In the wake of the 2011 Dear Colleague Letter (DCL), schools revised and created sexual misconduct policies. In these policies, defining sexual consent is central, as it outlines what kinds of sexual behavior are encouraged (affirmative consent) and what behaviors constitute misconduct (use of force, coercion). Sexual consent definitions ideally guide education and prevention programming on campus. Further, reports of sexual harm are accepted and adjudicated by campus officials based in part on whether actions violate the standards of sexual consent set forth in policy documents.
Despite the importance of defining consent, schools were largely left to their own devices when creating definitions of consent to include in their sexual misconduct policies. The DCL did not provide a standard definition of consent, nor did schools have access to any other consistent, national, or agreed-upon definition. As a result, definitions of consent in campus misconduct policies draw from various sources. Some states define sexual consent in state law. Some do not. Those that do define it in various ways. The White House Task Force released a set of recommendations in 2014 that listed language and concepts schools might include in their policies. California (2014) and New York (2015) state legislatures passed state laws requiring schools in those states to use an affirmative consent standard (yes means yes)–but the states differ in their definitions of affirmative consent. Education and legal professionals also contributed ideas on how to define consent.
To better understand how universities define sexual consent, we collected and coded the sexual consent definitions provided in the 2016 student sexual misconduct policies and student codes of conduct of 381 schools. After two rounds of coding, the data set reflects the prevalence of a range of concepts related to consent including: use of force, affirmative consent, incapacitation, situational and relational boundaries (e.g. consent to sex with one person does not imply consent to sex with another person), and communication guidelines for expressing consent (e.g. words or actions). A blog post with some early findings can be found on the Council for Contemporary Families website. We also presented a poster at the National Academy of Sciences, Engineering, and Medicine’s 2020 Public Summit on Preventing Sexual Assault in Higher Education.
Using these data, we are currently working on a paper describing variation in how universities define sexual consent. The first part of this paper uses a variety of methodological strategies to unearth the patterns — and the randomness — of variation in school definitions. School definitions of sexual consent do not simply vary on a continuum from broad (e.g. defining sexual behaviors as consensual unless they involve force) to narrow (e.g. requiring verbal consent), as schools include and exclude elements seemingly at random (e.g. requiring affirmative consent, but not explicitly disallowing use of force). Through coding and classification, we ultimately arrive at a way to sort schools into distinct “consent regimes” — from more to less comprehensive. Schools with the least comprehensive regimes have no definition of consent at all, while schools with the most comprehensive definitions document school expectations on force, incapacity, situational and relational boundaries, expectations for the expression of consent, and so forth.
The second part of this paper analyzes how “consent regimes” relate to institutional characteristics. Preliminary results suggest that schools with fewer resources and status and that serve students from more economically disadvantaged backgrounds have less comprehensive sexual consent definitions. This suggests that college students are subject to different consent regimes depending on where they attend school, with implications for equity and student experiences. Students who attend different schools may receive systematically different messages about what behaviors are acceptable, as well as inconsistent institutional protection from sexual harm.