Imagine serving on the campus equivalent of a jury in a sexual-assault case.
The accused testifies, "I thought I was reading all the signals right. Once we started kissing it felt like things progressed naturally, like we were both into it. Neither of us said, 'Yes, let's do this,' but I definitely wanted to hook up. I felt sure we both did." The accuser says, "I was totally comfortable when we started kissing, but as things progressed I felt more and more uncomfortable. I didn't say stop or resist, but I didn't consent to being groped or undressed. I wasn't asked. I didn't want that." If both seem to be telling the truth as they perceive it, what's the just outcome?
Last week, I spent some time at UCLA asking students about California's new "affirmative-consent" law. In our conversations, I described the law and asked them whether they supported it or not. I also posted this scenario to them. I was surprised by how common it was for students to express support for the law and then to say a few minutes later that they wouldn't feel comfortable convicting the accused in that example. But there were also students who opposed affirmative-consent laws and later said that they would find the accused guilty.
That conflict fit with a larger theme that ran through my conversations with undergraduates, from freshmen to seniors. Asked about California's law, many supporters focused on how affirmative consent squared with their notion of what campus norms, values, and culture ought to be, rather than its effect on disciplinary cases, which they treated as a tangentially related afterthought. Opponents expressed abstract concerns about unjust convictions and due process, yet some felt that convicting the accused in that hypothetical would be just.
In short, forcing both sides to confront a specific scenario made them see a thornier issue than they'd imagined. And it increased the conflicted feelings of many of those who had no definite position.
Most of the commentary about how affirmative-consent laws might change campus culture has come from people who graduated years if not decades ago. I wondered how students felt, though. Had things changed? What were journalists missing? I was reminded in my conversations with underclassmen how little experience they have to draw on. It takes a moment to register that the youngest students are actually parroting what they perceive to be the conventionally accepted insights on a subject as often as they're expressing insights of their own. They aren't authorities on college culture. They just arrived. They're still figuring it out.
Students like the ones I met are fully capable of grasping affirmative consent in the abstract. But will they apply the concept to real-world situations? Or will they go to a party, end up kissing someone to whom they're attracted, and suddenly feel in their gut that it would be awkward to ask or be asked about, say, breast-touching?
If excited, inexperienced, and self-conscious (or intoxicated), I suspect they won't be thinking about affirmative consent in that moment. It is pretty tough to imagine a world in which the earliest college hookups begin with thoughtful deliberation and confidence, where both parties are empowered agents who feel comfortable explaining exactly what is or isn't desired. Some lucky few will go through their late teens just that way. But many consensual encounters will feature young people whose inexperience manifests in a muddle of nervous excitement, daring, and fear of being in somewhat over one's head. Some will feel terrified at the idea of forthrightly stating exactly what they desire, because to do so is to make oneself more vulnerable, or so it can seem. Alas, campus predators will occasionally exploit this dynamic. A culture of affirmative consent would likely be an improvement. But is there any way to create such a culture?
I spoke to a dozen UCLA freshmen, all of whom went through orientation mere weeks ago, and while I am certain affirmative consent was covered, just half of them recalled it. Some of the others were hazy on what exactly it meant. The standard has long been in place at UCLA. The culture, however, is not in place, nearly everyone agreed. I came away pessimistic about its prospects, though of course I spoke to too few people to form a definitive judgment. How the freshmen behaved in sexual situations had been powerfully shaped by their high-school experiences, values in their families, TV, their expectations of college, and their perceptions of UCLA culture as they entered it—perceptions shaped more by frats, sports teams, and dorm life than by orientation. Watching these sponges as they soaked up the schizophrenic ethos of a gigantic university in the middle of L.A. made me appreciate how gargantuan a task it is to nudge hookup culture in any deliberate direction.
When I wandered to a part of campus with more upperclassmen, that impression softened slightly. Here were people whose experiences at UCLA had changed them significantly in just two or three years. College is uncommonly formative, and norms there have changed radically before. The 21- and 22-year-olds seemed so much older than the 18- and 19-year-olds. Already they were looking back on their own freshman years, able to see the chasm separating initial impressions from realities that took time to discern.
The most articulate upperclassmen to whom I spoke where 28 and 22. Both were undergraduates. Here's what the older student told me, edited into a monologue with my questions removed. This is how one earnest undergrad thought aloud about this fraught subject; how representative his views are is unclear.
I'm a transfer student. I had to go through this online program filling me in on the expectations of me as a student and the sexual-assault policy on campus.
And I do remember thinking it was very rigid.
I have a serious girlfriend, I'm not living in the dorms or going out to parties, so I'm not exposed to what I'll call the opportunities that other people have to hook up. I'm not in a position of worrying about this kind of thing.
But I think that while the idea of affirmative consent sounds good on paper, I do think it's a little, in a word, silly to think this is how it's going to happen, because either a yes or a no, that conversation is not really going to be had, especially if alcohol is involved. I think there should be some revision to it. I guess it makes me think of some other issues we have, in terms of our jails filling with nonviolent crimes and things like that. This may be heading toward that, but it's hard to say. You're damned if you do and damned if you don't.
The hypothetical case you describe, that's really tough. Especially on a college campus, that's going to be the hardest, because we all come from different backgrounds, where yes can be interpreted in many ways. Some people just want the clear yes. Some people, if you have a repartee with them maybe, if the trust is established beforehand, it's a completely different situation in my opinion, because you can have an honest mistake, and especially if there's no malicious intent there—but I think we're just heading toward a policy of don't trust anyone if you're a man or a woman. You think this girl likes you? Don't trust it. You're going to hinder a lot of relationships that way.
If it seems obvious that you're both into each other during a hookup, but then you stop to very formally ask for consent, she may think to herself, "Oh, he doesn't trust me? He thinks I'd falsely accuse him?" Maybe it's because I'm a lot older. I'm putting myself in the position of an 18-to-22-year-old. I like to think I've learned from some of my experiences. But at 18 I know for a fact that the policy I read before this school year, that would be hard to apply. In a lot of ways you're a little more impulsive. You might be pressured.
I know at 18 I was easily guided by my friends or things that I thought were expected of me. This stuff didn't come easy to me, it always seemed a little awkward. And as a male I thought I was expected to, you know—I didn't date the most in high school, so coming out of high school I thought to myself, man, this is something I have to do, I have to date, I have to meet a lot of girls.
I think there is that pressure at that age, college age, traditionally, you're bringing that mentality to the college campus, where you think that those kinds of pressures are there. And I don't really know what it's like for an 18-year-old woman, but I'm assuming there's similar pressure as well. At football games I kinda see how those interactions go because they're right in front of me. At 18, I would easily misconstrue whatever she is doing and assume, especially with a few drinks, that she's into me and I better let her know I'm into her. It's a kind of game where if I don't act and let her know that I like her, someone else will, and I'll lose her. So it's unfortunate. It's really unfortunate.
For me, it was never a problem. I was a very shy guy growing up, so I think that actually helped me out a lot, because I didn't know where that boundary was. I just explored it in the friendliest way that I could. You just give a little bit of your character to this person. And maybe if I were to do something that went over the line it was an honest mistake and she would understand that. However, over here, really on college campuses all over, I have friends where, they have one-night stands after just meeting somebody. You meet someone and you just hook up with that person a few hours later. That changes the situation.
But it isn't like you're ever gonna stop that from happening.
If I were to replay some of the experiences that I had at 18, who knows? Maybe it would've been considered assault by the standards that the school has now. But I held long relationships with these people and have actually kept in touch with all of them, as friendships. So was that really assault? Because I don't think they or I gave an explicit yes like they want on this campus.
I guess either of us could've been convicted.
I mean, I've never had that conversation with anyone that I've been intimate with, like, are you okay with this—well, actually, I have had that conversation sometimes, but not really ... it was more like, we've known each other for awhile, I respect you ... I'm not saying this out loud, this is my internal feelings.
Say we're at my place. I'll ask, "Hey, want me to get you a ride home?" And then you just kind of lay out the scenario. Like, "You can stay here if you want, I can sleep on the couch." And it'll be like–this has happened before–"Oh, no, you can sleep in the bed with me, I trust you." That's not a yes. But it's very unclear, especially at that age. You really don't know. And then it seems like, the next day, the next couple days, she can really, you know ... I don't even know how to finish that sentence. Things can get very ugly about something I thought that I was being a nice guy about.
There were a few times, actually, when I would be out on a date with somebody I knew through friends, and I wasn't into it. But she would try to hold my hand and stuff like that. I wasn't into it. You don't hear a lot of guys say that. But I felt like because we had mutual friends and stuff, and I didn't want to be a jerk, so I would keep holding her hand, which is in a way leading her on. And then feelings get hurt. And that, I think, is the reality for a lot of girls. I know a lot of guys who think they're in when they're not, especially at that age. Everybody is different with their level of comfort and level of assertiveness.
Here's the younger student, a 22-year-old, thinking things through:
I think that this goes against all of our natural human behaviors. Especially with dating and courtship, our natural way of doing that is impressing the other sex, if it's physical, if it's intellectual—that is our natural behavior, our ancestral way of thinking, our instinct. So if this is one of those instances when you have to give affirmative consent, it's going to bring up questions of trust. It's going to be where you bring up that affirmative consent and she thinks, well, if he doesn't trust me I should just say no, because I don't trust him now.
So then you get into this back and forth mode, because it's pretty much promoting the idea of abstaining completely from any campus type of activity at least.
In a nutshell, it's promoting better to be safe than sorry.
This isn't an issue for me. I have a girlfriend, very committed. We live off campus, have-a-dog kind of situation. But other kids my age would keep whatever the campus regulation is in the background, and it would be one of those situations where you wouldn't really think about it until you had to, where you wouldn't really worry about it until it's an issue, which it never will be for most people anyway. And I think that's an issue of age more than anything. With wisdom comes the thinking beforehand, the awareness of consequences. When you're a little more immature and just moving with the motions and being very impressionable you're gonna think of it when you come to it.
Most college kids have an act-now-think-later attitude.
Growing up, I was always going to be myself regardless. And that comes from my background of being raised by very conservative, but also by very respectable people, humble people, that always taught me that you shouldn't have to try to fit in, you should always just be yourself, as cliche as that sounds.
That's the kind of household I grew up in. So when I was with my friends I was always myself, and I never had the issue to go out of my way to pick up on girls. It was always a more natural experience. It would start with a conversation where you'd talk about interests and it would eventually materialize into whatever it became. But I never went into it with the intention of we're going to have a one-night stand, that's the way it's gonna be kinda guy.
I totally knew the signals, I was totally comfortable knowing, okay, this may not happen the way I want it to, so let's move on, let's have a friendship. It's a natural instinct. Sometimes it's obvious, sometimes it's not. And sometimes you don't know. "Should I move in for this kiss, or should I not?" But in that case, if you make the wrong move that's okay. She either pushes you away or she stays there. It's just a kiss. So I think it's a progression. As blunt as it sounds, you're not going to pull your pants down and say, hey, let's have at it.
Sign here. It's just not that way. It goes against the whole natural way of living.
I have a younger sister and she is just about to start applying to colleges. I'm not one of those overprotective older brothers. I believe that she's a growing individual. And she will learn from whatever mistakes she makes like I did. As for advice, I'd just say be careful. Don't feel like you have to fit in. If you join a sorority don't feel like you have to fit one standard. The affirmative yes-or-no thing, I wouldn't feel comfortable having that conversation with her, but if I did I'd say, make it clear. If you feel that this person desserves you in every way, make it clear. It keeps you away from trouble down the road.
I actually mentor a younger male who is getting to that age and I'd say, be careful. If you have to think about it, think about it some more. And if you have to think about it some more, definitely be clear about consent before you do anything.
These are two perspectives among many that coexist at UCLA and beyond. Students interested in sharing theirs are encouraged to email email@example.com—and for more thoughts on affirmative-consent laws and culture, including assessments more favorable than those offered above, don't miss these entries:
- 'I Was Not Taught About Consent'
- Jane Austen on Men Who Refuse to Hear No
- The Traffic Laws of Sexual Culture
- Why One Male College Student Abandoned Affirmative Consent
- Sex and the Class of 2020: How Will Hookups Change?
- An Appalling Case for Affirmative Consent Laws