America just entered a new era in the campus rape debate.
In a speech at George Mason University on Thursday, Education Secretary Betsy DeVos said she is rolling back Obama administration rules on investigating campus sexual assaults, which she said created a “failed system” that was unfair to students.
President Obama’s 2011 guidance on Title IX, a 1972 federal law that prevents discrimination in education based on sex, required schools to respond to reports of sexual violence. It was controversial from the start, embroiling the country in a politically divisive conversation about how investigations into campus sexual assault are handled and where they ultimately belong: at universities or in the criminal justice system.
Survivor advocates say many students want their cases handled by their colleges, because they don’t trust the legal system. Most criminal reports of rape never lead to an arrest. Advocates for the wrongfully accused and some legal experts, however, argue universities lack the legal tools — such as subpoena power — needed to conduct fair investigations.
But investigations happen after the fact. At the true heart of the debate is sex itself: how college kids are having it, how they get consent from partners and when the line into sexual assault is crossed.
“Everybody’s been so focused on ‘let’s blame Vanderbilt, or the University of Kansas.’ … I think it’s almost like they don’t want to talk about what they’re really talking about, which is straight-up sex, and who has the power,” said Vanessa Grigoriadis, a journalist who spoke extensively with universities, survivors and the accused for her new book, Blurred Lines: Rethinking Sex, Power, and Consent on Campus.
Power is a huge part of sex, and men have historically held most of it, Grigoriadis said. Power influences who initiates sexual activity and who calls the shots during it.
Sexual dynamics are shifting, though, especially among younger women. While the nation might tune in only when there’s a high-profile rape case, negotiations around consensual sex are happening on college campuses every night.
New definitions, shifting dynamics
In June of 2016, sexual assault survivor Emily Doe read an impassioned victim impact statement in court to her attacker, Stanford student Brock Turner. The letter went viral, and elevated campus sexual assault to a new level of national attention. But while millions were moved by Doe’s eloquence and horrified by the details of her case — she was assaulted behind a dumpster while unconscious — Grigoriadis said cases like Doe’s are not the norm. In most of the stories she heard first-hand during three years of research in interviews with 120 students, cases were far more complex, and it was not always easy to discern whether consent was obtained.
“There has been an expansion of the definition of sexual assault that not every American agrees with,” Grigoriadis said. “At the same time, there is confusion around consent. What is consent? How do you get it? What did she have to say in the moment?”
The FBI updated its definition of rape in 2013 from “carnal knowledge of a female forcibly and against her will” to “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Definitions around consent are changing, too. States such as New York and California have passed affirmative consent laws — also known as “yes means yes” laws — and many schools have implemented their own affirmative consent policies.
With a “yes means yes” standard, silence doesn’t count as consent. Neither does a lack of resistance. Consent — which can be given through words or actions — must be voluntary and mutual and can be withdrawn at any time.
While it’s clear to most people that it’s not OK to have sex with someone who is passed out, young men and women aren’t always on the same page when it comes to what constitutes consent when both people are conscious. A 2015 Washington Post-Kaiser Family Foundation poll of current and recent college students found 95% of of the men surveyed agree sex when a person is unconscious or incapacitated is assault. But that same poll found while at least 40% of respondents said undressing, getting a condom or nodding establishes consent, at least 40% said those same actions do not.
Despite these differences, Brett Sokolow, executive director of the Association of Title IX Administrators, a professional association that helps schools ensure Title IX compliance, believes affirmative consent is becoming entrenched.
“Rape laws and definitions of sex offenses have historically been defined not only from a male perspective, but from a patriarchal lens and a property lens,” Sokolow said. “Our society is shifting more and more toward women’s autonomy, so a consent-based rule makes a lot of sense. … It’s something [college kids]feel is reasonable.”
What’s changed, and what hasn’t
Definitions may be shifting, but sexual assault on college campuses remains pervasive: A 2015 survey from the Association of American Universities, a higher-education policy advocacy group made up of dozens of schools, found that 23.1% of female undergraduate students surveyed said they had experienced sexual assault or misconduct through physical force, threats or incapacitation.
And now is when students are most at risk. More than 50% of college sexual assaults take place between August and November, according to the Rape, Abuse & Incest National Network (RAINN), which advocates nationally against sexual violence. It’s why colleges have dubbed the early part of the school year “the red zone.”
Many colleges have stepped up their sexual-assault prevention and awareness efforts to address the red zone, but activists say that’s not enough: They criticize the policies for focusing more of their campaigns on how women can avoid rape (travel in groups, don’t put down your drink), and less on discouraging men from committing violence.
“We need more honesty that there is a sexualized culture, that girls are participating in it, but that they deserve to be able to participate in it without being assaulted,” Grigoriadis said.
Ending rape means changing more than definitions; it means changing culture — and young people know it. The Washington Post-Kaiser Family Foundation poll that found men and women don’t always see eye to eye on consent did find widespread agreement on something: To prevent sexual assault, 93% said men should respect women more.