“Affirmative Consent Policies on College Campuses”

Samantha Jaffe

Red Group

22 March 2020
 In September 2014, Governor Jerry Brown of California passed the SB-967 bill in

response to federal and Congressional pressure for secondary education institutions to enhance

the prevention of sexual assault on campus (Gray). Studies by the Department of Justice reveal

that “[o]ne in five college women will be the victim of a sexual assault.” The numbers have

remained unchanged for over a decade and necessitate improved approaches and policies

regarding sexual assault (Webley). SB-967, more commonly referred to as the “yes means yes”

law, requires colleges to adopt affirmative consent policies as the standard in sexual misconduct

cases (Cooney). Only 800 of the 5,300 universities across the United States (a mere 15%) have

since adopted affirmative consent policies in an attempt to combat the widespread issue of sexual

assault (New). Colleges must adopt affirmative consent policies to lower sexual assault incidents

by redefining what constitutes consent, reducing victim-blaming practices, and lessening sexual

violence within relationships.

The establishment of affirmative consent policies will increase public clarity of consent

by reconceiving its parameters. The policies set new standards for college students and aim to

prevent sexual assault occurrences by educating students on what actions are considered assault.

Affirmative consent is defined as:

a knowing, voluntary, and mutual decision among all participants to engage in sexual

activity. Consent can be given by words or actions, as long as those words or actions

create clear permission regarding willingness to engage in sexual activity. Silence or lack

of resistance, in and of itself, does not demonstrate consent. The definition of consent

does not vary based upon a participant's sex, sexual orientation, gender identity, or

gender expression. (SUNY)

The outdated “no means no” standard with which college students are familiar mandates that

sexual interactions are solely classified as assault if the victim says no or resists; affirmative

consent policies require a higher standard of communication and prohibit sexual relations if one

participant is incapacitated. Essentially, affirmative consent standards dictate that voluntary,

conscious consent must be given at each new level of sexual activity (Hess). While many

students are aware that physical resistance or a verbal disagreement demonstrates a lack of

consent, they are unclear about what qualifies as consent when factors such as intoxication are

considered (Kempner). In a rape case in Steubenville, Ohio, the victim had been drinking and

was unconscious when the assault occurred. A bystander “testified that he didn’t know the attack

was rape: ‘It wasn’t violent. . . . I thought [rape] was forcing yourself on someone’” (Valenti). It

is widely understood that rape is sexual activity without the consent of the participant; however,

the definition of consent is unclear. By explicitly outlining the definition of consent, affirmative

consent policies will aid students in understanding consent and reduce the likelihood of

unintentional assaults. The introduction of affirmative consent policies will bring attention to the

sexual assault issue on college campuses and consequently bring the attention of the students to

why it is important to understand consent as well as demonstrate that the issue is prevalent,

causing students to become less likely to be perpetrators (Gray).

Affirmative consent policies will aid in the process of taking punitive actions against the

perpetrator and will establish a system that is not stacked against the victim. By placing the

responsibility on the individual who initiates sexual relations, the policy eliminates the

possibility of blaming miscommunication or the victim for not saying no. Instead, it would blame

the defendant for not receiving clear consent. In many situations, the accused claims that the
victim did not say no and that actions prior to the assault suggested that the subsequent sequence

of events was consensual. A female student and sexual assault survivor at Queens University of

Charlotte reports “‘I think he thought because we had started, because he had kissed me and I

didn’t immediately shove him off and say what the f---, that meant he was entitled to have sex

with me or something,’” (Anderson et al.). Affirmative consent standards would limit such

scenarios by prohibiting assumption-based sex. If the initiator assumes consent rather than

asking, it cannot be said that he ore she received consent; therefore, he or she would be liable to

a sexual assault charge (Gray; Kempner). Another common scenario occurs when a victim

freezes as a trauma response; many victims respond by shutting down, going silent, or lying

motionless. Many perpetrators interpret the lack of resistance as consent and follow through with

the sexual activity. By making the initiator responsible for obtaining consent, affirmative consent

policies reduce the chance of the blame being placed on the victim (Hess; Friedman).

Furthermore, the majority of sexual assault cases are not reported and while 71% of sexually

assaulted college students told someone about their assault, only 12% of those students reported

the assault to police or college authorities (“Poll”). A common reason for the lack of reporting is

that students believe they will be blamed for the incident and dismissed by the authorities.

Student Lauren Dunn was raped by two men during her time at the University of Wisconsin and

says that she “‘was treated with hostility and disrespect [when seeking justice]. [She] was clearly

not believed, and was often blamed for what had happened’” (Webley). With the establishment

of affirmative action policies as updated sexual assault standards, the responsibility will be

placed on the instigator and victims will be more likely to report offenses, resulting in safer

campuses through a reduction in incidences (Cummings; Hess).

 The introduction of affirmative consent policies on college campuses will bring students’

attention to the sexual assault issue and prompt pre-sex discussions of consent and boundaries

within relationships. Such discussions will result in safer relationships by reducing the violence

and coercion that occurs within relationships when communication and consent are foregone. A

female student at the University of Nebraska Omaha describes how she was repeatedly forced to

perform sexual acts through coercion in her relationship: “‘I felt so unsafe in the relationship all

the time… It was never taught to me, that that was an option, to really say no and mean it. He’s a

good person and what happened was not due to maliciousness but due to lack of knowledge

about boundaries and consent’” (Anderson). The discussion of boundaries brought by affirmative

consent policies would reduce such incidents by making partners knowledgeable about consent

and their rights in their relationship. Also, the policies make it clear that consent is

gender-neutral; sexual assault victims are not always female. The standards would help students

to understand that both partners can have limits and if one wants to take the next step in the

relationship then they, as the initiator, must receive consent regardless of gender (Friedman).

Affirmative consent policies also include the clauses that “[c]onsent to any sexual act or prior

consensual sexual activity between or with any party does not necessarily constitute consent to

any other sexual act” and that “[c]onsent may be initially given but withdrawn at any time”

(SUNY). The clauses explain that sexual activity cannot be assumed to be consensual due to a

previously established relationship between the participants. Affirmative consent policies will

reduce cases of sexual misconduct within relationships by mandating that consent must be

obtained at each stage of sexual activity. Sexual health and sexual violence prevention expert

Jaclyn Friedman claims that “[n]othing seems to give [students] more clarity and comfort than
explaining the basics of affirmative consent.” Affirmative consent standards reassure students

that setting boundaries and having limits is a beneficial practice and should be respected in a

healthy relationship.

Opponents of the policies claim that affirmative consent standards are impractical,

unrealistic, and unfair to the accused. Many state that miscommunication is not the primary

cause of sexual assault incidents; rather, they are caused by rapists who are “aware that their

coercive and aggressive behavior is both wrong and unwelcome, but they go ahead and pursue

the prize anyway” (Kempner). Nevertheless, the education of students about consent and the

gravity of the sexual assault issue can lead to the development of a more respectful culture and

reduce instances of sexual assault. Others assert that affirmative consent policies are unrealistic

as they promote behaviors that are unnatural in human interaction. A common belief is that “the

sexual ideal is to lose yourself in the moment, the other person;” thus, opponents suggest that

affirmative consent policies would turn sex into encounters of “lawyerly detachment and mutual

wariness” (McArdle). While many declare that the ideals of affirmative consent would manifest

in extreme formalities, the standards can be carried out through a few words or active, voluntary

participation by both partners. As noted above, affirmative consent policies are not yet standard;

however, 69% of college students surveyed agreed that, in practice, the policies would be

somewhat to very realistic (“Poll”).

Further opposition to the policies stems from the notion that the broad language of the

standard could implicate someone for any sexual activity (Gray). Since the affirmative consent

laws clearly define consent but not sexual assault, many believe that the accused cannot receive

due process as “‘[a]ffirmative consent laws turn normal human interactions into sexual
offenses,’” (Cooney; Friedman). Despite this claim, as Friedman writes, there is nothing

“‘normal’ about a disinterest in whether or not the person you’re having sex with is a willing

participant.” Provided that the initiator obtains consent, regular human interactions will remain

as such; they will not become sexual offenses.

Though a rise in activism and publicity has brought attention to the issue, the widespread

sexual assault on college campuses will not be resolved without updated policies and improved

methods of prevention. Affirmative consent policies establish a clear standard when related to

sexual misconduct and improve outdated policies by redefining the boundaries of consent,

reducing victim-blaming practices, and lessening sexual violence within relationships. Colleges

and universities must implement affirmative consent policies to reduce the occurrences of sexual

assault and misconduct on campus. By adopting affirmative consent standards, colleges will

develop public and personal clarity and improve the campus environment to one of safety and

respect.
 Works Cited

Anderson, Nick, et al. "Sexual assault survivors tell their stories." ​The Washington Post,​ 2015,

www.washingtonpost.com. Accessed 28 Mar. 2020.

Cooney, Samantha. "The Aziz Ansari Allegation Has People Talking about 'Affirmative

Consent.' What's That?" ​Time,​ 17 Jan. 2018, time.com. Accessed 26 Mar. 2020.

Cummings, Quinn. "The Most Game-Changing Part of the 'Affirmative Consent' Law." ​Time​, 1

Oct. 2014, time.com. Accessed 26 Mar. 2020.

Friedman, Jaclyn. "Adults hate 'Yes Means Yes' laws. The college students I meet love them."

The Washington Post​, 14 Oct. 2015, www.washingtonpost.com. Accessed 26 Mar. 2020.

Gray, Eliza. "California Passes First-Ever Bill to Define Sexual Consent on College Campuses."

Time​, 28 Aug. 2014, time.com. Accessed 16 Feb. 2020.

Hess, Amanda. "'No Means No' Isn't Enough. We Need Affirmative Consent Laws to Curb

Sexual Assault." ​Slate​, Slate Group, 16 June 2014, slate.com. Accessed 16 Feb. 2020.

Kempner, Martha. "Is Affirmative Consent the Answer to Sexual Assault on College

Campuses?" ​Rewire.News​, 12 June 2014, rewire.news. Accessed 16 Feb. 2020.

McArdle, Megan. "The problem with making 'yes means yes' the standard for sexual assault."

The Washington Post​, 13 Aug. 2019, www.washingtonpost.com. Accessed 31 Mar. 2020.

New, Jake. "The 'Yes Means Yes' World." ​Inside Higher Ed,​ 17 Oct. 2017,

www.insidehighered.com. Accessed 29 Mar. 2020.

"Poll: One in 5 women say they have been sexually assaulted in college." ​The Washington Post,​

12 June 2015, www.washingtonpost.com. Accessed 28 Mar. 2020.

SUNY. "Definition of Affirmative Consent." ​The State University of New York​, 2020,

system.suny.edu. Accessed 26 Mar. 2020.

Valenti, Jessica. "Why we need to keep talking about 'rape culture.'" ​The Washington Post,​ 28

Mar. 2014, www.washingtonpost.com. Accessed 29 Mar. 2020.

Webley, Kayla. "It's Not Just Yale: Are Colleges Doing Enough to Combat Sexual Violence?"

Time​, 18 Apr. 2011, content.time.com. Accessed 26 Mar. 2020.

 Annotated Bibliography

Anderson, Nick, et al. "Sexual assault survivors tell their stories." ​The Washington Post,​ 2015,

www.washingtonpost.com. Accessed 28 Mar. 2020.

This source includes primary accounts of sexual assault and provides case examples as

well as insight of sexual assault victims’ experiences and emotions.

Anderson, Nick, and Peyton M. Craighill. "College students remain deeply divided over what

consent actually means." ​The Washington Post​, 14 June 2015, www.washingtonpost.com.

Accessed 31 Mar. 2020.

This article provides information on college students’ understanding of consent. It also

includes statistics of college students’ knowledge of sexual assault and a general

definition of affirmative consent.

Cooney, Samantha. "The Aziz Ansari Allegation Has People Talking about 'Affirmative

Consent.' What's That?" ​Time,​ 17 Jan. 2018, time.com. Accessed 26 Mar. 2020.

This source presents background information on and arguments for and against

affirmative consent. It also includes a definition of affirmative and enthusiastic consent.

Cummings, Quinn. "The Most Game-Changing Part of the 'Affirmative Consent' Law." ​Time​, 1

Oct. 2014, time.com. Accessed 26 Mar. 2020.

This article explains how affirmative consent improves the safety of college campuses

and includes statistics on college policies. The source also delves into the issue of the

lack of clarity surrounding consent and sexual assault.

Friedman, Jaclyn. "Adults hate 'Yes Means Yes' laws. The college students I meet love them."

The Washington Post​, 14 Oct. 2015, www.washingtonpost.com. Accessed 26 Mar. 2020.

This sources offers insight to the opposing arguments to affirmative consent as well as

explains how affirmative consent provides clarity and comfort for college students.

Gray, Eliza. "California Passes First-Ever Bill to Define Sexual Consent on College Campuses."

Time​, 28 Aug. 2014, time.com. Accessed 16 Feb. 2020.

This article presents information on the original affirmative consent bill and gives a broad

definition of affirmative consent and its benefits.

Hess, Amanda. "'No Means No' Isn't Enough. We Need Affirmative Consent Laws to Curb

Sexual Assault." ​Slate​, Slate Group, 16 June 2014, slate.com. Accessed 16 Feb. 2020.

This source explains the inefficiency of the “no means no” standard and outlines how

affirmative consent policies cover more situations and are an improvement to sexual

misconduct standards.

Kempner, Martha. "Is Affirmative Consent the Answer to Sexual Assault on College

Campuses?" ​Rewire.News​, 12 June 2014, rewire.news. Accessed 16 Feb. 2020.

This source provides the history of the ideas behind the affirmative consent bill and

explains that affirmative consent is the new necessary standard to reduce sexual assault

instances.

McArdle, Megan. "The problem with making 'yes means yes' the standard for sexual assault."

The Washington Post​, 13 Aug. 2019, www.washingtonpost.com. Accessed 31 Mar. 2020.

This article outlines the opposing arguments to affirmative consent policies.

New, Jake. "The 'Yes Means Yes' World." ​Inside Higher Ed,​ 17 Oct. 2017,

www.insidehighered.com. Accessed 29 Mar. 2020.

This source offers background information on the affirmative consent bill as well as

outlines the arguments for and against the policies.

"Poll: One in 5 women say they have been sexually assaulted in college." ​The Washington Post,​

12 June 2015, www.washingtonpost.com. Accessed 28 Mar. 2020.

This primary source provides a multitude of statistics from a poll of college students. It

includes statistics involving affirmative consent, sexual assault, school policies, and

school culture and environment.

SUNY. "Definition of Affirmative Consent." ​The State University of New York​, 2020,

system.suny.edu. Accessed 26 Mar. 2020.

This source provides the verbatim definition of affirmative consent and its clauses.

Taub, Amanda. "'Yes Means Yes' Is about Much More than Rape." ​Vox​, Vox Media, 13 Oct.

2014, www.vox.com. Accessed 2 Apr. 2020.

This source argues against opposing views to affirmative consent policies and explains

how affirmative consent greatly benefits women and is a more effective standard.

Valenti, Jessica. "Why we need to keep talking about 'rape culture.'" ​The Washington Post,​ 28

Mar. 2014, www.washingtonpost.com. Accessed 29 Mar. 2020.

This source offers sexual assault case examples and explains how rape culture is a

prominent issue that needs to be remedied.

Webley, Kayla. "It's Not Just Yale: Are Colleges Doing Enough to Combat Sexual Violence?"

Time​, 18 Apr. 2011, content.time.com. Accessed 26 Mar. 2020.

This source provides primary accounts of sexual assault and injustice on college

campuses. It also gives context for the issue by explaining the rising amount of sexual

assault occurences on college campus across the United States.