Online Symposia

A Restorative Justice Approach to Campus Sexual Misconduct

A briefing paper prepared by David Karp, University of San Diego, for the Council on Contemporary Families Defining Consent Online Symposium (.pdf).

The current #MeToo reckoning, following from the decade-long grassroots campus sexual assault movement, underscores the pervasiveness of sexual harm. As the contribution by Armstrong at al points out, most surveys find that 20 percent of undergraduates experience sexual assault, yet such assaults remain woefully under reported. A study of 834 undergraduate women at a Midwestern university found that 234 (34 percent) had experienced sexual assault during their time on campus. Of those, only five (2 percent) filed a formal complaint leading to a disciplinary hearing.

There is no other violation on campus that causes so much trauma, but is so difficult to adjudicate. Concrete evidence is rare. Memories are often impaired by trauma or alcohol. Shame, fear and uncertainty make disclosures unlikely. Racial bias too easily creeps in. Offenders are still not held accountable. Campuses are not yet safer. The quasi-judicial systems on campuses cannot overcome these complex problems. Responding to them requires that we resist one-size-fits-all responses.

There is reason to think it is a mistake to premise our entire response to campus sexual misconduct primarily on a serial predator model. Predators exist, but many people who cause harm are not incorrigible. Some do not realize the hurt they have caused; many do not accept that they violated consent. They too easily rationalize their behavior, reinforced by a broader set of cultural norms that objectify women, trivialize sexual encounters, and indulge drunken hook-ups. By understanding the real-life contexts of assault, we can generate better methods for processing the wide range of cases that occur.

The majority of campus assaults happen behind closed doors and often begin with some level of mutual sexual consent. Consent to kissing does not mean consent to sexual intercourse. But administrators who adjudicate sexual assault complaints must sort through conflicting stories told by people with impaired memories, typically without corroborating physical evidence, and come to a finding that has significant consequences for both parties. Even those deeply committed to reducing sexual violence face a daunting administrative task.

Many incidents of misconduct are perpetrated by one friend or acquaintance upon another; frequently by people who are too drunk to think and communicate clearly; sometimes by people with little sexual experience and much sexual anxiety; sometimes after undue badgering by peers who prioritize sexual quantification over healthy relationships. And such people are swimming in a sea of sexist and sexually-objectifying pornography and other media that reinforce toxic masculinity, perpetuate rape myths like “no means yes,” and highlight stories of high-ranking officials (like presidents and Supreme Court justices) who glibly dismiss accusations of causing serious sexual harm. The problem is too large to suspend our way out of it, although we try.

A recent history of seeking to address campus sexual assault
For nearly a decade, campus administrators have responded to the grassroots student movement and to federal oversight, both demanding greater attention to campus sexual violence. Campuses have revised their policies and procedures to make it easier for students to report assaults and file complaints. Some have walked to the edge of due process in an attempt to make it easier for accusers to be heard. Yet sexual violence continues to remain highly underreported. Few survivors avail themselves of these new, legalistic hearing processes. And when they do, many remain dissatisfied with the outcome.

Evolving Responses
The student movement that raised awareness about campus sexual assault a decade ago initially demanded that university administrators take the problem seriously and punish students with suspension and expulsion. But this movement has evolved. As an alternative to punishment in some cases, many survivors are now asking for a process that provides accountability through acknowledgment of harm and pathways to prevention. Often, they want their stories believed, for the student to apologize for the transgression, and to be reassured that the behavior will not be repeated.

Leading student sexual assault activists such as Sofie Karasek, an assault survivor herself, call for new approaches: “We need institutional responses to sexual harm that prioritize both justice and healing, not one at the expense of the other.” At Princeton University, student activists recently issued a set of 11 demands. Number three on their list: “The establishment of an opt-in restorative justice track for survivors who wish to avoid the process of Title IX proceedings.”

Is it possible to create conditions where a student who has caused sexual harm can admit fault and take responsibility for it? In a world that simultaneously celebrates sexual conquest and vilifies sex offenders, how can someone be held accountable for crossing an unacceptable line without paying a permanent price in social exclusion? Is there an alternative to our current adversarial model, which drives a permanent wedge between victim and offender and nearly forces accused students into an entrenched position of defensive denial?

Restorative justice alternative
A restorative justice (RJ) approach to campus sexual harm is a radical alternative to current systems. It is premised on the optimistic possibility that many people who might cause harm can learn to be better sexual partners, to authentically and transparently communicate during sex, and to attend to nonverbal cues that indicate (or fail to indicate) consent. It is also premised on the notion that people who cause harm can regret it and can want to do something to take responsibility and regain others’ trust in them—something restorative theorists call “earned redemption.”

Two principles are fundamental to a restorative approach. (1) It is a voluntary option reserved only for victims and accused students who agree to engage in it; RJ does not replace current systems. (2) The starting place for an RJ process is the accused student’s admission of causing harm; it is not an adversarial process subjecting the survivor to an argument about facts. The purpose is straightforward: it is a process designed to identify harms, needs, and obligations to try to make a terrible situation better. Although restorative justice is often equated with a facilitated dialogue between victim and offender, it is better understood as a philosophical approach focused on identifying and repairing harm. The approach has a clear intention, but not a fixed practice. Face-to-face dialogue is not required and many survivors would not choose it. Nevertheless, they may still wish to communicate their needs and have the person who caused harm acknowledge their wrongdoing and do something to help right the wrong.

A whole campus model of restorative justice includes three layers of action. The foundation is skill-building for interpersonal competence. Community-building circles are structured but intimate dialogues about topics of consequence, such as the nature of consent, hook-up culture, toxic masculinity, or the close association of drinking and sexual violence. In these dialogues, students do not simply get told the rules, but share with each other their honest concerns and set clear normative standards for their micro-communities, such as a first-year seminar, residence hall floor, or athletic team. This foundational layer is grounded in a public health model of primary prevention.

A second layer includes restorative responses to incidents of sexual misconduct and harm. Students may choose to participate in a restorative process as an alternative to a formal hearing, or more likely, as an alternative to doing nothing at all. The goals are accountability, student learning and development, safety planning, and personal healing. Such responses are not limited to the key stakeholders, since the fallout from such incidents of harm often extends into their larger peer groups. And they are not limited to interpersonal harms, but may include restorative responses to sexist misconduct such as “rape chants” and offensive social media posts that have a deleterious effect on campus climate.

A third layer of restorative response attends to the messy process of reintegration after a student has been found in violation of a campus sexual misconduct policy and suspended for it. The suspension itself may satisfy retributive demands but it rarely provides reassurance to the survivor or broader campus community that the student has learned anything from the sanction and will be responsible moving forward. Circles of Support and Accountability (CoSA) are a restorative model based on a highly successful model for managing sex offender reentry from prison. Campus CoSAs are groups of trained volunteers that meet with the returning students, often on a regular basis, to simultaneously provide them with social support to help them successfully graduate and to monitor them and address any early red flags to reduce risk of reoffending.

Powerful objections
There are some powerful objections to the idea of restorative justice. It may not send the message of moral outrage as clearly as retributive justice. It may put survivors in a situation that re-traumatizes them. It may be used by administrators to avoid costly hearings or litigation or bad press. RJ facilitators may be poorly trained or incompetent. These are risks. Rigorous research is needed to assess how serious they are and how effective a restorative approach can be. Nevertheless, the current models seem to be failing many students and restorative justice approaches offer one promising alternative.

The symposium editors sought to clarify a few particulars.

Q: You say that restorative justice doesn’t replace current systems. But it seems that a guy would be very reluctant to participate in a dialogue that involves acknowledging accountability if there was a chance that his confession could be used against him if the woman later files charges. Any provisions to protect him from that?

Yes, this is a significant hurdle. I’m working on a law review article right now that will include a template MOU (Memorandum of Understanding) as an agreement between the campus and the local District Attorney to provide some reassurance for a “reverse Miranda rule”–what’s said in the RJ process won’t be used against them later. Better solutions will require state legislation to protect the confidentiality of the process. In addition, campuses are having students sign confidentiality agreements and/or agree that if they choose the RJ process they would be unable to pursue a hearing later. Finally, according to Coker, some programs are asking students to formally “admit to causing harm,” but not necessarily admit to a conduct or Title IX violation.

Q: Also, you talk about a third layer after a student has been found in violation and suspended. But the first two layers don’t involve such formal punishments. What is the relationship between having this dialogue and then getting suspended, or getting suspended and then having this dialogue? 

It’s an awkward relationship. Reintegration circles are designed to follow from formal processes, not RJ processes. They are meant to address the problem of victim/community anxiety or anger about the return of a student after suspension. I published an article recently that was a case study of one such process. In that case, supporters of the offender were quite angry about how the formal process was handled, alleging racial bias, and a lot of the circle was dedicated to addressing that concern. The circle was also focused on developing plans to manage the student’s mental health and address his wish to study abroad. Of course, reentry circles would also be valuable for social support after an RJ process in which the participants voluntarily decide it is best for the student to take a leave of absence. That’s not a suspension, merely an agreement that the leave is the best way forward.

FOR MORE INFORMATION, PLEASE CONTACT:
David R. Karp, PhD,  Professor of Leadership, University of San Diego, dkarp@sandiego.edu. 

October 22, 2019

“Consensualish” – Let’s talk about sex that people don’t want but “go along” with it

A briefing paper prepared by Jessie V. Ford, Columbia University, for the Council on Contemporary Families Defining Consent Online Symposium (.pdf).

In the spring of freshman year, shortly after leaving a party with a guy friend, Lydia and he had sex that Lydia describes as unwanted. As the hookup unfolded, Lydia, then a 19-year-old freshman, recalls: “Part was me was like ‘it’s fine, it’s not gonna be an issue, it won’t change anything, it’s just sex, it’s not a big deal’ while the other part is thinking pretty much the opposite. This is intimate…he could see me differently as a person. He might think I was a whore or easy. Or the opposite even: if I said no, he would think I didn’t like him as a person or…that I led him on or something like that and I was being a bitchy girl to him. I didn’t really want that.”

In the end, Lydia went along with sex. When I interview her one year later, as part of a larger study on unwanted sex, she talks about the pressure she felt to go through it—pressure to avoid having him think she’d been leading him on and pressure to project an image of a woman who can handle herself. Lydia also describes the social awkwardness of the encounter, explaining “it would be very uncomfortable to say no at the time because I was over at his place. I would have to leave and get all my stuff and I didn’t know what he would say.”

Some outside observers would call this non-consensual sex. Others would put the blame squarely on Lydia for not being assertive enough to say no. Lydia did not consider this an assault, nor did most of the 110 students who reported similar instances of unwanted sex to me. Yet they all described a combination of powerful social pressures that made it seem especially difficult to say no.

Uncomfortable reality
I argue that many of these social pressures stem from a desire to avoid making things uncomfortable. Some of the impulses that make these pressures so powerful are admirable – the desire to preserve someone’s feelings, not to disappoint expectations or make others feel let down, etc. A few, I will show later, stem from fear of harm. But most, I found, are just plain normal – the desire to save face, deflect awkward situations, and/or stave off potential ridicule or resentment.

In most everyday interactions, the pressure to be polite and avoid hard feelings is a social lubricant, helping social life flow smoothly. But when it comes to erotic interactions, these social expectations are not only highly gendered but also largely unsuitable to the changing sexual and romantic terrain that college students now inhabit. This terrain includes a world of delayed marriage, filled with more egalitarian male-female friendships than the past, but also more freedom for everyone to have casual sex, a freedom that may become a burden in the context of a campus hookup culture where sex may or may not lead to dating.

My interviews with students at a large private university in the northeast make it clear that in this environment there is a lot of sex that people only openly admit was unwanted after the fact. This is sex that they did not want at the time yet went along with despite not experiencing physical force or threat of force. A minority of my respondents — some women and non-heterosexual men — reported being afraid to say no to a man who was coming on to them for fear that he might react physically. Surprisingly, however, much more common in students’ accounts was the profound importance of gendered social expectations.

The synergy between “nice” and “easy”
Most of my respondents had unwanted sex because in social interactions, even sexual ones, people work to manage their partner’s feelings. A very common feature of interviews was for respondents to emphasize how the pressure of the situation created a momentum where it was “easier” to have sex than it was to call a halt. Understanding how and why this happens reveals the limits of talking in terms of either “sexual victimization” or “sexual empowerment” — or even “individual choice.” There are still real sexual predators on campus, of course. But in other cases, gender stereotypes and habits from the past interact with changing sexual and romantic practices to make it difficult for even well-intentioned individuals to have the mutually consensual sexual encounters they would likely prefer.

One of the strongest messages given to young girls is the importance of being “nice” and not “hurting people’s feelings.” And that sticks. Across interviews, many women described actively internalizing the idea that women/girls are supposed to be nice (not “bitchy”), and concluding that one way of being “nice” in an erotically-charged situation is by having sex, rather than have a partner think you were “just leading him on,” as the interchange below illustrates.

Penelope: “I really don’t know how to say no when a guy wants to have sex, I feel terrible when I say no…Don’t want them to see me as someone who doesn’t want to have sex. At the same time, don’t want them to see me as weak.” 

Interviewer: Are those the things you think women are supposed to be balancing?

Penelope: “Yea. Having a lot of confidence but also not seeming easy. Cute and sexual, but not slutty.”

-Penelope, 19-year-old sophomore (heterosexual)

In several instances, women described feeling responsible for finishing what they “started.” Once women had given a man a green light — gotten in a taxi with him, touched him erotically, or done something else that he might take as a signal for willingness to have sex, there was an expectation for women to follow through, even if they did not actually want sex.

Most women are aware that some college men sort women into types (e.g., sluts, girlfriend material, etc.) and use these categories to decide if she “deserves” respect (Armstrong, Hamilton and Sweeney 2006; Ray and Rosow 2010). Such categorizations, which draw on sexist stereotypes, can place a woman in the category of “easy” simply because she has opted to spend time alone with a man in a place where sex could plausibly be on the agenda. In some instances, women felt they must follow through with sex because they believed that they had given this impression. In particular, women who engaged in casual sex sometimes reported feeling that because they were deemed more sexual they had less right to decline sex. Some queer and bisexual women also recounted scenarios where they felt that being alone with a man set in motion certain expectations that they should go along with sex because, after all, they slept with men and with women alike.

Below, Amy, a bisexual woman describes how her past sexual experience—the fact that she “sleeps with everyone”—in a sense made her feel she could not say no in this context. 

“And then he at one point decided to take advantage of me and I was like ‘okay.’ I just kind of dealt with it…. I don’t think I have the right to make a big deal out of it because at the end of the day I sleep with everyone. So who cares. If you’re going to have a lot of sex, at the end of the day someone is going to try to fuck you up.”

-Amy, 19-year-old sophomore (bisexual)

Consensualish for men versus women
Accounts from men who had unwanted sex with other men reflected some of the same stereotypes as women’s descriptions about the need to accommodate male sexual neediness. They too described an expectation to “finish what you started” or to give the partner an orgasm. While this pressure is often documented in the heterosexual literature (Armstrong, England and Fogarty 2012; Bogle 2008), it was interesting to see the orgasm imperative transferred onto the male partners of men.

Heterosexual men also described incidents of having sex they didn’t actually want. But where women and gay/bisexual men described feeling pressure to ensure male partners’ pleasure, heterosexual men experienced the flip side of these gendered pressures – feeling that they would face social ridicule if they did not take advantage of any proffered sex.

During his freshman year, Mark woke up one night to find a woman on top of him, trying to have sex. He explains:

“We had our night out, got back from bars, crashed in my bed. 2 or 3 am there’s a random person in my bed on top of me. I guess I’m in more of a position at that point to be passive than to say what’s going on? I would rather not make a big deal of it…” 

Interviewer: Did you end up having sex [with the woman]?

Mark: “Yea…. I wasn’t gonna be like you shouldn’t be here. It would just be weird. There’s 4 or 5 dudes in the suite asleep. I would rather not make a scene. What am I gonna do? Go complain I was raped by like honestly a really nice looking girl, just someone I personally didn’t vibe with…. So I’m not gonna be as aggressive, like ‘get off of me’ the way a girl would…If I did that to her and then she made it a thing or people heard about, it would be insane. I would have got shit.”

-Mark, 21-year-old junior (heterosexual)

Other heterosexual men described having unwanted sex to project an image or take advantage of a sexual opportunity. Men worried that turning down sex could result in ridicule or being viewed as a “pussy,” “virgin,” “idiot” or “gay.” It is notable that these terms are different from those applied to women who decline sex (i.e. “bitch,” “prude,” “tease”).

These uncomfortable gender pressures are magnified by the fact that in a sense, hookups are an incomplete institution, changing and evolving much like our expectations of gender and sex. For example, data from the Online College Social Life Survey (OCSLS)—a survey led by Paula England of over 20,000 students from 21 four-year colleges and universities between 2005 and 2011—show that only 40 percent of recent hookups involved intercourse, and 35 percent involved no more than kissing and some non-genital touching. Yet these findings contrast with the highly sexualized expectations associated with hookups and a culture of “pluralistic ignorance”—where students assume everyone else is having sex (Wade, 2012).

Saving face
In addition to gender expectations, another very common factor hindering people from refusing unwanted sex was their felt social pressure to save face, avoid conflict, or simply make the encounter less embarrassing or strained (Garfinkel 1967; Goffman 1983). Such a scenario usually plays out as follows: a man or woman ends up alone with a partner. They realize at that point that they do not want to have sex for various reasons (e.g. “not feeling it;” would rather do something else; missing an ex-boy/girlfriend etc.). However, they consciously decide to go through with it rather than end the encounter.

“Then when he asked about the condom, I was like this is where I should cop out, but I just went along with it…For some reason, I figured that it would be less awkward if I just finished what had started and then left… If you leave in the middle there is some unresolved tension, whereas the first option is [to have sex], yes, it’s a little awkward but not unheard of. “

–Meghan, 18-year-old freshman (heterosexual)

Much like Meghan, students often perceived that the encounter would conclude more neatly (e.g. “done deal”) if they had sex. Across interviews, respondents frequently described a desire to keep the encounter running smoothly, without “weirdness” or disruption, which discouraged them from calling an end to unwanted sex.

Interviewer: You said you felt pressure to keep going?

Jeff: “Definitely.”

Interviewer: Was that from her?

Jeff: “Yeah. I kinda felt…. It was me too, based on the situation. Felt like I had to go all the way. It was just necessary.”

Interviewer: Necessary?

Jeff: “Yeah.”

Interviewer: Why not stop it?

Jeff: “It would have felt weird to me. I can’t see myself…. I don’t know. I wouldn’t have done that.”

-Jeff, 25-year-old senior (heterosexual)

In many instances, men’s stories mirrored women’s, where being face-to-face with someone who wanted to have sex created a situation in which saying no felt either awkward or “mean.” Having unwanted sex was one way to resolve such a situation. Scholars argue that keeping the situation going in a way that is “normal” and fits expectations is a predominant motive during social interactions (Garfinkel 1967; Goffman 1983). We see people engaging in “repair work” or trying to “smooth” over interactions on behalf of others, sometimes even when they have just met someone. Across interviews, accounts of saving face (one’s own or the other’s) and acting in recognizable ways fit into a larger narrative where going along with unwanted sex allowed people to avoid disruption, even at the expense of some personal discomfort.

Together, these findings suggest why campuses cannot rely on court judgments and punishments alone to solve these kinds of cases. Nor should they just shrug them off, telling people they should have been more assertive about their wishes. Instead, as people negotiate these social spaces and changing mores while struggling with increasingly dysfunctional gender expectations, we need to think about how to get a more productive conversation going about how to reconfigure these gender expectations, reducing the pressure people feel to conform to them.

A conundrum: Cases where force is not actually threatened but genuinely feared
I include a final section on the more equivocal cases where people say that they had unwanted sex because they feared that saying no might trigger violence. These cases involved quite a different scenario from the rest of my findings. In situations that were neither physically forceful nor overtly coercive, some women still recalled acquiescing to sex because of the possibility that otherwise the man could overpower them. It was common, for example, for women to reference men’s size, strength, or physical presence when describing unwanted sex, or to recall being aware of these things.

Jackie: “He was physically looming over me. He did what he wanted and didn’t ask me what I wanted. Just that.”

Interviewer: Would you say that sex was unwanted?

Jackie: “Kind of, but I did agree to it so it was consensualish.”

Interviewer: Consensual and wanted?

Jackie: “Less wanted. Consensual but unwanted. There we go….”

Interviewer: So you decided to have sex with him?

Jackie: “Yea. ’Cause he was looming over me.”

-Jackie, 18-year-old freshman (heterosexual)

In Jackie’s retelling of “consensualish” but unwanted sex with a man she met on Tinder, she implies that his physical affect reminded her of his ability to use force, and this was part of the reason she went along with sex. it is not clear whether this “looming” is in fact a threat that he would force her to have sex if she said no. It is possible that his objective size difference just gives her this impression. But perhaps he is, consciously or not, reminding her that he is capable of this. Situations where it is difficult to decipher whether a given gesture is harmful or innocuous have been documented elsewhere in relation to racism and sexism (Gordon and Riger 1989; Jackson 2010). It is precisely this kind of “uncertainty” in the context of structural or historical power differences that reproduces inequality without there being an outright demand. Across interviews, many women reported not knowing whether a man might “snap” as a reason to go along with sex.

This fear is real, and in many cases rational, statistically speaking. However, adjudication processes and court cases will not solve this issue because no force was used or threatened. So, what do these cases imply? It is a conundrum. On the one hand, you can’t prosecute men (it’s usually men) for being so big that they scare someone. On the other hand, given the track record of so many men, you can’t blame a woman or for that matter a smaller man for being afraid to say no, any more than you can expect a black person stopped by a white cop not to respond differently than a white person would, even if the white cop is respectful and turns out to not be a racist.

In fact, I found that this type of unwanted sex also occurred for men having sex with men. For Lincoln, unwanted sex unfolds with a man he meets online.

“On the way I was super scared. I felt like I was going to die in a way. We end up in his apartment, He tries to pour me some wine but I refuse to drink it because I’m not sure what’s in it. And he like keeps on untying my pants and I don’t want it. I was like could we talk first? And he just kept doing it. I didn’t know how to react.”

-Lincoln, 20-year-old sophomore (gay)

Lincoln goes so far as to describe fearing he might die. He is afraid to drink the wine. In his uncertainty, he imagines rape and nonconsensual drugging are things that could happen. Other men who had sex with men described similar scenarios where they were uncertain whether an encounter was unfolding in a way that was dangerous or ordinary. Paradoxically, in their view, sometimes it was better to have unwanted sex than to risk getting forcibly raped.

In my data, heterosexual men did not worry about or even consider the possibility of violent escalation in their accounts, but several women and gay/bisexual men reported that this thought inhibited them calling an end to the encounter or from trying to leave, even in cases where a man had done nothing to indicate that he would use force. This finding has implications for current debates around affirmative consent. Given that this potential for violence may be present, this would suggest that an affirmative consent strategy might be helpful in situations where women or gay/bisexual men are unsure as to whether they are in danger. In such situations, an overt discussion of consent, and greater communication in general, might help reinforce and reaffirm one’s ability to stop or slow an encounter. Perhaps campus-wide discussions are needed to make it clear that this potential for violence can be in the air, and that men need to offer reassurance that they will respect a no.

In closing, it is high time for a multi-pronged strategy that is not just focused on going after predators but also on developing a new erotic culture. Such a shift could include teaching women that being nice doesn’t mean you can’t set boundaries while teaching men that they don’t always have to orgasm. These findings also make a good case for the importance of empowerment education, which has been proven to be effective, but is often criticized for just teaching women how to say no, not teaching men to stop raping (Gidycz & Dardis, 2014).

While there is no substitute for getting men to stop raping, my research indicates there is a subcategory of unwanted sex where the man probably would stop pushing if the woman didn’t feel so compelled to be “nice” and if women (and some men too) didn’t subscribe to the idea that a man just can’t stop beyond a certain point of arousal, or that stopping would be cruel. Therefore, empowerment training could be an important tool for women (and some men) to learn how to say no to unwanted sex, even if other work is needed to stop predatory behavior. As part of a multi-pronged strategy, combining empowerment training with messaging (e.g. raising men’s consciousness of the need to offer reassurance) could play a very positive role in reducing unwanted sex.

FOR MORE INFORMATION, PLEASE CONTACT:
Jessie V. Ford, Postdoctoral Research Scientist, Columbia University
Jf3179@cumc.columbia.edu or 404-408-0021.

October 22, 2019

Defining Sexual Consent on Campus: Media vs. Policies

A briefing paper prepared by Elizabeth A. Armstrong, Sandra Levitsky, Kamaria Porter, Miriam Gleckman-Krut, Elizabeth Chase, all from University of Michigan, and Jessica Garrick, Southern Methodist University, for the Council on Contemporary Families Defining Consent Online Symposium (.pdf).

In our sound bite media culture, the least typical cases often get the most publicity. Media treatment of “affirmative consent” on college campuses is a case in point. The New York Times recently devoted more than 3000 words to the sexual consent policy of Antioch College-a school with a total of 135 students. Antioch College requires verbal consent to be requested and given for every sexual act. It is an extreme outlier. Even when the media attends to more typical cases, the focus tends to be on secular, coastal schools. With such coverage, readers get a skewed notion of what schools are doing-and might even believe that most colleges require verbal agreement to sex. In turn, this inaccurate notion might feed into the belief that schools have become overly solicitous of those who accuse assault, at the expense of the rights of those accused. This is not true.

Actually, few schools require verbal consent for sex. Our research team at the University of Michigan read hundreds of university policies-381 to be precise. We drew a sample of public and private not-for-profit schools granting bachelor’s degrees with undergraduate enrollments of 900 or more. A team of researchers searched every school’s policy for a definition of sexual consent. Just 12 schools-three percent-required verbal consent for sex. Our analysis of these 2016 policies show that college definitions of consent are less stringent than what many may assume, based on the media hype. And too many schools either have no definition at all or one that is incoherent.

Arriving at a workable definition of sexual consent matters. The data on college sexual assault is consistent and depressing: Since the first reliable data on college women’s sexual victimization were collected by Mary Koss in the late 1980s, survey after survey has found that roughly one in five undergraduate women is sexually assaulted in college. Rates of victimization of women who do not attend college are at least as high, possibly higher. Although college women experience all forms of gender-based violence – from sexual harassment to forcible sexual assault to homicide by current or former intimate partners – incapacitated sexual assault is of particular concern. Most campus assaults involve alcohol, and many undergraduate students continue to view sex while very drunk as acceptable.

University commitment to addressing campus sexual assault has waxed and waned over the decades. For the most part, universities have done only what they have been pressured to do. A combination of social movement activism, media attention, and federal enforcement of Title IX led to an unprecedented focus on campus sexual assault under the Obama administration. In 2011, the Department of Education put universities on notice that failure to provide an educational environment free from sexual violence constitutes a violation of student civil rights. Backed up by tougher enforcement, the Department of Education prompted universities to engage in a flurry of activities-hiring compliance officers, rolling out new educational programs for students, staff, and faculty, designing new websites, hosting webinars for parents, rewriting student codes of conduct, creating new hotlines for reporting sexual misconduct, and redesigning procedures for the investigation and adjudication of reported incidents.

As part of this wave of activity, many schools developed-or revised-their definition of sexual consent. The Obama administration took an interest in attempting to shape school definitions of consent. In 2014, the White House Task Force to Protect Students from Sexual Assault issued a checklist for sexual misconduct policies. The Task Force recommended that at a minimum, the definition should recognize that:

• consent is a voluntary agreement to engage in sexual activity;
• someone who is incapacitated cannot consent;
• past consent does not imply future consent;
• silence or an absence of resistance does not imply consent;
• consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another;
• consent can be withdrawn at any time; and
• coercion, force, or threat of either invalidates consent.

This qualifies as an “affirmative consent” definition, as it states that sex should be voluntary and that silence does not imply consent. But note that this checklist says nothing about verbal consent. In fact, most of the bullet points refer to what consent is not. And these points are not particularly controversial. Very few people think that consent to sex with one person means consent to sex with someone else! In short, what schools-and the states of California and New York-mean by “affirmative consent” is less stringent than what the press and the public imagine. The confusion may be in part generated by the tendency to refer colloquially to “affirmative consent” as “yes means yes” policies, which suggests that verbal consent is required.

With that background, let’s delve into the state of consent definitions. We found that a solid 10 percent (n=37) of schools in our sample did not define consent at all. This is a serious failure on the part of schools, as the definition of consent is the lynchpin of a sexual misconduct policy. If one does not have a definition of consent, one cannot accuse anyone of violating it. Without a clear definition, schools cannot effectively educate their students about sexual consent nor fairly adjudicate complaints. Some people find defining consent tricky and try to avoid the topic of conversation in fear of offending or getting it wrong. If you’re not clued in on sexual content, simply visit PrioritySTD who defines the topic perfectly.

Among schools with definitions, the text provided was often short, vague, or unintelligible. For example, University of Montevallo plugged Alabama’s state law into its policy, defining “lack of consent” according to “Section 13A-6-70”:

“whether or not specifically stated, it is an element of every offense defined in this article, with the exception of subdivision (a)(3) of Section 13A-6-65, that the sexual act was committed without the consent of the victim.”

Even schools with clear definitions generally still focused on detailing what invalidates consent. For example, universities generally agreed that consent was invalidated by violence or physical force, threat of violence or physical force, coercion, or intimidation.

Most schools did adopt some elements of an affirmative definition. Almost three quarters (72 percent, 274 schools) included at least six affirmative consent elements in their definitions-which we view as a threshold for a meaningful affirmative consent definition (See Table 1 for a list of the elements and the number of schools including them). Schools were most likely to specify that sex should be voluntary. There was also wide agreement that silence or absence of resistance does not imply consent, and that consent can be revoked at any time. About two-thirds indicated that consent can be communicated in words or actions. Nineteen percent of the schools specified that the initiator of sexual activity is responsible for seeking consent.

Schools agreed that people cannot consent if incapacitated, with 91 percent of schools explicitly noting this in their policies. Given the high rates of incapacitated rape on campus, how schools handled incapacitation is of particular relevance. Only 73 percent of schools explicitly defined incapacitation. The most helpful schools provided examples. Georgian Court University offered specific behavioral descriptions (e.g. “warning signs that a person may be approaching incapacitation may include slurred speech, vomiting, odor of alcohol, unsteady gait, combativeness, or emotional volatility”). As this example suggests, most schools set the bar for incapacitation high. Having had a few drinks or even being quite drunk did not, in the eyes of most schools, qualify as incapacitation. Most agreed that unconsciousness qualifies as incapacitation (78 percent of schools explicitly stated this). A minority of schools (36 percent) explicitly stated that the intoxication of the accused is not a defense.

Definitions-at least those of secular schools-were scrupulously gender-neutral. They did not make a priori assumptions about the gender of the perpetrator. The definitions allowed for the possibility of women as perpetrators in heterosexual sex, of violence in non-heterosexual sex, and for parties to have non-binary gender identities.

Religious schools offered a notable exception to the gender neutrality of most policies-as they frequently required students to adhere to conventional gender and sexual identities. They prohibited consensual heterosexual sex outside of marriage, gay sex, and transgender identity, the viewing of pornography and, in some cases, sexualized dancing. Handling sexual assault allegations at religious schools can be challenging, as assaults often expose violations of the school’s consensual sex policies. Sometimes religious schools punish the victim for policy violations instead of or in addition to sanctioning the perpetrator.

In short, most schools have not gone to extremes. The more worrisome are those that have no definition of consent, or one that is so vague as to be useless for guiding education or adjudication. Failure to offer a clear definition of consent creates vulnerabilities both for those who experience harm and those accused of perpetrating it. Although the media often set up the issue as the rights of victims vs. the rights of the accused, the fact is that all students share an interest in clear policies. Students are entitled to a clear definition of sexual consent, available in a place where they can easily access it. They are entitled to receive high quality education about how they are expected to treat each other, and to have confidence that the policies will be used to guide a fair, transparent adjudication process.

Universities haven’t yet gotten it right on sexual assault. The media is not wrong on that point. But intense scrutiny of extreme outliers to the neglect of ordinary cases leads to a misstating of the problem, which in turn may led to faulty solutions. We need good facts to produce good policy.

Table 1. Elements of Affirmative Consent

Element		%	n
1	Consent is a voluntary agreement to engage in sexual activity	82	312
2	Silence does not imply consent	68	260
3	Consent must be ongoing throughout a sexual encounter and can be revoked at any time	67	255
4	Consent is “unambiguous, affirmative, OR conscious”	65	249
5	Consent can be communicated through words or actions	64	243
6	Consent to some form of sexual activity does not imply consent to other forms of sexual activity	59	224
7	Absence of resistance does not imply consent	55	209
8	Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion	54	207
9	A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent	50	192
10	The accused person’s level of intoxication is not a defense for engaging in sexual activity without consent	36	137
11	The consent definition includes the words “affirmative” or “affirmative consent”	33	126
12	Once consent is withdrawn, the sexual activity must stop immediately	27	102
13	Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another	20	76
14	The initiator of sexual activity is responsible for seeking consent	19	73
15	Consent must be communicated verbally, through words. Consent obtained through non-verbal communication is not sufficient.	3	12
16	Consent is enthusiastic.	1	2

Authors’ analysis of 381 U.S. non-profit public and private college and university consent policies in 2016.

FOR MORE INFORMATION, PLEASE CONTACT:
Elizabeth A. Armstrong, Sherry B. Ortner Collegiate Professor of Sociology, elarmstr@umich.edu.

October 22, 2019