Given the widespread publicity around the epidemic of campus sexual assault across the country, it is clear that the our historical understanding and norms around consent are problematic. To protect students (and really all community members), we need to develop better norms around consent to decrease the prevalence of sexual violence. Additionally, we need an understanding that does not favor sexual perpetrators by placing burdens on those who would be victimized by their actions. This standard in society is what occurs when laws and policies require resistance, whether physical or verbal, from survivors before declaring sexual aggression to be sexual violence. In response to this burden on victims, which creates an imbalance that favors abusers, affirmative consent has arisen in popularity with millennials as a better understanding of consent during sexual activity. Affirmative consent is the idea that both individuals in a sexual encounter are willing participants actively engaged in the sexual contact or activity. Rather than a “no means no” framework to require a person to resist, affirmative consent is a more prevention-focused standard of only “yes means yes.” This is why affirmative consent has gained support from educational institutions and state legislatures alike. In particular, schools are leading the way to dismantling rape culture that burdens victims and favors perpetrators.
While affirmative consent has garnered recent national attention, the standard has been around for decades. In 1991, Antioch College in Yellow Springs, Ohio released its Sexual Offense Prevention Policy which states that “consent means verbally asking and verbally giving or denying consent for all levels of sexual behavior.” At the time of this policy's implementation, students embraced it. It did not receive national attention until two years later, when criticism arose around the “verbal” requirement to ensure consent. Additionally, in 1992 the Canadian legislature amended their criminal code to establish statutory affirmative consent standards through bill C-49. In 2015, the Thames Valley Police in Great Britain published a video in an attempt to educate the public about consent. This video has been widely used in Great Britain and “[resonates] with many Americans online” by comparing consent and sexual activity to drinking a cup of tea and promoting affirmative consent standards. If you have not seen it yet, try watching it now.
There is also momentum around affirmative consent in national and state-level discussions around legislation and policy efforts to address sexual assault. In April 2014, under the Obama administration, the White House Task Force to Protect Students from Sexual Assault published a Checklist for Sexual Misconduct Policies. By September 2014, California’s state legislature had passed Senate Bill 967, a bill that amends the education code with the definition of consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.” In July 2015, the New York state legislature passed the “Enough is Enough” law, Senate Bill S5965. This bill defines consent as “a knowing, voluntary and mutual decision among all participants to engage in sexual activity.” It also clarifies that having no reaction does not reach the threshold of consent through the phrase “silence or lack of resistance, in and of itself, does not demonstrate consent.” By including this line in its definition, New York affirms that if an individual is unconscious, incapacitated, or experiences a freeze reaction, they are not an active participant and are therefore not consenting. This understanding is important since reactions to trauma vary from person to person and should be accounted for when developing legislation and policy to address sexual assault. These state laws and federal policy recommendations aim to protect students on college campuses by setting standards that help prevent sexual violence, which is an issue currently impacting an average of almost 28% of transgender and gender nonconforming students, up to 20% of cisgender female students, and up to 6% of cisgender male students.
Despite the changing norms across the nation that favor affirmative consent as a better way to prevent and respond to sexual violence, the American Law Institute (ALI) seems out of touch with this progress. Recently the ALI approved Article 213(3)(a) of its Model Penal Code on Sexual Assault, which defines consent to be “inferred from behavior, including words and conduct – both action and inaction – in the context of all circumstances.” While the Model Penal Code is a few years away from completion, it often impacts state legislation given the deference shown by lawmakers to ALI model codes. If adopted by States, this definition would regress our understanding of consent and have devastating effects on survivors who have fought so hard to push forward progressive affirmative consent standards into social consciousness as well as legislation and policy. Of specific concern, allowing “inaction” to substitute for consent is deeply problematic.
While common sense may lead us to believe that fight or flight are common responses to fear and attacks, freezing is a common response when going through a traumatic event. A Swedish study that was published on June 22, 2017 found that, out of 300 women who had gone to an emergency clinic up to a month after their rape or attempted rape, seventy percent (70%) of women reported that they experienced “significant “tonic immobility,” or involuntary paralysis, during the attack.” This study provides solid evidence that almost three-quarters of women who who experience sexual assault respond by freezing. Professor Martin Antony, Ph.D., of Ryerson University explained to Vice that in some cases of fear or panic, the freeze instinct comes into play. A small example of this includes “not being able to speak or think of the right words when you are nervous,” just like occurs for those with a fear of public speaking. This response is elevated in traumatic events, like interpersonal violence or accidents resulting in personal injury. The common reaction of the brain (and thus the body) to freeze is too often overlooked when assessing a complaint of sexual violence, which further supports the need for an understanding of affirmative consent as a legal standard in order to capture this common fear reaction known and undisputed in research around trauma.
Affirmative consent standards means courts and colleges alike can distinguish between consensual sex and sexual violence (the preferred term to nonconsensual sex). The definitions of affirmative consent used by schools often vary from campus to campus, but a model definition states that participants must have a “voluntary agreement to engage in sexual activity” and that “silence or [the] absence of resistance does not imply consent.” To avoid perpetrators defending claims of sexual violence by claiming they were under the influence of alcohol, the State University of New York (SUNY) published model language for consent policies that may be adopted by other institutions: which can be found here. This language states that: “Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.” The current definition of consent under the ALI Model Penal Code on Sexual Assault directly contradicts a requirement that consent be gained prior to engaging in sexual activity. If this regressive standard is accepted, then perpetrators can argue a victim’s inaction under trauma is consent to excuse their own sexual aggression without regard to whether their action in seeking sexual contact or activity were against the victim’s will. A victim failing to resist or fight back should never excuse sexual aggression and violence. The impact of this ALI model language could prevent victims and survivors across the country from receiving justice in criminal courts by failing to acknowledge the realities of trauma during sexual violence and thus allow perpetrators to get away with this violent conduct and harm to others.
In recognizing the undisputed findings of trauma research, SurvJustice denounces the ALI’s definition of consent and calls for its members to revisit this provision of the Model Penal Code in recognition of the growing support and acceptance of affirmative as a more progressive standard. The ALI must recognize the norms accepted by current generations, who will be affected the most by these model codes if they are adopted into state law. Allowing for consent to be “inferred” when an individual exhibits a common response to trauma sets back legal understanding to a time before science and harms countless victims and survivors who deserve justice. Without requiring those seeking sexual contact to have affirmative consent before engaging in sexual activity with another, sexual violence will continue to be a prevalent issue and the criminal justice system will continue to fail in addressing it. Affirmative consent is the best standard to prevent and adjudication sexual misconduct and violence. Integrating this progressive standards of consent into the ALI’s Model Penal Code continues societal progress in changing standards that will help us end the epidemic of sexual violence in this country.
Laura L. Dunn, Esq.
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