A briefing paper prepared for the Council on Contemporary Families Defining Consent Online Symposium (.pdf).
In our sound bite media culture, the least typical cases often get the most publicity. Media treatment of “affirmative consent” on college campuses is a case in point. The New York Times recently devoted more than 3000 words to the sexual consent policy of Antioch College—a school with a total of 135 students. Antioch College requires verbal consent to be requested and given for every sexual act. It is an extreme outlier. Even when the media attends to more typical cases, the focus tends to be on secular, coastal schools. With such coverage, readers get a skewed notion of what schools are doing—and might even believe that most colleges require verbal agreement to sex. In turn, this inaccurate notion might feed into the belief that schools have become overly solicitous of those who accuse assault, at the expense of the rights of those accused. This is not true.
Actually, few schools require verbal consent for sex. Our research team at the University of Michigan read hundreds of university policies—381 to be precise. We drew a sample of public and private not-for-profit schools granting bachelor’s degrees with undergraduate enrollments of 900 or more. A team of researchers searched every school’s policy for a definition of sexual consent. Just 12 schools—three percent—required verbal consent for sex. Our analysis of these 2016 policies show that college definitions of consent are less stringent than what many may assume, based on the media hype. And too many schools either have no definition at all or one that is incoherent.
Arriving at a workable definition of sexual consent matters. The data on college sexual assault is consistent and depressing: Since the first reliable data on college women’s sexual victimization were collected by Mary Koss in the late 1980s, survey after survey has found that roughly one in five undergraduate women is sexually assaulted in college. Rates of victimization of women who do not attend college are at least as high, possibly higher. Although college women experience all forms of gender-based violence – from sexual harassment to forcible sexual assault to homicide by current or former intimate partners – incapacitated sexual assault is of particular concern. Most campus assaults involve alcohol, and many undergraduate students continue to view sex while very drunk as acceptable.
University commitment to addressing campus sexual assault has waxed and waned over the decades. For the most part, universities have done only what they have been pressured to do. A combination of social movement activism, media attention, and federal enforcement of Title IX led to an unprecedented focus on campus sexual assault under the Obama administration. In 2011, the Department of Education put universities on notice that failure to provide an educational environment free from sexual violence constitutes a violation of student civil rights. Backed up by tougher enforcement, the Department of Education prompted universities to engage in a flurry of activities—hiring compliance officers, rolling out new educational programs for students, staff, and faculty, designing new websites, hosting webinars for parents, rewriting student codes of conduct, creating new hotlines for reporting sexual misconduct, and redesigning procedures for the investigation and adjudication of reported incidents.
As part of this wave of activity, many schools developed—or revised—their definition of sexual consent. The Obama administration took an interest in attempting to shape school definitions of consent. In 2014, the White House Task Force to Protect Students from Sexual Assault issued a checklist for sexual misconduct policies. The Task Force recommended that at a minimum, the definition should recognize that:
- consent is a voluntary agreement to engage in sexual activity;
- someone who is incapacitated cannot consent;
- past consent does not imply future consent;
- silence or an absence of resistance does not imply 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; and
- coercion, force, or threat of either invalidates consent.
This qualifies as an “affirmative consent” definition, as it states that sex should be voluntary and that silence does not imply consent. But note that this checklist says nothing about verbal consent. In fact, most of the bullet points refer to what consent is not. And these points are not particularly controversial. Very few people think that consent to sex with one person means consent to sex with someone else! In short, what schools—and the states of California and New York—mean by “affirmative consent” is less stringent than what the press and the public imagine. The confusion may be in part generated by the tendency to refer colloquially to “affirmative consent” as “yes means yes” policies, which suggests that verbal consent is required.
With that background, let’s delve into the state of consent definitions. We found that a solid 10 percent (n=37) of schools in our sample did not define consent at all. This is a serious failure on the part of schools, as the definition of consent is the lynchpin of a sexual misconduct policy. If one does not have a definition of consent, one cannot accuse anyone of violating it. Without a clear definition, schools cannot effectively educate their students about sexual consent nor fairly adjudicate complaints.
Among schools with definitions, the text provided was often short, vague, or unintelligible. For example, University of Montevallo plugged Alabama’s state law into its policy, defining “lack of consent” according to “Section 13A-6-70”:
“whether or not specifically stated, it is an element of every offense defined in this article, with the exception of subdivision (a)(3) of Section 13A-6-65, that the sexual act was committed without the consent of the victim.”
Even schools with clear definitions generally still focused on detailing what invalidates consent. For example, universities generally agreed that consent was invalidated by violence or physical force, threat of violence or physical force, coercion, or intimidation.
Most schools did adopt some elements of an affirmative definition. Almost three quarters (72 percent, 274 schools) included at least six affirmative consent elements in their definitions—which we view as a threshold for a meaningful affirmative consent definition (See Table 1 for a list of the elements and the number of schools including them). Schools were most likely to specify that sex should be voluntary. There was also wide agreement that silence or absence of resistance does not imply consent, and that consent can be revoked at any time. About two-thirds indicated that consent can be communicated in words or actions. Nineteen percent of the schools specified that the initiator of sexual activity is responsible for seeking consent.
Schools agreed that people cannot consent if incapacitated, with 91 percent of schools explicitly noting this in their policies. Given the high rates of incapacitated rape on campus, how schools handled incapacitation is of particular relevance. Only 73 percent of schools explicitly defined incapacitation. The most helpful schools provided examples. Georgian Court University offered specific behavioral descriptions (e.g. “warning signs that a person may be approaching incapacitation may include slurred speech, vomiting, odor of alcohol, unsteady gait, combativeness, or emotional volatility”). As this example suggests, most schools set the bar for incapacitation high. Having had a few drinks or even being quite drunk did not, in the eyes of most schools, qualify as incapacitation. Most agreed that unconsciousness qualifies as incapacitation (78 percent of schools explicitly stated this). A minority of schools (36 percent) explicitly stated that the intoxication of the accused is not a defense.
Definitions—at least those of secular schools—were scrupulously gender-neutral. They did not make a priori assumptions about the gender of the perpetrator. The definitions allowed for the possibility of women as perpetrators in heterosexual sex, of violence in non-heterosexual sex, and for parties to have non-binary gender identities.
Religious schools offered a notable exception to the gender neutrality of most policies—as they frequently required students to adhere to conventional gender and sexual identities. They prohibited consensual heterosexual sex outside of marriage, gay sex, and transgender identity, the viewing of pornography and, in some cases, sexualized dancing. Handling sexual assault allegations at religious schools can be challenging, as assaults often expose violations of the school’s consensual sex policies. Sometimes religious schools punish the victim for policy violations instead of or in addition to sanctioning the perpetrator.
In short, most schools have not gone to extremes. The more worrisome are those that have no definition of consent, or one that is so vague as to be useless for guiding education or adjudication. Failure to offer a clear definition of consent creates vulnerabilities both for those who experience harm and those accused of perpetrating it. Although the media often set up the issue as the rights of victims vs. the rights of the accused, the fact is that all students share an interest in clear policies. Students are entitled to a clear definition of sexual consent, available in a place where they can easily access it. They are entitled to receive high quality education about how they are expected to treat each other, and to have confidence that the policies will be used to guide a fair, transparent adjudication process.
Universities haven’t yet gotten it right on sexual assault. The media is not wrong on that point. But intense scrutiny of extreme outliers to the neglect of ordinary cases leads to a misstating of the problem, which in turn may led to faulty solutions. We need good facts to produce good policy.
Table 1. Elements of Affirmative Consent
|1||Consent is a voluntary agreement to engage in sexual activity||82||312|
|2||Silence does not imply consent||68||260|
|3||Consent must be ongoing throughout a sexual encounter and can be revoked at any time||67||255|
|4||Consent is “unambiguous, affirmative, OR conscious”||65||249|
|5||Consent can be communicated through words or actions||64||243|
|6||Consent to some form of sexual activity does not imply consent to other forms of sexual activity||59||224|
|7||Absence of resistance does not imply consent||55||209|
|8||Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion||54||207|
|9||A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent||50||192|
|10||The accused person’s level of intoxication is not a defense for engaging in sexual activity without consent||36||137|
|11||The consent definition includes the words “affirmative” or “affirmative consent”||33||126|
|12||Once consent is withdrawn, the sexual activity must stop immediately||27||102|
|13||Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another||20||76|
|14||The initiator of sexual activity is responsible for seeking consent||19||73|
|15||Consent must be communicated verbally, through words. Consent obtained through non-verbal communication is not sufficient.||3||12|
|16||Consent is enthusiastic.||1||2|
Authors’ analysis of 381 U.S. non-profit public and private college and university consent policies in 2016.
Elizabeth A. Armstrong is the Sherry B. Ortner Collegiate Professor of Sociology at the University of Michigan, email@example.com. Sandra Levitsky, Kamaria Porter, Miriam Gleckman-Krut, and Elizabeth Chase are all from University of Michigan, and Jessica Garrick is from Southern Methodist University