Party Rape, "Nonconsensual Sex,"
and Affirmative Consent Policies


Americana: The Journal of American Popular Culture (1900-present), Fall 2015, Volume 14, Issue 2
http://www.americanpopularculture.com/journal/articles/fall_2015/oliver.htm

 

Kelly Oliver
Vanderbilt University


In the last decade, the prevalence of alcohol accompanied sexual assault has led the U.S. Department of Justice to identify a distinct type of rape, “party rape,” which they define as one that “occurs at an off-campus house or on or off campus fraternity and involves…plying a woman with alcohol or targeting an intoxicated woman” (Sampson 6; Armstrong, Hamilton, and Sweeney 484). Party rape is classified as a form of acquaintance rape, even if the perpetrator and the victim are strangers.  In terms of sexual assault, party rape makes colleges and universities “hunting grounds” for sexual predators, many who never consider their activities rape, and most who never consider themselves rapists. A combination of factors comes to play in rape on college campuses, including popular culture artifacts such as popular novels and films. A combination of factors comes into play in rape on college campuses, including drugs and alcohol, gender stereotypes, and popular culture artifacts such as popular novels and films. For example, in an official trailer for the film Pitch Perfect 2 (2015), Rebel Wilson’s character “Fat Amy” is shown drinking and dancing at a campus party when the boy she is dancing with asks if she wants to have sex later. She says “no,” but then gives him a suggestive wink. He looks confused and asks whether that means no or yes since she said “no,” but then winked. She responds “absolutely not,” and then winks again. This scene suggests that at best girls’ and women’s consent is ambiguous, and at worst, girls and women do not mean what they say, or what they say can be discounted when it comes to interpreting their consent.

In this essay, I address the problem of consent in cases of party rape where both parties are intoxicated. On many college campuses, rape has been downgraded to “nonconsensual sex,” which is technically an oxymoron. Here, I consider some pros and cons of the category “nonconsensual sex” in addressing the “epidemic” of sexual assault on college campuses.  In response to growing reports of sexual assaults, some schools have instituted affirmative consent policies. I critically evaluate affirmative consent policies in terms of assumptions about consent, on the one hand, and women’s role in sex and their sexual autonomy, on the other.  Even while they may be a step forward, new affirmative consent apps for cell phones highlights problems with the notion of consent assumed in affirmative consent.  Finally, I speculate on an alternative way to conceive of consent that does not revolve around the autonomy or the moment of consent, but rather sees consent as a journey in one of the most intimate forms of communication, the communication of pleasure.

Party rape is not just the result of alcohol consumption. Certainly, not every man who parties is a rapist and not every woman who parties is a rape victim.  One study concludes: “Cultural expectations that partygoers drink heavily and trust party-mates become problematic when combined with expectations that women be nice and defer to men.  Fulfilling the role of the partier produces vulnerability on the part of women, which some men exploit to extract nonconsensual sex” (Armstrong, Hamilton, and Sweeney 484). This study also finds that multiple variables, including individual psychology, rape myths as well as rape culture, and particular contexts such as fraternities rife with gender inequalities lead to rape (Armstrong, Hamilton, and Sweeney 484-485).  The use of rape drugs to intentionally incapacitate college women is particularly reprehensible insofar as it is not only premeditated rape, but also these drugs are in themselves dangerous, even lethal in high doses (Zorza 60).  In 2014, at the University of Wisconsin, for example, several girls ended up in the hospital after they were served punch spiked with Rohypnol at a fraternity party (Mejia).  This fraternity engaged in a “rape conspiracy” by planning sexual assault and intentionally drugging unsuspecting women. 

Addressing party rape is compounded by the problem that women do not report it.  Women are much less likely to report sexual assault if it occurs when they are intoxicated because they are unclear about what happened and/or do not feel entitled to report it since they were drunk (Armstrong, Hamilton, and Sweeney 491; Adams-Curtis and Forbes 91).  Some may not even know they were assaulted, or they may be unsure.  In addition, given the increasingly slippery slope between sex and sexual assault, and uncertainty about what counts as rape, many women are subject to sexual aggression, even sexual assault, and are not sure whether or not they have been raped (Burnett et. al. 467).  Because the progression from “sexual negotiation to coercion is commonplace in the college setting,” survivors question their own consent and their own responsibility for unwanted sexual contact (Burnett et. al. 467; Adams-Curtis and Forbes 91).  One study reports that half of the men surveyed admitted to using some form of sexual aggression on a date (Wolitzky-Taylor 582).  Finally, even when women are certain that they have been assaulted, when drugs or alcohol are involved they are more likely to buy into rape myths that blame victims for their own assaults.  Or, if the drugs are illegal, or the girls are underage for drinking, they may not want to admit that they were engaging in these criminal activities, so they do not report being assaulted.  

It is not just access to drugs and alcohol that foster rape culture on college campuses, but also the acceptance of rape myths is higher on college campuses than it is in the general population [perhaps connect to American popular culture here].   As one study concludes, “college campuses foster date rape cultures, which are environments that support beliefs conducive to rape and increase risk factors related to sexual violence” (Burnett et. al. 466; see also Sanday). The existence of rape myths such as “victims are responsible for their own rapes,” “victims are sluts and are asking for it,” or “no” really means “yes,” are prevalent on college campuses and part of the culture of fraternities and sports cultures.   Although colleges and universities are institutions of higher learning, producing the most educated people in the country, they also breed rape myths at a higher rate than other cultural institutions.  These attitudes, along with a lack of attention on the part of administrators, and a lack of consequences for perpetrators, is why campuses are so dangerous for young women.  One study concludes, “Athletics and fraternal organizations, replete on college campuses, are related to stronger rape-supportive attitudes, based on such myths (Burnett et. al. 466; see also Bleeker and Murnan).  This study, among others, shows how college athletics and fraternity culture perpetuate a classic double standard whereby men who have sex, even force sex, are “studs,” whereas women who have sex are sluts (Burnett et. al. 466; Adams-Curtis and Forbes 91).  In addition, several studies indicate that aggressive sports are correlated with aggressive sex: “College men who play aggressive sports in high school are more likely to accept rape myths, are more accepting of violence, and engage in more sexual coercion toward dating partners compared to other college men” (Forbes et. al. 449-452; Burnett et. al. 466).  The combination of a party atmosphere with alcohol flowing, and the acceptance of rape myths that include victim blaming or fantasies that victims enjoy rape, myths which are perpetuated by fraternities and in jock culture, makes colleges and universities especially fertile hunting grounds for serial rapists and men who are willing to force sex. 

For example, accusing top athletes and white middle class honors students of rape is difficult. Often the community rallies around the alleged perpetrator and discounts the testimony of the alleged victim who may suffer harassment or retaliation for accusing a star athlete.  This dynamic was the case of Heisman trophy winner and alleged rapist Jamies Winston at Florida State University and his accuser Erica Kinsman.  While he won awards, she was forced to leave FSU. ESPN commentators Skip Bayless and Stephen A. Smith described the allegations against Winston as "terribly unfair" and suspiciously timed (even though Kinsman had reported the alleged rape a year before) (Glock).  The community came to his defense and harassed her. He was celebrated while she was castigated. Now he is suing her for defamation of character even though his DNA was found in the rape kit and another woman had also accused him of sexual misconduct. Women report being harassed for reporting rape or for standing up against rape on campus. This harassment adds another layer of trauma to the sexual assault (Ullman and Peter-Hagene 496). The public too often sides with the perpetrators before allowing a fair hearing of the facts, especially when the accused are star athletes or popular fraternity brothers. 

In addition, rape victims are routinely asked about what they were wearing, what they did to provoke the attack, whether or not they resisted, if their actions might have been construed as consent, and so on. The documentary The Hunting Ground shows dozens of young women who suffered more trauma after reporting their rapes, when college administrators and police did not seem to believe them. One survivor, Annie Clark, recounts an administrator told her, “rape is like a football game,” and asked her if she were the quarterback what she might have done differently.  This kind of “blame the victim” mentality is commonplace, especially on college campuses where young women dress up and drink at fraternity parties. Women are further traumatized when authorities do not take them seriously, blame them, or side with their attackers. Not being taken seriously contributes to P.T.S.D. symptoms by making women question themselves; they suffer more shame along with feelings of helplessness. In addition, they may have to watch while their attackers not only go free but also are heralded as the true victims while the women are painted as the evil ones, ruining promising college men’s careers. 

Newsweek magazine reports, “nearly one-third of college men admit they might rape a woman if they could get away with it” (Bekiempis). Turns out, this is a telling misrepresentation of the results of the study, which found that approximately 32 percent of college men said they would force a woman to have sex, but only 13 percent of those said they would rape a woman (Edwards, Bradshaw, and Hinsz 188). These results demonstrate the power of the word rape. They also show that the majority of men who would force a woman to have sex do not consider it rape.  Indeed, if recent revelations brought to light via social media photos and videos are any indication, groups of young people happily watch, and even record, unconscious women being sexually assaulted without intervening or calling police. And, as mentioned earlier, in another study, half of college men admit to using aggressive tactics to have sex (Wolitzky-Taylor et al. 582).

On many college campuses, what until recently had been called “acquaintance” or “date” rape has been further downgraded to “nonconsensual sex,” in large part to sustain disciplinary measures that do not involve accusing the perpetrator of a felony crime, namely rape.  Campus administrators do not want to accuse their otherwise successful fraternity members (many of whose fathers were fraternity members themselves and contribute generously), or college athletes, of rape, so many are using the designation “nonconsensual sex” to refer to sexual assault, especially when the victims are unconscious.1 The question for some administrators and members of the community seems to be, how could a leader on campus with good grades and a bright future be a rapist?  Indeed, in many cases women report a backlash against them for coming forward to report sexual assault.  These women often face hostility from people defending the perpetrators.  Some have argued that the move from accusations of rape to date rape, and now to nonconsensual sex have been motivated by desires to protect white middle class men, and that black men are far more likely to face accusations of rape (as opposed to nonconsensual sex or lesser charges) (see Foley et al.; Donovan and Williams; George and Martinez). In addition, downgrading rape to a lesser noncriminal offense excuses rape and seemingly condones rape culture.

This new category of sexual violation allows colleges and universities to discipline perpetrators who otherwise might not be found guilty of rape.  On the other hand, it also turns rape into a form of sex, and reduces a felony crime into a mere honor code violation.  While making rape an honor code violation suggests old-fashioned ideals of chivalry that prevent men from “taking advantage” of women, it seems that attitudes towards women are at the core of sexual assault.  While we may not want to return to ideals of chivalry that include putting helpless passive women on a pedestal, princesses or damsels in distress who need to be rescued, we do need to change attitudes of hostility and “benevolent sexism” that contribute to rape or “nonconsensual sex.”  As an honor code violation, students can be expelled from school for committing nonconsensual sex, but they will not be convicted or punished for the felony crime of rape. 

In addition to honor codes, it is becoming more common to use Title IX of the federal civil rights law to address sexual assault on campus.  Victims of sexual assault can file a Title IX complaint with the Title IX coordinator on campus (this position is required by federal law for any school receiving federal funds).  Any school receiving federal funds is required to comply with Title IX, which prohibits discrimination in education based on sex.  In 2011, the Department of Education sent out a “Dear Colleague Letter” to all high schools, colleges, and universities making clear that sexual harassment and sexual violence count as sex discrimination in that they interfere with educational opportunities for their victims.  Unlike criminal law, which requires the higher standard of evidence “beyond a reasonable doubt,” civil rights law requires the “preponderance of evidence” standard, which means that if it is more likely than not that the violation occurred, then the perpetrator should be held responsible and face consequences.  In the case of colleges and universities, however, usually the harshest penalty is still expulsion, which means that serial rapists can just matriculate elsewhere and continue assaulting unsuspecting women. Unlike criminal law that requires that sex offenders be identified as such and registered, Title IX has no such requirement.  Even with growing attention to sexual assault on campus, and the use of Title IX, very few students have been expelled even in cases where there is a “preponderance of evidence” that they committed sexual assault or “nonconsensual sex” (Kingkade).  And, the federal government has never withheld funding to even a single school for noncompliance of Title IX based on sexual harassment, sexual assault, or “nonconsensual sex.”

The phrase “committing nonconsensual sex” sounds odd, and points to a contradiction at the heart of this notion.  Nonconsensual sex applies to single perpetrators (as opposed to gang rape) who do not force themselves on their victims because they have already incapacitated them with drugs and/or alcohol.  While traditionally, rape has been defined in terms of force and consent, nonconsensual sex is defined in terms of only one of those criteria, namely consent (see Archard). Some conservative lawmakers have tried to distinguish between forcible rape, or what they consider “real” rape, and what they call “mere” rape, which does not involve force, suggesting that without force, rape is not real (Seltzer and Kelley). Some feminists, on the other hand, have argued that the traditional two-pronged definition works to disqualify both violent consensual sex and nonconsensual sex that does not involve force (West 233). The category of nonconsensual sex may allow disciplinary action on the part of colleges and universities for sex without consent that is not forced, but it does so by again excluding nonconsensual sex from being considered rape. 

Nonconsensual sex turns on the issue of consent, specifically whether or not the alleged victim consented or not.  In an important sense, however, consent is a state of mind, a mental state, that can be communicated or withheld, and that can change from one minute to the next (see Kazan). In the philosophical literature, consent is typically seen as either a mental state, or a behavior or performance, or both a mental state and a behavior (see Archard; Hurd; Feinberg; McGregor; Westen; and Wertheimer). If consent is seen as merely a mental state, and if it is not communicated, and since others cannot necessarily intuit it, it must be solicited, which is to say confirmation of the mental state of consent would have to be obtained through verbal communication. Given that sexual activity is itself a behavior, it may not be enough to obtain consent through the interpretation of seemingly consenting behaviors. If consent is a behavior or performance and not merely a mental state, on the other hand, the problem does not disappear.  If consent is a behavior, then someone could give consent unintentionally by sending the wrong signals, or what one person does to indicate consent could be different from what another person does, or consent behavior could be misinterpreted.  For example, some men think that if women wear short skirts, then they are “asking for it.”  If consent is a matter of both mental state and behavior, then it is a feeling or state of mind that must be communicated through language or gestures. And, the subject must be competent to give consent, and know, at least in some sense, what they are consenting to. And, therein lies the rub. Not only is it unclear what counts as a consenting behavior but also in terms of sexual activity consenting to one act does not necessarily imply consent to other activities. In addition, it is unclear how to assess competence, especially in cases where both parties are intoxicated, which is often the case on college campuses. Finally, it is unclear what and how much the subject needs to know in order to consent. In other words, does sex have to become some kind of written contract to meet strict standards of consent?

Furthermore, if we think of sex as inherently a consensual activity, then “nonconsensual sex” becomes an oxymoron. Having sex usually refers to an activity between consenting conscious partners (see Archard). When one party is unconscious, common sense dictates that her consent cannot be given or assumed. Additionally, we talk about committing crimes like rape, but not about “committing” sex. Nonconsensual sex seemingly downgrades sexual assault and rape from a criminal offense to a breach of contract. Even former sex worker, Greta Christina, whose article on what counts as sex has been widely circulated, argues that anything can count as sex so long as there is consent (27-28).  Consent, she claims, is the only necessary element that determines whether or not an activity counts as sex (28).  As we learned from Sigmund Freud, human beings can be aroused by almost anything.  But, what distinguishes sex from crime is consent. 

The category “nonconsensual sex” seems to be a response to the growing number of rapes that take place while the victim is unconscious or semi-conscious.  While it seems obvious that an unconscious person cannot give affirmative consent, this scenario, and reactions to it, throw into stark relief attitudes towards women’s roles in heterosexual sex, and what it means for a woman to consent.2 It has been the case that in order for a woman to legitimately accuse someone of rape, she was expected to actively give negative consent in the form of words or gestures. Unless a woman actively resists or says “no,” her passivity or lack of protest has been interpreted as consent.  In other words, doing nothing implies consent (see MacKinnon and Archard). As in the myth of Sleeping Beauty, passivity implies receptivity. 

The fantasy of sex with an unconscious girl is centuries old, mythical even with its first recorded roots in an anonymous fourteenth-century Catalan poem entitled Frayre de Joy e Sor de Plaser (Léglu 102). In this version of the Sleeping Beauty fairytale, after the beautiful virgin daughter of the emperor dies suddenly, her parents place her in a tower accessible by a bridge of glass. When Prince Frayre de Joy sees the sleeping beauty’s smiling face, he “has sex repeatedly with the corpse” and gets her pregnant. The young prince attributes consent to the princess by kissing her a hundred times until her lips move in response (Léglu 106–107). As the legend of Sleeping Beauty shows, consent can become a male projection into his victim, whom he imagines as a properly active sexual partner, whereby he hallucinates consent, even pleasure. Sleeping Beauty may be a fairy tale, but fairy tales tell us something important about our cultural imaginary. The fourteenth-century story of the rape of Sleeping Beauty, construed as mutually consenting sexual pleasure, is all too relevant to contemporary scenes of party rape with unconscious girls and women as well as rape pornography. In term of attitudes toward rape, in some ways, we are still in the Middle Ages.

More recently, policies are shifting to require affirmative consent rather than insist on negative consent, which is especially important in cases of party rape where unconscious or incapacitated girls and women are incapable of giving either negative or affirmative consent.  Affirmative consent policies require verbal or nonverbal affirmative consent, which is more than merely allowing someone to do something.  According to the California law, “Affirmative consent means affirmative, conscious, and voluntary agreement to engage in sexual activity” (Goldberg).  The law clearly states, “Lack of protest or resistance does not mean consent, nor does silence mean consent.” In other words, negative consent or resistance is no longer required to prove rape. 

While affirmative consent is a stronger standard than mere negative consent in that it requires that both parties actively consent either verbally or through gestures, affirmative consent should not be conflated with desire. Just because a woman submits to sex, does not mean that she wants it, especially in a culture where women feel pressured to please men. As Lise Gotell argues, “even when framed through an ‘only yes means yes’ standard, consent is not a measure of whether a woman desires sex but, instead, whether she accedes. Consent thus functions as a sign of subordination (that is, subordination to another’s power) and a means of its legitimation” (372).  In this regard, affirmative consent reinforces the stereotypical notion of active masculine agency and reactive feminine agency wherein the woman’s power to choose is circumscribed within the very limited confines of consenting to let someone do something to her.  Even affirmative consent cannot guarantee that a woman wants to have sex or a particular type of sexual activity.  It only demonstrates that she acquiesces, and even positive signs of submission or affirmative consent are problematic when drugs or alcohol are involved, as they are in party rape. My analysis of new consent apps for cell phones will highlight how affirmative consent continues to legitimate men’s power to set the terms of sex by recording women’s consent in order to protect men from possible charges of sexual assault.

Even affirmative consent continues the tradition of treating men as the active parties to sex and women as passive or reactive.  As Louise du Toit explains:

In a symbolic universe where women are seen as inherently or naturally sexually passive, or as sex objects rather than sexual subjects, a meaningful distinction between rape and normal heterosexual intercourse can only turn on the notion of a woman’s consent to ‘having something done to her’…Normal heterosexual sex is thus where a woman consents to ‘have something sexual done to her’ and rape is where she doesn't consent, but it is done nevertheless. The blurred distinction between rape and normal heterosexuality is caused by the stabilization and naturalization of the polar and hierarchical opposition between active male sexuality and passive female sexuality. (du Toit 50-51)

While affirmative consent laws, on the other hand, make clear that heterosexual sex is still defined in terms of women submitting to the actions of others rather than women actively desiring sex themselves, considering “sex” with an unconscious girl nonconsensual sex rather than rape makes clear that within our cultural and legal norms, negative consent, that it to say, resistance, is still considered a prerequisite for counting the act as rape. 

The prevalence of sexual assault on college campuses, and the role of alcohol, has led to affirmative consent policies at some colleges and universities. Law Professor Amy Adler sees the “legal contract that is signed in Fifty Shades of Grey – it’s kind of [the model of] what a lot of affirmative consent people are looking for...Maybe we should have written, contracted-for sexual exchanges on campus in order to avoid the messiness and possibility of error that could result in rape” (qtd. in Green). Has Fifty Shades of Grey become a template for consensual sex? Given that a college student at the University of Illinois in Chicago, who is accused of raping a fellow student, claims he was reenacting scenes from the movie Fifty Shades of Grey, the emulation of nonconsensual sex in the context of long discussions about consent, should give us pause (Holley). While it is true that we have become obsessed with consent, it is also becoming increasingly clear that lack of consent is what has become sexy, at least in the Fifty Shades universe.  In Fifty Shades, contractual consent in writing is opposed to real hot passionate sex, which involves a powerful man spanking a virginal college student who does not like it. Consent is confused with submission. In fact, for all of its problems, Fifty Shades makes clear the distinction between consent and submission. Although she submits, Ana clearly does not consent in that she does not sign the contract. 

One tech firm has created a consent app for cellphones that can be used by women and men to get or deny consent, and to record it to use as proof later. The app seems primarily aimed at protecting men against charges of rape by recording the person consenting or denying consent. Then to avoid tampering, the app uploads the recording to the cloud where it can only be accessed later by authorities. But, this consent app does nothing to address the problem of whether or not the capacity to consent can be undermined or destroyed by drugs and alcohol. In other words, it is easy to imagine someone who is intoxicated (and still conscious) consenting verbally on this phone app even though they may so drunk they do not know what they are doing. Some rape drugs like Ketamine may make it easy for predators to get recorded consent on cellphones if their victims remain semi-conscious and susceptible to suggestion due to the drugs. In addition, the cellphone recordings would not necessarily show whether or not the woman’s consent was coerced in some way. On the other hand, it is possible that the videos could backfire and prove that the victim was intoxicated and therefore could not consent.

In addition to overt coercion or threats, we should not ignore the ways in which power differentials between men and women, and sexism in our culture, coerce women into sex or sexual activities they do not want, and may therefore also coerce women into verbally consenting to sexual activities they do not want. For, as Vanessa Munro reminds us, “entrenched power disparities, material inequalities, relational dynamics and socio-sexual norms operate to construct and constrain not only women’s ability to say ‘no’ to male sexual initiative, and to have that refusal accredited both by society and law, but also – and perhaps even more problematically – to say ‘yes,' at least in the kind of free and unfettered way that the liberal model of autonomy often seems to presume” (925).  The issue of consent, then, is complicated not only by the immediate circumstances and the sobriety of the participants but also by the larger social context in which women’s choices, while in principle vast, in practice are limited.

Some claim that affirmative consent is unrealistic in that sexual intimacy happens without verbal consent, and the policies do not detail what gestures (eye contact, nods, moans, smiles) constitute consent (Goldberg). Consent must be reconceived when thinking about sexual relations, because unlike a contract for services, sex is an ongoing negotiation (McGregor 175; Schulhofer 82-98). Sex is a continual process of negotiation and renegotiation (see Gotell). And, therefore, consent must be continually given as the sexual activities take place. Consent is not a moment, but a process. And cell phone apps completely distort this fact. A woman might consent to sex without consenting to particular sexual activities or consenting to sexual assault. A woman might consent to sex on a cellphone app, but that does not mean that she consents to being forcibly raped. Consent that was freely given in the beginning can be withdrawn at any time. In fact, if we take the ability to withdraw consent at any time as definitive of consent, then an unconscious person cannot consent, and even prior consent is irrelevant (see Rubenfeld).

While there are advantages to requiring affirmative consent over mere negative consent in the form of resistance, we must be skeptical of affirmative consent policies that turn sex into a contract and consent into a one discrete moment, let alone affirmative consent apps for electronic devices that record the supposed moment of consent, so it can to be used as evidence later. Affirmative consent continues to perpetuate stereotypical gender relations in which the man acts and the woman reacts. He has sex, while she consents to it. Taking this argument further, Lise Gotell maintains that affirmative consent normalizes certain types of masculine and feminine subjects:

The legal discourse on affirmative consent produces good masculine subjects, defined through the imperatives of seeking consent and disciplined through the risk of criminalization. Good feminine sexual subjects are, by contrast, re-action heroes, who practice agency through avoidance and who carefully anticipate the risks of sexual violence floating everywhere. (366)

She concludes that it turns women into “victims in waiting” who are expected to actively fight off attacks (Gotell 880).  Again, women are blamed if they do not avoid risky situations that could lead to sexual assault, and if they do not aggressively fight off attacks.

In addition, gendered power relations disappear in the rhetoric of affirmative consent and choice.  Affirmative consent substitutes a thin notion of sexual autonomy for sexual equity or sexual empowerment (Gotell 367).  The choice to consent to certain activities, or not, does not necessarily make sexual partners equal partners. And, the choice to consent or not does not necessarily mean that women are empowered to speak or seek to fulfill their own sexual desires, whatever they may be. Even in terms of sexual autonomy, affirmative consent is limited to the choice to acquiesce or not, which is not a very robust notion of sexual autonomy.  Furthermore, insofar as affirmative consent assumes men as the active subjects of sex and women as the reactive objects, it risks repeating the very power dynamics that make rape possible in the first place (see Marcus; Gotell). Also, affirmative consent removes women from the context in which they consent. It does not, and cannot, consider why or how they consent, and whether their consent is “freely” given or coerced, whether by their sexual partner or by the sexual norms of our culture. In the words of Lise Gotell, “Affirmative consent individualizes by focusing attention on the moment of a sexual transaction, thus abstracting sexual interactions from their contexts” (Gotell 361). 

Affirmative consent apps highlight the problems with affirmative consent, most notably the notion that consent is given once, that it is a switch, either on or off, and once it is on, it stays on.  These apps are obviously designed to protect men who could be accused of rape; and they are open to misuse, especially in cases where the woman consents in the beginning but changes her mind, or she consents to some activities, but not to others. Indeed, affirmative consent apps do not allow for the possibility of withdrawing consent, which is fundamental to the very concept of affirmative consent. Furthermore, insofar as these apps assume that consent is one discrete and definitive moment, they not only do not allow for withdrawing consent, but also cannot adapt to changing circumstances or guarantee continued affirmative consent. Consent apps freeze consent into a moment in time that can be recorded. Even if a woman lists those activities to which she consents in a Fifty Shades style contract, the most important aspect of consent is erased from these recordings, namely, the ability to withdraw consent. The ability to revoke consent is the minimal condition for the possibility of consent. Cell phone apps miss this entirely.

Still, affirmative consent in the form of “only yes means yes” seems like a step forward from assuming that silence equals consent, or worse, “no means yes.” Some have argued that affirmative consent could lead to situations where women consent to sex while drunk, but regret it while sober, and later charge their sex partner with rape.3 In the case of sexual assault on college campuses, it is important to note, if they are reported at all and most rapes are not, they are reported to college administrators and perpetrators never face criminal charges (Rubenfeld). Also, given the low rate of reporting for rape (11.5% and only 2.7% when drugs or alcohol are involved), and given that false reporting of rape is negligible (2-6%), it is highly unlikely that affirmative consent policies will cause women to start “crying rape” after regretting sex the next day (see Gotell; Benedet). In fact, it is more likely that women will recant true accusations of sexual assault because they fear retaliation than that women will make false accusations. In other words, there is pressure on women not to report, or to recant accusations truthfully made, but there is no evidence that women regularly falsely report sexual assault. Although detractors can describe situations where consent is unclear, what is clear is that women are unlikely to report consensual sex as rape.

While it is important to consider the ways in which affirmative consent policies may continue to blur the lines between consent and desire, if enforced, in practice they might force serial rapists to reconsider using drugs and alcohol to incapacitate their victims. Although affirmative consent does not guarantee that women want or desire sex, but rather only that they consent and submit to it, and in this regard it does not empower women to say “no” in coercive situations, the hope is that sexual predators will no longer be able to use the lack of negative consent or lack of resistance as an alibi. Of course, unless there are witnesses, or a cellphone recording, many of these cases will remain “he said, she said.” And, what counts as evidence of consent is still an open question, especially when drugs and alcohol are involved. Perceptions of consent vary, and studies show men are more likely to interpret certain behaviors as signs of consent than women do (Jozkowski and Peterson 632).

 If rape is defined as sex against someone’s will, what if that will is compromised by drugs or alcohol to the point where the victim cannot express it? The more difficult question is when a woman does not know her own will. Perhaps the more important question is why she does not know her own will. Given pressures on young women to conform to social norms, and given that ours is still very much a patriarchal society, there are many factors that could cloud someone’s judgment. This is a central problem with treating the issue of consent as one of sexual autonomy in a culture where women and others are not always fully autonomous. The stakes of determining what should count as autonomy are as high as those for what should count as consent. Indeed, without accounting for the ways in which a woman’s autonomy may be compromised by her social situation, it is impossible to decipher the meaning of affirmative consent. While certainly “no” does not mean “yes,” the troubling truth of patriarchy is that sometimes even “yes” does not mean “yes.” Fifty Shades of Grey provides evidence of this situational dynamic.  So too is Kathleen Bogle’s study of hook-up culture wherein girls and women are often pressured to go farther than they want in sexual relations.

When college-age people are drinking, most of them inexperienced with sex, and some of them still teenagers, consent is a messy business. Indeed, sex often brings with it complicated emotions and cultural valuations that can make consent vexed in the best of circumstances. Men and women may feel pressured into having sex or not having sex. They may feel that their masculinity or femininity is at stake. They may want different things from the experience before and after, or even during. There can be misunderstandings and miscommunication. Sone studies indicate that women are pressured to go farther than they want, and that perceptions of consent are gendered (see Bogle; Burnett et. al.; Jozkowski and Peterson). And now that attention is given to the role of college drinking in sexual assault, and the incapacitation of judgment on the part of both perpetrators and victims when intoxicated, the standard of rape has shifted from the question of force to the question of consent. Certainly, many cases of rape on college campuses involve force, whether or not they are acquaintance or date rapes. But, with so many high profile cases involving severely intoxicated college students, and in some cases victims who are unconscious, the question of physical force becomes moot. 

The lack of force in these cases is another reason why the designations “rape” or “sexual assault,” both of which traditionally refer to the use of force, no longer seems to apply in a straightforward way. If the victim is already incapacitated due to drugs or alcohol, then physical force may be unnecessary on the part of the perpetrator, particularly if the victim is unconscious. In these cases, nonconsensual sex does not require force. The victims of these crimes may arrive at the hospital or rape crisis center without any visible signs of assault. As we move from designations of rape, through sexual assault, to nonconsensual sex, we move from situations of sexual assault involving battery, to ones in which the victim may not have been physically damaged, and where physical force may not have been necessary to subdue the victim.

Obviously, given the problem of sexual assault and rape on college campuses, especially those involving drugs and alcohol, the issue of consent takes center stage. The difference between rape and sex is consent. Consent works its moral magic and transforms an act from impermissible to permissible (Hurd 121).  If the accused can convince a university board or a jury that the woman consented, then he is exonerated. This was the case with Heisman trophy winner Jamies Winston whose DNA was in a rape kit while he celebrated his success. Like many cases of sexual assault or rape, it became a “he said versus she said,” in which his word was put up against Erica Kinsman’s, his accuser, who was harassed by Florida State University football fans after she came forward with rape allegations. Kinsman claims that Winston and his friends put something in her drink and that is how she ended up in Winston’s apartment. He claims the sex was consensual.  Without evidence of force, evidence of rape-drugs, or witnesses, it becomes difficult to prove consent or lack thereof.

Where alcohol rather than force is used to incapacitate, what counts as consent and what counts as rape becomes even more problematic. Although it is crucial to note that the use of drugs and alcohol does not cause sexual assault, they are an important component of rape on college campuses. As one study of the correlation between alcohol use and rape puts it, “even though many sexual assaults involve substance use by the victim, this does not imply that women are in any way responsible for their sexual assault. Victimization is committed by the perpetrator, and prevention programs targeting university men should strongly emphasize that an intoxicated or incapacitated person cannot legally or otherwise consent to sexual contact” (Krebs et al. 643). Obviously, the issue of consent gets messy when drunken men and women are trying to interpret signs of consent, or behaving in ways that could be interpreted as consent.

Take, for example, a case in 2013 at Occidental College, where “John Doe,” was expelled from college for sexual misconduct after having sex with “Jane Doe” when she was intoxicated. They both were drunk. She had been taken back to her own dorm room by friends and subsequently returned to John Doe’s dorm room to “have sex” as she texted a friend that night. She was a virgin at the time. Later, although she did not deny going to his room, she claimed that she was too drunk to consent to sex. This is probably a typical situation on college campuses. Both parties are drunk. They have sex. One or both regret it the next day.  Whose responsibility is it to obtain consent? Whose consent matters? Whose consent makes the difference between rape or nonconsensual sex and just poor judgment? Where do we draw the line in terms of intoxicated consent? In other words, if consciousness is a prerequisite for consent, at what point is consciousness impaired enough to prohibit the possibility of consent? This question is especially relevant when we consider the role of drinking in rape, date rape, sexual assault, and nonconsensual sex. At what point does a woman become incompetent to give consent? In the case of drunken college students, is there a blood alcohol level at which they no longer are able to give consent? And should the same standards apply to men as to women? In other words, if two severely intoxicated students have sex, are they raping each other? Given our discussion of intoxicated consent and party rape it is noteworthy that drunken perpetrators of rape are held less responsible because of intoxication while drunken victims of rape are held more responsible (Finch and Munro 591). Intoxicated men are held less responsible while intoxicated women are blamed. Drunkenness lets men off the hook, while implicating women. 

David Archard argues that given the significant harm to women if they are forced to have sex against their will, or when they do not consent to sex, and given the relative lack of harm to men if they abstain from sex, it is the man’s responsibility to obtain affirmative consent from the woman (144-145). Furthermore, Archard argues that men know when they are having sex, and usually they are also aware of their partner’s reactions, especially signs of nonconsent. He concludes, “men have a duty to take reasonable care lest women do not consent. The costs of taking such care are not great and are certainly insignificant when compared to the costs that are avoided by such care being taken” (145). In Archard’s view, which is reasonable if not completely satisfactory, it is a man’s responsibility to avoid nonconsensual sex. And it is a man’s responsibility to obtain affirmative consent. Certainly, “no means no” and “only yes means yes,” but as we have seen there is more to consider when addressing the issue of consent in sexual assault, especially party rape, on campus.  

In conclusion, how might we think about consent beyond contracts and limited notions of sexual autonomy such that we reimagine consent in the context of mutual respect and responsibility towards others? The word consent is from the Latin con (together, with) and sentire (feel). It means an agreement of feelings. This agreement of feelings has come to mean an agreement to do something, or more precisely, to allow something to be done to you. In terms of affirmative consent to sex, it has been interpreted as a contract of sorts, framed by classical notions of individual autonomy, which as we have seen is problematic.  Yet, in Latin, sentire can mean not only feeling as in emotion or belief, but also sensing as in perception or knowledge. Additionally, the root of sentire, sentio, means to go, to head for, as in a path, a way, or a journey, which in some languages such as German and Lithuanian is associated with thinking. Consent, then, means being sensitive to each other, sensing and perceiving the agreement of the other. Furthermore, consent could be reinterpreted as a thoughtful journey together, “with-thinking” or thinking with as much as with-feeling or feeling with. 

The Latin sentire encompasses two definitions of sense: sense as sensation, perception, or feeling, on the one hand, and sense as meaning, thinking, or knowing, on the other. Sense is both sensation and meaning, recognizable and beyond recognition. Thinking of consent in terms of the double meaning of sentire highlights the tension between what we sense or perceive and what we mean. Our experience is composed of both physical, embodied sensations and our interpretations of them. And both perception and meaning are possible by virtue of a social and historical context. We see and mean by virtue of our culture, our language, and our traditions. 

Sexual assault does not happen in a vacuum. Rather, it happens in a culture whose primal fantasies and fairy tales include the rape of unconscious girls and hallucinations of consent, and whose contemporary fantasies often are formed by pornography filled with images of violence towards girls and women as well as young adult entertainment that revolves around images of beaten and battered girls. For example, in the filmic presentations of tough heroines such as Hanna (in Hanna), Katniss Everdeen (in The Hunger Games), Bella Swan (in Twilight), and Tris Prior (in Divergent), these girls who “give as good as they get” are repeatedly beaten and attacked, including by their own boyfriends.  In fact, Tris in Divergent is sexually assaulted by her boyfriend Four in her fear-scape, and Katniss is choked by her boyfriend Peeta after he’s brainwashed by the Capital (Oliver 130-131). These girls’ resistance to patriarchal stereotypes becomes justification for their abuse. Their strength in fighting back against their assailants becomes filmic justification for visually reveling in the violence done to them. The camera feasts on their abuse and aestheticizes violence towards pubescent girls. Furthermore, the violence they suffer seems to be punishment for their sexual awakening. For these girls, violence, including sexual violence, is part of their everyday existence. 

While recent representations of violence towards girls and young women may speak to the lives of teenage girls today, they also function to normalize violence against girls. This normalization of violence, particularly sexual violence, is especially problematic in light of recent attention to rape in high schools and on college campuses where, by the time they graduate college, twenty percent of girls will report being sexually assaulted. As classic fairy tales remind us, coming of age has always been dangerous for girls. Even as they defy gender norms, our contemporary teenage heroines take us back to myths of classic fairy tale princesses, replicating the violence in these stories. By aestheticizing violence against girls and young women, including and especially sexual violence, these films continue a long line of images that anesthetize us to violence against girls. From classic fairy tales, to pornography, to Hollywood blockbusters aimed at teens, popular culture valorizes images of violence towards girls and women. In sum, taking responsibility for sexual assault would entail considering the ways in which our culture encourages the denigration and assault of girls and women, from fairy tales, to Hollywood blockbusters, to party rape on campus.  Rather than a contract, a moment, or a cell phone app, consent would refer to a relationship, or thoughtful journey together, towards agreement of feeling that opens up rather than closes off the possibility of response from another.

Notes

1. Only two percent of men were in fraternities, but 85 percent of Fortune 500 executives, 76 percent of members of Congress, 85 percent of Supreme Court justices, and all but a few U.S. presidents and vice presidents were in the Greek system (Stein).

2. For a discussion of when, or whether, an unconscious woman can give consent, see Gotell.

3. Heenan and Murray found 2.1% false reporting (5), Kelly et al. found 3% (53), Lonsway and Archambault found 6.8% (qtd. in Lisak 1327), and most recently Lisak et al. found 5.9% (1329). Although older studies report rates as high as 10.3% (Clark and Lewis 38), I am relying on studies from the last 10 years. Wolitzky-Taylor et al. found only 11.5% of women report rapes on campus and only 2.7% report when drugs or alcohol is involved (582).


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