By EMILY WOOD
Emma Sulkowicz—the mattress-toting student at Columbia University—has become a household name as photographs of her carrying her dorm room mattress around campus have flooded Facebook newsfeeds and even The New York Times. Sulkowicz uses her mattress as a creative protest of the lack of disciplinary action taken against the student who she says raped her.
The Sulkowicz story highlights the recent increased attention to sexual assault. One in five women on campus experience sexual assault each year, and fewer than 5 percent of campus sexual assaults are reported, according to a study by the New York State Coalition Against Sexual Assault (NYSCASA).
Colleges around the country, many accused of long ignoring the issue, must now grapple with a response, The answer that many colleges are turning to is affirmative consent—the policy colloquially known as “yes means yes.”
Yet affirmative consent is a little more complicated than the “yes means yes” catch phrase. And as colleges rush to bring in new policies, some students remain unaware of the change. When the message does get through, insufficient education on what new affirmative consent policies require “in the moment,” is leaving students confused.
In California, the law now requires all public universities to implement an affirmative consent policy on campus to receive funding, and a number of colleges in other states have begun to follow suit. On September 30, New York University amended its own policy to redefine consent as affirmative consent (see discussion of the difference below). And on October 2, the State University of New York (SUNY) joined ranks, requiring affirmative consent on all of its 64 campuses.
Its Complicated: Many academics say that affirmative consent can be confusing. “I am not sure I understand all the ins and outs of ‘affirmative consent’ myself,” says Samuel Mistrano, an associate professor at USC’s School of Social Work who specializes in social policy.
Students too are finding the new policies hard to break down. Senka Joti, a junior at NYU studying psychology and child and adolescent mental health, admits that she’s confused by the language of the new policy. “We did get an email from NYU about changes made to the policy, but those emails are often long, tedious and full of legal terms. There’s nothing really accessible that I know of that fully explains how the university would handle these issues.”
Like Joti, Sean Fontes, a junior at the University of California at Berkeley, says his understanding of affirmative consent is only partial. “I get the basic concept that you now need explicit consent rather than an assumed consent, but beyond that I don’t really understand it.” Fontes thinks he probably got an email about Berkeley’s policy change, and it most likely ended up in spam.
On the Record: Affirmative consent is confusing because it has been used as a blanket term for a few distinct policies. Ruth Jones, Occidental College’s Title IX coordinator, gender and equality litigator, and law professor, explains that, “In the initial reporting of the California law, and in policy changes in other states, reporters didn’t really get that there’s a difference between a lack of consent standard, an affirmative consent standard, and a verbal consent standard.” This difference is key, and determines which acts are acceptable and which ones qualify as assault. Let’s break it down:
• Consent→ This is the standard that U.S .law requires everywhere. According to Jones, it says that sexual assault occurs when “one party engages in sexual activity despite receiving, by words or actions, communication that the other party did not want to engage or continue engaging in sexual activity.” In other words non means no.
• Affirmative Consent→ This is a stronger policy that is applied on many college campuses, including NYU. It says “permission, in the form of words or deeds, is required before you can engage in sexual activity.”
• Verbal Affirmative Consent→ This is even stronger than affirmative consent. It holds that express permission is needed before sexual behavior can begin, “but consent must be verbal, conveyed with words,” Jones says. Verbal consent needed.
Loud and Clear, Education and Prevention: Whatever a college’s consent standard it’s “an incredibly important part of prevention” to fully explain the policy and expectations to students, says Jones. One email will not suffice, she says, and advises colleges use a variety of outreach methods including information sessions. “At Occidental, we have mandatory online education before students start. They can’t register unless they complete it. We also have programs during orientation, and special training for subgroups.”
Lets Get Physical: So how can that be put into practice? At NYU, and other institutions with affirmative consent it means that before beginning any sexual behavior (before a kiss for example), all parties involved need to convey their consent through actions or by saying yes. There is no black-and-white definition for what a consent-granting-action would be, but NYU’s policy does warn that “Silence, passivity, or the absence of resistance does not imply consent, and relying solely on nonverbal communication may result in a violation of this policy.”
It also advises that if any uncertainty exists, students should seek verbal consent when you go from one level of intimacy to another, consent is again needed. So if you move from kissing to touching, words or actions are again needed to make sure everyone involved still wants to continue. And again when clothing is removed. You get the idea.
Importantly, there are a few situations when consent can never be given: when one party is drunk or under the influence of drugs. Unfortunately NYU’s policy also does not define how students should determine whether someone is drunk.
If a college has a verbal affirmative consent policy, the same rules apply, however the consent can’t be communicated through actions, so a verbal “yes” is needed to engage in each level of sexual behavior.
A Work in Progress: “Just changing the standards for consent alone will be insufficient to address sexual assault,” says Jones. “There is not one solution to sexual assault on campus. It requires a variety of approaches,” and affirmative consent could be an important component.
Under affirmative consent policies, such as the resolution implemented at SUNY, colleges must make a host of resources available to students, from counseling to legal assistance. “Making the community aware of the service that are available not only helps people to know where to get help, but it also lets people know that this kind of behavior [sexual assault] is unacceptable. It also warns people that accountability will take place,” says Stephanie Nilva of Day One, an organization in New York that focuses its resources on issues of teen dating violence.
For Joanne Zannoni, the executive director of NYSCASA, its a step in the right direction, but worries the policy may not be enforced, just as she believe, actual sexual assault case have gone unpunished by college adjudication processes in the past. Zannoni says that real change will only come when as a society, we are “willing to let go of long-held myths about sexual assault and hold offenders accountable,” and she hopes that affirmative consent can be a stepping-stone to doing so.