The California state legislature passed a bill last Thursday mandating that every California university receiving state funds adopt a standard of affirmative consent, which they defined as “affirmative, conscious, and voluntary agreement to engage in sexual activity” as part of a comprehensive sexual assault policy. The Senate approved it unanimously. Was California just being the bastion of overreaching liberalism that it is? How does California’s bill stand up if, in the words of Harvard’s own Title IX officer, “there is no standard definition” of affirmative consent?
It’s hard to ignore that there do in fact exist clear, substantive commonalities in how effective policies treat the issue of affirmative consent. Though California is the first state to propose a state-level standard, numerous universities have already adopted affirmative consent in their policies that prohibit sexual violence. Neither Princeton nor the University of Pennsylvania is widely regarded as radical institutions or pioneers of activist thought. Nevertheless, compare the state of California’s definition to those of Princeton, Yale, and the University of Pennsylvania:
California State Bill SB-967:
“Affirmative consent’ means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent.”
“the University considers consent as the voluntary, informed, uncoerced agreement through words and actions freely given, which a reasonable person would interpret as a willingness to participate in mutually agreed-upon sexual acts. Consensual sexual activity happens when each partner willingly and affirmatively chooses to participate.”
University of Pennsylvania’s policy
“Consent is an affirmative decision to engage in mutually agreed upon sexual activity and is given by clear words or actions. Consent may not be inferred from silence, passivity, or lack of resistance alone.”
“Sexual activity requires consent, which is defined as positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter. Consent cannot be inferred from the absence of a “no”; a clear “yes,” verbal or otherwise, is necessary.”
Despite Harvard’s denial, there is a clear definition of affirmative consent that emerges from the sampling of our peer institutions’ policies above: affirmative consent is freely expressed willingness and active participation from all parties throughout sexual activity. The absence of a no is not a yes. That is the essence of affirmative consent, and that is what 85% of the student body voted for in a UC referendum about sexual assault policy reform in 2012.
Policy alone will not able to determine exactly what affirmative consent looks like in expression and communication, and nor should it, since every context and sexual relationship is different. However, good policy does set the expectation that all participants in sexual activity reflect consciously on whether their partner(s) is giving active consent, as well as err on the side of soliciting clearer, preferably verbal, consent. Requiring and encouraging individuals to practice these basic forms of respect for their sexual partners is not excessive; these are expectations to which we should hold ourselves anyway. Affirmative consent is not a conspiracy to persecute innocent students or mandate a single script for sexual activity. Affirmative consent is crucial in order to separate and protect sex from devastating forms of violence and to make Harvard a safe community for everyone.
This past July, Harvard released a new policy covering all forms of “sexual harassment,” which federal law defines to include sexual assault, rape, and other forms of sexual violence. Language surrounding consent is conspicuously absent from this new policy. This comes in defiance of hard work done by student groups such as CAARE (Consent Assault Awareness & Relationship Educators) to promote a cultural shift towards “getting consent,” and more than two years of campus-wide conversations around moving the focus away from negative and towards affirmative consent.
Instead, conduct falls under Harvard’s new policy if deemed “unwelcome.” The unwelcome conduct standard originated in earlier laws governing workplace sexual harassment and was subsequently adopted as the definition of sexual harassment under Title IX, which covers sexual, sex, and gender-based harassment at educational institutions. The Department of Education’s 2001 guidance on Title IX includes the unwelcome conduct standard.
However “unwelcome conduct” serves as a mere baseline for sexual violence policy by more modern standards. The Office of Civil Rights’ Spring 2014 Title IX Q&A expressly encourages (see page 41) sexual assault prevention training for students to address “how the school analyzes whether conduct was unwelcome” as well as “the school’s definition of consent applicable to sexual conduct,” a key piece absent from Harvard’s current policy. Yale adopted its affirmative consent policy during its 2011 Title IX investigation, as part of the reform package that led to its voluntary resolution agreement with the Department of Education. This only serves as further evidence that Title IX licenses incorporating affirmative consent in sexual violence policy.
Princeton, Yale, and the University of Pennsylvania are just three examples of Harvard’s peer institutions that have adopted affirmative consent policies. What’s the advantage of doing so? To put it simply, affirmative consent reflects the agency that should be essential to sex. Consent is familiar and intelligible to the student body, whose conversations about sex have been phrased in its terms. While a conversation might be welcome or unwelcome our bodies are not conversations. They are neither things nor locations. Sex is only sex when it is an act of free choice. When agency and choice are absent, what occurs is not sex, but an act of violence. Good policy reflects and acknowledges the nature of this violence by requiring “affirmative, conscious, and voluntary agreement” from all parties. Policy and culture are mutually reinforcing; Harvard needs a policy that will encourage leadership from the student body and community in ending sexual violence.
Emily Fox-Penner and Jessica Fournier are organizers of Our Harvard Can Do Better, an undergraduate campaign against sexual violence at Harvard. Gus Mayopoulos and Sietse Goffard are the president and the vice president, respectively, of the Harvard Undergraduate Council.