The Campus Consent Crisis

It’s a warm, late-summer day on an American college campus, and the freshman invasion is in full swing. After the flights, the unpacking and the tearful good-byes, a crowd of new faces heads out to celebrate the hard-earned victory of independence. That’s when our two underclassmen meet.

Phone numbers are exchanged during a night of conversation, dancing and furtive partaking. But after a few hours of getting to know each other, neither student is ready to call it a night just yet. The two walk, hand in hand, back to one of their rooms.

In a rare twist of luck, they have the place to themselves. They sit on the bed, which in the months ahead will also serve as a dining room table, couch and study hall, and look into each other’s eyes.

“Can I kiss you?”

“I would love that.”

And kiss they do. One of them hits the lights.

“There are so many things I want to do to you, and you to me.”

“Oh yeah? Like what?”

“I want to run my hands all over your body, feeling every inch of you.”

“That sounds nice. Let’s start with that.”

They lie down, side-by-side, and begin exploring each other’s bodies.

“What else do you want?”

“I want to take off all of your clothes, and all of my clothes, and feel your skin next to mine. Is that okay?”

“That’s more than okay.”

They undress each other, appreciating their respective views.

“I want to press my naked body against yours and kiss you all over, from head to toe. Can I do that?”

“Please, do that.”

Now comes the moment they’ve both been waiting for.

“Can I put myself inside you?”

“Yes...yes...yes!”

“Does that feel as good for you as it does for me?”

“So good. Please don’t stop.”

What we have just witnessed is a demonstration of affirmative consent, defined in California, one of the four states that legally recognize it as the standard on college campuses, as “affirmative, conscious and voluntary agreement to engage in sexual activity.” Although Ohio isn’t one of those states, you may expect this kind of interaction on the sleepy campus of Antioch College in Yellow Springs, Ohio. At this school, which looks like something straight out of a summer-camp brochure from the 1970s, the culture of consent is so strong that even as students talk openly about the kind of sex they want to have, they’re taken aback when someone attempts a hug without first asking permission.

Affirmative consent was first brought to national attention in 1990, straight from the campus of Antioch. It was revolutionary at the time in that it demanded an unequivocal “yes” at each stage of sexual interaction. The activists who fought for its inclusion in the college’s sexual-offense-prevention policy, or SOPP, became a national joke, accused of killing romance and depicted in a Saturday Night Live sketch as loonies who didn’t understand the difference between a hookup and date rape. It became easy to overlook the fact that the new policy stemmed from the rapes on campus of multiple Antioch students that fall—and those students being forced to face their rapists every day at school.

That was when the “Womyn of Antioch” declared that only “yes means yes” and that silence or “lack of protest or resistance” does not equal a yes. Back then, the idea was that you had to communicate “yes” verbally, but now the understanding across the United States is that affirmative consent can also be shown through body language, which arguably creates a gray area around sexual assault. Regardless of how it’s conveyed, affirmative consent must be “ongoing throughout a sexual activity and can be revoked at any time,” according to some of the state laws that have established it as a standard at institutions of higher learning in California, Connecticut, Illinois and New York.

Although it’s not required by law in all states, affirmative consent is the prevailing policy at most schools in the country, according to Michele Dauber, a Stanford University Law School professor who teaches a class on college policies regarding sexual assault and gender-motivated violence on campuses. Dauber is also a close family friend of a young woman known as Emily Doe, whose sexual assault by Brock Turner in northern California in 2015 exposed an alarming array of biases and blind spots when it comes to campus assault cases.

Stories like Emily Doe’s raise the question: Were the Antioch activists in fact loony, or were they just ahead of their time?

According to a January 2017 report by the Obama administration’s White House Task Force to Protect Students from Sexual Assault, one in five women and one in 14 men are victims of sexual assault while in college. The numbers are worse for transsexual men and women, with more than one in four experiencing sexual assault in college. Even Antioch reported five forcible rapes between 2015 and 2016, and that’s with an average student body of fewer than 250.

Essential to this issue is a federal law that most people associate with college sports. Title IX of the Education Amendments Act of 1972 applies to all colleges and universities, both private and public, that receive federal funding, even if only through financial aid programs used by their students. The law states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Title IX became somewhat clearer in 2011, when the Obama administration’s Department of Education issued a letter from the Office for Civil Rights. A supplementary Q&A document followed in 2014; both sought to lay out how the department would evaluate a given school’s Title IX compliance and therefore its eligibility for federal funding. Six years and one administration after Obama’s DOE letter, Education Secretary Betsy DeVos issued her own Q&A. That “interim” document rolled back the much more extensive Obama-era guidance, which has been criticized as being too victim-focused. Significant changes in DeVos’s document include no longer requiring schools to provide interim measures to protect the complainant during the investigation; asserting that “gag orders,” which prevent parties from discussing investigations, are likely unfair; letting schools decide whether to allow appeals from the person filing the claim (a.k.a. the “complainant”) when they choose to allow them from the accused (referred to as the “respondent”); and removing the recommended time line of 60 days for completing a Title IX investigation.

Perhaps the most momentous change resulting from the DeVos Q&A is this: Schools can once again choose between two standards of proof in cases of alleged sexual assault. Under the Obama guidance, the standard required was the “preponderance of the evidence.” By this standard, which is currently law in California, school authorities must find a given narrative “more likely than not” to be true in order to find a person responsible for an allegation; it’s also known as the “50 percent plus a feather” standard. But now the higher standard of “clear and convincing evidence,” defined as “so clear as to leave no substantial doubt,” is allowed, except in California. Given that most of these cases lack the benefit of witnesses or evidence typical in other disciplinary matters, the higher standard in effect favors the respondent.

DeVos, acting assistant secretary for civil rights Candice Jackson, the Department of Education and the Office for Civil Rights did not respond to queries about when official guidance would replace the 2017 interim Q&A.

The struggle to balance the interests and rights of both complainants and respondents has breached the walls of academia, spilling over into legal battles and media frenzies. One year into the #MeToo movement, which has brought down powerful men across multiple industries as stories of sexual misconduct and abuse of power have come to light, the arguments are familiar: Some say that those accused of sexual assault are being vilified without a fair review of the facts. Denver-based attorney Pamela Robillard Mackey, who chaired and convened the American College of Trial Lawyers Task Force on the Response of Universities and Colleges to Allegations of Sexual Violence, says that while the sentiment may be unpopular, it is fundamentally true from atrial lawyer’s perspective.

“Politically, and in the changing social climate, there is this prevailing notion that survivors must be believed at all costs,” she says. “This is a concern. There is a place for a complaining witness to be believed, but you simply cannot begin a truth-finding process assuming that either side is truthful. You have to start by believing no one and then seek to find that truth.”

Experts such as Lynn Hecht Schafran, senior vice president at Legal Momentum, a New York-based advocacy group for the legal rights of women, note that under Title IX, schools have an equal obligation to both parties in these cases, as well as to their community at large, with the goal of protecting students from a hostile environment rather than incarcerating someone guilty of a crime.

In arguing for the need to take seriously and respond quickly to students who report sexual assault to their academic institutions under Title IX, some experts point out that schools can take immediate actions—such as changing students’ dorm rooms and class assignments to keep the alleged victim and offender apart—that are not possible in the criminal justice system.

Clearly there are a variety of reasons victims of sexual violence in college might first seek help from their schools—including the various ways in which law enforcement has failed survivors. “Some people simply don’t want to get involved in the criminal justice system,” says Schafran. “They know how invasive it is and that it can take years.”

Only an average of 310 out of every 1,000 sexual assaults are reported to police, according to the Department of Justice’s National Grime Victimization Survey from 2011 to 2014. That means more than two out of three go unreported. But even if an assault is reported, Schafran says, police are generally the ones who ultimately determine whether to refer a case for prosecution. Of those 310 reported cases, it’s estimated only 57 will lead to arrest and only 11 of those will be referred for possible prosecution, according to FBI data from the National Incident-Based Reporting System, as analyzed by the Rape, Abuse & Incest National Network, or RAINN. This is to say nothing of the hundreds of thousands of untested rape kits that have been uncovered across the country.

“Even if a case is referred for prosecution,” Schafran says, “it is still rare for prosecutors to have specialized training in techniques for interviewing traumatized victims, and because they haven’t elicited evidence in the most effective and complete way, they may think they cannot meet the burden of proof and decide not to take the case.” Schafran explains that “trauma-informed interviewing is based on understanding how the neurobiology of trauma impacts victims’ behavior and thought processes during and after a traumatic event, whether it’s a sexual assault, home invasion or bank robbery. Because sexual assault victims’ reactions often appear counterintuitive—why didn’t she run?—being able to explain why to a jury is crucial.”

Schafran recalls a sex-crimes prosecutor once telling her, “If you have a good win-loss record in this role, that means you’re not taking the hard cases and educating the community.”

Out of the 1,000 sexual assaults we started with, on average only seven will lead to a felony conviction, and only six of those convicted will be incarcerated, according to RAINN’s analysis. And the time served can be scandalously short, as in the case of Brock Turner.

For sexually assaulting Emily Doe behind a Dumpster while she was unconscious on the Stanford University campus, in front of witnesses, Turner, a student athlete, was sentenced to six months in jail, three years of probation and lifetime registration as a sex offender. He served three months. Turner’s sentence was so controversial that Judge Aaron Persky, who presided over his case, was recalled from the bench on June 5. But leading up to his recall, Persky was supported in his sentencing by legal scholars, fellow judges and attorneys in the Bay Area.

“Women need better access to justice in the criminal courts,” says Dauber, who led the Persky recall effort. “When justice isn’t served in criminal courts, it has a deterring effect on victims and, concurrently, a lack of a deterrent effect for perpetrators. In a context in which the criminal justice system continues to fail survivors of sexual violence, colleges and universities will have to do better.”

So why didn’t Doe pursue sanctions against Turner through Stanford’s Title IX office? According to Dauber, Stanford has expelled only one student for sexual assault. The student in question was not Turner, who was allowed to withdraw from the university, quietly and voluntarily, shortly after his arrest, thus preserving his NCAA eligibility.

Like Emily Doe, the overwhelming majority of victims of sexual violence in college do not report their attacks to school officials. In fact, 93 percent don’t, according to a 2016 Bureau of Justice Statistics study. And when they do, the results can be similarly lopsided. Just ask Emma Sulkowicz, a Columbia University student who reported an assault and lost the Title IX claim against their alleged attacker. (Sulkowicz identifies as gender nonbinary and uses the pronouns they, them and their.)

Before Sulkowicz began carrying a 50-pound mattress around campus for an entire academic year as a college-sanctioned piece of performance art, the man who allegedly committed anal rape in the midst of consensual vaginal sex was found “not responsible” following a hearing.

In a November 2013 letter addressed to Columbia College dean James Yalentini, Sulkowicz sought an appeal of the school’s finding. Regardless of whether you believe Sulkowicz’s account, the letter paints a grimly resonant picture of the system’s weaknesses. Sulkowicz described Columbia’s significant departures from its own gender-based misconduct policies, including delays far in excess of the school’s recommended time line for a hearing and a careless approach to investigating, as well as a general feeling of not being taken seriously.

Before Sulkowicz graduated, mattress in tow, in the spring of 2015, Columbia launched a 2.2 million study known as the Sexual Health Initiative to Foster Transformation. Its results largely follow existing national data on prevalence and underreporting of college campus sexual assault. The study is irrelevant and unnecessarily expensive, says Sulkowicz. “It doesn’t cost a thing for the people in power to do the right thing,” they say, referring to Dean Valentini’s denial of the appeal and Sulkowicz’s claim that he ordered them to “get out of his office” when they came by in person to discuss the matter.

A Columbia University representative had no comment on Sulkowicz’s response to the study.

Cases like this hit close to home for New Yorkbased attorney Andrew Miltenberg, who has three children, including a son and a daughter in college—and whose clients include the man accused of raping Sulkowicz.

Miltenberg estimates that over the past five years his office has represented more than 250 clients—mostly male respondents—in disciplinary matters in more than 30 states. He says that due process has been violated in Title IX cases everywhere from Division I and Ivy League schools to small programs many of us would have a hard time finding on a map. The cause? Overcorrecting after years of being asleep at the wheel when it comes to handling claims of sexual harassment and assault.

“IT DOESN’T COST A THING FOR THE PEOPLE IN POWER TO DO THE RIGHT THING.”

“I think the implementation of what was otherwise a well-intentioned policy has been a disaster,” he says of the Obama guidance.

He cites a lack of consistency between schools and within them, boiling it down to a “genuine misunderstanding and misapplication of policy and protocol”—a critique that strangely echoes that of Sulkowicz.

Miltenberg says that all too often poorly outlined investigation and hearing policies in student handbooks make it impossible to know what anyone involved in a Title IX investigation should expect to happen, what the time frame will be and whom they will be dealing with. He has also seen interim measures, such as changes in class schedules and living arrangements, disproportionately impacting respondents.

“I’m not a men’s rights proponent,” Miltenberg says. “I’m a due process and civil rights advocate, and what I know is that the process as it has been executed in the majority of cases I’ve seen is at best confusing, not well developed and not well thought-out.”

And while Miltenberg doesn’t necessarily take issue with the preponderance-of-evidence standard, he says that “starting with trauma-informed investigating creates a situation where that standard of proof is very hard to overcome for the respondent.”

Miltenberg also feels that, often, investigators act as context-blocking gatekeepers rather than collectors of evidence. He has seen cross-examination excluded from school proceedings and feels most appeals are not truly independent. Even so, he acknowledges that college campuses have to step up their response to sexual assault.

“On the one hand,” he says, “we have a place to do this, and that’s the criminal justice system. But on the other hand, municipalities are stretched, and also not everything that happens on college campuses rises to the level of what would interest the police. So as a practical matter there still has to be some mechanism on campus to protect people from sexual assault and misconduct.”

Which brings us back to Title IX—at press time still twisted between the mandates of two wildly different administrations.

SurvJustice, Inc., Equal Rights Advocates and the Victim Rights Law Center have sued DeVos, Jackson and the Department of Education, seeking to have DeVos’s new guidance thrown out, which could effectively reinstate Obama-era guidance. The complaint argues that the 2017 Title IX policy conflicts with the law’s requirements, is discriminatory against women and is based on a mistaken view that Obama-era guidance limited due process-while noting that there have been problems with the way schools have put more recent policies into effect.

The defendants have filed a motion to dismiss the lawsuit. Whether the case moves forward or not, the arguments made by the plaintiffs highlight the tension between the rights of alleged survivors and those of the accused in the college setting. When it comes to solutions, opinions are no less divided.

Things Miltenberg would like to see implemented across the board include investigators with more training, full panel hearings and a move away from the single-investigator model in which one person must collect evidence, issue findings of fact and issue a determination of responsibility, as well as an independent appeal process that is completely removed from the school and conducted by someone with training in adjudication.

“A thoughtful, transparent process that gives everybody a full and fair and reasonable opportunity to be heard, and heard by people who don’t have a predetermined bias and have been trained properly, would go a long way,” Miltenberg says.

Mackey, of the American College of Trial Lawyers Task Force, says quite the opposite. In a white paper published in March 2017, after the ACTL’s yearlong investigation, the organization recommended raising the standard of proof to that of clear and convincing evidence to strengthen due process for respondents while avoiding more procedural safeguards.

“What is happening in these processes is so far away from what happens in civil proceedings,” she says, citing a lack of resources and training. “We needed to present a compromise that was usable, accessible and practical for campuses or universities but gave all involved fair due process. Heightening the standard of proof was one way to add process without turning these investigations into full-blown criminal trials.”

Other recommendations from the ACTL include the use of completely impartial investigations, right to counsel, access to evidence, more complete notice of allegations given to respondents and some form of cross-examination. Whether those measures, or Miltenberg’s recommendations, will be implemented, and whether they’ll actually turn the tide, is anyone’s guess.

Back at Antioch, three students at a picnic table behind the main hall on a cool spring day have a few ideas about how to confront sexual assault.

Media arts major Zoe Ritzhaupt—a 20-year-old who grew up within miles of the school and identifies as gender queer-nonbinary— believes that the person attempting the action is the one responsible for obtaining consent. Understanding that may head off situations such as the one involving Aziz Ansari that was described on Babe.net in January.

“I’ve had lots of experiences like that, and I know other people have too,” Ritzhaupt says. “If we remember that simple fact, then it’s not up to someone to have to say no to something that’s already happening to them, which is a really hard thing for a lot of people to do.”

Twenty-two-year-old Marcell Vanarsdale adds that prevention has to start at the community level.

“There has to be a culture around consent,” he says. “Other college campuses may have an affirmative consent policy, but if there isn’t a strong culture supporting that policy, I don’t see how it can be as successful as it is at Antioch.”

Vanarsdale is referring to students respecting one another and feeling comfortable holding one another accountable when boundaries are crossed. That kind of culture requires work to create, such as devoting two weeks to sexual-awareness education, as Antioch does every October.

Meli Osanya, a 22-year-old from Iowa who identifies as pansexual, expands on Vanarsdale’s thought. “There also needs to be a commitment to responsiveness from the administration beyond building the culture of consent within the student body,” Osanya says. “I think the administration’s responsiveness is one reason the SOPP is so effective here.”

All three Antioch students seem to agree that consent education needs to begin well before college, with age-appropriate instruction entering the curriculum as early as kindergarten. In fact, two of the students have come directly from the local high school, where they’ve just led a session on affirmative consent.

Some Antioch undergraduates are lobbying to have the SOPP include language requiring affirmative consent for platonic touch, such as hugs and handshakes. That may not be necessary, other students feel.

“We already ask if we can give each other hugs, for example, and it’s something we teach new students when they arrive for orientation,” Osanya says. “Every interaction that invades a personal space bubble should be consensual.”

Vanarsdale agrees. “Sexual assault and sexual violence are not always an intended sexual thing,” he says. “That’s why it’s important to be mindful of the space that we engage in.”

The lesson? People don’t always want to be touched, but when they do, and when they fully express that desire, the result can be far more stimulating than the inebriated fumbling so typical of college life. When you look at it like that, today’s Antioch students appear to have their fingers on the pulse of a cultural shift—a steady calibration of the movement their predecessors started nearly 30 years ago. While the gears of political and academic bureaucracy grind their way to a more equal environment, they may be our only hope.