Further Complicating a Sensitive Issue

An Evaluation of the New Sexual Misconduct Policy

By Megan Shaw

Much of my first-year orientation remains a blur of awkward social interactions, a desperate struggle to remember names and to recognize my classmates. One thing in particular, however, sticks out in my mind: the night we were rounded up as a class and led to Rosse Hall to watch “Real World: Gambier.”

No one knew what to expect, but our Community Advisors insisted it was extremely important that we go and that we attend the discussion session after the show. We all piled into the crowded rows in Rosse and watched various college situations unfold on stage, especially those featuring examples of Kenyon’s party and hookup culture.

Soon, we were all familiar with things like the Good Samaritan Policy, what to expect at Old Kenyon parties and, perhaps, what was stressed the most—Kenyon’s sexual misconduct policy. We were told that at Kenyon any sexual act—whether holding hands or intercourse—required verbal consent from their partner. They needed an audible “yes,” preferably an enthusiastic “yes” and definitely not one that was coerced, forced, unsure or said while incapacitated. This was, we were told, the only way to ensure that every sexual act that occurred on campus was between consenting, cognizant, adults.

As a sophomore, I did not attend this year’s “Real World: Gambier,” but I can only imagine that the first years saw scenes somewhat different from those I saw, because beginning this school year, Kenyon’s sexual misconduct policy no longer requires the audible verbal consent. It now allows “other forms of consent, including non-verbal consent such as initiating or actively participating in sexual activity.”

Perhaps the required verbal consent policy implemented prior to this year was somewhat idealistic. Surely, there were instances in the past where verbal consent was not expressly given, but neither of the two parties involved felt that sexual misconduct had taken place.

This new policy, however, creates opportunities for misunderstanding and miscommunication that the old policy did not allow—particularly in the case of interpreting what constitutes as “non-verbal consent.” Maybe if two people have been in a relationship for an extended period of time, they would be able to read each other’s body language well enough to recognize mutual consent. But on a college campus where casual hookups are commonplace, the situation becomes much more complicated. Most pressing of all: what if the initiator misinterprets their partner’s actions as consent?

The policy answers by stating that “a greater burden falls on the initiator of the sexual activity to ensure that consent has been granted by the responding student.” Since the initiator is responsible for their partner’s consent, in this case, the initiator could be charged with sexual misconduct, even though they may have not realized that their partner was not consenting.

With the new policy, two people are negatively impacted: the initiator, who has (perhaps unknowingly) committed sexual misconduct, and, of course, the respondent, who has been the subject of unwanted and non-consensual sexual contact—a situation which might have been avoided entirely had the initiator asked for verbal consent instead of relying solely on their ability to interpret body language.

Additionally, non-verbal consent contradicts the policy’s stipulation that “both people need to be specific about the sexual activities to which they are consenting.” How is this possible in lieu of verbal communication? How can both people be “specific” when they, presumably, are not speaking at all?

The policy adds that “anything but clear, knowing, and voluntary consent is equivalent to lack of consent,” even though earlier it states that “other forms of consent, including non-verbal consent…may not be as clear.” The only way to be absolutely, one hundred percent sure of someone’s consent is to ask them and to hear his or her answer, verbally, in the affirmative. Otherwise, it is implied consent, and a policy cannot be centered around implied consent. As demonstrated, it is a detriment to both the initiator and the responder, and allows an unacceptable amount of room for misinterpretation and confusion.

It takes just a couple of seconds to ask if someone is comfortable, if they consent and if they are sure that they want to continue. While the old policy may have been sometimes pushed aside, at least it encouraged people to take this step and to communicate openly with their partners about what they did and did not want.

The sexual misconduct policy will not be up for review again until the 2015-2016 academic year, but comfortable social interactions are a priority at all times. Open communication and understanding are traits which the Kenyon community values in all of its forms, including those in the context of sexual relationships. Students should therefore think carefully about this change and its role in our culture, and perhaps consider re-introducing the clause that requires verbal consent.

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