Affirmative Consent

by Randall S. Frederick

A decade ago when I attended a religious seminary, there was a lot of conversation on campus about affirmative consent. What it was, what it meant for relationships and sexual behavior, whether it was even a “real” thing, and how it should be legislated. Several classmates laughed it off, insisting that having to ask for consent every few minutes would “kill the mood” when they were being sexual with a partner. It wasn’t just heteronormative dude-bros, mind you. There were several women who, at least privately, said that they weren’t interested in having a sustained conversation about consent when they had already consented. “It’s annoying to even think about,” one woman told me. As I moved closer to graduation, I barely even noticed when the State of California passed California Education Code Section 67386. There had been so many conversations around the code, about the code, the consequences and impact of it on campuses, and what it would do for and against relationships that I probably ignored headlines about it. I was finishing my second Master’s degree and the code wouldn’t impact me once I left the campus, I assumed.

A decade later, I have been working for a university for six years. I sit on committees where decisions are made about student conduct including sexual violence, consent, and the parameters of what consent means between parties. It’s not hypothetical for me or for the people who have been part of those meetings, and it is not something happening “over there” in another state somewhere else, but something that affects the lives and health of specific individuals in the communities where I live and work. Being closer to these discussions allows me to see and hear affirmative consent as a process of negotiation that affects more populations than students looking to have a little fun with a partner. 

Practically, affirmative consent is sometimes frustrating for those in long-term relationships. When my wife and I started dating, for example, she would tell me to kiss her, or I would ask for permission to kiss her. My masculinity did not diminish, as some predicted would happen when I was in grad school. In fact, there was something rather appealing about explicitly stating what you wanted, intentionality to the dance of romance. On the other hand, now that we are married, my wife can – yes – express impatience when I am reluctant. She’s already given permission to kiss her. Multiple times, in fact. Get on with it, already. While there are times when we still ask, when we are intentional in our “negotiations” around sex and affection, certain things have already been negotiated by ongoing, sustained, repeated assent. Other things are not as clear, have not been discussed at all, or are conditional. For example, my wife knows that I endured physical violence for a large portion of my life. Day to day, I am not eager to be touched but instead consciously as well as unconsciously keep a “barrier” of space between myself and those around me. I am reluctant to be touched at all, especially when I am agitated or anxious. I have to consciously break out of this baseline aversion for those who mean the most to me both with my wife and even with family members like my brother, whose love language is touch, and my mother, who I didn’t hug for almost three decades and who is explicitly telling me that I need to hug her more often before she dies. 

In other words, there is a great deal of misunderstanding about affirmative consent. It is not a conversation exclusive to students on campuses, or even a conversation for sexual partners, but the name for a process by which parties express their level of comfort.

In hindsight, I wish my grandmother had not forced my cousins and me to literally “kiss and make up” after we had just gotten into a fight. That was very confusing. I wish that someone had stepped forward and told a client at the law firm I worked at that her behavior was not acceptable. I wish I had the language to even name what was happening in those situations! There are a number of uncomfortable encounters where, I’m confident, things should have been discussed instead of being assumed.

In common law, courts have historically required evidence of both a lack of consent and that there was some sort of force used in order to determine whether a rape had occurred. Force, it was established, could take many forms. Force could be shown through actual physical harm to the victim, there could be a threat – implied or explicitly made – that would cause fear of harm, there could be evidence of resistance by the victim, or an experience of sustained fear that would prevent them resisting. The burden was on the victim to show any of this, not the alleged perpetrator, so courts would have to analyze and determine whether that fear or resistance was “reasonable” in order to decide if there was sufficient “force” for a rape to have occurred. These words are italicized here because, as should be obvious, so much was left open to interpretation. One act of force in this situation does not mean that force occurred in a similar situation; the judge or attorneys might interpret events in ways divergent from the parties themselves; it was really unclear and so much was left to chance. 

As women began appearing more frequently on college campuses in the 1960s, and as more colleges became integrated in terms of the gender binary from the 1970s to the present, it seems inevitable – at least in hindsight – that discussion about rape, force, consent, and autonomy would occur. College campuses became something of a constellation in case studies. How were colleges supposed to define and regulate student behavior? How were they supposed to “punish” otherwise good students for what was, for some, simply a “misunderstanding”? What many students found was that college campuses were a good preview of offices and their future work environments. At the end of the day, the concern of the business and the concern of the individual do not overlap. 

Movements for gender equality over the last century have transformed our understanding of gender and sex in U.S. law. As part of these movements, there were growing calls for reform in how the law understood and understands consent. Many argued for reform focused on changing the definition of consent in criminal and civil laws. Many argued for degrees of punishment, depending on the offense. Many argued on whether “punishment” was even the right word. Nothing could restore their mental or emotional health and nothing could set right their experience of physical and sexual violence. More often, the victims of sexual assault, violence, misogyny, and discrimination wanted accountability rather than punishment. But once you start talking about accountability, doesn’t the institution play a role in allowing (even conditioning) the environment in which the offenses occur? “Locker-room talk” and an attitude that “boys will be boys” only enabled the offenses to continue.

Higher education was not left out. College activists called for a new understanding of consent on campus as well. In fact, campuses became one of the primary areas of American society to even understand these issues both by actively working through them and by tracking their tangential relations in an understandable way. The efforts of these activists were supported by the passage of anti-discrimination laws like Title IX, which created a legal duty for institutions of higher education to prohibit and redress gender discrimination. It was Antioch College’s 1991 affirmative consent policy, written by students in response to an incident of sexual assault in their community, that became a national touchpoint in the changing understanding of consent. As the first to name and describe what affirmative consent is, discussions about Antioch’s policy still resonate today.

In 1990 a group of students, the Womyn of Antioch, began a campaign to promote a culture free of sexual violence. Through this effort, a document was created which became known as the Sexual Offense Prevention Policy (SOPP), Antioch College’s formal attempt at ending sexual violence and sexual harassment while fostering a campus culture of positive, consensual sexuality. The policy mandated that “all sexual intercourse… must be consensual” and, to this purpose,

affirmative consent means verbally asking and verbally giving or denying consent for all levels of sexual behavior. Non-consensual sexual behavior, verbal and physical sexual harassment are not tolerated at Antioch College. Antioch College strongly encourages students, faculty, staff and visitors to report any violations of local, state, and federal law or conduct deemed inappropriate under this policy, to the college’s Title IX Coordinators, or when appropriate, to law enforcement officials.

Sexual Offense Prevention Policy, Antioch College (1991)

There is a lot to unpack here, not least of which is the inclusion of Title IX and the recognition that law enforcement may be appropriate since colleges and universities can only assist to a certain extent under Title IX. Further, Antioch specifically outlined what affirmative consent meant. Though the term may be intuitive for some, affirmative consent is “defined as the act of willingly and verbally agreeing to engage in specific sexual conduct. The following are clarifying points:  Affirmative Consent must be obtained each and every time there is sexual activity.”

  • The person who initiates sexual conduct is responsible for verbally asking for the affirmative consent of individual(s) involved.
  • The person with whom sexual conduct is initiated must verbally express affirmative consent or lack of “consent.”
  • Each new level of sexual activity requires affirmative consent.
  • Use of agreed upon forms of communication such as gestures or safe words is acceptable but must be discussed and verbally agreed to by all parties before sexual activity occurs.
  • Affirmative Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).
  • In order for affirmative consent to be valid, all parties must have unimpaired judgment and a shared understanding of the nature of the act to which they are consenting, including the use of safer sex practices.
  • A person cannot give affirmative consent while sleeping.
  • Silence conveys a lack of affirmative consent.
  • At any and all times when affirmative consent is withdrawn or not explicitly agreed to, the sexual activity must stop immediately.
  • All parties must disclose personal risk factors and known STIs.

Since 1990, affirmative consent has been expanded and developed (or ignored) depending on how intensely these conversations have been allowed to take place and whether their have been advocates to keep the issue at the forefront of public discourse. For me, that meant that I had never heard the term for the first three decades of my life. The State of Louisiana, where I grew up, has a remarkable history of disadvantaging women, silencing victims, and allowing offenders to perpetuate cycles of violence. When I moved to California, it seems more than a few of my classmates had experienced something similar, considering the way that they laughed at advocates for affirmative consent on our campus. Many campuses don’t have this response, though. Some student bodies may try to laugh it off, diffusing discomfort with humor that attempts to dismiss difficult issues. Other campuses respond differently.

Freshmen at York University walked out of lecture theatres in 2016 before consent talks were allowed to take place and a number of talks at other institutions have been boycotted. Students have branded talks, lectures, discussions, student groups, and awareness efforts as patronizing and insulting, accusing the organizers of inferring they don’t fully understand the limits of consent or “don’t need to be taught how to not be a rapist.” Despite protests like these, the fact is that everyone – students, graduates, recruiters, accountants, parents – needs to have a basic understanding of consent to protect themselves, to recognize when they or someone they know may have been victimized, or yes, to ensure we don’t commit similar offenses or unintentionally harm someone.

We may resent the implication of being labeled a sex offender, rapist, or harmful, but without arming ourselves with knowledge of the subtleties of the law we may overlook – even laugh at – something that deserves our serious attention. There are, after all, hundreds of exceptions, ethical questions, boundaries, and good-faith areas of confusion. When it comes to consent there are still grey areas of which we need to be aware.

For example, what is the impact of intoxication, deception, or ableness on consent? If you have sex with a drunken partner, were they able to give consent to the sexual act? Does whatever happened “matter” if they even remember it? If a woman attends an event dressed as a man and meets a woman who consents to sexual touching – believing her partner to be a man – has she truly consented to sexual activity? Or if you tell someone you will wear a condom during sex but you then fail to wear one does that negate consent?

These are genuinely tough questions, not hypotheticals in a philosophical exercise or extreme circumstances that we will never encounter. We know that intoxicated consent may amount to consent if your sexual partner has retained the capacity to consent, that a gender deception could negate consent and that wearing a condom could be an integral part of the agreement to have sex. The reality of consent will depend on the circumstances of each case and on the accused’s state of mind. 

The problem is not that students at college campuses and universities are being singled out to receive classes on consent, but that this information is not being delivered more broadly. It is abundantly clear that when it comes to consent there is still a lot that the wider public needs to learn.

Broadly, affirmative consent places the responsibility on the alleged perpetrator of a sexual assault to show that the other person consented, rather than the other way around. It focuses on the voluntary agreement and participation of all individuals in an encounter, rather than on a showing of some sort of force to submit. Across states and across the last three decades, laws and policies regarding affirmative consent continue to share the following key principles.

  • Situation specific – Past consent does not imply future consent.
  • Person-specific – Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another.
  • Ongoing – Consent can be withdrawn at any time.
  • Not silence – Silence or absence of resistance does not imply consent.
  • Not incapacitation – Someone who is incapacitated – due to alcohol or other drugs because they are asleep or unconscious or because of an intellectual or other disability that makes them unable to consent – cannot consent.
  • Not Coerced – Coercion, force, or threat of coercion or force, invalidates consent.

Lack of resistance does not equal consent, so if one party has not received a voluntary agreement from the other party, it is not considered consent. This is the “affirmative” of the affirmative consent process – a yes means yes, and anything else does not indicate a yes. The onus is on each partner to ensure that the other partners have consented to the activity.

The conversations taking place on college campuses began to expand to society at large with a new generation of graduates. In the criminal justice context, prosecution of rape and sexual violence began to include the role and breach of consent. The definition of consent used on campuses requires an affirmative indication of willingness to engage in sexual activity. This has since been adopted in criminal law by a few countries. For example, Canada’s criminal code defines consent as the voluntary agreement of the complainant to engage in sexual activity. In a sense, discussions of consent are important, yes, but only when consent has been breached or agreement has been broken.

In America, the Federal Bureau of Investigation changed the Uniform Crime Report’s definition of sexual assault in 2013 to include the phrase “without the consent of the victim” rather than “requiring force,” significantly redefining how these cases were understood and prosecuted. 

In 2014, the White House’s Task Force to Protect Students from Sexual Assault created a Checklist for Sexual Misconduct (a nonbinding guidance document) that endorsed the use of an affirmative consent standard by higher education institutions. By 2015, according to the National Center for Higher Education Risk Management, more than 800 colleges had included a definition of affirmative consent in their sexual assault policies.

Different states have different laws. This might sound obvious, but it’s important when thinking about how your institution should define consent, both because you might be required to define consent a certain way and because these laws can provide helpful models. Naturally, you should research your own state, even your own jurisdiction for any other applicable laws that may impact your work, campus, or community.

California Education Code Section 67386

In 2014, California became the first state to require that all colleges use an affirmative consent framework in their sexual misconduct policies, defining affirmative consent as:

Affirmative, conscious, and voluntary agreement to engage in sexual activity.

Each person involved in the sexual activity has a responsibility to ensure that they have the affirmative consent of the other(s) to engage in that activity.

Section 67486’s Principles of Affirmative Consent

  • Lack of resistance – lack of protest or resistance does not equal consent, nor does silence
  • Ongoing consent – affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time
  • Past relationship – a dating relationship or past sexual relationships between the persons involved should never be assumed to be an indicator of consent by itself
  • Affirmative – Individuals need to make affirmative efforts to obtain consent: Under this law, it is not an excuse that person A believed person B consented due to person A’s intoxication or recklessness, or because person A did not take reasonable steps, in the circumstances known to them at the time, to determine whether person B consented
  • Intoxication – it is also not an excuse that person A believed that person B consented if person A knew or reasonably should have known that person B was unable to consent because they were asleep or unconscious, incapacitated due to drugs, alcohol, or medication (so that they could not understand the fact, nature, or extent of the sexual activity), or was unable to communicate due to a mental or physical condition.

New York Education Law Article 129B

In 2015, New York passed Educational Law article 129B (Enough is Enough), which among other things, requires all institutions of higher education to use the following definition of affirmative consent in their codes of conduct.

  • Situation-specific
    • Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act
  • Ongoing
    • Consent may be initially given but withdrawn at any time. When consent is withdrawn or can no longer be given, sexual activity must stop.
  • Not Incapacitation
    • Consent cannot be given when a person is incapacitated: i.e. when they lack the ability to knowingly choose to participate in sexual activity. This may be caused by lack of consciousness or being asleep, being involuntarily restrained, or if they otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
  • Influence of Drugs/Alcohol on person initiating the Act
    • Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
  • Not Coerced
    • Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.

Illinois Statutes Chapter 110. Higher Education § 155/10

In 2016, Illinois passed 155/10, requiring institutions of higher education to have sexual misconduct policies with a definition of consent that, at a minimum, recognizes that consent is

  • Freely Given – Consent is a freely given agreement to sexual activity.
  • Lack of resistance – a person’s lack of verbal or physical resistance or submission resulting from the use of threat of force does not constitute consent.
  • Manner of dress – a person’s manner of dress does not constitute consent.
  • Situation-specific – a person’s consent to past sexual activity does not constitute consent to future sexual activity.
  • Person-specific – a person’s consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another.
  • Ongoing – a person can withdraw consent at any time.
  • Capable – a person cannot consent to sexual activity if that person is unable to understand the nature of the activity or give knowing consent due to circumstances, including because they are: incapacitated due to the use or influence of alcohol or drugs, asleep or unconscious, underage, or incapacitated due to a mental disability.

They also recognized that state agencies like colleges and universities should not limit themselves to the statute, noting that institutions may add additional, more protective requirements to their definitions of consent as well.

Connecticut Section 10a-55M

In 2018, Connecticut enacted § 10a-55m, requiring institutional policies to use “affirmative consent” which it defined as: “Active, Clear, and Voluntary agreement by a person to engage in sexual activity with another person.”

Minnesota Section 135A.15 

Recently in 2019, the Senate of the State of Minnesota passed and enacted their Higher Education Omnibus Bill, which included Section 135A.15, requiring that students be taught a “freely given” consent framework in required prevention education programming. 135A.15 defines consent for these purposes as:

  • Words or overt actions by person A indicating a freely given present agreement to perform a particular sexual act with person B. 
  • Consent does not mean the existence of a prior or current social relationship between persons A and B or that person A failed to resist a particular sexual act.
  • A person who is mentally incapacitated or physically helpless cannot consent.
  • Corroboration of person A’s testimony is not required to show lack of consent.
  • Though the law does not require institutional policies use this specific standard, the best practice would be to have consistency between policies and training.

As of 2022, several other states have also passed legislation requiring higher education institutions to use an affirmative consent standard in their sexual misconduct policies. However, fewer than ten states in America include non-consensual sex without a showing of force or threat in their criminal law definition of rape. Few address sexual harassment, a separate experience from sexual assault or coercion. There is still tremendous work to be done to define and create understanding around both affirmative consent as well as sexual violation and harassment. College and university campuses have remained a testing ground for new levels of awareness and understanding before they begin to appear in social discourse. Affirmative consent has, accordingly, been adopted much more widely in higher education because campuses remain at the frontier of these discussions. 

But why is affirmative consent important for those of us who are no longer attending an educational institution or teaching at one? As Zhana Vranglova of Teen Vogue writes,

Over the past couple of years, we have started emphasizing the importance of sexual consent more than ever before in U.S. history. But what often gets left out of these discussions is how exactly you go about the business of obtaining and providing consent in real-life sexual situations. And especially, how to do it without the much-feared “ruining of the mood.”

There’s more than one way to approach consensual sex. The debate is still raging over where exactly the line of consensual sex versus sexual assault should be drawn: Some insist that the old “only no means no” approach is adequate, which is the idea that unless you explicitly say “no,” you are implicitly consenting to whatever is being done to your body. Others argue that we need a new standard of “only yes means yes,” which is the idea that unless you explicitly say “yes,” you are not giving consent. 

Regardless of where you think the legal lines should be drawn, we can all agree that we want both ourselves and our partners to be enthusiastic about any sexual encounter. That is to say that every sexual encounter is ideally met with enthusiastic consent, rather than a situation where someone feels obligated or pressured to say yes, despite not being totally excited about participating.

Zhana Vranglova, “Consent 101” Teen Vogue

Note:

If you or someone you know has been sexually assaulted, you can seek help by calling the National Sexual Assault Hotline at 800-656-HOPE (4673).For more resources on sexual assault, visit RAINNEnd Rape on CampusKnow Your IX, and the National Sexual Violence Resource Center.

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