Running head: AFFIRMATIVE CONSENT POLICIES 1

Will Changing a Definition Change a Culture?:

Affirmative Consent Policies in Higher Education

Callie Frost

University of Wisconsin-La Crosse

AFFIRMATIVE CONSENT POLICIES 2

Will Changing a Definition Change a Culture?:

Affirmative Consent Policies in Higher Education

In May 2015, Emma Sulkowicz carried a dorm-sized mattress across the stage at her

graduation from Columbia University as a symbol of the burden she carried from her alleged

rapist being allowed to still attend the university (Durando, 2015). This serves as one example of

the increasing attention to how institutions of higher education handle sexual violence on their

campuses. Currently, one in five college women and six percent of college men are victims of

sexual violence during their college career (Ali, 2011). Unfortunately, only about 20% of college

student rape victims report their assault (Kuylman, 2016). These statistics have virtually

unchanged since the passage of the Violence Against Women Act in 1994 (Krebs, Lindquist,

Warner, Fisher, & Martin, 2007). When campuses respond to sexual violence, it is often

resulting from compliance with Title IX of the Education Amendment of 1972.

Title IX protects people from discrimination based on sex in educational programs and

activities that receive federal financial assistance (NCES, 2016, para. 1). Acts of sexual

violence are considered forms of discrimination prohibited by Title IX. If an institution

receiving federal funding knows or reasonably should know about harassment, the institution

must take immediate action to eliminate the harassment, prevent its reoccurrence, and address its

effects (Jozkowski, 2015). Campuses have policies related to sexual violence and harassment

which are used during Title IX investigations to determine if a student violated the institutions

policies. Included in those policies is often a definition of consent.

Both societal and governmental pressures on college campuses have led to policy

changes in the hopes of sexual assault reform (Doughtery, 2015). One step towards reform that

some campuses have taken is a shift to utilizing affirmative consent standards, sometimes
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referred to as yes means yes, for their definition of consent within the institutions sexual

violence policies (The Affirmative Consent Project, 2016). Recently, more campuses are

adopting affirmative consent standards in their policies. These policies have both supporters and

critics of how changing the definition and language of consent in policies will reduce rates of

sexual violence on college campuses. However, reducing rates of sexual violence may be more

complex than just changing the way a campus defines consent and the language used in sexual

violence policies.

Affirmative Consent

Institutions of higher education have a wide range of definitions of sexual consent within

their policies. Definitions could include verbal communication, non-verbal communication, or

both as ways to give consent. For example, the University of Wisconsin system defines consent

as words or overt actions by a person who is competent to give informed consent indicating a

freely given agreement to have sexual intercourse or sexual contact (Wis. Stat. 940.225(4)).

Consent is defined here as including both verbal and non-verbal communication. On the other

hand, some institutions do not specify. For example, Harvard University defines consent as an

ongoing physical and emotional process between people who are willing, equally free of

coercion, communicating unambiguously, and sincere in their desires (Harvard University,

2016, para. 8). Affirmative consent policies differ from this definition because it is explicit in

requiring an affirmative agreement rather than a lack of a no response.

Twenty years ago, Antioch College in Ohio became the first college in the United States

to require students to give step-by-step consent during sexual encounters (Doughtery, 2015). In a

recent study conducted by The Affirmative Consent Project (2016), of the 513 colleges and

universities surveyed, 40 had adopted a strict and clearly worded affirmative consent policy in
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regards to sexual consent and conduct (Hutchinson, 2016, para. 3). This included providing

definitions of consent being actively present, continual, conscious, and voluntary. Currently,

every Ivy League institution except Harvard has adopted affirmative consent standards within

their policies (Yes Means Yes, 2014). An additional 23 institutions had a state mandated

affirmative consent policy in place which included public institutions in California and New

York (The Affirmative Consent Project, 2016).

The legislation passed in California and New York requires state funded institutions of

higher education to adopt an affirmative consent policy in regard to sexual encounters among

students. The bill requires an affirmative yes to constitute consent for students engaging in

sexual acts which replaced the previous idea that the absence of a "no" was equivalent to the

granting of a yes (Kuylman, 2016, p. 1). According to Californias Senate Bill 967 (2014):

Affirmative consent means affirmative, conscious, and voluntary agreement to engage

in sexual activity. It is the responsibility of each person involved in the sexual activity to

ensure that he or she has the affirmative consent of the other or others to engage in the

sexual activity. Lack of protest or resistance does not mean consent, nor does silence

mean consent. (p. 93)

Many believe Californias affirmative consent legislation is in direct response to the increase in

Title IX investigations of alleged mishandling of sexual assault cases on college campuses across

the nation (Marciniak, 2015). Currently, over eighty institutions are under investigation for Title

IX noncompliance (Yes Means Yes, 2014). Regardless of a full understanding of their intent, it

appears the change in policies is one way of seeking sexual assault reform and some are in

support of that.

Supporters of Affirmative Consent Policies

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Affirmative consent policies can send a message to college students that sex without

consent is sexual assault (Yes Means Yes, 2014). This message may be helpful in decreasing

the number of sexual assaults on college campuses and changing the culture around sexual

violence in todays society. Affirmative consent standards reframe the view of sexual

interactions because instead of an individual stopping a sexual activity when they detect a "no,"

they now may only move forward after receiving a "yes" (Kuylman, 2016). If college students

are forced, by means of a yes means yes policy, to obtain affirmative consent, over time

explicitness in consent communication might be adopted as a cultural standard (Jozkowski,

2015, p. 21). However, Jozkowski (2015) argues that in order for this to happen, affirmative-

consent policies need to be championed by campus leaders (p. 21).

Supporters also praise affirmative consent policies for the increased leverage they will

give women in sexual encounters ranging from unwanted solicitations to rape as well as the

social incentives the policies will generate for individuals to make sure their partner has given

consent before they initiate or continue sexual contact (Halley, 2016, p. 258). Affirmative

consent is progressive because it moves away from a requirement of resistance by the victim,

and allows for university investigations to move forward in the absence of circumstantial

evidence (Kuylman, 2016, p. 2). Affirmative consent policies can be a step in the right

direction to holding campuses to a higher standard of accountability in their handling of sexual

assaults and increasing leverage to victims.

Finally, the implications and complexities of affirmative consent policies extend past the

college campus borders and could have a meaningful impact on society as a whole. Geo (2015)

explains that affirmative consent law outside higher education is not only beneficial to the

victims of rape, but also assists prosecutors in fulfilling their duty to society and the defendant.
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These policies are a big step towards clarifying criminal rape laws and creating a more sensible,

compassionate view of sex in society generally. Similar to Jozkowskis (2015) prediction for

college campuses, Geo (2015) believes the presentation of a new definition of consent in the

courtroom could assist in slowly changing the way society in general defines consent.

Additionally, the victim would then be questioned as to how they gave consent instead of how

clear or unclear they made non-consent (Geo, 2015). Although the supporters appear to see

affirmative consent policies as a step in the right direction toward sexual assault reform, critics to

affirmative consent have a variety of concerns.

Critics of Affirmative Consent Policies

Critics of affirmative consent policies argue against it for a variety of reasons. There is

concern that affirmative consent policies ignore the complexities of consent and leave even more

room for ambiguity in Title IX investigations (Doughtery, 2015). Additionally, there exists the

belief that changing the policies does not address the bigger societal issue of rape culture

(Jozkowski, 2015). The issue is not as much about what the consent definition is, but rather the

ways in which campuses handle sexual assault cases (Ridolfi-Starr, 2016). Each of these

critiques will be explored further.

Complexities of Consent

Defining consent can become complex as one considers whether it can be communicated

verbally, non-verbally, or both. An affirmative-consent policy rests on the belief that if men and

women were more explicit in their consent communication (i.e., by saying yes to sex), there

would be reductions in rates of sexual assault (Jozkowski, 2015, p. 20). However, many believe

that affirmative consent that requires verbal communication does not align with how consent is

typically communicated among traditionally-aged college students. Sexual consent means that
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all individuals involved need a common belief that consent exists (Doughtery, 2015). Research

indicates that college students use non-verbal cues as communicating consent more frequently

than they do verbal ones (Jozkowski, 2015). Californias affirmative consent legislation allows

non-verbal behavior to count as communication of consent.

Halley (2016) argues Californias legislation is over-inclusive and forces public

universities decision makers to make sense of the many dimensions and motivations for consent.

By not requiring affirmative consent to be verbal, the policy presumes consent can be given by

conduct. However, ambiguity is more likely whenever non-verbal behavior can be explained by

multiple motives. With strangers, there could be many reasons for silence or omission that does

not include true consent. For example, the same nonverbal behavior could be unambiguous

when it occurs between experienced, long-term sexual partners, and yet ambiguous between

inexperienced and intoxicated strangers (Doughtery, 2015, p. 253). The complexities of giving

and receiving sexual consent deepen as one considers ambiguous language, and the societal and

cultural influences on consent.

Ambiguity. Language in an institutions sexual assault policy often includes

unambiguous in describing how consent must be communicated (Doughtery, 2015). However,

simply including unambiguous within the policy definition of consent does not necessarily

make consent any less ambiguous. Previously, no means no policies have been blamed for

bringing ambiguity into sexual violence investigations and some believe that yes means yes

does not contain clearer definitions and, therefore, fails to remedy the ambiguity (Marciniak,

2015).
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Research indicates barriers exist to sexual consent which deter young adults from

establishing affirmative sexual consent as the California legislation now requires (Johnson &

Hoover, 2015). In other words, it is not as simple as saying yes or no. Halley (2016) explains:

The California definition of affirmative consent is open to interpretation, and one

plausible reading instructs that the woman who gives the guy the blow job because she

finds the process of saying no to him highly aversivewho consents constrainedly and

not positively, and whose only signal of consent is the blow job itselfhas been sexually

assaulted. (p. 270)

Therefore, even if the language of affirmative consent definitions aims to reduce ambiguity, the

policies can be just as complicated and ambiguous as no means no policies. Additionally, the

ambiguity and complexity of providing affirmative consent has societal and cultural influences.

Societal and Cultural Influences. Johnson and Hoover (2015) explain that sexual

communication is shaped by sociocultural issues such as gender roles, sexual scripts, and rape

myths. Traditionally held gender roles presuppose that the man advances and the woman serves

as the gatekeeper which can affect how affirmative consent is given and received (Johnson &

Hoover, 2015). This traditional social norm may instill male responsibility and female

helplessness as it relates to giving and receiving consent (Halley, 2016). Additionally, sexual

scripts indicate that young adults tend to avoid direct conversations about sexual consent and rely

on non-verbal, passive approaches to avoid embarrassment (Johnson & Hoover, 2015). Young

adults sexual behaviors reflect their perceptions of their peers sexual attitudes and behaviors. If

a college student does not believe their peers are receiving affirmative consent, this perceived

peer norm would be a powerful force on how they communicate consent with their own sexual

partners.
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Finally, under Californias affirmative consent law, rape myths are no longer tolerated as

a reason for not receiving affirmative consent (Johnson & Hoover, 2015). The three most

relevant rape myths include the existence of unintentional sexual behavior, miscommunication

between sexual partners, and rape not occurring within preexisting relationship (Johnson &

Hoover, 2015). Due to Californias law insisting that individuals must both establish consent

throughout the entire sexual encounter, these societal and cultural influences are being

challenged. Although affirmative consent policies may continue to provide an ambiguous

definition of consent which can make giving and receiving affirmative consent challenging,

institutions of higher education can use these policies to address these rape myths on their

campuses. Furthermore, critics of affirmative consent policies believe the focus on changing the

definition of consent does not acknowledge the larger issues in U.S. and higher education

culture.

Fails to Address Larger Issues

Jozkowski (2015) argues affirmative consent policies ignore the larger social context

including sexism and patriarchy, and will not do much to combat rape culture that may be

contributing to the high rates of sexual violence on campuses. Rape culture is a complex set of

beliefs that encourage male sexual aggression and support violence against women (What is

Rape Culture, 2016, para. 3). Examples of rape culture on campuses as it relates to sexual

consent can be seen across all institutional types and geographic locations including campuses

with affirmative consent policies in place (The Affirmative Consent Project, 2016). Rape myths

challenge the notion of how consensual sex is viewed and reinforce the rape culture belief that

consent does not matter.

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Additionally, some believe the issue of sexual assault on campuses has less to do with

what policies are in place and more to do with weaknesses in how campuses handle these cases

in general. This includes the belief that sexual assault is wrongly dealt with by campus

authorities instead of being referred to law enforcement, who have had years of experience with

forensic evidence (Milligan, 2014; Yes Means Yes, 2014). However, this viewpoint ignores

that Title IX requires higher education institutions receiving federal funding to promptly

investigate sexual violence complaints regardless of whether it is reported to the police (Bolger,

2016). Furthermore, Ridolfi-Starr (2016) argues that there is a troubling lack of transparency

and accountability in the processes colleges and universities use to address campus sexual and

dating violence which creates challenges for both the accused and accusing. Although campuses

are required to release how many crimes are reported on or near campus according to the Cleary

Act, they are not required to disclose how they responded to these crimes (Ridolfi-Starr, 2016).

Marciniak (2015) argues that Californias affirmative consent legislation does not mandate

institutions to take reports more seriously or discipline students in certain ways which assumes

that institutions will conduct thorough investigations and fair disciplinary proceeding that some

believe to be the real issues.

Although these arguments exist in critique of affirmative consent policies, they do not

address the changing definition directly and sidestep the possible positive implications for

campuses. These arguments address critical issues in society and on campuses which should

continue to be discussed, but regardless of ones views on affirmative consent policies, campuses

should be prepared for the potential implications and the opportunity to shift the culture of

consent.

Implications for Campuses

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Campuses may need to prepare for necessary changes to how they conduct investigations

in order to comply with affirmative consent policies. Affirmative consent policies do not

necessarily solve the he said/she said problem of one party claiming to have been given

consent while the other party denies this assertion (Jozkowski, 2015, p. 17). Marciniak (2015)

argues that within Californias bill, even though one may have obtained explicit, verbal and

affirmative consent from a partner, such consent is not valid in a disciplinary proceeding if the

accuseds belief in [such] affirmative consent arose from their intoxication or recklessness (p.

54). Institutions will need to navigate the complexities of consent in order to be in compliance

with the affirmative consent standards in their investigations. If institutions are able to do this, a

shift in culture of consent on college campuses might also take place.

Affirmative consent policies provide higher education professionals with a valuable

opportunity to help young adults develop the communication skills necessary to have safe, fun,

respectful intimacy with their partners (Lepore, 2015, para. 21). Institutions can use the change

in consent definition to start the conversation about sexual communication and help students

develop clear strategies for giving and receiving consent within a safe place to practice them.

While some youth received information in high school about pregnancy, HIV and STI

prevention, most have not been educated about how to talk with partners about both their

boundaries and their desires (Lepore, 2015, para. 22). Organizations such as the Consent is

Sexy Campaign offer campuses resources to explain why asking for consent is not a mood-

killer and how important it is to have conversations about consent (Consent in Sexy Campaign,

2011). The shift to affirmative consent policies not only gives an institution the chance to

reassess their own processes, but also the opportunity to make lasting change in the way consent

in viewed, discussed, and given on that campus.

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Conclusion

Clearly there are strong opinions on either side of Californias affirmative consent

legislation. Although it is seen by some as a progressive step towards sexual assault reform,

others feel it misses the mark. However, perhaps both sides are valid. Suggesting that merely

changing the definition of consent will lead to behavioral change is incomplete. Sexual consent

is complex and myths about sexual assault are so imbedded in our culture that it is unrealistic to

assume the change in language alone will make significant waves. Time may be necessary to see

the true impact of the bill in California, but in the meantime, institutions can be working to shift

the culture around sexual assault that is likely to remain unchanged with only a change in

consent definition. Affirmative consent policies are a step in the right direction and support a

cultural shift around how sex happens. On campuses where state legislation has required

affirmative consent standards, administrators should view these policies as an opportunity for

positive change rather than a burden. Affirmative consent policies offer an opportunity to

institutions of higher education to support an approach to sex that values communication,

respect, agency, and consent above all else.

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