The University of Minnesota is adopting an affirmative consent policy that has most students convinced—wrongly—that their sex lives are about to become more straightforward.
The proposed policy is currently under review for another 30 days before it becomes official. Its language is fairly standard, which leads me to believe that it will suffer from the same problems as other "Yes Means Yes" policies:
- It is the responsibility of each person who wishes to engage in the sexual activity to obtain consent.
- A lack of protest, the absence of resistance and silence do not indicate consent.
- The existence of a present or past dating or romantic relationship does not imply consent to future sexual activity.
- Consent must be present throughout the sexual activity and may be initially given, but withdrawn at any time.
- When consent is withdrawn all sexual activity must stop. Likewise, where there is confusion about the state of consent, sexual activity must stop until both parties consent again.
- Consent to one form of sexual activity does not imply consent to other forms of sexual activity.
"It is the responsibility of each person who wishes to engage in the sexual activity to obtain consent." But isn't that redundant? All parties to a sexual activity must be willing participants in the first place, or else they are victims of rape under any standard. That's what consent is: agreement to engage in sex. I presume the policy's authors mean to say that it is the responsibility of each person who wishes to initiate the sexual activity to obtain consent. But such a requirement is at odds with the reality of human sexual activity—the initiating party is not always so clearly defined, especially when alcohol is involved (as it often is).
Equally troubling is the mandate that each and every sexual act be hammered out beforehand. May I touch your hand? What about your wrist? May I touch your shoulder? May I kiss this spot on your neck? May I kiss this other spot on your neck? May I kiss the first spot again while I touch your hand? Nobody is going to do this. Does that mean everyone is a rapist?
Despite these obvious issues—issues inherent in all "Yes Means Yes" campus sex standards—most students and administrators at the University of Minnesota seem genuinely excited about affirmative consent. An excellent Star Tribune report quotes Alison Berke Morano—a Floridian political strategist and founder of the Affirmative Consent Project—as expressing relief that the burden will no longer be on accusers to "prove that it happened":
The problem, Morano said, is that the burden in cases of alleged sexual assault has been on victims to prove they were victimized.
"The accuser is always the one who has to prove that it happened," she said.
It's of course entirely appropriate for the burden of proof to fall upon the accuser. That's precisely how adjudication works. Morano doesn't seem understand this, although her group's website makes her case so badly that I have to wonder whether she's actually a deliberate parody of a "Yes Means Yes" supporter. (You can buy her nifty t-shirts—which depict actual sex contracts—here.)
The Minnesota students and administrators are equally mixed up:
Joelle Stangler, student body president at the U, said that's why students themselves have been demanding the change.
"Really, there's been a lack of due process for victims forever," she said. "We're now shifting and rebalancing, where both parties need to be able to demonstrate there was consent."
Kimberly Hewitt, who's in charge of investigating sexual assault complaints at the U, said the new rule could help clarify what is often a murky situation.
She noted that colleges are required by federal regulations to investigate all such allegations, whether or not they're reported to the police.
"Most sexual assault investigations that we do … are complicated," said Hewitt, vice president of equal opportunity and affirmative action. "It's a college campus, so in many cases there's alcohol involved. People may or may not be in a relationship … They're all individual, and they're all really complex."
The rule change, she said, might make the investigator's job a bit easier.
"It could be more clear to say, 'Tell me how you understood that you had permission to do this?'?" she said.
The new policy will only make things easier for adjudicators to the extent that everyone accused of sexual assault will very likely be technically guilty, since no one is going to sign a detailed consent contract before engaging in sex.