‘Nonconsensual sex’: How colleges rebranded rape

Update, 05/12/14 9.00 a.m: This article refers to the terms “nonconsensual sex,” as well “nonconsensual sexual intercourse” and “nonconsensual sexual contact.” Brett Sokolow originated the latter two terms, which are now used at hundreds of schools and often shorthanded, in school reports and colloquially, as “nonconsensual sex.” In subsequent communication, Sokolow made it clear that he objects to the term “nonconsensual sex” without the modifiers, because “sex by definition is consensual,” he said, while “sexual intercourse” and “sexual contact” are not.

“In an ideal world, we should call [rape] what it is,” Sokolow explained. “To water down the language a little bit, to get more hearing panels to hold these guys accountable, I think it’s worth the trade-off.”

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Around 15 years ago, Brett Sokolow was touring universities and advising them on how to deal with sexual assault on their campuses. On these visits, he noticed something strange. The schools had policies about rape, and recognized that rape happened. But when it came down to it, they just didn’t want to believe their own students actually raped.

“I trained hundreds and hundreds and hundreds of hearing boards, and [listened] to them get squeamish about it,” Sokolow said. “The hearing board would say, ‘We’re not willing to label this guy a rapist.’” 

Sokolow, the CEO of the consulting and law firm the National Center for Higher Education Risk Management, decided colleges needed another word. But on the issue of sexual violence, almost every word is loaded.

“We tried out ‘sexual abuse’ for a few years,” Sokolow explained. “Then the priest scandals in the Catholic Church captured the meaning of that.”

So he came up with something new. It was a word that meant rape but without rape’s stigma. Focus groups loved it. Universities were comfortable with it. In the past five years, the term has exploded. Between 700 and 800 campuses have adopted this language in their policies, Sokolow estimates.

“Nonconsensual sex” was born, and in the world of higher education it has essentially become an industry standard.

Nonconsensual sex is sexual assault. Several schools make that clear. In Princeton University’s policy, for example, next to the category “non-consensual sexual penetration,” it states in parentheses that the act is “commonly referred to as rape.” And next to “non-consensual sexual contact,” the act is “commonly referred to as sexual assault.” 

But the reason that hearing boards winced at the word “rape” is the exact reason activists think the term is important: It’s violent and powerful, and does justice to the violation that victims experience. Anti-rape campaigners have pressed their communities to understand what rape is, and how much it happens. Many see “nonconsensual sex” as a harmful euphemism. 

“It really waters down the act that’s being committed,” said Tracey Vitchers, the spokeswoman for Students Active for Ending Rape, or SAFER. “It should not be called nonconsensual sex. Rape is rape. It’s a crime. It’s a felony.”

But that’s one of the reasons Sokolow, who defends schools in lawsuits, doesn’t think campus policies should use the word “rape.”

“It’s very off the cuff to say ‘rape is rape,’” Sokolow said. “If women walk around campus saying they’ve been raped, they could be sued for defamation.”

Rape is a serious crime. And colleges aren’t in the business of determining what is a crime. They can’t send a rapist to prison. They can only decide if a student violated school rules, and the worst they can do is kick the kid off campus. In making that decision, most colleges use a much lower burden of proof than a criminal court — “preponderance of evidence,” or “more likely than not,” as opposed to “beyond a reasonable doubt.”

If they start treading into legal language, Sokolow warns, schools open themselves up to trouble. A student expelled for “nonconsensual sex” is far less likely to lawyer up and hit back.

Activists have long cringed over terms for “different types” of rape. In the late 2000s there was “gray rape,” the not-exactly rape-rape, in which mixed messages and alcohol muddied the very idea of consent. Before that, there was “date rape” — a phrase first used by activists, trying to shatter the myth that most rape was committed by strangers. But then that phrase began to grate on advocates too.

“Do you call it date murder?” said Bruno. “No, you call it murder.”

For a long time, activists have fought to get these “types” of rape acknowledged as real rape — to get students, the law, the police and everyone else to recognize that rape isn’t just a stranger in an alley, and being raped doesn’t mean you always have bruises and broken bones.  

In this spirit, college activists have pushed for so-called affirmative consent sexual assault policies, which have become the new normal on campuses in the last couple of years. The policies state clearly that consent must be “unambiguous” and “consist of mutually agreed upon words or actions” “from beginning to end.” They clarify that consent isn’t just the absence of a “a verbal ‘no’” or “physical resistance," that consent can’t be conveyed through silence or “passivity,” and that if anyone seems “hesitant, confused or uncertain,” the parties need to stop and get a clear “yes.”

“Communicating verbally before engaging in sexual activity is imperative” even if it seems “painfully awkward,” explains Northwestern University.

“A verbal ‘no’ even if it may sound indecisive or insincere should be treated as a withdrawal of consent,” points out Oberlin College.

And as Rice University clarifies: Consent shouldn’t be assumed just because “you bought this person dinner/drinks” and “she/he seemed really ‘into it.’” 

The new “affirmative consent” policies seem much more victim-friendly on paper. But of the thousands of colleges she’s worked with, Bruno said she’s met many school administrators who don’t understand or believe their own policies. 

“Your judicial board could be saying, ‘Do they really have to say yes after everything?’” she said. “It’s contrary to what we think as human beings. It just is.”

For school hearing boards, the term “nonconsensual sex” has opened up a space for there to be sex that didn’t have affirmative consent, but isn’t assault exactly. There can be degrees of “rapiness,” with different punishments to match.

“Can a female student be a victim of nonconsensual sex and not rape? That’s a little bit horrifying,” said Rory Gerberg, a graduate student in public policy at the Harvard Kennedy School of Government, who’s co-organizing a graduate school coalition to address Harvard’s sexual assault policy. “That is then perpetrating this notion that there is a different impact depending on the use of force.”  

Laura Dunn was not raped by physical force. As a freshman at the University of Wisconsin-Madison in 2004, she was at a party, drinking for the second time in her life. After more than seven shots, she guesses, two members of her crew team offered to take her to another party. Instead, they took her off campus to one of their apartments.

She remembers falling over and being carried up the stairs. She remembers saying, “No. I’m a virgin, please stop.” A year or so later, one of her rapists came up to her crying and apologized, she said. And then he tried to kiss her.

When Dunn finally reported it, the school concluded that everyone had been drinking and so consent was “moot.” The district attorney concluded that what happened wasn’t illegal — under Wisconsin law at the time, alcohol wasn’t considered an “intoxicant” that would make a person unable to consent. 

For Dunn, the problem with the phrase “nonconsensual sex” is the word “sex,” because the very idea of sex is consensual. “It plays into a common belief that ‘nonconsensual sex’ is just ‘gray rape,’ they were drinking, it’s a miscommunication,” she explained. “That’s not what the research shows. We know that’s not the reality.”

Many administrators are from a different generation, and Dunn believes the image of a violent stranger rapist is still ingrained. And so many hearing boards treat the student who committed “nonconsensual sex” as someone who was confused or made a mistake, she said, and just needs some education.

“Our bodies are not for learning,” Dunn said. “You don’t get to harm us and write an essay about us, or watch an educational film, or go to counseling. You don’t deserve to be on the same campus with me.” 

Sokolow meant for “nonconsensual sex” to mean sexual assault. He also meant for it to help victims. Not only did he think more students would be punished, but he also believed more students would come forward. According to a landmark 1985 study, only 1 in 4 college women whose sexual assaults met the legal definition of rape called it rape.

“It took me forever to fully realize what happened to me. To talk about the fact that it happened, and put the proper label to it,” said Meghan Warner, a sophomore at the University of California, Berkeley, who said she was sexually assaulted her freshman year.

'The euphemistic language might be more appealing to people, and make it easier to cope,” she explained, adding that she also believes it minimizes the problem. 

And different words don’t mean colleges will act differently, or even believe their own rules. Last year, Occidental College let a known serial offender back on campus after writing a book report.

“Editing the policies is a lot easier than changing the entire way the administration addresses assault,” Warner said. “If they’re not following through, how beneficial is that really?”

Advocates say schools need to seriously train administrators to implement new policies. Schools can be super victim-friendly on paper, they say, without actually expelling students who violate the rules.

But everyone agrees that words are important, even if just as a way to start the conversation.

“There’s no perfect term,” Sokolow said. “Sometimes the term that is neutral and pisses off people the least — that’s what consensus is — and you go with it.”