Consent is complicated. The idea that widely accepted definitions of what does and doesn’t constitute a sexual encounter where all parties are on board need to be (at least) reexamined and (at most) revamped entirely isn’t a new one. Given the ever-increasing furor over sexual assault on college campuses, however, ambiguous consent is getting more airtime than ever, from progressive activists and apoplectic conservatives alike. And in two of the latest pieces to come out of the debate over colleges’ responsibility to survivors, we have a case study in how to talk about the massive gray area surrounding sexual consent and assault… and how not to.
Bad news first. The Washington Post, which seems to be going out of its way these days to become the premiere destination for white men of a certain age to brain-barf their mansplanations, is now home to a charmingly headlined blog post called “YOU are a rapist; yes YOU!” In it, law professor David Bernstein (the kind of noble crusader against the PC police who writes books called You Can’t Say That!: The Growing Threat to Civil Liberties From Anti-Discrimination Laws) attributes the California legislature’s attempts to establish an “affirmative consent” standard for colleges’ evaluation of sexual assault complaints to “the current moral panic over hookup culture.” He also claims the only people who comply with the “explicit consent” standard offered by the DoJ’s Office on Violence Against Women are prostitutes and johns.
As with George Will’s claim earlier this month that surviving rape is such a “coveted status” on campus that the sexual assault epidemic just has to be made up, responding to Bernstein’s ideas — hell, even summarizing them — feels like dignifying a position that doesn’t deserve a response. Besides, Gawker’s Michelle Dean has already skewered Bernstein quite nicely. Horrifically misguided as it is, however, Bernstein’s condescending attempt to grapple with what does fall under the rubric of “explicit consent” (his answer: not whatever “almost every adult in the U.S.” is doing — science!) is a bad-faith version of the questioning that has to happen before our culture arrives at a better definition of consent.
Enter Katie Baker’s phenomenal report “Even the Most Progressive University in North America Doesn’t Know How to Handle Consent,” which includes interviews with survivors, alleged perpetrators, and administrators at Canada’s ultra-liberal Quest University. Baker documents a series of incidents on campus centering on two students, Tyler and Jaden. None of the encounters Baker describes fall under the legal definition of rape, but if any school is equipped “for mediating the line between assault and harassment,” it’s theoretically Quest, where majors are replaced by programs of study designed around questions. But stories like “Stephanie’s” are sickeningly familiar to those who’ve been following the outcry against schools like Columbia and Harvard in the US: after a classmate “groped her vagina and chest… and attempted to push her on her back,” an outside consultant concluded no violation of the school’s Human Rights Policy occurred, in part because her assailant’s descriptions of how often Stephanie discussed her sex life “diminished” her credibility.
Some cases, however, are less clear-cut. Stephanie’s rebuffed complaint smacks of victim-blaming on the outside consultant’s part and a failure to guarantee survivors’ safety on Quest’s. Once Stephanie and two other students began to publicize their experiences with failed complaints against their assailants, though, student activism took a turn for the less immediately sympathetic:
Students’ rage blurred the lines around what constitutes a “survivor” and translated into the stuff of conservative columnists’ nightmares about oversensitive millennials. Not all of the students who were dubbed (or dubbed themselves) “survivors” were recovering from assault; some just wanted to support their friends and call Jaden out for, as one student put it, “being gross.” For example, one woman who submitted a letter in support of Sasha’s complaint alleged Jaden suggested she come back to his room one night, grabbing her arm and “pulling slightly.” When she declined, he gripped her arm harder — until a friend said, “Let her go,” and Jaden did.
Baker, unlike Bernstein, illustrates the ambiguity of what constitutes an assault, and thus examines where schools’ responsibility to step in begins, by going straight to the source. Her story chronicles disappointment on all sides (the subtitle promises “the story of how everyone lost”), making the case for expanding the definition of consent to protect Stephanie and her peers while demonstrating that grassroots efforts can’t take the place of a broken system.
In short, Baker shows how inevitably fraught the overdue, urgent process of redefining consent will be far better than Bernstein or Will can. Unlike either Post writer, Baker is empathetic towards survivors who bear the brunt of the debate, and she never loses sight of the end goal: students’ safety.
The horror stories flooding out of colleges and universities show that existing standards for evaluating sexual assault are failing. Coming up with new guidelines, ones that distinguish between violating someone’s boundaries and just “being gross,” requires asking ourselves what “a freely and affirmatively communicated willingness” (the “affirmative consent” threshold that got Bernstein up in arms) is, and what previously accepted behaviors fall outside of it. California’s bill is a start, clarifying that “lack of protest” and “silence” don’t make the cut. Until there’s a firmer standard among university administrations and the culture at large, though, students are left with the kind of disappointment Baker found at Quest.