Co-authored by Joseph Fischel, Assistant Professor of Women's, Gender, and Sexuality Studies at Yale University
How often have you had a family fight about university disciplinary codes at your holiday table? Rarely, we would guess, but this year might be an exception. Fueled by an alchemy of government regulation, student activism, and media coverage, we're in the midst of a heated national debate about university handling of sexual assault. Many of the fiercest arguments are about "affirmative consent": the choice of some schools to require the presence of ongoing agreement, not just the absence of refusal, in sexual encounters. Straightforward as it may seem, the affirmative consent standard has fueled widespread anxiety that otherwise promising young men will be branded as rapists for having had awkward sex.
Take, for example, our colleague Jed Rubenfeld's recent sky-is-falling New York Times op-ed, "Mishandling Rape." Offering a mangled version of Yale's definition of sexual consent -- the actual key terms are positive, unambiguous, voluntary, and ongoing -- Rubenfeld sounds a panicked alarm:
"Under this definition, a person who voluntarily gets undressed, gets into bed and has sex with someone, without clearly communicating either yes or no, can later say--correctly--that he or she was raped. This is not a law school hypothetical. The unambiguous consent standard requires this conclusion."
Rubenfeld errs twice. First: This can only be a law school hypothetical. Real people, having sex in real life, communicate constantly. And what's more, that communication works. Determining consent post facto in a disciplinary hearing may be difficult (and disciplinary boards will sometimes get it wrong), but in media res agreement is clear. Sexual cues may be nuanced, but they are manifold and familiar. People lean in or pull away. They intensify or slow down. They use verbal and non-verbal signals familiar from everyday life to collaborate in mutual initiation -- or to evade, ignore, and reject propositions. In sexual and non-sexual contexts, people are highly skilled at discerning between rejection and acceptance, and they know when signals are too ambiguous to make a solid call. "Affirmative consent" is neither a femi-nazi trap nor a presumption of guilt. It is an accurate description of what we do when we are having sex that is not abusive or coerced: We seek confirmation that our partner is a willing participant.
Rubenfeld's second error: He provocatively confuses college discipline and criminal justice, repeatedly referencing "rape trials" when what he really means are "sexual misconduct disciplinary board hearings." The central question in a "rape trial" is: Did the defendant commit a crime? The central question before a university sexual misconduct hearing is: Did the respondent violate the school's sexual misconduct policy? Sexual misconduct is a far more expansive category than "rape," incorporating criminal acts alongside non-criminal behaviors that are nonetheless at odds with community standards -- standards like nondiscrimination and sex equality. The penalties are also vastly different. To be judged guilty in a criminal court can lead to imprisonment. To be found responsible in a disciplinary hearing will lead, at most, to expulsion from the community.
Colleges and universities must respond to crimes, of course, but their obligations extend well beyond. Why must disciplinary codes be so broad? Our education mission demands it, as do various federal and state laws and regulations. Students, faculty, and staff are entitled to a campus free of harassment, discrimination, or other obstacles to their full participation in the learning community. Sexual misconduct -- including non-criminal misconduct -- creates many of the most common impediments to full educational access, and thus must be addressed by campus authorities.
Rubenfeld disagrees, arguing that schools should shrink their disciplinary codes to match criminal statutes. "Sexual assault on campus," he writes, "should mean what it means in the outside world and in courts of law."
What would be the social and sexual consequences if we followed Rubenfeld's advice, if universities jettisoned affirmative consent and abandoned their efforts to quash sexual misconduct as practices of sex discrimination and inequality? Many states, including Connecticut, still require "force" or "threat of force" as an element of the crime of rape or sexual assault. Indeed, in a law journal article published last year, Rubenfeld advocates just such a definition, proposing that consent be mostly excised from criminal law. (He makes an exception for agreed-to violent or BDSM sex.) What rape violates is not sexual autonomy, he argues, but a right to bodily self-possession, a right abrogated only by force -- overpowering, pinning down, imprisonment, etc. -- or threats of force.
Let us offer our own hypothetical to clarify the stakes:
Cary and Nat are dancing at a party, having a few drinks. They kiss. They walk back to Cary's room, get undressed, and get into bed. They're both into it. But then, Nat (a) rolls over and falls asleep, (b) says "I'd rather just make out tonight and save sex for a more sober time" and pulls away, or (c) says "no, please stop" and curls up in a ball. Cary takes no notice and proceeds to have penetrative sex with Nat.
In Rubenfeld's Yale law journal world, none of these scenarios should count as rape or sexual assault. In Rubenfeld's NYT op-ed world, none of these scenarios should even count as campus sexual misconduct. Perhaps reasonable people will disagree about the appropriate descriptions for these acts, and whether and to what degree each should qualify as a crime. But we think it is entirely reasonable for a university to state, unequivocally, that these sexual encounters are anathema to a community principled on free and equal participation. Why should not sex premised on mutuality, respect and joint agreement -- rather than sex premised on pressure, intimidation, and acquiescence -- be an administratively-endorsed, and administratively-enforced standard?
After all, which college community would you want for your daughter or son? One where sexual aggression or coercion is okay, as long as it does not entail physical force or the threats of force? Or one where your child is taught that sexual activity ought to be mutually agreed upon, unambiguously, by all parties?