I would like to begin with a completely non-exhaustive list of things that do not imply consent to sexual activity: revealing outfits, a person’s sexual history, being a person’s friend, sharing alcohol, using Tinder, being a person’s date, making out at Shooters, having sex last week, having sex last night, hanging out at LDOC, sharing a bed, sharing a bed while naked, being naked in general, et cetera, et cetera, et cetera.
What does imply consent to sexual activity? Asking for consent and getting a clear, definitive, freely given, enthusiastic yes. A good determiner? “F*** yes!!” That should be the level of enthusiasm to look for. If you aren’t getting an enthusiastic yes, then assume the answer is a no.
LDOC, a triumphant punctuation to a stressful semester, is right around the corner. As students plan their day of drunken debauchery, few will likely consciously consider the Duke Sexual Misconduct Policy. Take this as a reminder: in all your inebriated reveling, consent to sexual activity is both expected and required. LDOC is not a day without consequences, and high alcohol consumption is not an excuse to commit sexual assault. As I cautioned at the beginning of this year, don’t touch the butt.
LDOC seems as good a time as any to remind the Duke community of the standards of conduct that Duke requires. As Duke’s Sexual Misconduct Policy states, “Consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions or words.” Let’s break that down. An “affirmative decision” means that you choose to come to an agreeable decision. Choice is the key here: you cannot come to an acceptable decision if you are given no other option. A "no" must always be available.
“Clear actions or words” means that there is no doubt in your mind, not even a little bit, that the other person wants to get down and dirty with you. And, per Duke's policy, if there is even a sliver of doubt, “it is essential that each participant stops and clarifies, verbally, willingness to continue.” This is especially critical, because studies have found that while men believe women give nonverbal consent 60 percent of the time, women say they give nonverbal consent only 10 percent of the time. That’s a huge mismatch of perceptions with potentially disastrous consequences.
Let's say that you got clear, affirmative consent. Next question: is there alcohol involved? Per Duke's policy, consent cannot be given if a person is incapacitated by drugs or alcohol, even if they give what you think is a verbal yes. How do you know if they’re incapacitated? If the person is stumbling around, slurring their words, passed out or just looks really, really drunk, then they can’t consent to sexual activity. If you look at a person and think, “Wow, Susan is having a really rough night,” then instead of trying to engage in sexual activity with Susan, how about you get her a cab so she can go home.
But what if it looks like more of a gray line, or you can’t tell how much they have been drinking? Then ask yourself these two questions: One, would this person have sex with me if they had not been drinking? Two, would I trust this person to drive my family, my dog, and me home right now? If you answer anything other than “of course!” then back off. Erring on the side of caution is always a better call. The so-called “gray line” should always raise red flags.
It’s important to note that Duke specifically states that being intoxicated or incapacitated yourself “does not diminish one’s responsibility to obtain consent and will not be an excuse for sexual misconduct.” Internalize this. Because if you break it, the starting point of punishment is expulsion. And you have the potential to cause another human being immense pain.
You may not like the Duke policy. You may think the Duke policy overreaches. You may have all sorts of unhappy thoughts about the Duke policy. That really couldn’t matter any less. When you decided to enroll at this institution, you became subject to its standards. This is the policy every one of us agreed to follow.
Consent is the difference between sex that is wanted and the scars that will be left behind by sexual assault. One in five women will be sexually assaulted in college. Survivors of sexual assault are significantly more likely to experience mental health problems, commit suicide and drop out of school. As a survivor of rape and sexual assault, I can attest to the physical, mental and emotional scars that are left behind when we ignore consent.
The lack of a no is not consent. The lack of pushing you away is not consent. Consent can never be assumed. If you aren’t given clear consent for sexual activity, Duke requires you to assume that the answer is a no.
Consent really is not that hard. It just requires us to communicate. As Duke students we manage to communicate about everything else. We ask our friends for notes we missed during class instead of sneaking into their room and taking them. We ask professors for extra credit instead of hacking their computer system and giving ourselves additional points. We ask our friends for $5 when we forget the Shooters fee instead of stealing their wallets and taking the money ourselves. We use our words to ask for what we want. Like adults. And when we get a no, we don’t whine and complain about our sorry little lives until we either get a yes or we force a yes. There is no reason to lose our basic skills of communication when it comes to sex. Ask first, learn to take rejection, and accept the responsibility you have as a member of this community.
Let’s have more “f*** yes!!” sex. I want to live in a world where all the sex that is had is sex that is wanted. And getting to that world just requires a simple question you can personalize a thousand different ways: “Do you want to have sex?” And accept the response.
Dana Raphael is a Trinity junior. This is her final column of the semester.
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