The movement of affirmative consent — or “Yes means Yes” in regard to consent in sexual encounters — has been popping up on college campuses across the country, with California implementing statewide legislation and New York soon to follow suit.
Gov. Andrew Cuomo announced on Oct. 2 that all SUNY schools would have to institute a policy on affirmative consent within the next 60 days. At the press conference held in Manhattan, he said the act would lead to statewide legislation requiring all New York higher education institutions to shift to this sexual assault policy.
Cuomo’s announcement follows California Gov. Jerry Brown’s signing of an affirmative consent bill on Sept. 28 that requires all California colleges and universities to adopt sexual assault policies that include affirmative consent. The bill, the first of its kind to be signed into law, also requires the institutions to create outreach and prevention programs addressing the issues of sexual assault, dating and domestic violence, and stalking.
According to the bill, SB-967, affirmative consent means both parties in a sexual encounter must provide conscious and voluntary agreement to engage in the activity, and silence or lack of protest is not included in forms of affirmative consent. In addition, the consent must occur at each stage of the encounter, and at any of these points, SB-967 states consent may be revoked.
The notable difference in this legislation from prior approaches to sexual assault cases is that affirmative consent cannot be considered viable if the accused claims it was given while the victim was intoxicated.
Traevena Byrd, associate counsel and director of equal opportunity compliance at Ithaca College, said the college will comply with all state laws and regulations regarding sexual violence and continually review its policies on the issue.
She said the college’s current definition of consent is similar to the definition in SB-967 in that it requires an unambiguous sign of consent through words or actions.
Consent at the college is specifically defined as “spoken words or behavior that indicates, without a doubt to either party, a mutual agreement to participate in sexual intercourse or other sexual activities. Indicators of consent do not include silence or past or present sexual relationships,” according to the Student Conduct Code.
Grinnell College, located in Grinnell, Iowa, is an example of a college that already has affirmative consent policy in place, as it has since 2012.
Grinnell junior Tyler Anderson, aside from being a student adviser and a varsity baseball athlete, is also a member of Grinnell’s task force for safety and violence prevention. He said all freshmen attend five community-value sessions at orientation, one of which deals with affirmative consent in sexual encounters.
When Anderson speaks to the freshmen about affirmative consent, he said, he begins with a general idea of what consent means — not just sexually, but with any encounter, such as consenting to a dance. These aspects of common courtesy, he said, then can translate into giving consent during sexual encounters.
“We can generalize the basic skills of knowing when somebody’s enthusiastic or when they’re kind of hesitant,” he said. “If it’s not enthusiastic, then it’s not like they’re actually giving you consent.”
He said Grinnell’s definition of affirmative consent is consent given knowingly and voluntarily from beginning to end for each form of sexual contact.
This consent, he said, must be mutually understood through verbal or clear physical actions like nodding or smiling.
The guidelines to affirmative consent create concern with the advocacy group called Families Advocating for Campus Equality, which board member Cynthia Garrett said was formed by the parents of three male students who were expelled after being wrongly accused of sexual assault.
“These boys now are consistently getting expelled and can’t get into any other university, so in effect their lives are over,” Garrett said.
She said colleges feel the pressure from the federal and state governments, who provide them with funding to implement these programs and handle sexual assaults.
“These administrators and professors are more likely to err on the side of guilt because it’s the safer decision,” she said.
She said the necessity of ongoing consent throughout sexual activity raises logistical questions regarding when and how to ask, as well as the possibility that the plaintiff could withdraw his or her consent by simply not saying anything and the defendant might not have realized.
Anderson said he thinks the concern that providing consent through each stage of the sexual encounter being awkward or unfeasible is invalid.
“I think that’s the urban myth around affirmative consent,” he said. “It’s more simplistic than that … really it’s just checking in — making eye contact and making sure they’re still into it.”
When alcohol is involved, however, he said it is not as black and white.
“Alcohol kind of creates that gray area,” he said. “Basically our rule of thumb is that if somebody is drunk, above the legal limit, that they are in no position to give consent, and that if they give what you believe to be consent, it’s actually not consent.”
In addition to freshman orientation, he said the task force also provides in-services throughout the year and will be conducting a campus-climate survey in the spring to assess sexual misconduct on the campus.
“The attitude we’ve taken with affirmative consent is it’s just the right thing to do,” Anderson said.