Twenty years ago, the “No Means No” campaign, created by a group of Canadian college students to raise awareness about sexual assault, pretty much encompassed the limits of the discussion. Since then, however, ideas about consent have grown more complicated, forcing colleges and students alike to grapple with a tougher issue: Although “no” always means no, “yes” is often murky.
In short, defining consent is difficult.
Many colleges are working on such a definition, however, as federal and state legislators push them to clearly explain the term in their sexual-misconduct policies.
Proposed rules for the Campus Sexual Violence Elimination Act, released in June by the Education Department, do not define consent. Federally appointed negotiators on the rule-making committee have asked the department to provide further guidance on the matter.
NotAlone.gov, a new website created by the White House to help sexual-assault victims, offers several recommendations for what colleges should include in their definitions of consent. For example: “past consent does not imply future consent” and “consent can be withdrawn at any time.”
Recently the California State Senate passed a bill that would require colleges to adopt an “affirmative consent” policy, in which each participant must convey his or her intent to have sex. Clark University and Grinnell College are two of many institutions with such policies. In contrast, the University of Delaware and other institutions, along with some states, define sexual assault as occurring when one party—either incapacitated or forced into sex—does not give consent.
Stating the obvious, the University of Mary Washington’s sexual-misconduct policy says: “There is a difference between seduction and coercion.”
Setting a Standard
Proponents of affirmative consent say the policies require accused students to prove consent rather than make the alleged victims prove assault. But the standard may be difficult to meet without a definition of how students should express their intentions.
The California bill defines consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.” It does not specify how participants should convey those wishes.
On some campuses, students must use words. In 1991, Antioch College adopted a sexual-misconduct policy requiring students to have verbal consent to progress from kissing to each level of contact beyond that. Today several institutions—including Vassar College, the University of New Hampshire, and the University of North Alabama—have similar policies.
Those standards are impractical, says Brett A. Sokolow, president of the National Center for Higher Education Risk Management, a consulting and law firm that advises colleges. “Verbal consent isn’t human nature,” he says. In the heat of the moment, willing partners often don’t pause to ask each other questions.
Students, like other people, do not necessarily verbalize consent during sexual encounters, says Kristen N. Jozkowski, an assistant professor of community-health promotion at the University of Arkansas, who has studied college students’ attitudes toward sex.
In one study, she asked students how they sought and granted consent in their own sex lives. Among the responses: “If no one says anything, then it is OK to proceed” and “It just happens.”
Nonverbal Consent
Colby Bruno, a senior counsel at the Victim Rights Law Center, a legal-support and advocacy group, believes colleges should allow students to communicate consent—or the opposite—through nonverbal means, too. A person who is forced into sex and frozen by fear, she says, might have trouble saying no, or anything at all. Instead, Ms. Bruno says, “they push, they cry.”
Many institutions—such as Amherst College, Occidental College, and the University of Connecticut—state that students may give consent either verbally or through their actions. The policy at the California College of the Arts says: “When a woman puts someone’s hand on her breast, she gives mutually understandable consent for that person to touch her breast at that time.”
But nonverbal communication can lead to misunderstandings. “It actually requires a higher level of communication between partners, so people don’t misinterpret actions,” Mr. Sokolow says.
Sometimes those partners do not know each other very well. Students who are mere acquaintances may not be able to interpret each other’s actions, Ms. Jozkowski says.
She has found that men tend to rely on nonverbal clues, such as eye contact and touching, while many women prefer to be asked. So a miscommunication may arise when a man interprets a woman’s silence as “yes,” when she is actually waiting for him to ask so she can say “no.”
The question of consent is further complicated by the definition of “incapacitation.” A person who is incapacitated might say “yes” to sex but really mean “no.” NotAlone .gov encourages colleges to define incapacitation as occurring “due to the use of drugs or alcohol, when a person is asleep or unconscious, or because of an intellectual or other disability that prevents the student from having the capacity to give consent.”
As far as some colleges are concerned, any level of intoxication renders a person incapable of giving consent. Arizona State University’s sexual-assault policy states: “Do not have sex with a person who is under the influence of alcohol and/or drugs which compromise consent.” It adds: “The best defense is to not drink. If you drink, limit alcohol intake.”
Justin Dillon, a Washington-based lawyer who has represented students accused of sexual assault, describes such definitions as problematic. “People have been having enjoyable, consensual sex while drunk since the beginning of time,” he says. “Drunk does not equal incapacitated.”
Some colleges, such as the University of Connecticut, list signs for students to look for to determine whether another person is incapacitated; they include slurred speech, bloodshot eyes, and shaky equilibrium.
The University of Virginia’s policy acknowledges that such judgments are tricky. “Incapacitation,” it says, “may be difficult to discern.”
In her most recent research, Ms. Jozkowski found that many male students interpret a woman’s acceptance of a drink as consent. But a woman who lets a man buy her a cocktail might want to do no more than spend some time with him.
“Consent is happening long before they enter the purview of the bedroom,” Ms. Jozkowski says. “There’s a cognitive dissonance going on where no means no, but students may say, ‘She went back to his room, so that meant she consented.’ "
Legal Clarity
As more colleges reconsider their sexual-assault policies, conversations about how partners should best communicate are bubbling up. This year Harvey Mudd College sponsored “Consent Week,” which included a workshop, led by students and faculty members, on how to ask for, give, and refuse consent. Such discussions might go hand-in-hand with other prevention efforts.
But framing sexual assault as a communication issue alone is a mistake, experts say.
Ms. Bruno, a lawyer who has represented victims of alleged sexual assaults, recalls just one case in the past 10 years in which she believed that the accused person thought the contact in question had been consensual. In her other cases, she was convinced that the alleged perpetrators had known that they lacked consent. Often it’s violence—and not miscommunication—that is the bottom line.
A clear definition of consent in a college’s sexual-misconduct policy sets a standard for judicial boards to use when hearing cases. Colleges can also use the definition to educate students.
But defining consent is just one step in preventing sexual assault.
“Everyone would be happier—college students, administrators, parents—if there was a really clear, concise way of determining whether … it was a rape,” Ms. Bruno says. “But the reality is it is a very difficult thing to decide.”
