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Her standard would go far beyond punishing ‘manipulation’

The standard for sexual consent when I was growing up was “no means no.” It presumed that people who wanted to reject sexual advances would take the initiative to reject sexual advances.

The standard that is trending in colleges and universities across the country, and now law in a few states, is “yes means yes” – affirmative consent.

It sounds good in theory, but in practice it shifts the burden of proof to accused people to demonstrate that they received consent throughout any potentially sexual encounter.

Consent to kiss a partner’s neck. Consent to touch a breast. Consent to change sexual positions. Consent to continue the encounter in any respect if the partner is not consistently vocalizing consent, or acting sufficiently enthusiastic about the encounter. In other words, it renders every disputed encounter a sexual assault.

Even this standard is not enough for some advocates of changing America’s cultural understandings of consent.

Northwestern University journalism student Kathryn Augustine proposes a standard in a Daily Northwestern op-ed, one that I’ve seen articulated before. The headline writer calls it “yes can mean no,” but I would call it “affirmative consent-plus.”

As in fashionable in discussions of gender identity, Augustine rejects the assumption that consent is binary:

The typical view of sexual assault may include one person forcing someone into a sexual act, even after they outright say no. In reality, sexual assault is broader than that singular scenario; it can take place even when someone says yes.

The phrase “No means no, yes means yes” fails to take into account the context of the situation in which the individual said yes. Simplifying consent is problematic when there’s no emphasis placed on the possibility of overt pressure or manipulation.

She argues that “true consent” cannot result when a person says yes after being badgered into sexual activity through repeated requests, or is “guilted” into sex through “emotional manipulation.” It’s also not consensual if you don’t notice “cues” in your partner – “the way someone speaks, their body language or facial expressions.”

Augustine isn’t wrong that repeated pressure to have sex does not show care for a potential partner (and is already commonly judged a violation of consent in college codes). She’s not wrong that it’s important to pay attention to the context of a person’s words whenever sexual activity is on the table.

The problem is this first-year student (understandably) seems to have not considered how her recommendations would play out in a variety of situations familiar to college students.

For disputed sexual encounters between relative strangers, you aren’t likely to know your partner’s cues. One or both (or more!) of you may be impaired by alcohol or drugs, and thus even less likely to notice a worried facial expression, or stiff body language, or sound of discomfort.

Does a groan or a moan indicate discomfort or pleasure? That’s a binary choice – maybe it’s both? Is a hand pressed on the other person’s chest a sign of enjoyment or a pushback? These aren’t necessarily obvious between two people who barely know each other.

And it’s not uncommon for people to change their mind about how they perceived a sexual encounter – over the course of time, after talking to friends or campus activists, after getting mad at your partner for showing interest in someone else.

MORE: Purdue kicks out student for snuggling girlfriend without consent

This is a particular minefield in the other kind of sexual encounter, between people in more-than-casual relationships. One of the best-known Title IX lawsuits among due-process advocates involves a gay male student at Brandeis University whose former partner accused him of nonconsensual behavior over the course of a two-year sober relationship.

What were some examples of nonconsensual behavior? Kissing the accuser while he was sleeping. Looking at him coming out of the shower naked.

When a federal judge refused to dismiss the suit almost three years ago, he specifically cited the university’s implausible view of such behavior in the relationship context:

Normally, over the course of a long relationship, the parties develop implicit and explicit understandings that affect their behavior, including certain forms of non-verbal consent. Actions that might be inappropriate between strangers or casual acquaintances may be viewed entirely differently by long-term partners. Again, the existence of a relationship does not give someone the right to commit sexual assault. But neither is it meaningless and irrelevant when evaluating the question of consent.

Regarding Augustine’s concern about manipulation or guilt, it’s worth considering this is most likely in a formal dating relationship. Like the Brandeis case, it’s also incredibly subjective.

When a partner is unhappy you won’t engage in sexual activity, and either sulks or vocalizes it, is that really the threshold we want to set for sexual misconduct in a college setting, where a “responsible” finding will harm an accused student’s earnings, career, reputation and relationships for a lifetime?

Of course, there can be exceptions to these generalizations. Guilting someone in a particular context and set of facts may constitute sexual misconduct as determined by a fair, thorough and procedurally compliant investigation.

The problem is that few people believe colleges in general are capable of conducting proceedings that can consistently withstand the scrutiny of the courts and the public.

I’ve read enough Title IX litigation to know that two people can see a sexual encounter in completely different ways, and can both authentically believe that they were victimized by the other person or by the Title IX process.

Augustine and her like-minded peers would do well to consider how their open-ended, subjective standards for sexual misconduct may be interpreted in real-life, flawed proceedings.

A complainant may draw an investigator who sees a slight change in body language as black-and-white proof of revoked consent, or alternately, one who questions why a person would stay in an abusive relationship. Without narrow and objective standards, we subject ourselves to the whims of a person’s background, biases and emotions.

We shouldn’t give Title IX staff the wide-ranging discretion to make life-altering judgments based on vague standards or context-free evaluations of consent. It only breeds more distrust in the ability of the system to deliver just results.

MORE: Federal judge validates gay student’s due-process lawsuit against Brandeis

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