Sexual assault on campus: Yale tries to clarify 'consent'

When Yale released its latest semi-annual report on sexual misconduct this summer it faced criticism for the phrase 'nonconsensual sex' and for punishments seen as too light.

Yale University has released a set of hypothetical scenarios detailing consensual and nonconsensual sexual activity, in an attempt to respond to confusion over how it handles sexual misconduct.

The term “nonconsensual sex” proved controversial this summer, when the school released its latest semi-annual report on sexual misconduct. Many students, alumni, and others believed the phrase was euphemistic, and the punishment – such as a two-semester suspension – was too light in some cases. Why should anyone forcing sex onto someone else, they asked, not be expelled?

Yale President Peter Salovey requested that a team develop the hypothetical scenarios, saying in a letter to the community in early August: “It is evident that Yale’s report must be more descriptive about what is meant by ‘nonconsensual sex,’ and more information should be made available to advise the community about the basis for penalties.”

Yale now has “one of the better examples of a solid, detailed definition of consent,” says Emily Greytak, a board member of SAFER (Students Active For Ending Rape http://www.safercampus.org/), based in New York. Not only should universities state such a definition, she says, but they should also find ways, as Yale is doing, to show people how to “operationalize” it. “These scenarios are commonly what happens on college campuses … and what people want to know,” she says.

But how much clarity the new scenarios will offer, and whether it will encourage more reporting of incidents, remains to be seen.

“They had the best of intentions … but in trying to parse it out, they’ve done a disservice to students who might be reading this and wondering which scenario they fit in,” says Lisa Maatz, vice president of government relations at the American Association of University Women in Washington. “It seems to me like they’ve prolonged the angst over [the issue of] what you can get away with and stay on campus.”

The debate over how to assess claims of sexual misconduct, and what punishments are appropriate, has played out on many campuses in recent years. A 2007 federally funded survey of more than 5,000 undergraduate women found that 28.5 percent had experienced attempted or actual sexual assault before or during their college years. The majority assaulted on campus did not report the incident to either campus officials or the police.

The federal government weighed in with guidance to universities, requiring them under the Title IX gender equity law to strengthen policies to reduce sexual assaults and harassment. Many universities, including Yale, have also entered into settlements in response to Title IX complaints.

In turn, advocates for individual rights have criticized the shifts in policy, saying due process is suffering. Several federal complaints are under way from men accused of sexual assault who say they were involved in consensual sex and were unfairly expelled.

Yale reiterates its definition of consent in the four-page scenarios document, posted Tuesday on the university’s Sexual Misconduct Response website: “Consent requires positive, unambiguous, voluntary agreement at every point during a sexual encounter – the presence of an unequivocal ‘yes’ (verbal or otherwise), not just the absence of a ‘no.’ The category ‘nonconsensual sex’ includes rape but is more expansive than rape.”

It then gives eight gender-neutral examples of scenes that might unfold between college students and what the penalties would likely be.

One example makes clear that sex with someone who is incapacitated by alcohol (in this case having trouble walking, being confused, and trying to sleep) is nonconsensual and the penalty would be expulsion.

One involves initial consensual activity, but then one partner says, “I’m not sure,” and moves back, and the other proceeds with sex anyway. If the discipline board substantiated the facts, the likely outcome would be a multi-semester suspension or expulsion, because the consent was not sustained, the document says.

Another example is a student repeatedly suggesting sex to another student when they are studying together. The propositioned student wavers, puts it off, but ultimately says okay and pulls the other student closer. This is consensual and doesn’t violate policy, the document says, but sensitivity training about the inappropriateness of sexual pressure would likely be recommended to the person who initiated it.

Some say such policies cast too wide of a net on a range of nuanced behaviors in relationships.

“I don’t think anyone would argue that someone who’s a rapist should not be expelled from a university…. The problem with Yale is they have an extremely broad definition… [that includes circumstances that] virtually no one outside the Yale campus would consider sexual assault,” says KC Johnson, a history professor at Brooklyn College and co-author of a book on the falsely accused Duke lacrosse players.

Duke University has taken similar steps in recent years to spell out examples of consent vs. non-consent. It also recently made expulsion the “preferred sanction” for sexual assault cases – not a mandatory minimum, but a new precedent beyond the multi-semester suspensions that have been common.

The group Students Against Sexual Violence at Yale (SASVY) would like to see Yale take a step similar to Duke’s. Yale’s President Salovey said in his letter that the misconduct committee considers “a full range of penalties, beginning with expulsion.” The policy is to consider the complainant’s wishes as one factor, and some complainants prefer for a student not to be expelled or sanctioned formally.

SASVY advocates that Yale should provide an external advocate for victims. It also wants the school to hold disciplinary hearings against students reported for sexual violence more than once, regardless of whether the reports were formally filed. The group cites a researcher who says repeat assailants commit 90 percent of campus assaults.

Not all universities have a clear sexual misconduct policy available on their website, and even if they do, students often don’t come across it unless they or a friend are in a crisis, Ms. Greytak says. An important follow-up step to posting the policies and scenarios, she says, is to widely circulate them and encourage discussions that can lead to prevention of sexual assault.