A Campus Dilemma: Sure, 'No' Means 'No,' But Exactly What Means 'Yes'? There are about as many definitions of consent as there are colleges — a problem for schools grappling with how to handle sexual assault. Turns out the easy part is covering what's not consensual.

A Campus Dilemma: Sure, 'No' Means 'No,' But Exactly What Means 'Yes'?

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MELISSA BLOCK, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block. As the federal government presses colleges to improve the way they handle cases of sexual assault, many are turning their focus to one issue at the crux of the matter. That is how to distinguish between activity that's consensual and activity that's not. In other words, what exactly counts as consent? There are about as many different definitions as there are colleges. And as NPR's Tovia Smith reports, pressure is mounting on schools to be tougher and more consistent.

TOVIA SMITH: In theory, at least, the difference between sex that's consensual and sex that's not is obvious. As the old line goes - you know it when you see it. But less obvious is how exactly to define it for the student handbook.

MARY SPELLMAN: If consent were easy to put into words we would have a sentence and we wouldn't have a page and a half of definition.

T. SMITH: Mary Spellman is Dean of Students for Claremont McKenna College, which recently rewrote its definition. The easier part covers what's not consent - for example, any OK from someone who's drunk or drugged or coerced can't be consent. And consent to have sex last weekend or last night can't imply consent today. But the definition also tries to get at those grayer areas - like when a student may be ambivalent or when something ends up happening that a student never intended. The definition says permission has to be, quote, "active and clear." So a student who's silent, for example, or not resisting is by Claremont's definition not consenting.

SPELLMAN: I don't think it's perfect. I think it has come a long way. But I think we will find over time that it will evolve.

T. SMITH: The trend now is toward what's called affirmative consent. Instead of the old, no means no - what schools are trying to say is that - only yes means yes. Where it gets really murky, Spellman says, is that yes, by definition, can be nonverbal.

SPELLMAN: Like, is the person actively participating? Are they touching me when I'm touching them? Are they encouraging me when I'm doing various different things? Those would all be signs that the person is an active participant in whatever's going on.

T. SMITH: To try to clarify some schools amend their definitions with a series of explicit scenarios that read like - sexual consent word problems. Yale, for example, offers two pages of them. In number eight, Jordan is having sex with Tyler who drank, quote, "heavily and had trouble walking home." The answer to that one - expulsion. Number seven is trickier.

RORY GERBERG: OK. So Morgan and Kai are friends who begin dancing and kissing at a party.

T. SMITH: Harvard researcher Rory Gerberg, who helped advise the White House on its recent guidance for schools, says scenarios are critical to showing students what loud and clear consent actually looks like.

GERBERG: So Kai nods in agreement. To give?

T. SMITH: But even these carefully crafted examples can be hard to decode.

GERBERG: Oh, sorry. Hold on. Give me one more second to read this a little closer.

DJUNA PERKINS: You know, the fact of the matter is that consent is very tricky and you're getting into really minutia of what happened in a particular event.

T. SMITH: Djuna Perkins, a former prosecutor who now consults with colleges, says schools are being asked to define consent more narrowly than even most state criminal laws do. And those who get it wrong risk lawsuits, bad press and the loss of federal funding. The federal government's already investigating at least 55 schools for complaints they're too soft on sexual assault.

PERKINS: Some of them feel like, you know, they want to throw up their hands. And, you know, I know of colleges who are trying to revise their policies. I mean, literally, every summer. In this climate, I don't think there's a single school out there that really, truly feels like it's under control.

T. SMITH: Some schools have tried to avoid the ambiguity by mandating that permission has to be verbal before any students make a move on another.

LOUISE SMITH: It's on them to say, you know, can I do this? And the person has to respond verbally - yes. And if they don't it's considered non-consent. And that's a violation of our policy.

T. SMITH: Louise Smith is a dean at Antioch College where the definition also says consent has to be enthusiastic - I guess so, doesn't cut it. Also, Smith says consent must be continually renewed each time things escalate.

(SOUNDBITE OF TV SHOW, "SATURDAY NIGHT LIVE")

UNIDENTIFIED MAN #1: May I elevate the level of sexual intimacy by feeling your buttocks?

T. SMITH: The policy actually goes back to the early '90s when it was seen as so extreme...

(SOUNDBITE OF TV SHOW, "SATURDAY NIGHT LIVE")

UNIDENTIFIED WOMAN #1: Yes, you have my permission.

T. SMITH: It was mocked on "Saturday Night Live."

(SOUNDBITE OF TV SHOW, "SATURDAY NIGHT LIVE")

UNIDENTIFIED MAN #1: All right.

L. SMITH: (Laughing) Yeah. we're not laughing now.

T. SMITH: Smith says, Antioch feels vindicated now that the rest of the country is finally coming around. And she says students are also beginning to realize that getting verbal consent doesn't have to be a mood killer.

REBECCA NAGLE: Yeah. It can be hot like, you know, do you like it when I bite your neck?

T. SMITH: Rebecca Nagle is cofounder of a group called Force that runs campus workshops under the slogan Consent is Sexy.

NAGLE: You know, we could be making out, and I could be like so how do you feel about teeth? If I have a certain look in my eye that's really flirty and then I could be like do you like it like this? That exchange is incredibly hot.

T. SMITH: Nagel says students are starting to get it - that it's better to deal with asking even if it does feel forced then with a morning after accusation that the sex was forced. But as others see it, colleges are way overstepping by trying to script what students should say in the dark of their dorm rooms and by imposing an unfair standard.

ANNE NEAL: Students will have their lives maybe seriously damaged by administrators who are essentially creating standards by the seat of their pants.

T. SMITH: Anne Neal of the American Council of Trustees and Alumni worries that the stricter standards come with no due process for the accused to have the burden of proving they did have enthusiastic and continual consent. Neal says allegations of sexual assault should be handled by the criminal justice system - not schools.

NEAL: To allow bureaucrats on our college campuses arbitrarily to determine what is consent and what is not when - even the law has difficulty - certainly underscores the absurdity of this system.

T. SMITH: But pressure on colleges is only increasing from the government and their own students. Marilla Batista a junior at Dartmouth has been pressing his school to narrow it's definition of consent. It's shocking, he says, how many students still don't get it and are unsure the morning after if they crossed the line.

MARILLA BATISTA: That freaks me out. How do you not know if you rape someone or not? That is pretty scary to me. How do you not know that?

T. SMITH: Colleges do need to come up with tighter and clearer definitions of consent, Batista says. But they're not the only ones. In order for students to really get it, he says, the lesson needs to start many years before students even get to college. Tovia Smith, NPR News.

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