College: Students must agree ‘why’ they had sex to avoid sexual assault charges

College: Students must agree ‘why’ they had sex to avoid sexual assault charges

At Ohio State University, to avoid being guilty of “sexual assault” or “sexual violence,” you and your partner now apparently have to agree on the reason WHY you are making out or having sex.  It’s not enough to agree to DO it, you have to agree on WHY: there has to be agreement “regarding the who, what, where, when, why, and how this sexual activity will take place.”

There used to be a joke that women need a reason to have sex, while men only need a place.  Does this policy reflect that juvenile mindset?  Such a requirement baffles some women in the real world: a female member of the U.S. Commission on Civil Rights told me, “I am still trying to wrap my mind around the idea of any two intimates  in the world agreeing as to ‘why.'”

Ohio State’s sexual-assault policy, which effectively turns some welcome touching into “sexual assault,” may be the product of its recent Resolution Agreement with the Office for Civil Rights (where I used to work) to resolve a Title IX complaint over its procedures for handling cases of sexual harassment and assault.  That agreement, on page 6, requires the University to “provide consistent definitions of and guidance about the University terms ‘sexual harassment,’ ‘consent,’ ‘sexual violence,’ ‘sexual assault,’ and ‘sexual misconduct.'” It is possible that Ohio State will broaden its already overbroad “sexual assault” definition even further: Some officials at Ohio State, like its Student Wellness Center, advocate defining all sex or “kissing” without “verbal,” “enthusiastic” consent as “sexual assault.”

Ohio State applies an impractical “agreement” requirement to not just sex, but also to a much broader category of  “touching” that is sexual (or perhaps romantic?) in nature.  First, it states that “sexual assault is any form of non-consensual sexual activity. Sexual assault includes all unwanted sexual acts from intimidation to touching to various forms of penetration and rape.”  Then, it states that “Consent is a knowing and voluntary verbal or non-verbal agreement between both parties to participate in each and every sexual act. . .Conduct will be considered “non-consensual” if no clear consent . . . is given. . . .Effective consent can be given by words or actions so long as the words or actions create a mutual understanding between both parties regarding the conditions of the sexual activity–ask, ‘do both of us understand and agree regarding the who, what, where, when, why, and how this sexual activity will take place?'”

This “agreement” requirement is impractical, because unlike sex (where there is generally an implicit agreement among the participants before it can even happen, since sex is difficult to do without active cooperation), no one agrees in advance – verbally or non-verbally – to have someone touch them in a particular place while making out. No one ever says, “may I touch your breast” before doing it while making out. They may (and usually do) welcome (and enjoy) it after it occurs, but they don’t specifically “agree” to it in advance (indeed, they may have expected the touch to occur in a different place, even if they found it pleasant). The very process of making out is a gradual escalation of intimacy step by step, without constant discussion or an endless series of agreements.  That may be  impossible under Ohio State’s policy, not just because it requires “agreement” (rather than mere “acquiescence”) but also because it expresses hostility to the concept of “consent to one form of sexual activity” being a signal of receptiveness to other, slightly more intimate “forms of sexual activity.”  But that’s exactly what happens in making out: when you acquiesce in one form of touching or other “sexual activity” long enough, that signals a likely willingness to engage in slightly more intimate forms of touching — although you are free to rebut that presumption of willingness at any time simply by saying “no” or physically conveying your unwillingness.  Such fluid interaction is threatened by Ohio State’s definition, which states that that “Consent to one form of sexual activity does not imply consent to other . . . sexual activity,” that there must be “agreement between both parties to participate in each and every sexual act,” that only “clear consent” counts, and that “Consent can never be assumed, even in the context of a relationship.”

If this definition of “sexual assault” were not already broad enough, Ohio State’s Student Wellness Center seeks to radically narrow the concept of consent further (and ban “kissing” without verbal consent as “sexual assault”).  It says consent must be “verbal,” “enthusiastic,” and  must be “asked for every step of the way”;  “If consent is not obtained prior to each act of sexual behavior (from kissing to intercourse), it is not consensual sex,” it says.  Consent also must also be a litany of other things, such as “sober,” “informed,” “honest,” “wanted,” and “creative.”

This fixation on consensual “agreement” is ironic, because it logically has little to do with Title IX, which is concerned with sexual harassment, which is about what would is unwelcome, not “agreements” or even “consent.”  To be sexual harassment, conduct has to be “unwelcome,” a concept that is both broader and narrower than “consent,” as the Supreme Court explained in its Meritor decision. (To violate Title IX, sexual harassment also has to be severe enough to interfere with your education, and be the sort of thing that would offend a reasonable person in your position).

When you agree to sleep with your supervisor after he has been pestering you for dates, that’s technically consensual, but can be very “unwelcome.”  Conversely, if someone touches you without any agreement (or reason to believe you would like it), but you liked being touched anyway, that’s “welcome,” even if there was no “consent.”  (There is some overlap between consent and unwelcomeness: If you deliberately invite or incite a peer to do something, that may occasionally be deemed welcome even if you didn’t subjectively like it, as in the federal appeals court’s Scusa v. Nestle USA decision; but generally, unwelcomeness means you subjectively didn’t like an act). The obsession with “agreement” also has little to do with sexual-assault law, which often requires a showing of force or intimidation — not just lack of consent — for convictions, and even when consent is at issue, implied consent almost always counts, too (such as welcoming or continuing to participate in an activity).  Even if conduct like kissing is unwelcome (and amounts to sexual harassment), it often doesn’t rise to the level of a criminal sexual assault.  Conversely, occasionally one sees conduct that is technically sexual assault yet does not qualify as illegal sexual harassment, as in the Ninth Circuit Court of Appeals decision in Brooks v. City of San Mateo.

Ohio State also seems to ignore the law about sex and drinking.  You can’t have sex when your partner is incapacitated by alcohol: that’s rape in most jurisdictions.  But most intoxication does not rise to the level of incapacitation, and it’s perfectly reasonable to have sex with your spouse after having a glass of wine. That’s not rape, and it’s certainly not unwelcome.  But Ohio State’s definition confuses matters by saying, “By law, a person cannot give consent, even when he or she might verbally say so, when: The person is so intoxicated or unconscious due to alcohol or drugs.”  There’s a huge difference between unconsciousness (rape) and mere intoxication (not rape).

As we noted earlier, rigid “consent” requirements are for legally-binding contracts, not casual interaction among intimates. When my wife and daughter hug me, they don’t ask for my permission first. Nor do I give my formal “consent” or “agree” to a hug in advance.  It’s not necessary, because they know without asking that such contact is very likely to be welcome.  It’s simple common sense.

Similarly, people don’t ask, “may I touch your breast” or “may I touch your [deleted],” before doing so while making out, since that would be awkward, off-putting, and involve endless yammering (and maybe wake up the sleeping baby in the adjacent bedroom).  Instead, they touch their partner’s body part when the time seems right, and then stop if the partner objects.  Such contact is usually welcomed after it occurs, and may even be reciprocated, but there is no “clear” affirmative permission for it.  In the unlikely event that one partner does object, the other partner respects that objection by stopping, but the objection doesn’t render what previously occurred “sexual assault,” since there was no ill intent, and no harm done. By contrast, requiring “affirmative” permission before each touch is at odds with the actual practices of both women and men in healthy, non-abusive, egalitarian relationships.

Verbal communication shouldn’t have to occur before touching when it occurs between partners or intimates, for whom the touching is itself communicative, the way romantic touching often is (like a hug or kiss).  Requiring an “agreement” before it can occur sometimes makes as little sense as requiring an agreement before one person can compliment the other.

Ohio State’s policy may also lead to due-process violations.  It states that “Consent to one form of sexual activity does not imply consent to other . . . sexual activity,” and “Consent can never be assumed, even in the context of a relationship.” But a relationship, and a couple’s past consensual sexual activity, can shed crucial light on whether it is plausible that the couple later engaged in the same kind of activity. For example, as we noted earlier, the New Jersey courts, which have the narrowest definition of sexual consent of any state, nonetheless have recognized that the overall “course of conduct” between the complainant and the accused can show “affirmative permission.”  Indeed, they have ruled that it can be so relevant and “highly material” that it constitutionally must be considered as evidence, since a jury could infer consent from it. In State v. Garron (2003), the New Jersey Supreme Court ruled that in determining whether the complainant consented to sex, the court must consider her  overall “course of conduct over a six-year period” with the accused, such as her visiting his home and her “repeated physical contact” with him, as well as the complainant’s  past  “kisses” and “grabbing” the accused’s “derrière.”  And even in contract law, where stricter consent requirements apply, consent or agreement can be inferred from the parties’ past relationship, such as their “course of dealing,” or “course of performance.”

As we noted earlier, imposing an “affirmative” consent or “agreement” requirement for touching does nothing to help rape victims, and serves no legitimate purpose.  Even supporters of the “affirmative” consent requirement, like Tara Culp-Ressler have on other occasions admitted that sexual violence is not the result of mixed signals: studies show that people who commit sexual violence are almost always aware that what they are doing is against the will of their victims, rather than the assault being the product of “blurred” communications.

Classifying “kissing” as “sexual assault” if it occurs without “verbal” consent — the way Ohio State’s Wellness Center does — is so extreme that it could create a PR disaster.  If a school expels or even suspends a student for kissing and calls him a “sexual assault” perpetrator, many will view it as outrageous overkill, that student may sue, and groups like FIRE will publicize it as an example of PC college administrators run amok.  But if it does not expel or remove the student from campus, despite calling it “sexual assault,” people will wrongly assume there is a rapist on campus (because “the terms ‘rape’ and ‘sexual assault’ are sometimes used synonymously in common language”), angry classmates may protest the student’s presence as a result, and Ohio State may end up being denounced by web sites or journalists who depict colleges as as “rape cultures” or “rape factories” (even though the rape rate has fallen 58% since the mid-1990s).

As we noted earlier, when politically-correct Antioch College insisted on such agreements to consent in the early 1990s for things like kissing, touching, and sex, it was lampooned on Saturday Night Live, which noted that it would reduce making out and foreplay to awkward scenes like this:

Male Date Rape Player #1: . . . May I kiss you on the mouth.

Female Date Rape Player #1: Yes. I would like you to kiss me on the mouth.

[ they kiss on the mouth ]

Male Date Rape Player #1: May I elevate the level of sexual intimacy by feeling your buttocks?

Female Date Rape Player #1: Yes. You have my permission.

[ Male touches Female’s buttocks ]


Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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