Policy Requires Affirmative Consent For Sex

By Jane Stancill and Cleve R. Wootson Jr. The Charlotte Observer.

CHAPEL HILL

Thousands of incoming students at UNC Chapel Hill were asked to sign a new pledge this fall that had nothing to do with cheating or plagiarism.

It was about sex.

The students were promising that they understood the university's new standard of consent -- that both parties must "affirmatively agree" before engaging in sexual activity.

That expectation, outlined in the university's new sexual misconduct policy, is also sweeping public and private universities around the country.

UNC Charlotte revised its Code of Student Responsibility over the summer, and it requires affirmative consent, even though those two words don't appear in the policy, a university spokesperson said.

The code prohibits committing sexual acts, sexual contact and sexual exhibitionism without consent. The university has recently hired a person to educate students about affirmative consent, and it is hosting a series of workshops for students based around one theme: "Every Kiss Begins With Consent."

Nicole Madonna-Rosario, an interpersonal violence prevention specialist for UNC Charlotte, said the policy and the workshops aim to get students to "slow it down and make sure you have certain conversations with certain pivotal moments."

She said the program and policies seek to give students clear boundaries of what is expected and what is unacceptable.

"Our typical college first-year student is still sort of exiting the high school mentality. This is the first time they've been away from parents or structure or guidance. It's such a huge adjustment, but the idea of making connections and relationships is something you're never really taught. We're going to really try to make it as clear as possible."

At Queens University of Charlotte, a spokeswoman said Friday she knew of no such policy on campus. Johnson C. Smith University and Davidson College officials couldn't be reached.

The action followed the online publication of a 20-year-old Davidson student's account of how the college failed her in a sexual misconduct case and the release of a White House report that said colleges and universities must step up their handling of a crisis in which 1 of every 5 women is sexually assaulted in college.

Most Ivy League campuses have adopted the affirmative consent standard, as has Duke University. Early this month, the State University of New York mandated a uniform definition of affirmative consent for its 64 campuses.

In the most far-reaching example, California last month enacted a state law requiring any campus that receives state funds to have the standard. The "Yes Means Yes" law defines consent to require "affirmative, conscious, and voluntary agreement." Silence or lack of resistance do not constitute consent under the definition.

Like some campus policies, the California law specifies that consent must be ongoing during sex and can be revoked at any time. Additionally, a student incapacitated by drugs or alcohol cannot give consent.

Supporters say the new approach to consent will clarify boundaries as college students engage in sex, and in the process, will prevent some assaults and rapes.

Furthermore, they say it may help change campus culture and cultivate a safer environment at a time of national conversation about sexual violence on campuses.

"It's changing how people think about it, how people talk about it (and) to get them to talk about it," said Howard Kallem, UNC Chapel Hill's Title IX compliance coordinator. "It's part of that cultural shift to show that this is part of creating a healthy relationship -- making it into an exciting and positive message."

Others say affirmative consent policies have good intentions but enormous pitfalls. They say "yes means yes" flips the burden of proof and could result in unfair investigations and judicial hearings.

Joe Cohn, legislative and policy director of the Philadelphia-based Foundation for Individual Rights in Education, sees major due process problems ahead -- and ultimately, more lawsuits against universities.

"It sounds nice as a bumper sticker," Cohn said. "But when you get down to the nuts and bolts of what it actually is, what it does, how it affects people, it's really very dangerous."

Cohn said it's unclear what is acceptable proof of consent and what isn't. And the stakes are high.

"What you're talking about is whether or not people have educations and careers," he said. "Schools do not line up to re-admit other people who have been expelled for sexual assault."

Students say they like the goal of the revamped consent definition but wonder if it's practical.

"It would be good because it kind of removes that confusion," said Joseph Rhue, 21, a UNC Chapel Hill senior from Sanford. A partner either says yes or doesn't, after all.

But in reality, Rhue said, sex doesn't really work that way. "If you're going to go for it, you're going for it."

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