As Consent Rules Change, Big Questions Come to the Surface

Juan Figueroa, The Daily Texan

Students aren’t the only people on campus who are struggling with how to determine when a sexual act crosses the line into assault.

As hundreds of universities and a few states adopt “affirmative consent” policies requiring permission for each escalating act of intimacy, the often-blurry boundaries crossed behind closed doors are raising questions for campus administrators and lawyers.

How widespread are incidents of campus sexual assault, and how can colleges reduce confusion over what constitutes consent?

Is a “preponderance of the evidence” standard, which the Education Department wants colleges to use, necessary to ensure that perpetrators will be punished, or is that standard, lower than the one used in criminal cases, unfair to accused students?

Does requiring verbal consent protect women, or does it underestimate their ability to rebuff unwanted advances?

Those issues were hotly debated at a conference last month here at the University of Texas flagship campus.

The conference served as a capstone to an honors seminar, “Mythologies of Rape,” that Thomas K. Hubbard, a professor of classics, offered this semester.

Although he said he had made an effort to air diverse views, most of the speakers shared his belief that today’s consent policies put an unreasonable burden on accused students. It’s a view that is popular but by no means universal.

When investigations are opened at the University of Texas’ flagship campus, “Both parties are afforded the same due process from the beginning to the end of the discipline process,” LaToya Hill Smith, the university’s Title IX coordinator, told conference attendees. No one, she said, goes in assuming someone is guilty.

“There are going to be times when it boils down to ‘he said, she said,’ and we truly can’t determine because the evidence is not there,” Ms. Smith said in an interview. If the evidence doesn’t reach the “more likely than not” standard, “we err on the side of the respondent,” Ms. Smith said. “It’s not a case where you’re automatically going to get kicked out of school.”

Social media may hold clues to help an investigator determine whether the encounter was consensual. Prompts like “tell us how you were able to obtain consent” can also shed light on the credibility of the accused party, she said.

‘Rape Denialism’?

With so much debate swirling around the topic, Mr. Hubbard acknowledged that some of the speakers he had invited were provocative and that finding co-sponsors had been tough.

The university’s Center for Gender and Women’s Studies declined, in part because of a disagreement over how the speakers and topics would be selected. Other potential backers also balked, he said.

“Too many people don’t want to engage in a debate,” Mr. Hubbard said. “They want to monopolize the discourse by pretending there is no other position than theirs,” and that those who disagree are engaging in “rape denialism.”

Campus groups like Voices Against Violence, which offers interactive plays and other forums aimed at sparking dialogue, insist that affirmative-consent policies stimulate more, not less, conversation.

Several members of that student-led group attended the conference, some wearing T-shirts reading: “Consent Is Golden.” They were there, they said, to hear a variety of perspectives, including those that challenged their beliefs.

Kimberly Kessler Ferzan, a professor of law at the University of Virginia and a former federal prosecutor, agreed with them that affirmative-consent standards make it easier for victims to prove their cases. But she said they ran the risk of branding some “morally innocent” men as sex offenders.

That can happen when men mistakenly believe they’ve obtained consent, possibly because the alleged victim remained passive, she said.

She cited a 1999 study that contended that the most common way undergraduates consent to sex is by not resisting. If that’s the case, she said, “a reasonable man” could assume a partner’s passivity gave him a green light.

In fact, many victims’ advocates say, the other person might have been too afraid to move. A 2015 study pointed out that that can happen “when the individual is cornered and perceives that neither escape nor fighting is possible.”

“Yes means yes” policies that require clear and unambiguous evidence of consent are intended to clear up such confusion and encourage better communication.

But critics say that when those standards are applied, any ambiguity is held against the accused.

“This is particularly problematic when it happens behind closed doors and involves large amounts of alcohol,” said Joseph Cohn, legislative and policy director for the Foundation for Individual Rights in Education.

To illustrate the challenges an accused rapist might face in showing he had obtained consent from an alleged victim, Mr. Cohn cited a definition of consent on Oklahoma State University’s website.

Effective consent, it says, must be asked for every step of the way. It should also be “a voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement.”

That, said Mr. Cohn, isn’t easy to prove.

“Who gets to decide whether consent was enthusiastically given and whether it was enthusiastic enough?” he asked. “It’s likely to be a mix of faculty, students, and staff who volunteer to sit on that [campus-disciplinary] panel” but who know nothing about the relationship between the accuser and the accused, he said. “We shouldn’t punish people because they can’t prove their innocence.”

A spokeswoman for Oklahoma State said the excerpt was not part of the university’s formal consent policy, but simply a description used to educate students about sexual-assault prevention and bystander intervention.

Generational Differences

At the University of Texas flagship campus, consent is defined as a “voluntary, mutually understandable agreement that clearly indicates a willingness to engage in each instance of sexual activity.”

“Consent to one act does not imply consent to another,” the policy continues. “Past consent does not imply future consent. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another. Consent can be withdrawn at any time. Any expression of an unwillingness to engage in any instance of sexual activity establishes a presumptive lack of consent.”

The danger of such policies, according to Laura Kipnis, a professor of film studies at Northwestern University who spoke at the conference, is that “regrettable hookups” may be conflated with rape.

Ms. Kipnis, author of the forthcoming book Higher Education: Stupid Sex, contended that the real victims of affirmative-consent policies are male students, “who are turned into human sacrifice on the bonfires of bureaucratic overreach.”

Her remarks had a few student activists in the crowd scribbling points of rebuttal in their notebooks.

Instead of talking about “rape culture,” Ms. Kipnis said, “I’d like to propose the term ‘stupid sex’” for regrettable hookups that don’t involve physical force.

Ms. Kipnis obtained notoriety of sorts when an essay she wrote for The Chronicle Review about what she called sexual paranoia prompted two students to file a Title IX complaint against her for creating a hostile climate.

“The big story is that sex is dangerous again,” said Ms. Kipnis, who is 59. “For my generation, slogans like ‘pleasure’ and ‘liberation’ got tossed around a lot. Sex wasn’t exactly uncomplicated, but even when it was bad, which it often was, there wasn’t quite the same death knell tolling in the background.”

Today’s consent policies, she said, “are reproducing the most depressingly paternalist views about women” as passive objects needing protection.

Afterward, several undergraduate students interviewed said she and others who had questioned the seriousness of the rape problem were out of touch with their generation.

“I took five students to file Title IX complaints, and none of them were there because of stupid sex,” said Hayley Williams, a senior.

“The idea that rape is only force is a farce,” Mia Goldstein, a freshman, agreed.

Laura L. Dunn, executive director of SurvJustice, a victims’-rights advocacy group, outlined how both the federal government and colleges are working to make their procedures impartial. Those include providing evidence to both parties before hearings, recording proceedings that parties can refer to in appeals, issuing written decisions that outline the reasons for findings and sanctions, and hiring outside lawyers to investigate complaints.

Colleges need to make resources available for both accusers and accused, said Ms. Smith, the Texas Title IX officer. And education groups that help students understand, in practical and applicable ways, what it means to obtain consent play an important role.

“They’re showing students from beginning to end,” she said, “how they know they have consent and how to have a healthy dialogue about sex.”

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.