On college campuses around the country, a new rallying cry is being heard: "yes means yes!" This is the motto of the affirmative consent movement: a movement that combines a new approach to educating college students about sexual consent with college policies that require students to gain affirmative consent for each stage of a sexual interaction. This new definition of sexual consent comes in the wake of a growing recognition that for years, colleges (like the legal system outside of college campuses), did not appropriately address sexual assault claims. Until the current movement, even when we addressed sexual assault, the default was still to presume that women always consented to sex with men, unless they clearly stated "no" or physically resisted. But in a society where patriarchal values still hold strong, we need to reorient our idea of sex away from women being required to forcefully resist and protest unwanted sexual attention.
To address sexual assault and move towards a more equal society, we have to shift the presumption from one of male access to women's bodies absent refusal, to one where no one is assumed to consent to sexual contact unless they make clear that they do. But the way affirmative consent is being implemented as an educational and disciplinary policy falls in line with past approaches to social panics about young people's behavior that have proven unavailing in actually addressing the issues.
We have a history of not talking honestly to young people about risky behavior. In the 1980s there was a push to address young people's drug use, in response to public health concerns about the effects of drugs on teens' health. That movement spawned the D.A.R.E. program in schools, which used a "scared straight" approach to teaching kids to say no to drugs. This approach to drug use prevention spawned ads showing drug users' brains as fried eggs, and the idea that marijuana is a "gateway drug." With the benefit of hindsight, we know that these programs were not effective. As one former participant in D.A.R.E. said, because of the program he "was afraid that maybe the first time I tried anything, I would die." The problem with this approach is that it posits as the only acceptable life choice a completely unreasonable goal: never try drugs or alcohol. Most teenagers at some point try drugs or alcohol, and when they don't immediately suffer the forewarned harms, they learn to distrust and disregard the information those adults provide to them.
In the 1980s and 1990s a focus on teen pregnancy gave rise to federally-funded abstinence-only education programs. These programs teach students that sex is only acceptable within marriage, that heterosexual sex is the only acceptable form of sex, and do not teach students medically-accurate information about pregnancy, sexually transmitted infections, or contraception. Needless to say, studies have demonstrated that these programs do not prevent adolescent sexual activity or pregnancy, and in fact may lead students to engage in riskier sexual behavior than if they have scientifically accurate sexuality education. Ninety-five percent of Americans have sex before marriage. Just as it is not realistic to expect adolescents to never try drugs or alcohol, it is not realistic to expect them to wait until marriage to have sex.
In the midst of our current anxiety about sexual assault on college campuses, we are seeing the same lack of nuance, the same black and white statements about acceptable behavior, and will likely see the same lack of appreciable outcomes as we have seen in these past attempts to scare adolescents away from potentially risky behavior. Sexual assault is a real and pervasive issue on college campuses, "yes means yes" should be the motto rather than "no means no," and colleges (and more importantly, middle and high schools) have a role in educating students about sexual consent. But the way they are approaching this issue is not likely to lead to the cultural change they want.
The current policies and practices, and the educational campaigns tied to those policies are extreme and absolutist. First, colleges are stretching the concept of inability to consent due to alcohol beyond any real life understanding of what incapacitation means. Colleges (for example Cornell and Brown) are now warning students that they cannot have sex with someone who is "intoxicated," not "incapacitated." While it is true that college students have a lot to learn about safe alcohol consumption, telling them that they can't consent to sex if they have had any alcohol is untrue, and undermines the entire message about incapacitation.
Second, complainants in these college processes and the colleges themselves are employing the concept of "coercion" to cover nearly any instance in which one party later regrets a sexual encounter or wishes they hadn't engaged in it. In cases I know of complainants claimed they were coerced into having a sexual encounter even though they admitted to voluntarily engaging in sexual activity (sometimes even initiating it), because they assumed the young men would not let them end the sexual encounter so they never tried to express a desire to stop it. Some of these young men were found responsible for sexual assault and disciplined by their colleges.
Third, colleges are using an unrealistic definition of affirmative consent, requiring there to be affirmative, enthusiastic (preferably verbal) consent to each and every aspect of a sexual encounter. I know of students who engaged in clearly consensual interactions, including the other person saying "I want to have sex" and "do you have a condom," or whose partners initiated the sexual encounter and performed sexual acts on them, who are nonetheless found responsible for sexual assault because over the course of a multiple-hour encounter they touched the other person once or twice without first getting verbal consent. Of course we want young people to learn to recognize and wait for enthusiastic consent. We want them to embark on sexual encounters with the goal of ensuring that if there is any doubt about whether the other person is consenting, they should not be engaging in sex with that person. But do we want to tell them we will punish them as sexual assailants when they engage in what in the rest of society we consider perfectly consensual sex that falls short of these aspirations?
As with all potentially risky actions adolescents engage in, sexual activity and sexual consent exists on a spectrum. We can all agree that sex undertaken with sober, enthusiastic, verbally communicated consent between two adults is not rape. We can also agree that sex that is physically forced, that is actually coerced, or that occurs when one person is incapacitated, asleep, or unable to appreciate the nature of their actions is rape. The government, colleges, and educators are trying to figure out where between those two extremes we draw the line between what is acceptable and what is not and how we communicate that line to young people. That is not an easy task. But we have to be able to acknowledge to adolescents, and to teach them to navigate, kinds of sex that may not be everything we hope their sexual encounters to be, but are nonetheless not assault. There is a real grey area -- sex that is regretted, sex that makes someone feel sad after, sex that is not fun, or even bad, sex that you wish you could take back because of its social or emotional ramifications. But it is unrealistic, and denies people (mostly women) any sense of agency, to say that people cannot consensually engage in anything short of completely sober, enthusiastic, mutually pleasurable sex.
Adolescents know that most adults have tried drugs and alcohol, that most adults did not wait until marriage to have sex, and that adults frequently engage in fully consensual sex after having a drink or two. Students learning the current college sexual assault procedures and definitions know that the administrators telling them that they commit sexual assault if they don't get verbal consent before each touch are not going home to their partners and asking for verbal consent every time they touch them. In the world outside of college people who have sex have to navigate grey area, and we need programs that teach students how to become adults who are ready to enter that world. When the adults instructing adolescents on how to have sex are hypocritical -- offering a clear "do as I say, not as I do" message -- the entire message is likely to be ignored. We are setting adolescents up to reject the ridiculous sexual standards we are setting for them without obtaining the tools they need to know how to assert themselves and understand one another so that they can have the kinds of healthy, consensual experiences we claim to want for them.
Naomi R. Shatz is an attorney at Zalkind Duncan & Bernstein LLP in Boston, where she represents students in Title IX proceedings at their colleges and universities. The views expressed here are her own.