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Colorado College Students – The Dangerous World Of “Consensual Sex” On College Campuses in the 21st Century – Part I of II One of the most dangerous situations that (mostly) male college students face these days is not drugs and rock and roll – it is the accusation that the student “coerced” – (not forced) – a female college student to engage in sex. Here is a link to Part II.
There has been literally a paradigm shift in the meaning of “coercion” and the definition of “consent” over the last decade. The danger to our college age sons (and even our daughters) cannot be understated. Preparing your young adults for college now needs to include a second “sex talk” on the possible traps awaiting them in college.
I started in law enforcement in the early 1980’s. In those days there was a relatively clear and common sense understanding of the difference between forced and consensual sex. Today, sex on college campuses has become so “complex” that law enforcement and college disciplinary boards have been thrown into massive confusion having been tasked with having to determine with defining what is consensual sex and what is coerced sexual assault.
The disciplinary process on Colorado’s college campuses is shameful and does not come close to the kinds of due process rights accorded in even the most basic government agencies. You may assume that upon an accusation of a violation of a student discipline code all of the rights accorded in the criminal justice system apply. You would be wrong.
The kind of “Kafkaesque” system of rules and regulations in which you will be forced to participate to defend yourself when you have been accused of the heinous act of coercing another of having sex against their will – is nothing less than shameful.
Today out college campuses define the act of sexual assault in terms of a violation of “personal autonomy” … and not just the overcoming of will by force.
Here is Colorado’s Legal (Criminal) Definition Of Consent As A Defense
Unless otherwise provided by this code or by the law defining the offense, assent does not constitute consent if:
(a) It is given by a person who is legally incompetent to authorize the conduct; or
(b) It is given by a person who, by reason of immaturity, mental disease or mental defect, or intoxication, is manifestly unable and is known or reasonably should be known by the defendant to be unable to make a reasonable judgment;
(c) It is given by a person whose consent is sought to be prevented by the law defining the offense; or
(d) It is induced by force, duress, or deception.
“Consent” means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship is not sufficient to constitute consent. Submission under the influence of fear does not constitute consent.
At the University of Denver – they use the following definitions to “guide” their students as to what is considered forced as compared to consensual sex.
Effective consent is defined as informed, mutually understandable words and/or actions which indicate a willingness to participate in and/or allow a specific activity, freely and actively given by a person with the current mental capacity to make rational decisions. A person may be without such capacity due to the influence of alcohol and/or other drugs. Consent is not effective if it results from the use of physical force, threats, intimidations, or coercion. A person always retains the right to revoke consent at any point during an activity.
Individuals who choose to engage in sexual activity of any type with another individual must first obtain clear consent. Consent must be clear, knowing, and voluntary.
Consent is active, not passive. Consent can be given by words or actions as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of sexual activity.
• In order to give consent, one must be of legal age.
• Each participant in a sexual encounter is expected to obtain and give consent to each act of sexual activity. Consent to any one form of sexual activity does not automatically imply consent to any other form of sexual activity.
• Consent consists of an outward demonstration indicating that an individual has freely chosen to engage in sexual activity. Relying on non-verbal communication can lead to misunderstandings. Silence, in and of itself, cannot be interpreted as consent. Consent may not be inferred from silence, passivity, lack of resistance, or lack of an active response alone. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent.
• When consent is requested verbally, absence of any explicit verbal response constitutes lack of consent.
• If at any time during the sexual activity, any confusion or ambiguity arises as to the willingness of the other individual to proceed, both parties should stop and clarify, verbally, the other’s willingness to continue before continuing such activity.
• Either party may withdraw consent at any time. Withdrawal of consent should be outwardly demonstrated by words or actions that clearly indicate a desire to end sexual activity. Once withdrawal of consent has been expressed, sexual activity must cease.
• Individuals with a previous or current intimate relationship do not automatically give either initial or continued consent to sexual activity. Even in the context of a relationship, there must be mutually understandable communication that clearly indicates a willingness to engage in sexual activity.
• Consent is not effective if it results from the use or threat of physical force, intimidation, or coercion, or any other factor that would eliminate an individual ‘s ability to exercise his or her own free will to choose whether or not to have sexual contact.
• A person who is incapacitated cannot give consent.
Coercion is unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another.
When someone makes clear that they do not want to engage in sexual contact, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity.
Coercion can include a wide range of behaviors, including intimidation, manipulation, threats and blackmail.
Examples of coercion include threatening to disclose another individuals’ private sexual information related to sexual orientation, gender identity, or gender expression and threatening to harm oneself if the other party does not engage in the sexual activity.
Non-Consensual Sexual Contact
Non-Consensual Sexual Contact is a form of discrimination prohibited by these Procedures.
Non-Consensual Sexual Contact is any intentional sexual touching, however slight, with any object, by any individual upon any individual that is without consent; by force, coercion, or threat; or where that individual is incapacitated.
Sexual Contact includes:
i. Having or attempting to have sexual contact, including vaginal or anal penetration, however slight, with a body part (e.g. , penis, tongue, finger, hand) or object, or oral penetration involving mouth to genital contact.
ii. Intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts;
iii. Any intentional bodily contact in a sexual manner, though not involving contact with/of/by the breasts, buttocks, groin, genitals, mouth or other orifice;
iv. Any other act which a reasonable person would associate with sexual contact.
• In order for individuals to engage in sexual activity of any type with each other, there must be clear, knowing and voluntary consent prior to and during sexual activity. Consent is sexual permission. Consent can be given by word or action, but non-verbal consent is not as clear as talking about what you want sexually and what you don’t.
• Consent must be active; silence by itself cannot be interpreted as consent.
•Consent is not effectively given if it results from the use of force, including threats, intimidation or coercion.
Guidance Regarding Consent
• When alcohol or other drugs are being used, a person will be considered unable to give valid consent if they cannot fully understand the details of a sexual interaction (who, what, when, where, why, or how) because they lack the capacity to reasonably understand the situation. Individuals who consent to sex must be able to understand what they are doing. Anything but a clear, knowing and voluntary consent to any sexual activity is equivalent to a “no.”
• Giving incapacitating alcohol or drugs such as Rohypnol, Ketomine, GHB, and Burundanga or any other similar substance to another person is a violation of the Student Conduct Code.
• A person who does not want to consent to sex is not required to resist.
• Consent to some forms of sexual activity does not automatically imply consent to other forms of sexual activity.
• Silence, previous sexual relationships, or the existence of a current relationship do not imply consent. Consent cannot be implied by attire or inferred from the giving or acceptance of gifts, money or other items.
• Consent to sexual activity may be withdrawn at any time, as long as the withdrawal is communicated clearly. Withdrawal of consent can be done in numerous ways and need not be a verbal withdrawal of consent.
• A respondent’s intentional use of alcohol/drugs will not function as a defense to a possible violation of this policy.
What used to be the doctrine of “no means no” has now become the doctrine of “yes means yes.”
Simply – when engaging in sex – your partner not only has to convey to you a communication that “no means no” for you to stop your advances – she has to now affirmatively consent to every stage of the sexual encounter.
Across the country about 25% of the state’s college campuses are requiring this new form of “affirmative consent” or “positive agreement” even where there has been no “no.” Colleges such as DU and CU have redefined consent and coercion under this new normal.
The new idea of “affirmative consent” requires the affirmative, conscious, and voluntary agreement to engage in sexual activity.
This represents a sea change from the old rule of “no means no.” This “shift” in the burden of proving consent now takes the accused from proof of consent by engaging in sex and the complete absence of saying “no,” to – after the fact- accusations by the alleged victim of sexual assault for failing to obtain an affirmative YES from said victim.
Under this formulation, the accused students – our sons and daughters must now establish that they obtained an affirmative “yes'” or the act can later be interpreted as “coerced.”
Across the country state legislators are right now introducing bills that link state funding for colleges to this new definition of sexual assault which requires the use of “affirmative consent” as the standard.
Sometimes – according to DU and CU’s policy and the state systems of states such as California even “yes does not always mean yes.” The belief is that some “survivors” feel as if they are being coerced or threatened so they consent.
The argument is that just because some people may verbally say yes, they can’t or aren’t really giving consent. Silence or inertia, under this theory, can never be interpreted as agreement because it may mean confusion, drunkenness or “frozen fright” (the a person under sexual threat is “paralyzed” by terror.)
This represents a complete shift in the burden of proof and is having devastating consequences – mostly to men – across the country. Today the burden of proving sexual assault cases has gone from the “those accusing to the accused.” That is not acceptable.
For more on this issue – follow this LINK
In the Colorado criminal justice system – consent (see above) is an affirmative defense. If consent is raised as a defense at trial – the prosecutor must prove beyond a reasonable doubt that the alleged victim did not consent.
if the affirmative consent standard was the new definition of consent – it would turn the criminal justice system upside down. If law now requires some form of “no.” A jury usually perceives any uncertainty about that “no” as a reasonable doubt in the State’s case and many times will acquit the accused.
If the a new definition of consent requires the alleged victim to say “yes,” then any ambiguity elevates the State’s case and juries would be more likely to convict because the DA could argue that the accused never obtained “unequivocal consent” from the alleged victim and is therefore guilty of sexual assault.
Imagine a situation where the man is thinking he is having a successful romantic encounter (a hook up” these days) while the women perceives – never expressing this thought of course – that she is actually being sexually assaulted.
If these cases are then prosecuted we would be prosecuting people for what they are NOT doing as opposed to what they are actually doing. Some women are just not talkative during the communications that precede sex. If you “hook up” with one of these women you could literally ruin the rest of your life.
In my opinion – the criminal justice system will never require “affirmative consent” in sexual assault cases.
The burden of proof in discipline cases alleging coerced sexual contact and other violations of student conduct codes is a much lower burden of proof than in criminal courts. In student discipline cases the burden of proof on the accuser and by virtue of the process – on the accused – is the civil standard of proof by a preponderance of evidence NOT the standard of proof in criminal cases – proof beyond a reasonable doubt.
Claims of lack of consent or forms of coercion in allegations of sexual assault are enforced under Title IX of the Education Amendments of 1972. If a complaint of sexual assault is alleged in the college setting, colleges investigate these complaints of sexual assault, even if the same complaining students decide not to file criminal charges.
I address the prosecution of these cases in Part II of this article. (FUTURE LINK)
The inability to make the doctrine of “affirmative consent” truly work has resulted in several colleges, including Harvard and many colleges in the Ivy League, to reject the new policy.”
Harvard policy uses the term “unwelcome conduct of a sexual nature.”
“Conduct is unwelcome if a person did not request or invite it and regarded the unrequested or uninvited conduct as undesirable or offensive.”
At Harvard the Title IX officer has stated that Harvard uses a standard that is:
“consistent with the standard in all federal civil rights laws that apply in an education setting,”
They have rejected the “affirmative consent” standard rejecting the requirement of a “verbal yes” at every turn. They point to the unworkable “Saturday Night Live” treatment of this approaching the 1990’s at Antioch College.” Under the Antioch policy, consent must be given step by step at every point of engagement during an intimate encounter.
Under the Antioch standard one must verbally ask and verbally get an answer at every point of engagement…. e.g. ‘May I kiss you? May I undo your blouse?’ ”
The Affirmative Consent Standard Is Just Bad Policy
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Never stop fighting – never stop believing in yourself and your right to due process of law.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at email@example.com – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 30 plus years – H. Michael has mastered nearly every area of criminal law, procedure, trial and courtroom practice and he is passionate about getting you the best result in your case. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Colorado College Students – The Dangerous World Of “Consensual Sex” On College Campuses In The 21st Century – Part I of II.