As reported last week, the United States Department of Education is investigating the University of Southern California over its handling of sexual assault cases. Among the many allegations made by students against the university is the claim that students “were blamed for their victimization and were forced to watch impotently as their cases were routinely misreported, misconstrued, mishandled or discounted entirely.” As one victim explained, “The process made me feel raped a second time.” Sadly she is not alone, as many victims suffer this second rape, which Lee Madigan and Nancy Gamble described as “a new, more disturbing twist to rape if one becomes aware that women who report a rape are again raped by a system composed of well-intentioned people who are nevertheless blinded by the myths of centuries.”
Among the many “myths of the centuries” is the notion of “utmost resistance.” It used to be that under the law, prosecutors were required to prove that victims of sexual assault resisted their attacker with enough effort to show that the sex was non-consensual. They had to show “utmost resistance.” Although each jurisdiction defined utmost resistance differently, typically victims were required to “‘kick, bite, scratch, and scream’ to the utmost of their power and ability, and if [they did] not do so, [they would] be deemed to have consented and, indeed, to have invited sexual intercourse.” Of course, such a standard forced women into an unbearable predicament: “decide whether she has a greater fear of the rape or of physical injury.” Fortunately, by 1940 the utmost resistance standard that prevailed for most of American history, was replaced by a standard of “reasonable resistance.”
Although utmost resistance is gone from our laws, a lot of the beliefs and judgments behind it remain. Indeed, why must a victim even put up “reasonable resistance?” One scholar, Susan Brownmiller, provides a helpful analogy that illuminates this point: “It is accepted without question that robbery victims need not prove they resisted the robber, and it is never inferred that by handing over their money, they ‘consented’ to the act and therefore the act was no crime. Indeed, police usually advise law-abiding citizens not to resist a robbery, but rather to wait it out patiently, report the offense to the proper authorities, and put the entire matter in the hands of the law.”
Robbery, like just about every other crime, requires no proof of resistance. People take for granted that no one would consent to have their money stolen. It is in this way that requiring anyone to say “no” to a sexual encounter seems foolish. Why should anyone, male or female, need to explicitly deny consent to any sexual act? No one ever has a right to have sex with anyone else, just as no one has any right to engage in robbery.
And for the person wishing to have sex, seeking consent truly is not some insurmountable burden. It need not be a formal process, nor must everyone must to have a pile of sexual encounter contracts by his bedside. A simple, “So… want to have sex?” or “Hey … got any condoms?” would seem to do the trick. And what’s the harm? It seems like a small price to pay to avoid a sexual assault and prison sentence.
It is in this realm of consent that universities can make an important change in their sexual assault policies. The University of Southern California defines sexual misconduct as any act perpetrated upon a person “1. without his or her consent; 2. where the assailant uses physical force, threat, coercion or intimidation to overpower or control the survivor; 3. where the survivor fears that she or he or another person will be injured or otherwise harmed if she or he does not submit; 4. where the survivor has an impaired ability to give or withhold consent due to the influence of alcohol or other drugs; or 5. where consent is otherwise not freely given.”
The university then defines consent as “positive cooperation,” “informed, knowing and voluntary,” and “active, not passive.” It explains that “silence, in and of itself, cannot be interpreted as consent” and further provides that “consent is an ongoing process in any sexual interaction [and] may be withdrawn at any time during a sexual interaction.” But the policy leaves one glaring contradiction: “When people consent to sexual activity, they will have indicated, verbally or otherwise, that they are participating willingly, freely and voluntarily.”
What exactly does “or otherwise” mean, particularly when taken in conjunction with the “in and of itself” rule associated with silence? If consent is an “ongoing process in any sexual interaction,” then surely it cuts both ways. Victims not only are able to deny consent, but, as many perpetrators would (and probably have) alleged, victims can provide consent at some point during a sexual interaction. At that point, are all bets off? If a woman starts making out with someone, is that consent for sex? What if she reaches her hand down his pants? At what point does the burden shift to the victim to show that she did not “or otherwise” her way into consent?
It is for this reason that verbal consent is so important. A simple, “Want to have sex?” removes all ambiguity and risk, whereas defining consent as “verbal or otherwise” only opens an unnecessarily gray area in determining whether a sexual assault has occurred. And while increased education at the university and pre-university levels plays a key role in preventing sexual assaults, a university’s policy of adjudication must not create an undue burden of proof for victims of sexual assault.
In the end, everyone surely is in agreement that just one sexual assault is too many. We should hold those who commit these acts accountable, both under our criminal laws (if the victims wish to pursue charges) and through university policies. However, as long as even the most well-intentioned university policies against sexual assault define consent including phrases such as “or otherwise,” there will continue to be a lack of communication in sexual encounters, leaving some perpetrators of sexual assault unpunished.