Media coverage regarding sexual assault among college students puts pressure on universities to improve their sexual consent policies. The headlines express the controversy that surrounds sexual assault in college. American and Canadian universities are pressured to investigate and address the complaints of students. Both the accused and complaining student usually acknowledge the occurrence of sexual contact, but disagree about it being consensual. While most awareness and educational campaigns emphasize how important getting sexual consent is, they do not clarify what is considered consent.
The terms rape, sexual assault and battery have no globally accepted definitions. Legal definitions and that of researchers vary. In general, they refer to sexual acts that are obtained by (the threat of) force or without consent.
In this article, sexual assault refers to sexual touching or penetration without consent.
While it has been documented in the literature since the 1950s, addressing sexual assault became a priority in the US during the Obama era. New guidelines regarding the prevention of and response to sexual assault by universities and colleges were introduced in 2011. They declared that sexual violence is a form of prohibited sex discrimination and that schools are obligated by law to investigate and address complaints of sexual violence between students. Students who are not satisfied with the response, can file complaints against the school. Some students demand more severe sanctions against people that were found guilty. Some sanctioned students sued their university and mothers joined forces to raise awareness of the unfair treatment of accused students.
A number of states, including New York and California, signed legislation that obligate universities to adopt policies requiring ‘affirmative consent’. Every person involved in a sexual activity needs to have the affirmative consent of the other(s). The absence of resistance or protest does not equal consent. Affirmative consent can be revoked at any moment. The existence of a relationship alone does not indicate consent.
One in five female university students in Canada and the VS have experienced (attempted) sexual assault. The prevalence rate varies across US campuses.
Several factors affect the risk of sexual assault. Female and transgender students are at greater risk than male students. Students in their first year are at greatest risk, while graduate and senor students are at lowest risk. Drugs and especially alcohol are involved in most of the sexual assault. Sex with an incapacitated person due to drugs or alcohol qualifies as sexual assault or rape.
The greatest risk of sexual assault for females occurs during adolescence and young adulthood. Many female students have already experiences sexual assault before starting college.
Numerous aspects of college life put female first-year college students at risk of sexual assault. The conjunction of moving out of their family home - which offers a newfound freedom - and seeing college as an experimental phase, encourages them to behave differently. While this is a natural development, the combination with a limited sex knowledge, gendered sexual expectations, heavy alcohol consumption and party culture controlled by men makes them vulnerable.
Researchers and theorists have provided various recommendations and opinions regarding the conceptualization of sexual consent.
Consent can refer to a physical act (verbally or non-verbally expressing willingness) or a mental act (a feeling or a decision of willingness). There are three meanings of consent:
An internal state of willingness is explained by the question “How indicative is this behavior of consent?” This indicates that consent is not directly observable. This has limitations, as internal states of others are unknowable and private. Policies or laws could never by framed around the internal state alone, but need to be framed around behavior.
An act of explicitly agreeing to sex would be giving permission, either in writing or verbally. Most people do not explicitly discuss sexual consent, but look for indirect signals and cues.
Consent as behavior that another person interprets as willingness is similar to implied consent, which is indirectly given and normally indicated by an action, inaction, a sign or a silence. It could also be called ‘inferred consent’. This concept entails that someone observes and interprets the behavior of another person. This involves speculation and assumptions regarding willingness.
Consenting to and wanting to have sex are seen as synonyms, but they are different concepts that sometimes do not correspond to each other. One might want to have sex but not be willing (because they do not want to cheat or fall pregnant), or one might not be wanting to have sex but be willing to have sex (not in the mood, but wanting to please their partner).
Behaviors that indicate desire are sometimes interpreted as indicative of consent. This can be problematic.
Should we assume consent until the opposite is expressed or should we assume non-consent until consent is expressed? Legislation in New York and California requires universities to adopt policies that require affirmative consent. One must assume non-consent until consent is provided. Many people assume consent until non-consent is expressed.
According to the traditional ‘sexual script’ men initiate sexual activity with women, if women are not willing, they are responsible for refusing or resisting sexual advances. This is problematic for several reasons:
The affirmative consent standard addresses this issue, as the initiator is responsible for getting consent and cannot interpret the other’s refusal as insincere. The affirmative consent standard seems a good idea, but also raises questions: What counts as giving consent? In which circumstances may consent be assumed? In which circumstances should an explicit ‘yes’ not be interpreted as consent?
Some policies based on the affirmative consent standard require verbal consent. This means verbally asking and giving or refusing consent for all types of sexual behavior. When non-verbally expressed consent is allowed, it raises the question which behaviors count as consent. Wearing revealing clothes, flirting, going home with someone and getting drunk are considered indicative of sexual consent by some.
In the US and Canada, it is generally accepted to touch someone briefly on the shoulder, upper back or arm without prior consent. With regard to patting a stranger’s or non-romantic acquaintance’s behind, kissing or caressing their face, non-consent must be assumed unless consent is communicated. When it comes to relationships and dating, consent may be assumed.
“Yes” is normally an indicator of consent. In some situations the opposite is true, for instance when consent is given in the context of verbal pressure, threats and coercion it is considered not valid. Insufficient knowledge about what someone is consenting to and the effects of drugs and alcohol are other examples.
Research shows that most participants communicated consent to sexual activity both verbally and non-verbally, some gave consent non-verbally and a few gave consent only verbally. Non-verbally consent was given in the form of kissing, touching, not moving away, caressing, smiling. There are differences between men and women in showing consent. More women than men showed consent by caressing, hugging and not moving away. Consent for specific sexual behaviors was often given non-verbally. Women were more likely to give verbal consent for first-time experiences.
Signs that were interpreted as most indicative of consent were verbal and nonverbal signals (just starting or verbally communicating consent). Also considered indicative were indirect verbal signals (mentioning protection). Lower rated were indirect nonverbal signal (caressing). Not responding was rated as least indicative of consent. Paradoxically, their interpretations and their own usage of these behaviors showed an inverse relationship. Not responding was mentioned as the most used way of communicating consent but also as the least indicative of consent.
The refusal of sex was also topic of research. Many female high school and college students declared finding it difficult to refuse directly. Some had unwanted sex to avoid refusing. A small number preferred a direct verbal no. Many refusals were softened by offering excuses or delayed acceptances (being sick or menstruating, not being ready yet), in order to avoid having to express the unwillingness to have sex.
Direct verbal expressions of consent were interpreted as highly indicative of consent, although they were not the norm. Students regarded verbal consent usually as unnecessary, because they found it easy to recognize sexual interest. Students of both genders declared that females normally communicate consent non-verbally. Non-consent is often communicated verbally by women. Most mentioned the need for women to be clear and direct when refusing, in order to avoid miscommunication.
The statements that verbal consent is not necessary because it is obvious and that miscommunication is likely contradict one another. They are, however, consistent with the traditional sexual script (sexual advances by men are assumed to be consensual until women resist, it is their responsibility to communicate non-consent).
Many students associate sexual consent with a mutual understanding, willingness between people to engage in agreed upon sexual activity, and a clear state of mind, free from (too much) alcohol or drugs. Some students viewed consent direct and active, while others saw it as indirect and passive. There was a gender difference between the mentioned examples of passive consent with women thinking not resisting is indicative of consent and men thinking not pulling away is indicative of consent.
Men and women both agreed about the importance of consent, although slightly more women endorsed explicitly expressing consent. Most men and women agreed that a verbal consent policy as adopted by Antioch College might promote communication between (sex) partners, but they also deemed it unrealistic.
Nearly all participants were able to define consent. Their definitions appeared to be influenced by affirmative consent policies and legal definitions.
Although the verbal communication of consent appears ideal, it is not often used. Most students consider it unnecessary and ruining the moment. Verbal consent is used more frequently in the context of certain sexual behaviors (anal or oral sex or PVI).
The question what counts as verbal consent is difficult to answer. Is saying yes to the questions if you want to come back home or want to move to the bedroom consent to sex? Even saying ‘I want to have sex with you’ does not necessarily mean consenting and also the word ‘sex’ does not necessarily mean PVI. This indicates that verbal consent needs to be specific and stay clear of vague terms. However, specific referents to sexual acts can also come across as offensive to some.
Other difficulties with verbal consent regard the continuous process of consent, which must rely on nonverbal signals. It is unrealistic to constantly ask for consent.
The following principles might be helpful for thinking about consent (creating guidelines, interpreting research findings, study designs):
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