Students Must Agree “Why” They Had Sex or It’s Sexual Assault

At Ohio State University, to avoid being guilty of “sexual assault” or “sexual violence,” you and your partner now apparently have to agree on the reason WHY you are making out or having sex.  It’s not enough to agree to DO it, you have to agree on WHY: there has to be agreement “regarding the who, what, where, when, why, and how this sexual activity will take place.”

There used to be a joke that women need a reason to have sex, while men only need a place.  Does this policy reflect that juvenile mindset?  Such a requirement baffles some women in the real world: a female member of the U.S. Commission on Civil Rights told me, “I am still trying to wrap my mind around the idea of any two intimates in the world agreeing as to ‘why.’”

Ohio State’s sexual-assault policy, which effectively turns some welcome touching into “sexual assault,” may be the product of its recent Resolution Agreement with the Office for Civil Rights (where I used to work) to resolve a Title IX complaint over its procedures for handling cases of sexual harassment and assault.  That agreement, on page 6, requires the University to “provide consistent definitions of and guidance about the University terms ‘sexual harassment,’ ‘consent,’ ‘sexual violence,’ ‘sexual assault,’ and ‘sexual misconduct.’” It is possible that Ohio State will broaden its already overbroad “sexual assault” definition even further: Some officials at Ohio State, like its Student Wellness Center, advocate defining all sex or “kissing” without “verbal,” “enthusiastic” consent as “sexual assault.”

Ohio State applies an impractical “agreement” requirement for not just sex, but for a much broader category of  “touching” that is sexual (or perhaps romantic?) in nature.  First, it states that “sexual assault is any form of non-consensual sexual activity. Sexual assault includes all unwanted sexual acts from intimidation to touching to various forms of penetration and rape.”  Then, it states that “Consent is a knowing and voluntary verbal or non-verbal agreement between both parties to participate in each and every sexual act. . .Conduct will be considered “non-consensual” if no clear consent . . . is given. . . .Effective consent can be given by words or actions so long as the words or actions create a mutual understanding between both parties regarding the conditions of the sexual activity–ask, ‘do both of us understand and agree regarding the who, what, where, when, why, and how this sexual activity will take place?’”

This “agreement” requirement is impractical, because unlike sex (where there is generally an implicit agreement among the participants before it can even happen, since sex is difficult to do without active cooperation), no one agrees in advance – verbally or non-verbally – to have someone touch them in a particular place while making out. No one ever says, “may I touch your breast” before doing it while making out. They may (and usually do) welcome (and enjoy) it after it occurs, but they don’t specifically “agree” to it in advance (indeed, they may have expected the touch to occur in a different place, even if they found it pleasant). The very process of making out is a gradual escalation of intimacy step by step, without constant discussion or an endless series of agreements.  That may be impossible under Ohio State’s policy, not just because it requires “agreement” (rather than mere “acquiescence”) but also because it expresses hostility to the concept of “consent to one form of sexual activity” being a signal of receptiveness to other, slightly more intimate “forms of sexual activity.”  But that’s exactly what happens in making out: when you acquiesce in one form of touching or other “sexual activity” long enough, that signals a likely willingness to engage in slightly more intimate forms of touching — although you are free to rebut that presumption of willingness at any time simply by saying “no” or physically conveying your unwillingness.  Such fluid interaction is threatened by Ohio State’s definition, which states that that “Consent to one form of sexual activity does not imply consent to other . . . sexual activity,” that there must be “agreement between both parties to participate in each and every sexual act,” that only “clear consent” counts, and that “Consent can never be assumed, even in the context of a relationship.”

If this definition of “sexual assault” were not already broad enough, Ohio State’s Student Wellness Center seeks to radically narrow the concept of consent further (and ban “kissing” without verbal consent as “sexual assault”).  It says consent must be “verbal,” “enthusiastic,” and  must be “asked for every step of the way”;  “If consent is not obtained prior to each act of sexual behavior (from kissing to intercourse), it is not consensual sex,” it says.  Consent also must also be a litany of other things, such as “sober,” “informed,” “honest,” “wanted,” and “creative.”

Hans Bader

Hans Bader

Hans Bader is a senior attorney at the Competitive Enterprise Institute.

3 thoughts on “Students Must Agree “Why” They Had Sex or It’s Sexual Assault

  1. Not a give and take kind of offering. I guess the Educational aspect is a one-way street and not directed toward the People who ultimately PAY for your 501c(3) privilege…

  2. Counselor, If we assume ….and we probably should…that the average College student is not always well-versed in the nuance of CONSENT..and the first KISS…isn’t it prudent for the University to take a proactive role ? After all, Unlike the University, the Parents of these kids (whether they bothered to address the issue or not) no longer bare any responsibility.

    If the University takes a position, However impotent…it establishes a level of effort to overcome the issue…How they choose to approach the issue seems less important than the fact that they did something.

    I would also point out that this policy has a great deal of LEG to it…It is so ODD…that it actually becomes very effective…While the student body may speak in laughter…they are speaking…and thinking about what the end-game is…

    This clearly will mean nothing to the predatory assault scenario….but isn’t it true that the vast majority of the incidents are with people who have had previous contact?…

  3. I wish the govt. would be bound by such rules of consent; that would put some teeth into the phrase “by the consent of the governed”.

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