UNC meddles in students’ romantic lives while misstating what consent is By Hans Bader
Rigid “consent” requirements are for legally-binding contracts, not casual interaction among intimates. When my wife and daughter hug me, they don’t ask for my permission first. Nor do I give my formal “consent” or “agree” to a hug in advance. It’s not necessary, because they know without asking that such contact is very likely to be welcome. It’s simple common sense.
Such simple common sense is absent at the University of North Carolina Chapel Hill, which defines consent to exclude common signs of consent in the context of romantic relationships. UNC now seemingly defines as “sexual assault” all “sexual contact” – which it defines breathtakingly broadly to include kissing or merely touching someone’s body – that occurs without “clear” “communication” of “affirmative” “consent” to “agreed upon forms of Sexual Contact.” It defines “sexual contact” as any “intentional touching or penetration of another person’s clothed or unclothed body, including but not limited to the mouth, neck, buttocks, anus, genitalia, or breast . . . in a sexual manner.” It then defines “consent” narrowly as “the communication of an affirmative, conscious and freely-made decision by each participant to engage in agreed upon forms of Sexual Contact. Consent requires an outward Demonstration, through understandable words or actions that conveys a clear willingness to engage in Sexual Contact . . . Consent is not to be inferred from an existing or previous dating or sexual relationship. Even in the context of a relationship, there must be mutual Consent to engage in Sexual Contact. Consent to one form of Sexual Contact does not constitute Consent to any other form of Sexual Contact.”
This definition is both unrealistically intrusive into students’ private lives, and based on legally false assumptions. First, by requiring “affirmative” permission for all intimate touching, it seemingly bans making out and foreplay as they are typically engaged in. That’s because they involve a fluid progression from “one form” of “contact” to another without discussion, not “affirmative” consent to each specific form of contact. For example, making out commonly involves a steady escalation of intimacy from touching one body part to more intimate body parts. People don’t ask, “may I touch your breast” or “may I touch your [deleted],” before doing so, since that would be awkward, off-putting, and involve endless yammering (and maybe wake up the sleeping baby in the adjacent bedroom). Instead, they touch their partner’s body part when the time seems right, and then stop if the partner objects. Such contact is usually welcomed after it occurs, and may even be reciprocated, but there is no “clear” affirmative permission for it. In the unlikely event that one partner does object, the other partner respects that objection by stopping, but the objection doesn’t render what previously occurred “sexual assault,” since there was no ill intent, and no harm done. By contrast, requiring “affirmative” permission before each touch is at odds with the actual practices of both women and men in healthy, non-abusive, egalitarian relationships.
When left-wing Antioch College insisted on such “affirmative” consent in the early 1990s, it was lampooned on Saturday Night Live, which noted that it would reduce making out and foreplay to awkward scenes like this:
Male Date Rape Player #1: . . . May I kiss you on the mouth.
Female Date Rape Player #1: Yes. I would like you to kiss me on the mouth.
[ they kiss on the mouth ]
Male Date Rape Player #1: May I elevate the level of sexual intimacy by feeling your buttocks?
Female Date Rape Player #1: Yes. You have my permission.
[ Male touches Female's buttocks ]
Second, UNC’s claim that consent cannot “be inferred from an existing or previous dating or sexual relationship” is factually and legally false in some cases. While no sexual history with the accused can justify violence, it can shed critical light on what the participants actually consented or agreed to (such as when spouses use signals, code words, or euphemisms understood only by each other to refer to sex or particular sex acts). For example, the New Jersey courts, which have the narrowest definition of sexual consent of any state, nonetheless have recognized that the overall “course of conduct” between the complainant and the accused can show “affirmative permission.” Indeed, they have ruled that it can be so relevant and “highly material” that it constitutionally must be considered as evidence, since a jury could infer consent from it. In State v. Garron (2003), the New Jersey Supreme Court ruled that in determining whether the complainant consented to sex, the court must consider her overall “course of conduct over a six-year period” with the accused, such as her visiting his home and her “repeated physical contact” with him, as well as the complainant’s past “kisses” and “grabbing” the accused’s “derrière.”
Even in contract law, where stricter consent requirements apply, consent is often inferred from the parties’ past relationship. Consent to implied contractual provisions can be proven or illustrated by the parties’ past “course of dealing,” or “course of performance,” which can fill in critical gaps about whether they actually agreed to or meant. A “course of dealing” is a pattern of previous conduct between parties to a business transaction. The course of dealing between parties to an action is examined by a court in ascertaining what the parties intended when they entered into a contract. The supposition is that the parties drew up the contract in view of the customary manner in which business hadbeen transacted prior to the signing of the contract. In a breach-of-contract action, evidence of the course of dealing is admissible in order to interpret ambiguities in the contract.” These principles do not require “affirmative” agreement in all cases: “Course of performance refers to the systematic and uniform conduct in which parties engage after they enter into a contract,” which can shed light on the intent of the parties in regard to the meaning of the agreement.” “If a party accepts a course of performance without objection, his or her Acquiescence is relevant to determining the meaning of the contract. The recipient of the performance need not expressly assent to the performance; the lack of an objection is sufficient.”
Imposing an “affirmative” consent requirement for touching does nothing to help rape victims, and serves no legitimate purpose. Even supporters of the “affirmative” consent requirement, like Tara Culp-Ressler have on other occasions admitted that sexual violence is not the result of mixed signals: studies show that people who commit sexual violence are almost always aware that what they are doing is against the will of their victims, rather than the assault being the product of “blurred” communications.
UNC’s definition of “sexual assault” confuses matters by conflating two different concepts that are not the same — unwelcomeness and lack of consent — in a way that could deprive students of clear notice of what exactly is prohibited. Under the heading “Sexual Assault and Sexual Violence,” it states that “Sexual Assault and Sexual Violence are forms of Sexual or Gender-Based Harassment that involve having or attempting to have Sexual Contact with another individual without Consent.” But sexual harassment requires a showing of unwelcomeness — a negative reaction to something after it occurred — not just lack of affirmative consent (like the absence of consent before it happened). Welcomeness is both broader and narrower than “affirmative” consent. If you like or enjoy something, it’s welcome, regardless of whether you consented to it in advance. Conversely, if you dislike something, and did not invite or incite it through similar behavior of your own, then it is legally considered unwelcome even if you did, under pressure, consent to it (like if you slept with your creepy boss after he repeatedly pestered you for a date, it can be unwelcome, even if it was technically consensual). As the Supreme Court once put it, “The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome.’. . .The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.”
Given the conflation of these two concepts, a student could well have have a due-process claim for lack of fair notice about what is prohibited, if he were expelled over conduct that he argues was welcome, but was not preceded by affirmative consent, since claiming that sexual assault is a “form” of sexual “harassment,” i.e., unwelcome behavior, could be interpreted by the student as saying that his conduct has to also be “unwelcome” before he is punished, even if that’s not how the definition is interpreted by UNC itself.
Classifying kissing or touching someone’s “neck” as sexual assault is so excessive that it could create a PR disaster for UNC. If a school expels a student for such trivial acts and calls him a “sexual assault” perpetrator, many people will view it as outrageous overkill, that student may sue, and groups like the Foundation for Individual Rights in Education will highlight it as a classic example of PC college administrators run amok. But if it does not expel or remove the student from campus, despite calling it “sexual assault,” people will wrongly assume there is a rapist on campus (because “the terms ‘rape’ and ‘sexual assault’ are sometimes used synonymously in common language”), angry classmates may protest the student’s presence as a result, and UNC may end up being denounced at web sites like the Huffington Post that uncritically depict colleges as as “rape cultures” or “rape factories” (even though the rape rate has fallen 58% since the mid-1990s, plummeting across all age groups).
Hans Bader is Counsel at the Competitive Enterprise Institute in Washington. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”