Affirmative consent should be easy. Colleges and lawmakers need to try

Prevailing polices that permit silence or nonresistance to be construed as consent contort the very concept of sexual assault beyond recognition

In the rush to comply with recent federal law requiring comprehensive policies and procedures to address sexual violence on campuses, American colleges and universities, Congress and the Department of Education have overlooked one of the most critical issues in combating sexual assault: our medieval notions of what it means to consent to sex.

While we’ve progressed since the day – not too long ago – when a woman who failed to put her life in jeopardy by resisting her attacker “to the utmost” was legally presumed to have consented, we still have a long way to go. The definition of consent in most state criminal codes and university policies is either tautological or entirely absent. Under Florida law today, for example, intelligent, knowing and voluntary consent is defined as, well, “intelligent, knowing and voluntary consent”. But Florida’s definition looks downright detailed when compared to New York, Pennsylvania, Texas and many other states, which basically neglect to define the concept at all.

The University views “intelligent, knowing, and voluntary consent” as both a state of mind and an act, i.e., the act of clearly communicating one’s willingness through words or conduct. Consent has many boundaries. It may be withdrawn at any time, including any time during a particular sexual activity, and cannot be inferred from the mere absence of an objection. Consent to particular sexual activities does not represent consent to other sexual activities, and past consent to particular sexual activities does not constitute an ongoing consent to those activities. An expression of agreement to engage in a sexual activity that has been obtained by force or threat or based on fear does not represent consent. Consent cannot be obtained from someone who is unconscious, a minor, or whose judgment is impaired through alcohol, drugs, or some other condition, nor is impaired judgment an excuse for the failure to obtain consent from another.

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