize the unwelcome yes can be a way to mark the different conditions that produce sexualized violence and its multiple meanings. Retheorizing the unwelcome yes can be a way to intervene on staid interpretations and genealogies of law. Protest can be a challenge to the notion that with enough or the right kind of logic it will somehow all make sense. And starting there would reemphasize strains of analysis and praxis mostly stricken from the record: ones in which sexualized violence and the fights against it cannot be cleaved from empire, white cis-heterosupremacy, and a settler state, where pleasure (what is welcome, what is wanted) is staked, too, on those fraught and fought-for grounds.
Rana M. Jaleel is an assistant professor in gender, sexuality, and women’s studies at the University of California, Davis. Her book The Work of Rape is forthcoming from Duke University Press in November 2021.
1. These opening two scenes are fictional amalgamations generated from a number of sources that I examined over the course of my research. These scenes have been crafted to express recurring patterns; they do not record discrete events. Any resemblance to singular incidents, locations, or persons is entirely coincidental.
2. “Because the court determines that plaintiff’s claims against the federal government are barred by sovereign immunity, and plaintiff has failed to justify prosecution of the claims against the individual defendants as monetary damages claims under Bivens, the court dismisses these claims.” Doe v. Haskell Indian Nations University, 266 F. Supp. 3d 1277, 1287 (D. Kan. 2017).
3. Jacqueline Agtuca, Safety for Native Women: VAWA and American Indian Tribes (Lame Deer, MT: National Indigenous Women’s Resource Center, 2014), 51.
4. See, for example, Emily A. Owens, “Keyword 7: Consent,” differences 30, no. 1 (2019): 148–56.
5. Jodi A. Byrd et al., “Predatory Value, Economies of Dispossession, and Disturbed Relationalities,” Social Text 36, no. 2 (2018): 1–18, 3.
6. From the Oxford English Dictionary, accessed November 20, 2020, https://www.oed.com/view/Entry/226941?rskey=sWz2QN&result=1#eid/.
7. Robin West, “Sex, Law and Consent,” Georgetown Law Faculty Working Papers, Paper 71 (2008), 5.
8. Risa L. Lieberwitz et al., “The History, Uses, and Abuses of Title IX,” Academe 102, no. 4 (2016): 69–99.
9. Janet Halley, “The Move to Affirmative Consent,” Signs: Journal of Women in Culture and Society 42, no. 1 (2016): 257–79; Jacob Gersen and Jeannie Suk, “The Sex Bureaucracy,” California Law Review 104 (2016): 881.
10. For a crystallization of this work, see Joseph J. Fischel, Screw Consent: A Better Politics of Sexual Justice (Berkeley: University of California Press, 2019).
11. Amber Jamilla Musser, “Consent, Capacity, and the Non-narrative,” Queer Feminist Science Studies: A Reader, ed. Cyd Cipolla, Kristina Gupta, David A. Rubin, and Angela Willey (Seattle: University of Washington Press, 2017): 221–33.
12. See, for example, Angela Y. Davis, Women, Race, and Class (New York: Vintage, 1983).
13. Emily Bazelon, “The Return of the Sex Wars,” New York Times Magazine, September 10, 2015.
14. Legal feminist theorists Janet Halley, Deborah Tuerkheimer, and Stu Marvel eloquently outline these legal wranglings in their work on discrepancies between criminal notions of sexualized violence and campus ones. While colleges and US society at large have moved toward understanding consent or even welcomeness as the critical diagnostic of sexualized violation, in Tuerkheimer’s words (2015, 1), “the Model Penal Code [a project of the American Law Institute that attempts to standardize penal law across the US] and a majority of states still retain a force requirement, effectively consigning most rape—that is, non-stranger rape—to a place beyond law’s reach.” See Halley, “Move to Affirmative Consent”; Marvel, “The Vulnerable Subject of Rape Law: Rethinking Agency and Consent; a Response to Deborah Tuerkheimer, Rape On and Off Campus,” Emory Law Journal Online 65 (2015); and Tuerkheimer, “Rape on and off Campus,” Emory Law Journal 65 (2015): 1.
15. Angela P. Harris, “Race and Essentialism in Feminist Legal Theory,” Stanford Law Review (1990): 581–616.
16. Rana Jaleel, “Weapons of Sex, Weapons of War: Feminisms, Ethnic Conflict and the Rise of Rape and Sexual Violence in Public International Law during the 1990s,” Cultural Studies 27, no. 1 (2013): 115–35.
17. Vicki Shultz, “Reconceptualizing Sexual Harassment, Again,” Yale Law Journal Forum 128 (2018): 22.
18. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1988).
19. Franz Fanon, Black Skin, White Masks, trans. Charles Lan Markmann (New York: Grove Press, 1967), 120.
20. For a more robust genealogy, see Judy Wu, “Asian American Feminism and Legislative Activism: Patsy Mink in the U.S. Congress,” in Our Voices, Our Lives: New Dimensions of Asian American and Pacific Islander Women’s History, ed. Shirley Hune and Gail Nomura (New York: New York University Press, 2020).
21. Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America (Minneapolis: University of Minnesota Press, 2015); Andrea Smith, Conquest: Sexual Violence and American Indian Genocide (Durham, NC: Duke University Press, 2015).
22. Deer, Beginning and End.
23. Emily Thuma, All Our Trials: Prisons, Policing, and the Feminist Fight to End Violence (Champaign: University of Illinois Press, 2019), 25.
25. Ruthie Wilson Gilmore, “Abolition Geography and the Problem of Innocence,” in Futures of Black Radicalism, ed. A. Lubin and G. T. Johnson (Brooklyn, NY: Verso, 2017).
26. Thuma, All Our Trials, 7.
27. Elizabeth Bernstein, “Carceral Politics as Gender Justice? The ‘Traffic in Women’ and Neoliberal Circuits of Crime, Sex, and Rights,” Theory and Society 41, no. 3 (2012): 233–59.
28. Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, § 304(a)(1)(B)(iii), 127 Stat. 54, 89 (codified as amended at 20 U.S.C. § 1092(f)(1)(F)(iii)).
29. Department of Education, Violence Against Women Act Final Rule, October 20, 2014, https://www.federalregister.gov/documents/2014/10/20/2014-24284/violence-against-women-act.
30. Gersen and Suk, “Sex Bureaucracy,” 895–96, quoting Violence Against Women Act at 62, 756.
31. Gersen and Suk, “Sex Bureaucracy,” 907–8.
32. While at the time of this writing, Betsy DeVos’s Department of Education has actively suspended some of the interpretations of the Obama years, expansive shifts around the social meaning of sex and sexualized violence are in many ways a fait accompli. The thinking on sex has changed—for better and worse, the category of “bad sex” has expanded. The bad sex of #MeToo as well as the heightened profile of Title XI as the premier instrument for addressing bad sex on campus have facilitated the kind and type of allegations that present in the classroom and performance scenes with which this chapter begins.
33. Jeannie Suk, “‘The Look in His Eyes’: The Story of State v. Rusk and Rape Reform,” Harvard Public Law Working Paper No. 10–23 (January 1, 2010).
34. Barack Obama, Presidential Proclamation, 2013, https://www.andvsa.org/wp-content/uploads/2013/10/Domestic-Violence-Awareness-Month-2013.pdf.
35. Deer, Beginning and End, xiv.
36. Deer, 102.
37. Deer, 105.
38. US Department of the Interior, Bureau of Indian Education, accessed November 23, 2020, https://www.bie.edu/topic-page/tribally-controlled-schools.
39. See too Sharon Marcus, “Fighting Bodies, Fighting Words: A Theory and Politics of Rape Prevention,” in Feminists Theorize the Political, ed. Judith Butler and Joan Scott (New York: Routledge, 1992), 389. Marcus offers a critique of the feminist modeling of a rape on a “collapsed continuum.” There, theorizations of sexual violence link language and rape in a way that can be taken to mean that representations of rape, obscene remarks, threats and other forms of harassment should be considered equivalent to rape. Such a definition substitutes the remarks and threats that gesture toward a rape for the rape itself and thus contradicts the very meaning of continuum, which requires a temporal and logical distinction between the various stages of a rape attempt. Instead, one type of action, verbal threat, is immediately substitutable for another type of action, sexual assault, and the time and space between these two actions collapse, and once again, rape has always already occurred.
40. Jennifer Doyle, Campus Sex, Campus Security (Cambridge, MA: Semiotext(e), 2015), 15–16.
41. Doyle, 15–16.
42. Doyle, 10.
43. Abigail Boggs et al., “Abolitionist University Studies: An Invitation,” Abolition Journal, August 28, 2019.
44. Jennifer C. Nash, “Pedagogies of Desire,” differences 30, no. 1 (2019): 197–217.