FARGO – "Can a really drunk person give consent?"
It was an easy question for three North Dakota State University juniors, who said "no" almost in unison.
But the 20-year-old men burst out laughing at a follow-up question: "Do you think college students abide by that?"
"No, not at all," Patrick Bourgois said.
"With alcohol, there's a really thin line, especially if both people are under the influence," Isaac Arnold said. "Then how do you call it, if neither one of them are really in charge of their decisions?"
Consent is an increasingly high-profile issue for college students to navigate as more schools make affirmative consent the bedrock of their sexual assault policies, requiring active and ongoing approval throughout a sexual encounter. Silence doesn't necessarily cut it. It's often described as "yes means yes," as opposed to "no means no."
College administrators hope the shift to "yes means yes" will reverse the alarming rate of sexual assault on campuses. A recent national survey found that more than one in five female undergraduates said they had been sexually assaulted in college.
Today, an estimated 1,400 colleges nationwide have affirmative consent policies, including NDSU and Concordia College. In Minnesota, lawmakers are expected to consider a proposal next year to follow the leads of New York and California in requiring such policies statewide, including at Minnesota State University Moorhead.
NDSU and Concordia teach their consent policies in freshman orientation, special campus events and seminars for new students - efforts that appear to be working, in part. In two-dozen interviews with students at both schools, most were familiar with affirmative consent and said they practiced it in their own lives.
But they also said they believe most students don't adhere precisely to the policies, especially the requirements to ask for consent at every step and not have sex when incapacitated.
An OK at every step
A cornerstone of most affirmative consent policies is the requirement for consent at every step of a sexual encounter, not just the beginning. NDSU's policy is clear that consent must be at every step, but Concordia's definition is fuzzier.
"Consent to some form of sexual activity cannot be automatically taken as consent to any other sexual activity," according to Concordia's policy.
Compare that to NDSU's: "Consent to one form of sexual act does not imply consent to other forms of sexual act(s)."
"I think what we're not prescribing is sort of a checklist," said Sue Oatey, Concordia's vice president and dean of student affairs. "What we're saying is that it's informed and it's knowing and it's voluntary. It's an active part of an ongoing set of sexual activities."
But at both schools, students said many aren't seeking active consent even at the beginning of a sexual encounter.
"With a lot of my friends, they'll be just talking with a guy friend and then he'll just make all these moves on her, and it isn't until she says stop or I'm uncomfortable or no that he'll actually stop," said Concordia senior Liv Ulring.
"Just knowing kind of the mindset of typical college students, I feel like they wouldn't bother to ask," NDSU student Hannah DeKrey said.
"If you're in the zone, or whatever, you're not going to stop at every point and double check," said NDSU sophomore Jenna Reed. "I feel like if you say 'yes' to one thing, it's basically allowing the person to keep going."
The most-cited reason for not asking? "It's awkward," students say, especially asking aloud.
Neither NDSU nor Concordia's policies require consent to be verbal, both stating that "words or actions" suffice. That's the case at most colleges.
The NDSU policy does say, however, that "if confusion or ambiguity on the issue of consent arises anytime during the sexual interaction, it is essential that each participant stops and clarifies, verbally, willingness to continue."
Of the students interviewed for this article, there was a disagreement between men and women on verbal consent. In general, women were in favor of verbal consent.
"Yeah, it's awkward but it makes sense to me," Concordia senior Alyson Kasemodel said.
"It covers everyone's butts too. If you just ask, you don't have to worry about anything later," Concordia senior Kelsey Drayton said.
Men, not so much.
"If they're reciprocating and nonverbally saying yes, then it's not that hard," said NDSU junior Billy Deer. "But actually stopping and saying, 'Are you OK with this?' It's just kind of weird."
Several men thought verbal consent would be especially uncomfortable in a relationship.
"I feel like some people would get kind of irritated with, 'Can I kiss you now?' 'Can I kiss you now?' as a repeated thing every time," said Kody Pilch, an NDSU junior.
But women interviewed said what irritates them is when men presume consent from a nonverbal cue that isn't intended that way - such as a short skirt, or a style of dance.
"When I go out dancing, I just want to dance," Ulring said. "If I'm going to grind with someone, that's fine, but that's just dancing, it doesn't mean anything more. It just means I want to dance."
She doesn't agree with the notion that getting consent is awkward.
"I think a lot of people are like, 'Oh, I don't want to ask because it'll ruin the moment,' but consent is sexy," she said. "It shows respect. I like it."
She said the issue is complicated, however, by alcohol.
How much is too much?
At a recent session of NDSU's sexual violence prevention course, Ashley Hertwig told about 75 students, mostly freshmen, that it's OK to have "drunk sex."
"There's a fine line between intoxication and incapacitation," said Hertwig, a graduate student and one of the school's violence prevention educators.
Someone who is incapacitated, she told them, has passed out, or might be unable to walk without assistance. In that state, people lose their ability to give consent, she said.
That candid discussion at the start of college is intentional, said Kelsey Keimig, NDSU's assistant director of sexual assault prevention and advocacy.
"If we get up in front of people and say one drink of alcohol renders sex nonconsensual, that's tough to abide by, culturally, so then we're setting people up for failure," Keimig said. "By having a clear conversation about incapacitation versus having a drink, I think they have more of the tools that, in reality, are necessary to make these decisions."
Concordia's policy also draws the line at incapacitation.
"For us, if someone has had a drink and they are coherent and they are capable of rational thought and decision making, that is one thing. That would be informed consent," Concordia's Oatey said. "If any individual, male or female, is incapable of making a rational and informed decision, then they are not capable of consent."
But the passage from "drunk" to "incapacitated" is elusive for some students.
"It seems like it's almost the same thing," said Dillon Ekholm, a sophomore at NDSU who took the violence prevention course last year.
"Especially if you're another person who's drunk or incapacitated, you're not going to be able to tell if somebody else is," said Andy Rieckhoff, a senior who also took the course.
That matter is also murky when you've just met someone, Concordia senior Madde Denny said. "With a stranger, it's harder to know when he or she is drunk," she said.
Both schools preach the same solution in those situations.
"If you are unsure, don't go forward," Oatey said. "If there is any doubt in your mind about whether you are incapacitated or the person you are with is incapacitated, then stop."
For Concordia senior Ryan Modahl, a homecoming king candidate who was well-versed in affirmative consent, that's common sense.
"I usually try and stay out of those situations when we're out drinking," he said. "For my sake and for someone else."
But other guys? Modahl was skeptical.
"I think it's still go as far as you can until you're stopped," he said.