While rape is not new, the celebration of lack of consent at the heart of party rape is. Never before have we seen the public and open valorization of sexual assault and rape that we are seeing now. In 2014, a fraternity at the Georgia Institute of Technology was suspended for distributing an email with the subject line “Luring your rapebait,” which ended, “I want to see everyone succeed at the next couple parties.”
The problem involves a toxic combination of lack of reporting by victims, the prevalence of rape myths that continue to blame victims, and the party culture on campus that spawns sexual assault even if it doesn’t cause it.
Progress in fighting this problem is hard to track. At Yale, in 2010, fraternity brothers marched around the freshman dorms chanting, “No means yes, yes means anal.” The fraternity was banned for five years, but this fall, there were similar chants and banners welcoming freshman at Ohio State University, Western Ontario University and Old Dominion.
These examples suggest an aggressive campaign on the part of some fraternities and some men on campus to insist that consent is not only irrelevant, but also undesirable.
The erosion of rights can happen in a variety of ways, and manipulation of language is one of them. At the root of the problem on campuses is a change in the way the word “sex” is used. While sex is considered an activity, until recently, it commonly referred to an activity shared between people, as in the familiar phrase, “having sex.” Implicit in the concept of sex is consent. Without consent, sexual activity becomes rape.
The prevalence of drugs and alcohol on college campuses, however, has blurred the boundaries between sex and rape to the point that many college campuses have adopted the term “nonconsensual sex” to refer to sexual activity that occurs when one party, usually a woman, is unconscious or semiconscious. Rather than address sexual assault as the felony crime of rape, these campuses define it as the honor code violation of nonconsensual sex. Given that unconscious women cannot say either yes or no, they can give neither affirmative nor negative consent.
There are several problems with the notion of nonconsensual sex. First, sex implies consent. Without it, sexual activity is not sex but violence. Thus, the very term “nonconsensual sex” is an oxymoron. Second, nonconsensual sex suggests that one party engages in sexual activity while the other party gives or withholds consent. In most cases, this means that men engage in sexual activity while women merely consent, and not vice versa. Third, the notion of nonconsensual sex does not take into account power politics that continue to plague gender relations in a context where women are expected to please men. Fourth, the notion of nonconsensual sex simultaneously reveals and disavows that at least one strain of our culture actually values the lack of consent.
Some colleges have attempted to institute affirmative consent policies to deal with the problem of “nonconsensual sex.” There is even a cellphone app that records a woman’s consent, sends it to a cloud where it can’t be tampered with or even seen except by the authorities. Although affirmative consent is certainly better than no consent, there are several problems with the liberal notion of consent implicit in these policies.
Again, it is assumed that one party asks for sex and the other merely gives or withholds consent. In addition, the risk is that consent is treated like an on or off switch where once it is given it cannot be revoked, which doesn’t work for sex. Current affirmative consent policies are contractual models of sex wherein parties agree first and then act on it. But, this “Fifty Shades of Grey” form of consent is impractical when it comes to sexual activities. (In that novel, the heroine never signs the contract and the hero has his way with her nonetheless).
Just because a woman consents to accompany a man to his apartment doesn’t mean she consents to being strangled. And just because a woman gets drunk at the party does not mean she consents to sex while she’s unconscious. Drugs and alcohol lead to “50 shades of consent.”
For example, in the Steubenville, Ohio, rape case, high school football players assaulted an unconscious girl while bystanders joked and made disparaging remarks about her. One perpetrator’s defense was: “It isn’t really rape because you don’t know if she wanted to or not.” This sentiment makes clear that for these boys, if a girl is unconscious, and neither affirmative nor negative consent can be given, “sex” with her doesn’t count as rape. These boys imagined their unconscious victim might be consenting, perhaps even “wanting” it.
Obviously, in the context of a culture that values lack of consent and nonconsensual sex, what counts as both “sex” and “consent” raises many questions: At what point does a person 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?
It is noteworthy that drunken male perpetrators of rape are held less responsible because of intoxication while drunken female victims of rape are held more responsible. Again, the problem of drunken consent points to the toxic combination of alcohol and rape myths. Moreover, it reveals the changing notions of both sex and consent implicit in nonconsensual sex.
There has been movement to address the culture of sexual assault on campuses in recent months: six women coming forward to report their experiences with a suspected serial rapist at the University of Wisconsin; Brigham Young University changing its blame-the-victim policy that made reporting rape while under the influence of alcohol result in an honor code violation for the victim; and changing policies on campuses regarding alcohol in an attempt to stem growing problems connected with parties. These are small steps forward in what has become an epidemic of sexual assault on college campuses.
Certainly, no means no and only yes means yes, but, as we’ve seen, issues of consent and nonconsensual sex are more complicated. In addition to holding individuals responsible, we must consider the cultural ethos in which lack of consent is valorized and rape has been downgraded to nonconsensual sex, and where talk of sexual assault is considered acceptable — “boys will be boys” and “locker room talk” — by those who will lead this country. The need to be vigilant is even more urgent now.