In response to a central recommendation of “Not Alone” (PDF), the first report of the White House Task Force to Protect Students from Sexual Assault, public colleges and universities in the California and New York systems have adopted affirmative consent as the standard for evaluating complaints of sexual assault. The standard seeks to erode the default assumption that sexual activity is consented to or welcome unless someone says otherwise and instead requires that consent to sexual activity be clear, unambiguous, voluntary and always revocable. A student accused of sexual assault can no longer rely on the accuser’s silence or passivity as evidence of her sexual consent, and reports of sexual assault will be adjudicated by campus panels using a preponderance-of-evidence standard, which is weaker than the beyond-a-reasonable-doubt standard employed in criminal rape cases.
Critics have called the new standard absurd, claimed that it portends a new form of sexual harassment (against men), suggested that it might newly categorize a good deal of sex between longtime partners as assault, argued that it undermines women’s sexual agency and worried that it makes sex unsexy. Others fear that the weaker evidentiary standard strips accused individuals of due process, leaving them unfairly vulnerable to reputational and professional harms, perhaps at the hands of vindictive women. In addition, affirmative consent is confined to institutions controlled by the U.S. Education Amendments’ Title IX, which protects people in educational programs that receive federal funding against discrimination on the basis of gender. For this reason, some suggest it may be an elitist standard that does nothing to protect women who are not in college.
Despite the criticisms, a “yes means yes” policy is a welcome innovation in tackling sexual misconduct of all kinds because it targets the stereotypical attitudes about gender that lead to problematic sexual behavior. Properly executed, its adoption on college campuses can realize the government’s Title IX obligations. And if the new standard changes the conversation about sexual assault, it has the potential to dismantle wider cultural assumptions about individual agency in the bedroom.
Taking choice seriously
Consent creates a kind of moral magic. The very notion of consent assumes that some activities are morally impermissible by default and that only a voluntary and explicit action by a person can make them morally permissible. Sexual activity is one such activity. Just as only a patient’s consent to be cut open turns battery into surgery, only a person’s consent to be touched or penetrated can turn assault into freely chosen sex.
Sexual consent is premised not so much on the idea that a person has private property rights over her body but on the principle of respect for individual agency: the capacity to exercise control over one’s life by having one’s choices taken seriously.
In recognizing this, the affirmative-consent standard decouples consent from the idea that a woman’s body is sacred — the puritanical conception of sex that is the root of the common, condescending belief that rape is the worst thing that can happen to a woman.
Far from undermining women’s agency, then, the new standard affirms it. And because the focus is on agency, the standard is gender neutral; it is neither an expression of special pleading on behalf of women nor a form of harassment aimed exclusively at men.
Affirmative consent eliminates a primary reason that sexual assault goes unreported: that the victim’s credibility is questioned in the absence of visible cuts or bruises.
Some critics say that it is unclear what will count as affirmative consent, leaving plenty of room for misunderstanding and malicious (false) complaints and that any kind of explicit agreement introduces a quasi-contractual element into an area of human life where it should not belong.
But the new standard does not require a signed contract between students before sexual activity may occur. After all, it is the rare individual who can specify in advance of a particular sexual episode what actions she consents to. Could you say beforehand whether you will not consent to having your wrists firmly held above your head during intercourse?
What it does require is conversation. Sex may not typically be considered a chatty activity, but in truth, it’s only cultural assumptions that make us feel awkward asking our partners whether a certain activity is OK with them. On reflection, it should strike us as odd that we are supposed to know what our partners want — especially if we don’t know them particularly well. One cannot presume, without considerable discussion, what a new partner might or might not enjoy. In a long-standing intimate relationship, of course, one has a better sense of what a partner desires; in such relationships affirmative consent may not be required in any definitive form. But even then, one element of consent is always in play: It can be revoked at any time.
Although the change in policy is positive, it’s important not to overstate the potential of the affirmative consent standard. Its adoption will not eliminate sexual assault on campus. In fact, the “Not Alone” report recommends the standard as just one part of a comprehensive program to prevent and address sexual misconduct on college campuses that also includes specialized victim support and confidentiality and reporting protocols.
But its adoption will, over time, change the perspective from which students and administrators view sexual misconduct. In concert with a conscientiously administered alcohol and drug policy, encouraging male and female students to consider their sexual agency offers the real possibility of reducing the incidence of problematic sexual behavior.
While critics are correct that adopting a yes-means-yes policy will not increase the veracity of students accused of sexual assault — it is as easy to lie about whether one asked for consent as about whether one’s accuser said “stop” — only a morally repulsive assumption about women’s psychology would lead us to think that the policy increases the mendacity of those who report sexual assault.
One immediate, tangible benefit of the new standard may be to encourage victims of sexual conduct to come forward. The change shifts the burden of proof from the accuser, who had to show that she resisted, to the accused, who must now show that he sought and received her consent. In this way, affirmative consent straightforwardly eliminates a primary reason that sexual assault goes unreported: that the victim’s credibility is questioned in the absence of visible cuts or bruises.
The sexual abuse of women has a long and complex history. And arguably, the causes of sexual assault on campus and the situations in which it occurs differ from those in wider society. Effectively addressing sexual assault requires a multipronged approach. But to the extent that the nation’s colleges and universities are engines of knowledge production and social innovation, they can and should provide concrete examples of how to better think about our sexual relations.