By Jane Stancill at The News & Observer
CHAPEL HILL — Thousands of incoming students at UNC-Chapel Hill were asked to sign a new pledge this fall that had nothing to do with cheating or plagiarism.
It was about sex.
The students were promising that they understood the university’s new standard of consent – that both parties must “affirmatively agree” before engaging in sexual activity.
That expectation, outlined in the university’s new sexual misconduct policy, is also sweeping public and private universities around the country. Most Ivy League campuses have adopted the standard, as has Duke University. Early this month, the State University of New York mandated a uniform definition of affirmative consent for its 64 campuses.
In the most far-reaching example, California last month enacted a state law requiring any campus that receives state funds to have the standard. The “Yes Means Yes” law defines consent to require “affirmative, conscious, and voluntary agreement.” Silence or lack of resistance do not constitute consent under the definition.
Like some campus policies, the California law specifies that consent must be ongoing during sex and can be revoked at any time. Additionally, a student incapacitated by drugs or alcohol cannot give consent.
Supporters say the new approach to consent will clarify boundaries as college students engage in sex, and in the process, prevent some assaults and rapes. Further, they say, it may help change campus culture and cultivate a safer environment at a time of national conversation about campus sexual violence.
“It’s changing how people think about it, how people talk about it (and) to get them to talk about it,” said Howard Kallem, UNC-CH’s Title IX compliance coordinator. “It’s part of that cultural shift to show that this is part of creating a healthy relationship – making it into an exciting and positive message.”
Others say affirmative consent policies have good intentions but enormous pitfalls. They say “yes means yes” flips the burden of proof and could result in unfair investigations and judicial hearings.
Joe Cohn, legislative and policy director of the Philadelphia-based Foundation for Individual Rights in Education, sees major due process problems ahead, and ultimately more lawsuits against universities.
“It sounds nice as a bumper sticker,” Cohn said. “But when you get down to the nuts and bolts of what it actually is, what it does, how it affects people, it’s really very dangerous.”
Cohn said it’s unclear what is acceptable proof of consent and what isn’t. And the stakes are high.
“What you’re talking about is whether or not people have educations and careers,” he said. “Schools do not line up to re-admit other people who have been expelled for sexual assault.”
Students say they like the goal of the revamped consent definition but wonder if it’s practical.
“It would be good because it kind of removes that confusion,” said Joseph Rhue, 21, a UNC-CH senior from Sanford. A partner either says yes or doesn’t, after all.
But in reality, Rhue said, sex doesn’t really work that way. “If you’re going to go for it, you’re going for it.”
Under federal investigation
The idea of affirmative consent is not new.
Antioch College, a liberal arts school in Ohio, adopted a similar policy in the early 1990s. The college became the subject of a Saturday Night Live parody in a skit called, “Is it Date Rape?” Actors playing Antioch students carried out robotic discussions about sexual practices, turning consent into an absurd negotiation: “I sure had a nice time at that raging kegger. May I kiss you on the mouth?”
Now, though, colleges and universities are rushing to rewrite sexual misconduct policies following criticism that they mishandled cases or downplayed sexual assault.
The federal government has increased scrutiny on colleges, which have an obligation to respond to sexual assault and harassment under the Title IX gender equity law. As of August, more than 75 colleges and universities, including UNC-CH, were under investigation by the U.S. Department of Education’s Office for Civil Rights.
The White House formed a task force on the issue, and a report in April offered a checklist with suggestions about affirmative consent language for campus policies.
Congress is involved, too. A recent bill would require annual surveys to get an accurate picture of sexual assault on campuses; the results would be made public. Harsher penalties would be imposed on those that fail to comply with Title IX.
Colleges have begun to make changes. Besides crafting new policies and procedures, some hired more sexual assault investigators and Title IX coordinators. They ramped up awareness programs.
UNC-CH is developing a new 30- to 45-minute online training module that will be required of all students, faculty and staff. It will include the new definition of consent. Duke already has one for students and will soon ask its faculty and staff to take a similar online course.
Colleges are also promoting “bystander intervention” programs that teach students warning signs of danger and relationship violence. They want students to more actively watch out for each other.
UNC-CH’s “One Act” program includes a series of videos that teach students how to ask for help, create distractions and talk directly when they encounter aggressive behavior. Short clips illustrate “10 Things Men Can Do to Stop Gender Violence.”
In the spring, UNC-CH’s Interfraternity Council required all new members and board members to be trained every other year in sexual assault prevention.
Duke’s affirmative consent standard has been in effect for several years, but it’s hard to know how it’s being used, said Larry Moneta, vice president for students affairs.
“I don’t have a way of quantifying the degree to which students are actually getting consent before they engage in any sexual practices,” Moneta said.
Reports of assaults have climbed, he said, which he views as a positive sign because students are coming forward instead of keeping silent. Duke faculty and staff are now required to report what they know if they’re told about an alleged assault. Exceptions are made for clergy or licensed therapists, who have confidentiality protection.
The next hurdle, Moneta said, is to gain students’ confidence “that when you report it, you can trust that the system will do its best to discover what really happened and hold people accountable.”
‘Yes means yes’
Writing a new sexual assault policy is one thing. Getting students to buy into it is another.
Some are skeptical.
“I don’t think the policy will be as effective until decisions are made in our [judicial] court to say they are serious,” Leslie Finch, a UNC-CH senior from Wilson, said of the university’s process. Otherwise, she said, the policy is “just words on paper.”
Students might not follow the “yes” mandate exactly, but any conversation about the issue is positive, said Viviane Feldman, a sophomore from Hillsborough.
“I think it’s a really good step forward,” she said. “I’ve definitely seen a surge of conversation about consent and sexual assault.”
Hannah Collier, a junior from Narragansett, R.I., likes that the policy is specific about what is, and is not, consent.
“I think clarity is a cool thing,” she said. “There’s a lot of gray area between the ‘no’ and the ‘yes.’ ”
Ahmad Tejan-Sie, a first-year student from Greensboro, said he had heard about California’s law but not UNC-CH’s policy.
“I don’t think they’re going to publicize it,” he said. “No university likes to talk about sexual assault.”
Publicity campaigns have cropped up around the country to draw attention to the “yes means yes” standard. One, calling itself “Consent is Sexy,” sells posters to college campuses, with slogans that suggest the discussion can be a turn on. A women’s advocacy group, UltraViolet, produced a video that spoofs a porn film. Another shows a frightened young man, arrested for rape, phoning his parents from jail.
Cohn, critic of the affirmative consent movement, said awareness may be helpful, but the standard should not be used in adjudicating cases. Even some awareness campaigns contain false information, he said.
“We have people saying throughout the country that you cannot give consent if you’re intoxicated, and that’s just not true,” he said. “Drunk people consent to sex all of the time. You don’t have to be sober to do that. You (just) can’t be so darn drunk that you can’t appreciate what’s happening to you.”
Another unrealistic aspect of some policies, Cohn said, is the notion that consent has to be continuously sought during sex. Consider, he said, the example of a longtime couple with one partner who, one night, says he’s not in the mood for a certain act.
“If the first person stops immediately, they have already committed a sexual assault under the informed consent policy because they’re required to get that consent upfront,” Cohn said. “And that just does not jibe with how people interact with each other.”
UNC-CH’s policy does not require consent to be actively sought throughout, but it specifies that consent can be withdrawn at any time.
Christi Hurt, who led the UNC-CH task force that devised the policy, said affirmative consent had unanimous support among the group’s 22 members.
It may take time and education to shift thinking, said Hurt, UNC-CH’s assistant vice chancellor and chief of staff in student affairs. Students’ understanding and values about relationships are partially formed before they get to college, she said.
“We have access to students for about four years,” she said. “A lot of thinking and behaviors are already wired.”
If young people do accept the notion of affirmative consent, she said, it could change – for the better – the way they behave their whole lives.
“Our students want to have healthy sex,” she said. “They don’t want to have unhealthy sex.”