Affirming Consent

Under the DOE’s Questions and Answers guidance of April 2014, all institutions of higher education are required to have sexual violence grievance procedures which include: “adequate definitions of sexual harassment (which includes sexual violence) and an explanation as to when such conduct creates a hostile environment.” One of the implications of this requirement is that colleges and universities must have a clear and published definition of “consent” to sexual activity.  This definition of consent will be employed by students as they consider their conduct (to prevent sexual violence), by investigators of sexual violence complaints, and by hearing boards assigned to adjudicate these complaints.

Until recently, most people’s ideas of consent tended to fall into the “no means no” category.  Slogans such as “What part of ‘no’ don’t you understand?” were the battle cry of early anti-rape activists. Consent for sexual activity was thus seen as implied unless one party clearly said “stop.” In the past few years, student campus activists have raised the issue that this “no means no” standard actually fails to protect parties who are incapacitated, traumatized, afraid and/or otherwise unable to verbalize their non-consent.

On July 7, New York became the second state (following California) to pass legislation requiring all universities in New York to adopt a uniform affirmative or “yes means yes” sexual consent policy.  Under this law “affirmative consent” is defined as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” Importantly, consent can be indicated by words or actions–but not by silence or lack of resistance.  Consent, once given, can be withdrawn at any time. And, the requirement of affirmative consent “does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.”

Even where there is no state mandate, many colleges have stepped forward with their own affirmative consent policies–most focusing on conditions where consent is impossible:  Some are very descriptive and specific:  “Consent cannot be given when a person is incapacitated.  Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity.  Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent.”  [State University of New York, “Policies on Sexual Violence Prevention and Response”]

Some affirmative consent policies are less specific, but comprehensive nevertheless:  “UNH considers consent to be a mutual agreement based on a shared desire for specific sexual activities. Consent is not when one person says yes because they are scared or intimidated, when they are being physically or mentally threatened, when there is an imbalance of power, or if one party is drunk or otherwise incapacitated by drugs and/or alcohol.”  [University of New Hampshire, “Sexual Harassment & Rape Prevention Program] 

Critics of affirmative consent policies have argued that they put an unfair burden on the person who initiates sexual activity [typically understood to be a male, although both California and New York policies are clear that obtaining affirmative consent is required of all, regardless of gender].  Some have even argued that affirmative consent policies create cultures of anxiety where “safe sex” means using condoms and signing sex contracts.  Legal analysts have noted that affirmative consent policies do tend to shift the burden from the complainant to alleged perpetrators to demonstrate consent.

Feedback from students and administrators whose colleges employ affirmative consent policies tends to allay fears that affirmative consent policies will either promote unwarranted complaints, or pose an undue hardship on accused perpetrators, however.  College administrators in California report that affirmative consent policies there have tended to focus student attention on the issue of consent–and have initiated productive conversations about consent between students and even between students and their families.  Title IX coordinators in California state that they have not seen a rise in “affirmative consent” cases per se, but there has been more awareness of the impact of drug and alcohol intoxication on inability to give consent and more cases involving intoxication.

However your college decides to define consent (if a definition is not state-mandated), the definition should be clear and useful:  What does “consent” mean?  When can “consent” not be given?  Who is responsible for obtaining consent?  What are the implications for withdrawing consent?  Instituting clear definitions is a first step to prevention of sexual violence–and a good step forward in enhancing Title IX policies for your campus community.

Think of it as borrowing a cellphone.  You wouldn’t just take it.  You’d ask for it first.”    (Carol Stenger, University at Albany Advocacy Center for Sexual Violence)