By Jodie Tillman at The Orange County Register
IRVINE – The list of potential hazards began with earthquakes. Then fires, pandemics and gunmen on the loose.
But the hundreds of UC Irvine freshmen attending their orientation session grew most attentive when it came to a more likely peril of modern college life: sex.
“What is consent?” asked an actor in the educational video that played on a student center screen.
The other actors in the film, all UCI students, responded:
“It’s talking about what you like.”
“Consent is knowing your partner wants you as much as you want them.”
The actors described how to ask for consent:
“Is this OK?”
“What would you like me to do to you?”
“Do you want to have sex?”
Summer orientation is more explicit these days, for a reason. A number of high-profile cases cast a spotlight on the issue of sexual assault on campus, forcing colleges and universities to rethink not only how they handle such accusations but what they are doing to prevent them.
California last fall became the first state to pass a law requiring colleges to adopt sexual assault policies that include “affirmative consent.” Under the law, consent is defined as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.”
So the absence of a “no” isn’t enough. The student initiating sex must get a “yes” from the other person. Being silent or unconscious doesn’t mean yes. Consent can be revoked at any point. Students can’t give consent if they are intoxicated. And if the accused is intoxicated, that’s not an excuse for failing to get consent, the law says.
Many colleges, including UCI, already had adopted these policies on their own. After college investigators make findings in sex assault cases, the accused can appeal their decisions to judicial panels, which are typically made of faculty members and administrators.
The affirmative consent policies apply only to the campus process, not to criminal courts. Nonetheless, the disciplinary stakes are high for the accused, who could face expulsion.
Critics have said affirmative consent policies are overreaching and unfairly shift the burden to the accused. Samantha Harris, an attorney with the Foundation for Individual Rights in Education, called affirmative consent “an aspirational standard” that isn’t workable in legal scenarios.
“The problem is when you take it from the realm of the ethical to the sort of legal, or quasi legal realm, where you have students being found responsible if they can’t produce evidence of consent,” Harris said.
Others say such policies are a necessary corrective to years of injustice for victims. Shaina Brown, the public affairs manager for the California Coalition Against Sexual Assault, said the policies represent a “fundamental shift” in how we view consent – which she believes is the real problem for many critics.
As for arguments that such policies shift the burden of proof to the accused, she said: “What that says is, unfortunately, we’ve been putting the burden on the accuser.”
‘Nobody talks like that’
California colleges aren’t alone. New York this year passed similar legislation that applies to its state university system. And many more colleges adopted policies on their own. An estimated 1,500 colleges and universities now use some type of affirmative consent definition in their policies, according to the National Center for Higher Education Risk Management.
Affirmative consent is not a new concept. It was introduced at Antioch College in 1991, which required consent at each step of intimate activity – a definition that was widely mocked, including in a “Saturday Night Live” sketch.
“As things escalate, is he supposed to ask before each of the 20, 30, 40 steps?” John Banzhaf, a law professor at George Washington University, told Inside Higher Ed last year. “Nobody talks like that, not even lawyers.”
The California law doesn’t say consent must be verbal, something that supporters say reflects its practicality in real-life situations. But critics say nonverbal cues can be ambiguous.
An administrator at University of Alaska, which implemented an affirmative consent policy, recently told Alaska Public Media that if one party started “removing their clothes and started motioning with their finger for the other party to come toward them and had a smile on their face … I think a reasonable person would argue that that was a form of nonverbal consent.”
But Harris said taking off one’s clothes may imply consent for one level of intimacy and not another. “When you hear people discussing how these policies would be implemented you see the problem,” she said.
Since 2011, more than 50 men accused of sexual assault have filed due process violations against their colleges, according to Harris. So far, none of them has been over affirmative consent policies, but Harris said she expects such cases are coming as the issue catches on.
She pointed to a Tennessee court decision this month that found in favor of a male student who had been expelled from University of Tennessee-Chattanooga after a female student accused him of sexually assaulting her.
The court said the university had found no evidence that the female did not give consent, instead requiring the accused to produce evidence that he did get consent – something the court said “strains credulity.”
Yet others say the far more widespread problem is the number of victims who don’t report being sexually assaulted – one of the reasons for the increased attention on the issue.
An estimated 20 percent of campus sexual assault victims go to the police, according to a 2014 report from the U.S. Justice Department. The report did not track the percentage who report assaults to their college administration.
The Orange County District Attorney’s Office was forwarded a total of 38 cases of sexual assault allegations from UCI and Cal State Fullerton – 19 a piece – from 2011 to 2014. Charges were filed in 14, or about 37 percent, of those cases, prosecutors report. The office says it does not receive direct filings from other universities and colleges in the county.
Theresa Gerrior Truman, a senior investigator and deputy Title IX officer at UCI, said the issue has forced all colleges to evaluate whether they have treated victims in a fair way.
“This is a complete social movement, started by students, saying ‘You treated us badly,’” she said.
Even before the California law passed, UCI already had adopted the affirmative consent standard. Truman said educating students about the concept is critical. But it shouldn’t be a difficult lesson to absorb, she said, and students appear to be adopting the legal terminology.
For instance, she was interviewing a witness in a recent sexual assault investigation who said, without prompting, that the accused “didn’t get consent.”
UCI senior Angela Simmons, 22, who graduates this summer with psychology and public health majors, said alcohol may complicate the issue, but it shouldn’t absolve the accused. She said affirmative consent is clear.
“The presence of a yes, the absence of a no,’” she said. “I don’t think there’s a gray area.”
UCI sophomore Gershwin Merencillo, 19, said some of his friends had discussed how it can be “awkward” to keep asking such questions as “Is this OK?” in the midst of making out with someone. But he said no one wants to get accused of failing to get consent later.
“They think it’s important,” he said. “Talking about (consent) at orientation sets the tone for the next three years.”
Establishing affirmative consent wasn’t the only part of last year’s law. It also requires colleges to increase training for faculty reviewing complaints to avoid inappropriate questions toward the victims. Schools also must increase counseling and health services for victims.
Nor is affirmative consent the only part of the training now required of incoming college students. The training also includes sessions on alcohol use as well as an emphasis on “bystander intervention,” or looking out for friends at risk of being assaulted.
“What you do affects the person next to you,” said Lea Jarnagin, associate vice president for student affairs at Cal State Fullerton, which requires incoming freshmen and transfer students to complete an online training program.
‘Happy birthday’ ruse
At UCI’s recent orientation, several student speakers used their own experiences as examples for the incoming freshmen.
Senior Samantha Anton talked about how she was once at a party and noticed a guy pawing at a female friend on the couch. Anton said she opted for a distraction, breaking into a rendition of “Happy Birthday,” even though it was nobody’s birthday, and got everyone to sing along. In the musical confusion, she pulled her friend off the couch.
Another senior, Colleen Reidy, talked about how a man kept trying to dance with her friend one night, despite the friend’s protests. “I got between them and said, ‘We already told you ‘no,’” she said.
Whether the lessons and advice of the evening’s roughly one-hour session will stick with them the next four-plus years remains to be seen.
Though the audience was mostly quiet during the video presentation, they couldn’t help snickering a few times, too.
Two of the incoming freshmen, Kimberly Haagenson and Shadi Namiranian, said they didn’t hear much new information.
Increased awareness of sexual assault on college campuses has led the adults in their lives – families and teachers – to give them similar talks about these issues. Haagenson said the video was “kind of awkward” but she appreciated the effort.
“You hear so many stories out there,” she said. “That’s why I’m glad they said something.”
But there was one more topic to go.
Coming after the talk of natural disasters, alcohol abuse and sexual assault, it seemed a necessary way to end the night. The final discussion: How to handle stress.