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In September 2014, California governor Jerry Brown (D) signed a bill requiring all colleges in the state to adopt "affirmative consent" policies to govern sexual encounters on campus or else forgo state funding. Traditional definitions of consent have often centered on a "no means no" standard: If a person says or indicates that he or she does not want sexual contact, consent has not been given and continuing sexual contact with that person constitutes sexual assault. Affirmative consent, on the other hand, requires a higher standard of communicating consent, often referred to as "yes means yes."

California's SB-967, commonly known as the "yes means yes" law, mandates that colleges require students initiating sexual contact to seek affirmative consent. Under the law, affirmative consent

Issues & Controversies Last Updated: January 23, 2015

Sexual Assault on Campus: Should colleges adopt affirmative consent measures?

Introduction

SUPPORTERS ARGUE Affirmative consent policies provide safer and clearer boundaries for students than those provided by the "no means no" standards of consent. Despite what critics allege, affirmative consent policies do not dramatically redefine rape, but rather encourage students to make sure that their partners are enthusiastically engaged during sexual encounters. "Yes means yes" standards will prevent predators from claiming they misunderstood signals, and will not, as critics allege, spur a wave of false allegations.

OPPONENTS ARGUE Affirmative consent, or "yes means yes," policies are impractical and ineffective. The majority of rapes stem from predatory behavior, not miscommunication. For consenting couples, anxiety over meeting the new standard will make sex joyless and add confusion and complications. Affirmative consent policies place the burden of proof on the accused and are likely to increase the number of false allegations.

means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Sexual assault—defined by the U.S. Department of Justice as "any type of sexual contact or behavior that occurs without the explicit consent of the recipient"—has long been a problem on American college campuses. According to federal estimates, about one in five women experience some form of sexual assault while in college. The reported number of sexual assaults on college campuses has risen in recent years, though some observers note that this may be because students are more willing to report such incidents today than in the past. Nevertheless, surveys suggest that the majority of sexual assaults go unreported.

In May 2014, the U.S. Department of Education published a list of dozens of colleges and universities under investigation for suspected mishandling of sexual assault allegations. By November, 87 schools were under investigation, including prestigious institutions such as Harvard University, Princeton University, and the University of California at Berkeley. Over the last few years, student organizations have launched sexual assault awareness campaigns urging college administrations to reform sexual assault policies, handle sexual assault allegations with more sensitivity and thoroughness, and ramp up efforts to educate the student population on what sexual assault is and how to prevent it.

As a result of pressure both from students and from the federal government, many colleges have reformed their sexual assault policies. According to the National Center for Higher Education Risk Management, about 800 colleges have put some form of affirmative consent policy in place, rather than adhering to the traditional "no means no" standard. Once a rallying cry for women's rights, "no means no" has recently been criticized for putting the burden of action on victims, who are not always able to explicitly and verbally refuse unwanted contact.

Though hundreds of colleges across the United States have adopted some form of affirmative consent policy, California's effort marked the first time such a policy was codified by a law. The legislation requires colleges to apply a "yes means yes" policy when teaching students about sexual assault and, when investigating sexual assault charges, to determine whether the alleged victim had explicitly agreed to sexual contact. Critics of the measure, however, argue that it constitutes a government intrusion into the bedroom and requires an absurdly high and impractical standard of consent. The law, they argue, essentially reclassifies most consensual sexual encounters as rapes. Supporters, on the other hand, argue that "no means no" did not cover all possible sexual assault scenarios, and insist that a "yes means yes" standard gives students a much clearer, safer concept of what constitutes consensual sexual behavior.

After California passed its affirmative consent bill, leaders in other states moved to adopt similar standards. In New York, the State University of New York (SUNY) system adopted policies establishing that "silence, in and of itself, cannot be interpreted as consent." New York governor Andrew Cuomo (D) stated that if the new policy worked in the SUNY system, he would move to pass a statewide law for all schools. New Hampshire legislators are also considering a bill that would echo California's affirmative consent law.

Should colleges adopt affirmative consent measures?

Supporters argue that implementing a "yes means yes" standard offers students more effective protection against assault. The policies are not as dramatic a departure from previous definitions of sexual assault as critics allege, they contend, and they will not diminish consenting sexual experiences in any way. Predators held to a "yes

means yes" standard, they assert, will no longer be able to plead confusion and use victim-blaming tactics to evade responsibility.

Opponents argue that affirmative consent measures are too broad, vague, and impractical to be effective. Requiring sexual partners to constantly confirm consent turns sexual encounters into anxiety-ridden experiences, they contend, and technically classifies many such encounters as sexual assault. Opponents further argue that affirmative consent policies presuppose the guilt of the accused and leave innocent students vulnerable to specious allegations.

Colleges Begin to Adopt "Yes Means Yes" Policies

Colleges in the United States process sexual assault allegations in a variety of ways. In addition to administrators that process and investigate complaints, many schools have conduct or disciplinary boards, made up of both administrators and student representatives, that conduct hearings and dole out punishments.

In 1991, Antioch College in Ohio became the first college to adopt an affirmative consent policy. The policy required that students seek verbal consent at "each new level" of sexual activity and each time sexual activity occurs. According to the policy, "the person(s) who initiate(s) the sexual activity is responsible for asking for consent," and "body movements and non-verbal responses such as moans are not consent." The policy's strict standards were greeted with widespread ridicule and even inspired a parody on Saturday Night Live, but over the following years colleges across the country began to adopt similar codes. Not all codes specifically require verbal consent, but many policies warn that purely nonverbal communications could lead to misunderstandings.

More recently, allegations that schools have mishandled sexual assault investigations have triggered a new wave of reforms. Several recent specific sexual assault scandals have brought condemnation on prestigious colleges. In September 2014, for example, Columbia University in New York City attracted national attention when a female student launched a performance art piece in which she vowed to carry a mattress with her everywhere she went on campus until the school expelled her alleged rapist. The male student denied the accusation, claiming the encounter had been consensual, and he faced no repercussions from the school. In response to criticism that it mishandled sexual assault allegations, Columbia adopted a new policy that required students to have "unambiguous communication and mutual agreement" to establish consent.

Colleges have been accused of downplaying accusations of sexual assault in order to avoid attracting negative publicity. "Institutions of higher education have had a perverse incentive to suppress knowledge of sexual assault on campus and to mishandle [such cases]," Lisa Wade, an associate professor of sociology at Occidental College told the Washington Post in January 2014. "When the majority of schools are silent, any given school is seen as a unique source of sexual violence, which isn't true."

Others have accused schools and society at large of helping foster a supposed "rape culture" that ignores allegations of assault, discourages victims from seeking justice, and sets too high a standard for what constitutes a rape. In Steubenville, Ohio, in 2012, for example, bystanders took video as a 16-year-old girl who had passed out was raped by two star high school football players; one bystander reported to police that he had not intervened to stop the assault because he did not think of the activity as rape because it wasn't "violent." Such incidents, many have argued, signal that more education on sexual assault is needed, particularly among high school and college students.

Debate over sexual assault policies escalated in September 2014, when California adopted its affirmative consent law. The measure codified "yes means yes" policies for all schools in the state that wished to receive state funds. After several iterations, the final version of the law defined consent as "affirmative, conscious, and voluntary

agreement to engage in sexual activity." On California campuses, consent is no longer a matter of not struggling or not saying no," Jake New, a reporter for Inside Higher Ed, explains. "If the student initiating the sexual encounter doesn't receive an enthusiastic 'yes,' either verbally or physically, then there is no consent." [See California Adopts Affirmative Consent Policy for Colleges (primary source)]

The California law also stipulates that consent cannot be given if one of the participants in a sexual act is passed out from drugs or alcohol; according to the American College Health Association, more than half of reported sexual assaults involve alcohol. The California law does not state that two students who have been drinking cannot engage in consensual sex but stipulates that someone cannot give consent if they are too inebriated to clearly do so.

Colleges handle sexual assault allegations separately from the criminal justice system, and affirmative consent policies have no bearing on the criminal outcome of a case. "College disciplinary committees have fewer safeguards than criminal courts," the Economist explained in October 2014. "[O]ften the accused has no right to a lawyer and no chance to cross-examine witnesses. The committees also tend to determine guilt based on a 'preponderance of evidence' rather than 'beyond a reasonable doubt'"—which is the standard in most courts of law. Depending on the school's policy, students determined to be guilty can face suspension or expulsion. Additionally, in light of federal criticism that schools were inadequately investigating allegations, some schools, like Amherst College and Tufts University in Massachusetts, have chosen to outsource sexual assault investigations to qualified private investigators.

In response to pressure from victims, student activists, and the federal government, many colleges have adopted a variety of reforms besides the affirmative consent policies. Dartmouth College, for example, changed its policy so that certain kinds of sexual assault would trigger automatic expulsion. In August 2014, meanwhile, Columbia University decided it would no longer allow students to sit on the panels that hear sexual assault cases.

Federal Government Pushes for Sexual Assault Policy Reform on College Campuses

Under President Barack Obama (D), the federal government has pushed colleges and universities to take meaningful steps to prevent sexual assault on campus. In 2011, the U.S. Department of Education sent a letter to colleges urging them to intensify sexual assault prevention efforts. If a school's sexual assault policies were lacking, the letter warned, colleges could be investigated for violating Title IX, a provision of a 1972 education law that prohibits schools that receive federal funding from discriminating on the grounds of gender. Title IX requires colleges to investigate sexual assault complaints regardless of whether students choose to also file reports with the police.

In 2013, Congress reauthorized the Violence Against Women Act, a law designed to curb domestic violence. The reauthorization included provisions aimed at reducing sexual assault on campus, including requirements that schools maintain a formal sexual assault policy and provide sexual assault education resources for students. Federal law also requires schools to inform the U.S. Department of Education of all assault cases, though observers note that many cases go undocumented because victims of sexual assault often do not tell authorities of such incidents. "The official statistics that schools report to the federal government deal with only those offenses reported to a college officials, and are considered highly unreliable," New York Times journalists Richard Perez- Pena and Ian Lovett explained in September 2014. "[A]n increase in reports can mean colleges are doing a better job of encouraging victims to come forward."

In January 2014, President Obama and Vice President Joe Biden (D) established a White House Task Force to

Protect Students from Sexual Assault. "Freedom from sexual assault is a basic human right," Biden said when the president signed the order creating the task force. "[A] nation's decency is in large part measured by how it responds to violence against women."

In April, the presidential task force released "Not Alone," a report that offered recommendations for recognizing, preventing, and responding to sexual assaults on college campuses. The report provided schools with checklists for drafting comprehensive sexual assault policies, urged schools to train officials in how to deal with trauma victims, and called for schools to delegate questioning of such victims to a trained investigator, rather than a board of sometimes ill-informed school officials. "Many sexual assault survivors are wary of their school's adjudication process," the report noted, "which can sometimes subject them to harsh and hurtful questioning (like about their prior sexual history) by students or staff unschooled in the dynamics of these crimes." Officials at some colleges have faced accusations of "victim blaming"—assuming a victim had invited sexual assault through their behavior, such as by dressing provocatively or drinking too much. The eradication of victim blaming, many observers have argued, is an essential step toward creating an environment where victims are unafraid to report crimes and name perpetrators.

The presidential task force also launched a campaign of public service announcements (PSAs) called "It's On Us." The PSAs encouraged bystanders, particularly male college students, to intervene when they see a potential sexual assault. "We need to engage men as allies in this cause," the Not Alone report stated. "Most men are not perpetrators—and when we empower men to step in when someone's in trouble, they become an important part of the solution." The campaign released a series of videos that starred celebrities and created a website, www.itsonus.org, where users could sign a pledge to "intervene in situations where consent has not or cannot be given" and to "create an environment in which sexual assault is unacceptable and survivors are supported."

In April 2014, for example, student activists at Harvard University filed a complaint with the Education Department accusing the college of blaming victims and failing to protect them. The complaint included testimony from sexual assault victims and information gathered by Our Harvard Can Do Better, a student activist group. In response to the complaint, the U.S. Department of Education Office for Civil Rights launched an investigation. In July, Harvard reformed its sexual assault policy to state that sexual conduct "is unwelcome if a person did not request or invite it and regarded the unrequested or uninvited conduct as undesirable or offensive." While student activists pushed Harvard to go further and adopt a "yes means yes" policy, several professors at Harvard Law School sent the administration an open letter condemning the new policy as too vague. [See Harvard University Institutes New Sexual Assault Policy (primary source); Harvard University Professors Criticize Sexual Assault Policy (primary source)]

Affirmative consent policies remain one of the tangible policies pursued by schools to put an end to campus sexual assault. Such policies have nevertheless promoted debate over their effectiveness.

Supporters Argue: Affirmative Consent Policies Will Curb Sexual Assault on Campus

Supporters of affirmative consent policies argue that the "no means no" model of consent is flawed and outdated. "A partner who is asleep or passed out can't say 'no,'" Slate writer Amanda Hess argued in June 2014. "Neither can a partner who's frozen in shock or fear when an encounter escalates into an assault…. [M]any victims respond by shutting down, going silent, or laying motionless, hoping not to anger their attackers further, or disassociating from the attacks as an attempt at self-preservation."

Affirmative consent policies, proponents contend, can help students plainly differentiate between appropriate and

inappropriate sexual contact. "A policy which defines consent in affirmative terms would help protect against wrongful accusations by clearly defining what it means for an encounter to be consensual," Rory Gerberg and Maryrose Mazzola, graduate students at Harvard University, argued in the Boston Globe in October 2014. "A clear affirmative consent standard creates the foundation for prevention by bringing students on to common, clear terms with mutual expectations for behavior."

Supporters argue that affirmative consent policies will prevent male predators from claiming that they misread a woman's signals. The law, Vox writer Amanda Taub wrote in October 2014, "emerged as a response to a status quo that has proved to be an all-too-powerful tool for sexual predators, because it enables them to claim to see consent in everything except continuous, unequivocal rejection…. By exempting sexual aggressors from the responsibility of figuring out whether their partners are 'eager and ready to sleep with them,' we're asking their targets to either give in to sexual activity they don't want, or to run the risk that a firm, assertive, continued rejection will end in violence."

Proponents deny that adopting affirmative consent policies will trigger a wave of false allegations. "If both partners were enthusiastic about the sexual encounter, there will be no reason for anyone to report a rape later," ThinkProgress health editor Tara Culp-Ressler argued in June 2014. "So if college students are worried about protecting themselves from being penalized, it's not hard—all they have to do is stick to engaging in physical contact with people who are clearly receptive to it at the time."

Supporters note that affirmative consent policies are for college purposes only, and will not change how allegations of sexual assault are pursued in the criminal justice system. "[D]efining affirmative consent in student codes of conduct doesn't have any bearing on the legal system," Culp-Ressler wrote. "Creating these new standards won't make any sex acts illegal or result in criminal convictions. Instead, it's a way to send a message about what type of behavior is acceptable on college campuses."

Affirmative consent policies, supporters argue, merely codify what people already know: Sex without consent is rape. "A switch to affirmative consent just clarifies that consent is not the default setting and thus can't just be assumed," Maya Dusenberry, executive editor of the website Feministing, asserted in October. "[I]n the absence of affirmative signs of consent, then all we're left with is a concept of 'negative consent'—an assumption that people are in a perpetual state of consenting to sex with anyone at all times unless indicated otherwise."

Affirmative consent, supporters claim, helps educate students who may have received mixed social messages on what does and does not constitute rape. "[T]here are high school boys in this country who literally don't recognize rape when they see it happening," Dusenberry argued in reference to the 2012 Steubenville, Ohio, incident, "who witnessed the assault of a girl who 'wasn't moving,' 'wasn't talking,' and 'wasn't participating,' a girl described by her rapist as 'like a dead body,' and still did not see that as rape because 'it wasn't violent.' Until that's not the case, better education on consent—specifically, the exact kind of education required under the California law—is clearly necessary."

Opponents Argue: Affirmative Consent Policies Will Not Curb Sexual Assault on Campus

Opponents of affirmative consent policies argue that such policies are difficult to impose and set an absurdly low bar for what constitutes sexual assault. "Under this consent standard," Joe Cohn, policy director at the Foundation for Individual Rights in Education (FIRE), told the Economist in October 2014, "if one partner touches his or her partner in a sexual way, and the person says 'I am not interested tonight,' that person has already committed sexual assault because he or she didn't get permission upfront. It's just not consistent with

how adults act."

Opponents contend that affirmative consent policies assume the accused are guilty. "[T]he bill is a harsh blow to due process rights on California campuses," FIRE argued in a February 2014 statement. The statement questioned "whether people can possibly be expected to follow such a strict standard for communication during sex, much less demonstrate during a hearing that they have done so…. In practice, the [California] bill will shift the burden of proof to the accused student."

Affirmative consent policies, opponents predict, will fail to deter the core group of predators responsible for the vast majority of sexual assaults. Research "shows that most rapists are serial offenders who have committed other acts of violence as well," journalist Michelle Goldberg argued in the Nation in September 2014. "Yet California's law treats the campus rape crisis as a communication problem."

Affirmative consent policies, critics contend, threaten to take the joy out of sex. "[T]here's a big difference between sweet nothings and mandatory negotiations based on constant awareness that you may be raping your partner if you misread those cues," Reason editor Cathy Young wrote in June 2014. "Whether anyone could feel 'sexy' under such conditions seems dubious at best."

"Yes means yes" policies, opponents argue, essentially criminalize the vast majority of sexual experiences. "One would think," Young asserted, "that the California legislators would have some second thoughts about endorsing a bill that essentially redefines some 95 percent of human sexual encounters as rape (including married sex, since the bill specifically states that a prior relationship creates no presumption of consent)."

Affirmative consent, critics contend, leaves students vulnerable to empty allegations that can ruin their lives, critics argue. Attorney Anne Mitchell testified before California's Senate Education Committee in March 2014 that such policies "invite accusations, both real and imagined—and invented. Such a policy, requiring ongoing verbal or otherwise clear affirmative consent, without tight definitions, without boundaries, will do…more harm than good. It exposes students—not just men, but women as well—to misguided, and even specious charges."

Affirmative consent, opponents argue, provides no room for the accused to reasonably defend themselves. "[S] ince most, and possibly nearly all, sexual encounters will legally be rape," journalist Jonathan Chait wrote for New York Magazine in October 2014, "then accusation will almost automatically result in conviction…. And that person will become a victim of a standard of justice that offends the moral sensibilities of a large number of Americans."

Rape Law Reform Beyond College Campuses

The issue of sexual assault on campus drew national headlines in late 2014, after Rolling Stone published an article detailing the alleged gang-rape of a freshman woman at the hands of a fraternity at the University of Virginia, prompting the school to temporarily suspend all fraternities. In the following weeks, however, the author of the article came under fire for not investigating the accusations thoroughly enough, and the veracity of the story itself soon came into question.

Nevertheless, the matter of how to protect college students from sexual assault remains crucial. In 2012, for example, the Justice Department broadened the Federal Bureau of Investigation's definition of sexual assault. Previously, the FBI had adhered to a 1929 definition explaining rape as "the carnal knowledge of a female, forcibly and against her will." Such a definition did not encompass several actions commonly designated by other statutes as rape, such as oral penetration or the rape of a man, whereas the new definition does. Though other statutes offer more comprehensive definitions of rape, observers noted that the FBI definition change was important

because the agency's reported rape statistics would now be more representative of the actual prevalence of the crime.

Schools, meanwhile, will continue to reevaluate how they define, investigate, and punish sexual assault and determine how best to educate students on the persistent and dangerous problem of rape on college campuses.

Bibliography

Anderson, Nick. "Sex Offense Statistics Show U.S. College Reports Are Rising." Washington Post, July 1, 2014, www.washingtonpost.com.

Chait, Jonathan. "California's Radical College-Sex-Law Experiment," New York Magazine, October 6, 2014, nymag.com.

Culp-Ressler, Tara. "The Growing Revolution to Change the Way We Approach Sex." ThinkProgress, October 10, 2014, thinkprogress.org.

Dusenberry, Maya. "No, California's New Affirmative Consent Law Will Not Redefine Most Sex as Rape." Feministing, October 7, 2014, feministing.com.

Gerberg, Rory, and Maryrose Mazzola. "Harvard's Sexual Assault Policy Highlights the Need for Clarity." Boston Globe, October 23, 2014, www.bostonglobe.com.

Goldberg, Michelle. "Questions About California's New Campus Rape Law." The Nation, September 29, 2014, www.thenation.com.

Gray, Eliza. "California Passes First-Ever Bill to Define Sexual Consent on College Campuses." Time, August 28, 2014, time.com.

Hess, Amanda. "'No Means No' Isn't Enough. We Need Affirmative Consent Laws to Curb Sexual Assault." Slate, June 16, 2014, www.slate.com.

Klein, Ezra. "'Yes Means Yes' Is a Terrible Law, and I Completely Support It." Vox, October 13, 2014, www.vox.com.

New, Jake. "The 'Yes Means Yes' World." Inside Higher Ed, October 17, 2014, www.insidehighered.com.

Svokos, Alexandra. "Harvard Students Launch Petition for 'Yes Means Yes' Consent Policy." Huffington Post, October 9, 2014, www.huffingtonpost.com.

Valenti, Jessica. "Why We Need to Keep Talking About a 'Rape Culture.'" Washington Post, March 28, 2014, www.washingtonpost.com.

"When Yes Means Yes." New York Times, September 8, 2014, www.nytimes.com.

"Yes Means Yes, Says Mr. Brown." Economist, October 4, 2014, www.economist.com.

Young, Cathy. "Campus Rape: The Problem with 'Yes Means Yes.'" Time, August 29, 2014, time.com.

Additional Sources

Additional information about sexual assault on campus can be found in the following sources:

Fisher, Bonnie S., Leah E. Daigle, and Francis T. Cullen. Unsafe in the Ivory Tower: The Sexual Victimization of College Women. Thousand Oaks, Calif.: SAGE Publications Inc., 2010.

Friedman, Jaclyn, and Jessica Valenti. Yes Means Yes!: Visions of Female Sexual Power and a World Without Rape. Berkeley, Calif.: Seal Press, 2008.

Contact Information

Information on how to contact organizations that either are mentioned in the discussion about sexual assault on campus or can provide additional information on the subject is listed below:

Foundation for Individual Rights in Education (FIRE) 170 S. Independence Mall W. Suite 510 Philadelphia, Pa. 19106 Telephone: (215) 717-3473 Internet: www.thefire.org

White House Task Force to Protect Students from Sexual Assault United States Department of Justice Office on Violence Against Women 145 N. St. N.E. Washington, D.C. 20530 Telephone: (202) 307-6026 Internet: www.justice.gov

U.S. Department of Education 400 Maryland Ave. S.W. Washington, D.C. 20202 Telephone: (800) 872-5327 Internet: www.ed.gov

For further information about the ongoing debate over sexual assault on campus, search for the following words and terms in electronic databases and other publications:

California SB-967 law College consent policies Sexual assault on campus Victim blaming "Yes means yes"

Citation Information

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