Molly Roberts graduated last month from Harvard University and is an intern for The Post’s editorial page.
Brock Turner has done one good thing for the country: The former Stanford University swimmer’s case has brought the conversation about sexual assault and campus culture back onto the national stage, and with it the debate over whether the standard for determining what constitutes sexual assault and rape should shift from “no means no” to “yes means yes.”
The “yes means yes” standard for rape, also known as affirmative consent, is pretty much what it sounds like: Sex isn’t considered consensual unless whoever initiates each level of intimacy obtains an explicit “yes” from his or her partner.
For anti-assault advocates, this rule has become the gold standard. More than 1,500 colleges— including Yale University, the University of Virginia and, yes, Stanford — have adopted an affirmative consent rule. California and New York have signed one into law, covering the institutions of higher education in those states. And the White House, although it does not explicitly use the term, essentially embraces the policy in its recommendations to colleges on how to reform misconduct codes.
In a country where a varsity athlete at an elite school drags a woman so drunk she cannot move behind a dumpster and then blames the attack on a culture of alcohol abuse and “promiscuity,” it’s hard to argue against the need for change.
Changing the definition of rape, though? That’s trickier. Because while affirmative consent might be a nice idea, it’s just not how kids have sex.
According to an affirmative consent rule, each step along the way to intercourse requires a question and a positive answer. Can I kiss you? Can I touch your breast? Can I put my fingers there, or my — well, you get the point.
If only we college students and recent graduates did approach sex with that kind of openness and clear communication. But have you ever been 21? Sex at college tends to happen in the heat of the moment, quickly and with subtle signals guiding both participants. There’s no step-by-step road map to intimacy.
Of course, people should understand that agreeing to a kiss isn’t the same thing as agreeing to penetration; that it’s possible to say “no” without speaking the word out loud; and that someone too inebriated can’t say yes at all. And affirmative consent policies respond to real problems on campus: One in 5 women say they were violated over the course of their college careers, some by perpetrators who later claimed the victims didn’t make it clear their advances were unwelcome.
Yet affirmative consent policies create problems of their own. Such codes don’t require a verbal “yes,” but it’s tough to pin down the alternative. Does a moan of pleasure count, when it could very well be a grunt of protest? A hand placed on someone’s chest, or in someone’s hair, might signal either invitation or rejection. In ongoing sexual relationships in particular, consent is often implied rather than explicit. By condemning conduct that comports with the unspoken rules of college hookups, affirmative consent strictures leave campus courts in a confusing position: They may have to sweep what the accused could arguably have thought was consensual sex into the same category as rape.
There’s a long way to go on campus sexual assault, and affirmative consent isn’t the only way to make policies friendlier to victims. Some schools are still under investigation by the Education Department for having required a survivor to prove beyond a reasonable doubt that she was assaulted. That’s the appropriate standard when the government brings a criminal case, but it’s a near-impossible bar to surmount when, except in rare instances (such as at Stanford), sex takes place behind closed doors without witnesses.
Schools should also institute preventive measures such as bystander intervention training programs that tell students to step in if they see a friend — or a stranger — in a precarious position. And they should start teaching students to communicate more clearly and consistently about what kind of contact is and isn’t welcome.
For example, although California’s law moves too fast by writing affirmative consent into the definition of rape, the legislation also requires high schools to develop curriculum around the meaning of consent. These lessons should happen across the country — in every high school classroom and on every college campus.
In a fairy-tale future, with enough sensitivity and enough education, people my age would have smarter, better sex. More likely — inexperienced and hormonal as we are — we won’t. And current campus policy should reflect the reality that, at least right now, we don’t.
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