MOORHEAD – California drew a lot of attention last fall when the state started requiring colleges to adopt a standard of affirmative consent for sexual contact.

In other words, a rape is not defined by a victim who said “no,” but a victim who didn’t say “yes.” The yes-means-yes law in California was the first of its kind at the state level.

But similar policies were already on the books at Concordia College and North Dakota State University, and a task force at Minnesota State University Moorhead is talking about how to bring the concept into its culture.

At Concordia, the policy says silence alone cannot be interpreted as consent. Consent must come from “words or actions.” A similar policy is in place at NDSU, which requires “an affirmative decision given by clear actions or words.”

Still, the policies at the two area schools are not as strongly worded as some at other campuses, which specifically require verbal consent or that consent be present at every step of a sexual encounter.

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“There are a number of discussions going on at a national level, some of them at state legislatures, some of them at institutions, about the exact meaning of affirmative,” said Sue Oatey, vice president and dean of student affairs at Concordia. “There are other institutions that go beyond what we ask for.”

The base notion is the same, though. Rather than putting the responsibility of resistance on the victim of a sexual assault, affirmative consent policies put responsibility in the hands of both parties.



‘Yes means yes’



Senior Angelique King is one of three students on MSUM’s sexual violence task force, a group that was formed in October and will present recommendations for educational programming and prevention efforts to President Anne Blackhurst in March.

A 38-year-old mother of three, King is a non-traditional student, and said her age gives her insight into how the topic has changed over time.

“Back in ’96 when I graduated high school, if you didn’t say no, then you should’ve said no,” she said.

That no-means-no approach is gradually being replaced by yes-means-yes in educational programs and policies across the country.

Proponents of the latter say that victims of other crimes – murder, for instance – aren’t required to say “no” first, and victims of sexual assault should be treated the same. Many also note that when victims go into a state of shock, saying “no” is impossible.

The MSUM task force, a group of 16 faculty, staff and students, is looking into that trend.

The university’s current policy is one of effective consent, defined as “informed, freely given and mutually understood.” It’s not as aggressive as other local policies: “Silence does not necessarily constitute consent,” but could.

Ashley Atteberry, the school’s Title XI coordinator and director of student conflict and resolution, said effective consent doesn’t fall too far from affirmative.

“If you are engaging in sex with somebody, you should mutually understand what you are doing,” she said.

That wording hasn’t sufficed for some students at the University of Minnesota, where policy also states that sexual contact must be “mutually understood.”

U of M Student body President Joelle Stangler called that “incredibly vague,” and said that for two people in the heat of the moment, “there's a lot of assumption going on” about what each person wants.

Stangler and other student leaders recently called for a panel to examine the merits of changing the U of M’s policy to require affirmative consent.

Atteberry said the MSUM task force likely won’t change policy because that has to be done at the system level. But task force members are talking about the same subject.

“Affirmative consent is definitely a hot topic in our meetings, less about policy and more about changing mindsets,” King said.



Education, awareness



Critics say affirmative consent policies will complicate personal relationships and legal proceedings.

George Washington University law professor John Banzhaf said even asking someone for consent is fraught with ambiguity.

“Suppose the guy says, ‘May I touch your breast?’ She says, ‘Yes.’ OK, does that mean through her shirt?” he said. “Does it mean taking off her shirt through her bra? Does it mean reaching under the bra, but not taking it off?”

Although questions remain, King said affirmative consent is as much “a PR thing” and “an education and awareness program” as it is a legal standard.

“I should have an active part in my own consent, and so should my partner have an active part in my consent,” she said. “I think it’s more of a psychological tool than anything.”

Others, however, say it’s important for universities to include the concept in policies. NDSU freshman Caitlin Hanson said “people take it more seriously” when that’s the case.

Hanson was one of several NDSU students shown the school’s sexual assault policy on Tuesday afternoon. A recent transfer, she was pleased to discover it.

Some critics say asking for permission would be awkward, but not Hanson.

“That’s totally, totally fine,” she said.

“It sounds awkward, but important,” said sophomore Kiah Swenson.

Other NDSU students said they’d like their policy to require spoken consent, but Janna Stoskopf, dean of student life, said no one has asked to change it.



Students get involved



That’s also the case at the University of North Dakota, where students have not requested a policy change.

As it stands, the policy only mentions consent to say that consent cannot be given by a person who is too young, intoxicated or has a mental disease.

“Nobody has come forward to ask that we put together any kind of a definition for affirmed consent,” said university spokesman Peter Johnson. He said they’d be watching nationally to seek out best practices.

The U of M will be doing the same. Vice provost Danita Brown Young said she is willing to work with students, and Stangler hopes for recommendations by the end of this semester.

Meanwhile, a group of 12 students at Concordia will look into their school’s policy, as well. If they want to make changes, “we would certainly be open to that,” Oatey said, though she had not heard requests.

In all of these conversations, the takeaway goes beyond policy, King said.

When students leave campus, “the policy’s not going to go with them,” she said. “But the new vocabulary, the new idea of what they deserve, of what respect they deserve, of what they’re entitled to regarding their rights, that will go with them.”



Policies at area colleges:



NDSU



 

  • “Consent is an affirmative decision given by clear actions or words.”
  • Silence alone is not consent.
  • Previous sexual relations or current dating is not consent.
  • Consent to one sexual act is not consent to another.
  • Clarify verbally if there is confusion.
  • If the person you are having sex with is incapacitated, there is no consent.



Concordia

 

 

  • “Consent is active, not passive.”
  • Silence alone is not consent.
  • Previous sexual relations or current dating is not consent.
  • Consent to one activity is not consent to another.
  • If the person you are having sex with is incapacitated, there is no consent.



MSUM

 

 

  • Consent is “informed, freely given and mutually understood.”
  • Silence is not necessarily consent.
  • Previous sexual relations or current dating is not consent.
  • If the person you are having sex with is incapacitated, there is no consent.



UND

 

  • You are guilty of offense if you know or have reasonable cause to believe that “the contact is offensive to the other person.”
  • If the person you are having sex with is incapacitated, there is no consent.

 

Minnesota Public Radio contributed to this report.