Hooking Up at an Affirmative-Consent Campus? It’s Complicated
October 21, 2014
One afternoon during Labor Day weekend, a group of 15 or so Yale freshmen met in a classroom where history and French classes would soon be held. As they snacked on pretzels and Skittles, a few volunteered to act out a series of scenarios in which one student asks another out for frozen yogurt. In the first bit of role playing, one student was told to make it clear, in an easygoing way, that he or she wants to go out. The recipient of the invitation was told that he or she also wants to go but has a paper due. “How can you show enthusiasm while still turning down the invitation?” a prompt on a card asked. The answer generally wasn’t hard to convey or, for the freshmen watching, to interpret. Most students found that they knew how to demur while keeping the door open for next time.
In the second scenario, the stakes rose. Now the inviter must get the other person to the frozen-yogurt shop. And the invitee does not want to go, although — like most of us — he or she doesn’t want to be rude. “How would your character handle this unwanted invitation?” the second card read. The interaction made everyone in the room uncomfortable, as the inviter grew increasingly persistent and the invitee tried to fend the other off.
The intended lesson of this 90-minute workshop was that the line between a request and a demand, welcome interest and unwanted pressure, is usually fairly obvious. “This is the skill set people hammer out as little kids,” says Melanie Boyd, an assistant dean of student affairs. She wants students to realize that they know how to recognize agreement, refusal and ambiguity.
The workshop reinforced policies, newly adopted by a growing number of universities, requiring students to make sure they have continuing affirmative consent for every phase of a sexual encounter. The policies, many of which have gone into effect in the last year, were created to help clarify internal university investigations of sexual-assault accusations. In the past, the main question was whether the person (usually a woman) who claimed that she was raped had made it clear that she said no (“No means no”). The new rule shifts the inquiry to whether the student accused of assault got a signal of consent (“Yes means yes”). In California, Gov. Jerry Brown recently signed an affirmative-consent bill, making “yes means yes” the standard at the state’s colleges and universities. To continue to receive state funds for student financial aid, California institutions investigating allegations of sexual assault must determine whether both parties gave “affirmative, conscious and voluntary agreement.” Lack of resistance and silence no longer constitute proof of consent.
“Yes means yes” is part of a new conversation on campus. When I was a Yale student more than 20 years ago, I remember a few women setting up a microphone, after a Take Back the Night march, to tell stories of what we called date rape. But I don’t remember anyone thinking the university would do anything about it. Ten years ago, I wrote about a handful of women who wanted better treatment from Yale, but their complaints seemed isolated and not much came of them. Then beginning around 2011, student activists from across the country started going public. They found one another online, called themselves survivors and demanded that their institutions change. And now everyone is talking about the problem, including President Obama.
The activism has forced not just administrators, faculty members and politicians to reckon with what goes on when students have sex, but also young men on campus. The White House wants them to sign on to a campaign called It’s on Us. Fraternities are holding training sessions about preventing sexual assault (as many cope with related investigations and lawsuits). At Yale, students are required to participate in multiple workshops on sexual misconduct. “You can’t go on Facebook or Twitter for 10 minutes without seeing a post about these issues,” a 19-year-old English major told me.
He was confidently navigating the cultural shift. “Asking, ‘Are you O.K. with this?’ doesn’t have to be uncomfortable,” he said. “And in the aftermath, it’s huge. You have a more positive memory of having sex with that person, because you don’t feel worried.”
But most male students expressed some nervousness about accidentally running afoul of consent rules, especially because drinking usually precedes a casual hookup. “It creates a crazy gray area that scares the hell out of everyone,” one 21-year-old economics major told me. Some wondered whether training can really prepare you for what is often sex between relative strangers. One freshman woman explained the complicated dynamic by telling me about another freshman-orientation workshop, this one on intimacy. She was startled to hear several men say that they found holding hands more intimate than getting a hand job. The male students I talked with pointed out that holding hands, especially in public, is something you do when you are in a relationship, while a hand job could happen during a hookup. In theory, when it comes to sex, it might make sense to talk about what the other person wants as it’s happening. But to do so, you might have to be a little bit tender, a little bit vulnerable. It’s hard to have that sort of conversation if there’s no intimacy.
This is a great law and sets expectations clearly. Just the existence of the law and education on campus will reduce sexual assault and…
“It would be much more gratifying, and in both parties’ best interest, for both the girl and guy to be straightforward — ‘Hey, I’m willing to do this,’ ” a 19-year-old male water-polo player said. “And yet the vocabulary for it is not really there.” Affirmative-consent policies try to address this by recognizing body language as a form of consent. But to most of the men I talked to, this seemed like an invitation to more ambiguity, not less.
One area where the men were more at ease was “bystander intervention.” Universities know that probably the biggest threat to women on campus comes from a small group of serial predators who, research suggests, are responsible for most assaults. Some institutions, like Yale, are training students to watch for warnings signs that someone might be at risk. Sophomores take a workshop in which they watch an eight-minute video of a girl who goes out dancing, drinks to the point of bleary-eyed obliteration and lets a guy take her into a bedroom, where he forebodingly shuts the door. The second half of the video rewinds, noting the points at which a friend, a bartender, a stranger or a roommate could have stepped in to protect her. The interventions mostly aren’t lengthy or heroic. They’re small moments, and students are encouraged to be alert to indications that someone is exerting or feeling sexual pressure and to feel comfortable stepping in.
And they do. Every male student I talked to had a story about intervening on the dance floor or at a party, mostly by just saying hello to someone who looked like a target of unwanted aggressive attention. The students said they looked out for their friends. They said they looked out for nonfriends who seemed headed for drunken trouble. As observers of a potentially fraught sexual encounter, if perhaps not as participants, they did know how to ask, “Are you O.K. with this?” “Doing that yourself is way more awkward than doing it as a bystander,” a 20-year-old rugby player said.
In the quest for a safer campus, it probably comes more naturally to institutions to help students learn prevention than to adjudicate disputes over consent after the fact. Education has always been the business of universities, and while federal law requires those that receive federal funds to make investigating and responding to sexual-assault complaints their business too, it’s not easy. Even as survivors push for more protections for victims, other groups — including more than two dozen Harvard law professors, in a recent statement — are challenging new disciplinary procedures, saying they are unfairly stacked against those accused of sexual assault. This is difficult territory to get right. But for the first time, at some universities throughout the country, relative indifference has given way to dead seriousness.
Emily Bazelon is a staff writer for the magazine and teaches a writing course at Yale Law School.
A version of this article appears in print on October 26, 2014, on page MM13 of the Sunday Magazine with the headline: The Meaning of Yes.