The following editorial appeared in the Chicago Tribune on Saturday.
If you’re the parent of a college student (or preparing to be), you need to read Rolling Stone’s jarring account of a fraternity house gang rape at the University of Virginia.
So does your student — daughter or son.
The story in December’s issue describes the alleged assault of a freshman identified as “Jackie,” the distressingly cavalier reactions of some fellow students and the university’s disturbingly languid response.
Attending her first-ever frat party, “Jackie” says she was led upstairs at the Phi Kappa Psi house and violently assaulted by seven men over three hours. The Rolling Stone piece details her struggle to hold her alleged attackers accountable and chronicles what it calls a “cycle of sexual violence and institutional indifference” that spans at least three decades at UVA.
But UVA isn’t exactly an outlier. Across the country, universities face growing pressure to change the way they respond to sexual assault claims. The U.S. Department of Education is investigating 86 schools to determine whether their handling of such cases complies with Title IX, a federal law that prohibits gender discrimination.
One survey found that 1 in 5 college women had experienced “attempted or completed” sexual assaults. Alcohol, drugs, hormones, inexperience and peer pressure can facilitate unwanted and even violent contact.
“Yes means yes” is supposed to enhance the safety of women by eliminating the possibility of misunderstandings that lead to criminal transgressions. From kissing to petting to intercourse, the person initiating each step would be obligated to ask and get permission before proceeding. It’s not enough that she (or he) doesn’t say, “No,” or “Stop.” The consent also “must be ongoing throughout a sexual activity.”
Yeah, we know. Two 20-year-olds who regularly sleep together are not likely to go through a multistage verbal consent process every night. Most students may be tempted to go on doing consensual sex the same way they did before. In that case, the policy may be largely symbolic.
“Yes means yes” may serve the purpose of impressing on men the importance of making sure they are not coercing a woman into something she doesn’t want. It may reduce the instances in which an overly enthusiastic young male misreads the signals he gets from a woman.
But as a tool for adjudicating rape accusations, it has some serious flaws.
There are all sorts of nonverbal ways to indicate willingness or eagerness to move to the next level — few of which would be easy to verify afterward. Critics say the “yes means yes” standard shifts the burden of proof to the accused, with potentially severe consequences.
Requiring affirmative consent doesn’t change the reality that makes judging sexual assault accusations so difficult: The two people involved may have different stories. A rapist can say, “She didn’t tell me to stop,” even if she did. He can also say, “She said yes,” even if she didn’t. Revising the standard doesn’t prevent lying or make it any easier to detect.
Campus tribunals that hear sexual assault claims typically base findings on “a preponderance of evidence,” a lower standard than that required for a criminal conviction. Someone found to have violated the consent rules could be expelled from school and be permanently labeled as a rapist.
That’s why campus authorities, even if they are sworn police officers, have no business trying to adjudicate rape cases. The potential conflicts of interest are too great. In fairness to the accused and the accuser — and for the safety of the entire student population — those cases should be turned over to the local criminal justice system.
That doesn’t mean there’s no place on campus for “yes means yes.” Colleges can and should foster an environment in which affirmative consent is stressed and expected. It’s a concept that should be instilled and reinforced years before those young adults leave home.
It should be a staple of the often-awkward parental chats about sexual responsibility and part of the curriculum in the “reproductive health” classes required of giggling and blushing middle schoolers.
“Yes means yes” is a message that should be ingrained long before freshman orientation.