The New York Times Editorial Staff - Defining Sexual Consent: Where the Law Falls Short

NOAH BERGER FOR THE NEW YORK TIMES

Students at the Urban School of San Francisco attended a health class focused on affirmative consent in San Francisco, Oct. 1, 2015. With Gov. Jerry Browns signature on a bill that month, California became the first state to require all high school health education classes give lessons on affirmative consent, which includes explaining that someone who is drunk or asleep cannot grant consent.

The debates over sexual assault tend to fall into two camps: while victims and victims advocates see a system that creates an insurmountable burden of proof, the other side sees a process that presumes guilt before innocence and a campus mentality that resembles more of a witch hunt than a fair trial. Paul Nungesser, the student accused of assaulting Sulkowicz, won a lawsuit against Columbia University in 2017 claiming that the university failed to protect him from the consequences of Sulkowiczs project.

The articles in this book highlight the cases that pushed the debate over sexual consent into the headlines as well as the innovative solutions that have been proposed to address the issue of sexual assault. One policy that has emerged is the notion of affirmative consent: sexual encounters must involve both parties making explicit statements of their consent. In other words, while sexual consent has traditionally been taught as no means no, universities that institute affirmative assent policies now show students that yes means yes.

In order to put pressure on universities to step up their response systems to these situations, the Obama administration set new guidelines for universities to address the complaints on campus. However, in 2017, Betsy DeVos, President Trumps secretary of education, announced her plans to undo many of those protections, claiming that the policies did more to harm the accused than to protect the victims. And so the debate rages on. Meanwhile, individuals attempt to negotiate intimate relationships in the gray zone.

The challenge in litigating sexual consent comes from its difficulty as an objective concept. Despite sexual education, consent remains difficult to talk about, both before and during sexual encounters. The articles in this chapter highlight the issues at stake in this debate: What constitutes consent? Who can give it? And can it be taken away? What constitutes rape and when is it miscommuni-cation or, simply, bad sex?

the night started , as so many college nights do, with a red cup pressed into a hand. Ubiquitous at tail gates and parties, those bright plastic cups are a harbinger of carnival, of unleashing. The hand around the cup was mine.

I remember many of the details only vaguely, but the cup shines through; I can still taste the sweet-sour drink inside it. No matter how much I sipped and each sip made the next one easier the cup remained filled, courtesy of a young man, a fellow college senior, attending to its contents. I liked him, a little; I found his focus on me impressive.

I drank from the red cup, and in the next scene from that evening that I can recall, I am on my bed, and he is on top of me. I am resisting, but he is heavy, so heavy, and my limbs so leaden. I am certain he thought he was, as we used to say back then, a totally decent guy. Even now, I can imagine him as someones loyal husband, a maker of pancakes, his kids soccer coach. But that night I said no, and still he lay there, massive, pleading, sloppy with beer, for what seemed to be hours (but surely was not), until I finally stopped holding him off. Too close to sleep to rouse myself to outrage, I settled for capitulation, then revulsion.