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Evan Gerstmann
Evan Gerstmann

This piece looks at the rise of “affirmative consent regimes” in higher education. It argues that affirmative consent is both unwise as a matter of policy and that it violates the constitutional privacy/autonomy rights of public university students. 

In the fall of 2014, California Governor Jerry Brown signed the nation’s first mandatory “affirmative consent” legislation regulating sexual activity among college students. It applies to all schools, public or private, receiving state funds. The law states: 

An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “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. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

New York State followed with its own legislation: 

Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression. 

 In addition, between one-thousand and two-thousand colleges across the country, both public and private, have adopted affirmative consent rules. In the United States, affirmative consent is well on its way to becoming the norm for higher education. They vary in their exact word wording and specificity. For example, Ohio State University, one of the Nation’s largest schools, specifies that “Previous relationships or prior consent cannot imply consent to future sexual acts . . . this includes ‘blanket’ consent (i.e. permission in advance for any/all actions at a later time/place)”. Other universities go further, stating that “Consent is a voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement.” (Gersen and Suk 2016, 925). 

This piece argues that there is no actual evidence that these policies will do anything to protect students from sexual assault. Furthermore, they define very common sexual behavior by both men and women as expellable sexual offenses. Research shows that most people signal their consent by simply not objecting to what their partner is doing. For example, a recent study of college student showed: “The behaviors used most frequently to communicate consent were behaviors loading on the No Resistance factor: not stopping their partner from kissing or touching them, not resisting their partner’s advances, and not saying no.” (Muehlenhard, et al. 2016, 468). Other studies conclude that “consent is often communicated and interpreted using ambiguous, nonverbal cues . . .” (Jozkowski and Peterson 2013, 520). 

In other words, when two people are being sexually passionate, they generally do not ask one another permission before touching the other person. They progress from one stage of sexual touching to the next and if one person feels that the other has gone too far, then they will indicate that verbally or in some other way. Under affirmative consent regimes, all of this typical, consensual sexual activity, constitutes an expellable offense. 

The scope of these rules are often breathtaking. They make no exceptions for couples in a long-term relationship, or even married couples who develop over time their own understandings of what the rules of sexual contact are. 

This piece also argues that because the rules are so over inclusive that they cannot realistically be uniformly enforced, these rules open the door to racially biased selective enforcement. When commonly engaged in behavior becomes punishable, it is, of course, impossible to punish all transgressors. So who is it that is most likely to be singled out for punishment? This Nation has a long and sorry history of singling out African American men for sexual transgressions, especially where white women were also involved. Therefore, one would think that the federal government, which requires that colleges and universities keep a wide variety of racial statistics, would be very interested in tracking whether African American men are being disproportionately accused of sexual assault. Remarkably, the federal government does not require colleges to keep a record of this information and there does not appear that many colleges maintain this data. 

This piece also argues that affirmative consent regimes are unconstitutional when applied to public university students or required by state law. The constitution protects peoples’ right to sexual autonomy. The sexual autonomy line of cases began with Griswold v. Connecticut in 1965. Considering a statute that prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception,” the Court struck down the law, emphasizing that it “operate[d] directly on the intimate relation of husband and wife.” 

While Griswold could have been viewed as a case that is primarily concerned about marital rights, the Court corrected any such misimpression a few years later. In Eisenstadt v. Baird, the Supreme Court held that unmarried couples have the exact same rights to acquire and to use contraception: “whatever the rights of the individual to access to contraceptives may be, the rights must be the same for unmarried and the married alike.” 

In the infamous, and now overruled case Bowers v. Hardwick, a five Justice majority of the Supreme Court averred that contraception cases, along with the abortion rights cases, really just protected reproductive freedom and therefore gave no protection to same-sex couples who practice sodomy. However, in 2003, the Court corrected its course and overruled Bowers, in Lawrence v. Texas. In that case the Court held that “that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” In 2015, in Obergefell v. Hodges, the same-sex marriage case, the Supreme Court clearly referred to intimacy as a “fundamental right.” 

It is certainly true that not all college sexual encounters involve “intimacy” as we would ideally like to define that term. A “hook-up” is not something that seems particularly intimate. It is worth noting though, the notion of college as a “hook-up” culture is quite likely exaggerated. (Monto and Carey 2014). But more importantly, it is very unlikely that the Lawrence Court meant that only emotionally intimate sexual conduct is constitutionally protected. Indeed, the two men arrested in the Lawrence case were not at all intimate in that sense. In fact, one of them was cheating on his boyfriend, who jealously called the police, which is how the case got into the court system in the first place (Rosenbury and Rothman 2010). 

By invoking “intimacy” the Lawrence Court was merely distinguishing between consensual sexual relations between adults and other types of sexual contact such as prostitution, child molestation, and bestiality. Any other interpretation of Lawrence would put courts in the position of serving as case by case adjudicators of how deeply sexual partners care about one another or may come to care about one another. It is difficult to imagine that this is what the Court had in mind. 

Affirmative consent regimes are clear violations of this constitutional right to sexual intimacy. If someone wishes to allow their boyfriend or girlfriend (or spouse in the case of married students) to touch them spontaneously they have the right to do so. Affirmative consent regimes fail to distinguish between strangers and the most intimate of couples. This negates the power of intimacy itself by making the closest of lovers treat each other as sexual strangers every time they touch each other intimately. Under the constitution, there can be no government-approved way of having sex. The government may, of course, forbid and punish sexual contact without consent, but, as we have seen, affirmative consent regimes go well beyond this.