A South Carolina college is threatening to expel adult students if they aren't completely sober whenever they have sex, and if both parties did not give a consent to each and every single step in the sexual progression which was both affirmative and "enthusiastic."
This is only the latest manifestation of the "yes means yes" standard for consent to campus sex, already adopted both in California and New York and at many individual universities, notes public interest law professor John Banzhaf, whose legal analysis of this new movement has been widely quoted.
Actually, the college's current rule may be an improvement on its earlier version. The original policy said that, if both students had as little as one drink each, he - but not she - had committed "rape."
A poster illustrating the rule states: "Jake was DRUNK. Josie was DRUNK. Jake and Josie HOOKED UP. Josie could NOT consent. The next day JAKE was charged with RAPE." [emphasis in original]
Here's why it would happen, according to the college: "A woman who is intoxicated cannot give her legal consent for sex, so proceeding under these circumstances is a crime."
To clarify how sober the woman must be to give valid consent, the college warned: "It only takes a single drink to ruin your life."
Although this is completely contrary to federal law under Title IX, which requires that colleges treat men and women alike, this appears to be the underlying philosophy under which so many universities operate in fact, says Banzhaf, but few are as foolish as Coastal Carolina in South Carolina to actually put it all in writing.
If both students are in fact so intoxicated that they cannot legally give consent to sex - and it takes far more than one drink to do this - neither student's consent is legally valid, says Banzhaf, so arguably both would be guilty of sexual assault on the other.
But all too often the male - but not the female - is punished if consent isn't completely clear when - and perhaps because - both had been drinking, as is so often the case.
Attorney Banzhaf notes that he actually encountered at least one such a situation. A male and female student had been having penile-vaginal sex for some time. One night they followed their usual and customary practice, but he forgot to ask for her affirmative consent that one time - assuming from their prior sexual history, and her active participation in the sex this time, that she had consented. However, he was found guilty by his college because she hadn't separately consented that one time.
But it turns out that she was the first to initiate intimate relations that night by first performing oral sex on him. He of course didn't object, but - because she hadn't asked first, and he hadn't said "yes" - Banzhaf noted that she could and should also be charged with sexual assault.
Coastal's new policy may - or may not - be somewhat more enlightened. It still says that consent must be "Enthusiastic" and "Sober," and it now states that it must also be "Mutual," but does that mean the she as well as he could face expulsion? Also, it warns that "sex without consent is sexual assault! It is a crime" says a poster.
But, contrary to this claim, in many states, including South Carolina, having sex does not constitute rape, or even necessarily sexual assault, simply because the woman did not consent.
Instead, says Banzhaf, it usually requires the use or threat of force, or that the victim be completely incapacitated (not just intoxicated).
South Carolina, in fact, requires that the woman be "mentally incapacitated or physically helpless" - something which does not result from one or even a small number of drinks, notes Banzhaf.
Indeed, the only states that criminalize sexual penetration without consent and without force are Alabama, Florida, Maine, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, Oregon, Pennsylvania, Tennessee, Utah, Vermont, and Washington.
While any college may within reason set its own grounds for expulsion - e.g., even make kissing, with or without consent, an expellable offense - it shouldn't falsely redefine the felony of rape in an attempt to scare students into what it considers "acceptable" behavior, any more than it should tell students that taking one puff on a marijuana cigarette is likely to lead to addiction or suicide, or that one act of intercourse without a condom is likely to lead to AIDS, says Banzhaf.
It's nonsensical to prohibit students from engaging in sex if they've had only one drink, or insisting that prior history cannot reasonably imply consent, at least in the absence of any negation.
If a boy and girl have for months usually began their sexual encounters with a brief period of fellatio, it's crazy to require that she seek a new "yes" from him every time they begin. If, for some reason, he doesn't consent on any given occasion, he can "just say no," as a former first lady once said in another context.
The "yes means yes" policy that silence and inaction can never amount to legally valid consent is not only also nonsensical, but also contrary to well established law as set forth in this familiar law school hypothetical. "A boy, sitting in the moonlight with a girl, says he is going to kiss her. She says and does nothing. He kisses her. Is he guilty of sexual battery?" The answer, of course, is no, says Banzhaf.
Similarly, if after meeting for the first time at a bar, a boy and girl each undresses and get into bed, and she lies back and says and does nothing as she watches him put on a condom and then mount her, any logical person would have to conclude that she's consented, although she said and did nothing.
While it's still not clear how colleges can best prevent acquaintance rapes, the answer certainly is not lying to students about what constitutes a crime, and telling them that having sex after consuming only a "single drink [can] ruin your life." Any coed who runs to be police screaming "rape" because she agreed to have sex after consuming a single drink is going to be sadly disabused of that notion, says Banzhaf.