Texas A&M University has revised its sexual misconduct policy to narrowly define consent along the lines of the “yes means yes” or “affirmative consent” standards that are sweeping the nation.
A&M’s student newspaper, the Battalion, reports that the policy was revised prior to the fall semester.
Consent is now defined as “clear, voluntary and positive verbal or non-verbal communication that all participants have agreed to the sexual activity.” Consent must be given “prior to or at the same time as the sexual activity” and must be ongoing throughout.
“Consent must be given for the current sexual contact. The existence of a prior relationship or prior sexual activity does not automatically ensure consent for current or future sexual contact,” the policy states. “There must be consent for each specific type of sexual contact throughout the sexual activity. Consent must be given by each participant involved.”
In other words, active engagement in the activity is not consent for an escalation of activity. While the policy doesn’t explicitly state that only verbal consent is acceptable, the policy would still result in a question-and-answer-style sexual encounter, where normal sexual behavior could be grounds for an accusation.
We’ve seen students who claim they did obtain consent in the manner required by yes-means-yes policies still get expelled. Drew Sterrett of the University of Michigan was expelled even though he said he explicitly asked the accuser if she wanted to have sex. Kevin Parisi of Drew University was accused of (but found not responsible for) sexual assault even though he alleges that he asked his accuser throughout the encounter if she wanted to take things further.
At issue in these he said/she said cases is the burden of proof. Neither Sterrett nor Parisi could prove they had followed affirmative consent policies. Other factors worked in Parisi’s favor. Sterrett was not so lucky (if you can call being treated as guilty-until-proven-innocent lucky).
In a win for due-process advocates, a Tennessee judge ruled in August that a school couldn’t shift the burden of proof onto an accused student, as has become the case at colleges across the country. An accusation is good enough proof for an accuser, but evidence provided by the accused almost never seems to be enough.
The school also states: “A person who is clearly or visibly incapacitated is not able to give consent to sexual activity.” This would seem to be an indication that A&M doesn’t believe that merely having a drink or two negates consent, which is a good thing.
