In 1990, Antioch College in Ohio instituted an affirmative consent policy stating that all students must obtain explicit verbal consent from a prospective partner prior to engaging in any sexual contact. The policy was considered so extreme and inconsistent with typical standards of sexual communication at the time that it was widely mocked, including on Saturday Night Live. Now, nearly three decades later, most colleges and universities have adopted policies that define consent in terms of affirmative agreement, and some states have legally mandated affirmative consent polices. Antioch College is being heralded as a pioneer.

When I received a Sexuality Research Fellowship Program (SRFP) dissertation grant to study sexual consent in 2003, over a decade after the implementation of Antioch’s then infamous policy, there were only a handful of published academic papers addressing the concept of sexual consent. In the years since that study,1Zoe Peterson and Charlene Muehlenhard, “Conceptualizing the ‘Wantedness’ of Women’s Consensual and Nonconsensual Sexual Experiences: Implications for How Women Label their Experiences with Rape,” Journal of Sex Research 44, no. 1 (2007): 72–88. I—and other researchers—have continued to study this topic, but the rapid adoption of affirmative consent policies on college campuses has outpaced research. Many questions remain: Do such policies effectively reduce rates of nonconsensual sex (i.e., sexual assault and rape) as intended? Do they actually change the way students communicate about sexual willingness and unwillingness?

Potential benefits of affirmative consent policies

“Affirmative consent policies encourage more active and direct communication because, under an affirmative consent standard, ‘no’ is assumed unless ‘yes’ is explicitly communicated.”

Theoretically, affirmative consent policies might help to address some problems with how young adults typically communicate about sex. Research has found that young adults often communicate sexual consent indirectly, nonverbally, or through passive nonresistance.2→Kristen Jozkowski et al., “Consenting to Sexual Activity: The Development and Psychometric Assessment of Dual Measures of Consent,” Archives of Sexual Behavior 43, no. 3 (2014): 437–450.
→Charlene Muehlenhard et al., “The Complexities of Sexual Consent among College Students: A Conceptual and Empirical Review,” Journal of Sex Research 53, no. 4–5 (2016): 457–487.
In other words, “yes” is assumed unless there is a clear “no.” Affirmative consent policies encourage more active and direct communication because, under an affirmative consent standard, “no” is assumed unless “yes” is explicitly communicated. This helps to challenge the assumption that, as long as there is no refusal, it is fine to continue with sex. In our research, my colleagues and I have found that both men and women sometimes describe initiating sex by just starting the act and waiting to see if the other person objects. For example, in one study, when asked how he would initiate sex with a woman, a man said, “Just stick it in and if she objects, pretend like I had done it by mistake.”3Kristen Jozkowski and Zoe Peterson, “College Students and Sexual Consent: Unique Insights,” Journal of Sex Research 50, no. 6 (2013): 517–523. In another study, a woman stated,

My boyfriend and I were fooling around and I was curious how he would react to me sticking my fingers up his butt but knew he would not go for it. So as I went to give him a hand job, I stuck my fingers in his butt.4Sarah Buday and Zoe Peterson, “Men’s and Women’s Interpretation and Endorsement of Items Measuring Self-reported Heterosexual Aggression,” Journal of Sex Research 52, no. 9 (2015): 1042–1053.

Under an affirmative consent policy, these instances would—quite rightly, in my opinion—constitute nonconsensual sex. In these examples, there was no explicit sexual refusal, because there was not an opportunity for refusal. The man and woman quoted here were exploiting the idea that “yes” can be assumed unless there is a clear “no” by starting sexual acts without providing an opportunity for “no.” Affirmative consent policies, however, would classify these instances as nonconsensual because, under affirmative consent, “no” is assumed unless there is a clear “yes.”

Affirmative consent policies are also advantageous in that they hold the party who is initiating sex responsible for obtaining consent rather than holding the responding party responsible for clearly communicating nonconsent. This is important because sometimes sexual assault victims are blamed—or blame themselves—for not communicating their nonconsent clearly enough. Indeed, in our original SRFP-funded study, we found that women who had experienced something that legally qualified as rape sometimes felt they were to blame because they did not express their refusal forcefully enough. As one woman wrote, “I guess you could say I ‘consented’ by not saying yes and just letting it happen.”5Peterson and Muehlenhard, “Conceptualizing the ‘Wantedness’ of Women’s Consensual and Nonconsensual Sexual Experiences,” 83. An affirmative consent standard could help to undermine this type of self-blame because it takes the responsibility for consent off of the victim.

Where affirmative consent falls short

Yet, despite the advantages of affirmative consent policies, there are many complexities surrounding sexual consent that they do not solve. First, unlike in Antioch’s original policy, many current affirmative consent policies indicate that “yes” can be communicated either verbally or nonverbally. Thus, the question remains: What type of nonverbal behavior counts as saying “yes”? In prior research, college students have identified dressing in revealing clothing, consuming alcohol, going home with someone, and flirting as potential indicators of sexual consent,6→Kristen Jozkowski et al., “Gender Differences in Heterosexual College Students’ Conceptualizations and Indicators of Sexual Consent: Implications for Contemporary Sexual Assault Prevention Education,” Journal of Sex Research 51, no. 8 (2014): 904–916.
→Charlene Muehlenhard et al., “The Complexities of Sexual Consent.”
but clearly one might engage in those behaviors without being willing to have sex.

“These men appeared to be seeking affirmative consent, but they mistakenly believed that a ‘yes’ is always true consent regardless of the manipulative or coercive tactics used to evoke it.”

Second, sometimes even an explicit, verbal “yes” is not true, freely-given consent—for example, if the “yes” occurs in response to pressure or coercion or when the person is too intoxicated to make an informed decision. In an interview study of men who had perpetrated coercive sexual acts against a woman,7Emily Strang and Zoe Peterson, “Unintentional Misreporting on Self-report Measures of Sexually Aggressive Behavior: An Interview Study,” Journal of Sex Research 54, no. 8 (2017): 971–983. the men often argued that the sexual acts were actually consensual because the women eventually said “yes.” One man said, “I’ve never actually done anything without her consent. I’ve tried to manipulate to getting her consent…I have lied and definitely tried to make up crap to get in her pants, for sure.” Another man said,

[I wouldn’t have sex without her consent.] Like, I’m not gonna go to a party and the woman’s just laying there drunk and I’m just gonna pull up her skirt and take out a latex and go at it. I mean, I’ll wake her up, and I’ll tell her lies like, ‘you look amazing,’ even though she’s got throw up on her face. But I’m not gonna start right away.8Strang and Peterson, “Unintentional Misreporting,” 981.

These men appeared to be seeking affirmative consent, but they mistakenly believed that a “yes” is always true consent regardless of the manipulative or coercive tactics used to evoke it.

Third, a “yes” may not be a legitimate yes if it is not informed consent. Given that only 24 states in the United States require secondary public schools to provide any form of sex education, and given that only 13 states require that, if provided, the sex education must be medically accurate, adolescents and young adults in the United States may lack (1) basic knowledge of anatomy, physiology, and different sexual acts; (2) self-reflection about what they do and do not want and value sexually; and (3) skills to talk to a partner about sexual likes and dislikes. These are all skills needed to provide informed and affirmative consent.9Zoe Peterson, “Teen and Young Adult Sexual Desire and the Importance of Yes,” in APA Handbook on the Psychology of Women, vol. 1, ed. Cheryl B. Travis and Jacquelyn W. White (Washington, DC: American Psychological Association, 2018), 273–295.

The SRFP was ahead of its time in funding research on sexual consent. Now, in the age of #MeToo, sexual consent is receiving a lot of well-deserved attention, but funding for this research remains quite sparse. Yet, more research is needed to further guide policies and intervention efforts. Affirmative consent policies help to address some, but certainly not all, of the complexities of sexual consent communication. Further, policies and educational interventions that focus exclusively on sexual consent communication overlook the fact that most sexual assaults are likely not a result of miscommunication about consent,10Melanie Beres, “Sexual Miscommunication? Untangling Assumptions about Sexual Communication between Casual Sexual Partners,” Culture, Health, & Sexuality 12, no. 1 (2010): 1–14. but rather, a result of one person understanding but choosing to disregard the other person’s nonconsent. Ongoing research is needed to evaluate the effectiveness of affirmative consent policies and sexual consent education programs in reducing sexual assault. But researchers must also work to develop and evaluate interventions that target those individuals who knowingly ignore nonconsent. All of these efforts will be most successful when they are combined with better and earlier sex education, so that adolescents and young adults possess the information needed to offer truly informed consent.

References:

2
→Kristen Jozkowski et al., “Consenting to Sexual Activity: The Development and Psychometric Assessment of Dual Measures of Consent,” Archives of Sexual Behavior 43, no. 3 (2014): 437–450.
→Charlene Muehlenhard et al., “The Complexities of Sexual Consent among College Students: A Conceptual and Empirical Review,” Journal of Sex Research 53, no. 4–5 (2016): 457–487.
3
Kristen Jozkowski and Zoe Peterson, “College Students and Sexual Consent: Unique Insights,” Journal of Sex Research 50, no. 6 (2013): 517–523.
4
Sarah Buday and Zoe Peterson, “Men’s and Women’s Interpretation and Endorsement of Items Measuring Self-reported Heterosexual Aggression,” Journal of Sex Research 52, no. 9 (2015): 1042–1053.
5
Peterson and Muehlenhard, “Conceptualizing the ‘Wantedness’ of Women’s Consensual and Nonconsensual Sexual Experiences,” 83.
6
→Kristen Jozkowski et al., “Gender Differences in Heterosexual College Students’ Conceptualizations and Indicators of Sexual Consent: Implications for Contemporary Sexual Assault Prevention Education,” Journal of Sex Research 51, no. 8 (2014): 904–916.
→Charlene Muehlenhard et al., “The Complexities of Sexual Consent.”
7
Emily Strang and Zoe Peterson, “Unintentional Misreporting on Self-report Measures of Sexually Aggressive Behavior: An Interview Study,” Journal of Sex Research 54, no. 8 (2017): 971–983.
8
Strang and Peterson, “Unintentional Misreporting,” 981.
9
Zoe Peterson, “Teen and Young Adult Sexual Desire and the Importance of Yes,” in APA Handbook on the Psychology of Women, vol. 1, ed. Cheryl B. Travis and Jacquelyn W. White (Washington, DC: American Psychological Association, 2018), 273–295.
10
Melanie Beres, “Sexual Miscommunication? Untangling Assumptions about Sexual Communication between Casual Sexual Partners,” Culture, Health, & Sexuality 12, no. 1 (2010): 1–14.