Critical Inquiry

Spring 2000
Volume 26, Number 3

CI FORUM: Pedagogical Sex

Critical Response
Interested Third Parties: A Response to Tania Modleski
by Ann Pellegrini

I am happy to have the opportunity to clarify my concerns about university policies on consensual sexual relationships. In my essay "Pedagogy's Turn: Observations on Students, Teachers, and Transference-Love" (Critical Inquiry 25 [Spring 1999]: 617Ð25), I suggested that "the ongoing evolution of university guidelines and policies on sexual harassment does not so much reflect their increasing refinement as their steadily increasing reach" (p. 618). In particular, I worried that: (1) The increasing regulatory attention universities are lately giving consensual sexual relationships between students and faculty is empowering third parties to complain about the sex someone else is having.1 (2) Reframing consensual student-faculty relationships as "alleged consensual" may nullify students' self-reporting, ironically, in the name of protecting students' interests. (3) Further, this redescription of consensual relationships as "alleged consensual" implicitly depends upon an overly narrow conception of sexual harassment, what Yale Law School professor Vicki Schultz has referred to as a "sexual desire-dominance paradigm."2 (4) Finally, and closely linked to my first three worries, empowering third parties to bring actionable complaints about someone else's sexual relationships, even when that someone else is not complaining, may disproportionately affect those forms of erotic relation and affiliation already considered beyond the pale--"queer." And it may do so without actually addressing more systematic, institutionalized forms of gender-based discrimination.

It is clear to me now, given Tania Modleski's misreadings of my essay, that my initial presentation of the unintended but, in my view, dangerous and foreseeable effects of the new turn in sexual harassment policies was far too condensed. While the unpacking I offer here may not satisfy Modleski, I yet hope that I may at least provide a clearer picture of why the expansion of sexual harassment policies to cover consensual sexual relations and to empower third-party sexual harassment claims is a remedy that may effect more harm it cures.

Modleski chastises me (and Jane Gallop) for "making it possible for the norm to remain the norm" (p. 594). She makes abundantly clear what this norm I am charged with refortifying is: male superior, female subordinate. How have I done this? According to Modleski, by "condemning policies prohibiting teacher-student sex" (p. 594). She seems to be arguing that we--that is, feminists--need these policies in order to prevent or, if we cannot prevent, offer remedies for truly awful situations such as the ones she describes. A female student mistakes her male professor's sexual overtures for romantic interest; she thus consents to terms that do not apply. Ultimately, he escapes with a private reprimand; the student, unable to face her former professor, drops out of school. An employee is subject to retaliatory measures from her supervisor after she breaks off a consensual sexual relationship; she seeks redress in the courts, but her complaint is dismissed.

Now, I agree with Modleski that such situations are tragic, all too common, and beg remedy. I also agree that feminists ought rightly to be concerned about such cases. What's more, I hardly think that feminists seeking to prevent abuses like the ones she describes are "victim feminists" (p. 593). This is Modleski's addition to my argument, not mine. That said, Modleski and I do likely differ, perhaps profoundly, as to the question of remedy.

1. I am paraphrasing Janet E. Halley here. She runs her analysis of these new trends in sexual harassment law through the Equal Employment Opportunity Commission (EEOC) "Guidance on Employer Liability under Title VII for Sexual Favoritism" (Jan. 1998) and through some campus sexual harassment policies. See Janet E. Halley, "Sexuality Harassment," in Left Legalism/Left Critique, ed. Wendy Brown and Halley (forthcoming).
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2. See Vicki Schultz, "Reconceptualizing Sexual Harassment," Yale Law Journal 107 (Apr. 1998): 1683Ð1805; hereafter abbreviated "RSH."
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Ann Pellegrini is an associate professor of women's studies at Barnard College. She is the author of Performance Anxieties: Staging Psychoanalysis, Staging Race (1997) and coeditor of the forthcoming Queer Theory and the Jewish Question. She is currently completing a jointly written project, with Janet Jakobsen, on religion and sexual regulation in contemporary American life.

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