Yes, maybe or no

Two strangers meet. Maybe through the hook-up app Tindr. Maybe in the middle of a party. Maybe by bumping into each other in the stacks at the library on campus. There’s a sexual connection. Maybe they make out. Maybe they have intercourse.

This is the 21st century hook-up culture — anonymity, limited verbal communications, lots of sexual activity. And it is running headlong into conflict with the policies of higher education institutions designed to prevent and punish sexual harassment and sexual assault.

The conflict arises from a deceptively simple question, What is sexual consent?

It’s a legalistic concept that attempts to quantify and in some measure regulate an act of passion. Was their undue pressure? What about alcohol or drugs? How about regret, second thoughts on the morning after?

At Michigan State University, “sexual consent is the voluntary, willful and unambiguous agreement between two people to engage in sexual activity,” said Jason Cody, a spokesman for the university. “Consent must be given by both parties during every sexual activity.” The policy at Lansing Community College is similar.

But the reality of that policy stance could easily run afoul of the hook-up culture. Paula England, a sociologist at Stanford University, has studied the hook-up culture since 2005. Her sample, with more than 17,000 college students from 20 universities, has found that by senior year 72 percent of both sexes reported participating in at least one hook-up.

A study from The American College Health Association’s National College Health Assessment found that 50 percent of college students reported hooking up in the past 30 days.

Students at both MSU and LCC generally got the idea of consent.

Said 21-year-old Zack Schneider, an MSU senior, “I never force anything.”

Zamani Coakienos, 19, an LCC student studying video game design, was clear in what consent meant to him. “It is an acknowledgement of what the two parties are going to get into, together,” he said.

But this general understanding of consent gets muddied when the edges are pressed.

Can a person consent non-verbally, the students were asked? “Most of the time it has to be a verbal yes,” Coakienos said. “But it can be signaled sometimes, too.”

Under established policies, sexual consent can be withdrawn at any point.

That does not mean, however, that Schneider has not seen pressure put on a woman by others. “I know some guys are very very forceful,” he said of some of his peers.

He also acknowledged that while he would stop sexual activity if his partner said to, he would also continue to ask about why and attempt to continue by obtaining renewed consent. That might actually violate policies because the consent is not willful.

Miranda, 18, is a student at LCC. She didn’t want her last name used because she has been a victim of sexual assault in the past. She said consent can be nonverbal, if the partners know each other well. But for her, ultimately, the issue is “being able to say ‘yes.´"

But that nonverbal consent is not necessarily enough, under policies. And that can lead to complaints and student judicial affair actions.

Between August 2011 and August 2014, according to MSU’s Office of Inclusion, which oversees Title IX investigations at the university, the office had 174 complaints of student sexual misconduct. Of those complaints, 47 resulted in an investigation. The University reports it closed 41 cases, and of those, 23 resulted in action against the accused.

Data on 19 cases show seven students were dismissed from the university, three were suspended, one had a interim suspension, four were placed on academic probation and four withdrew from the university altogether.

Title IX is the federal law that requires educational organizations to provide equal access to programming for women. It also prohibits sex discrimination, including sexual assault and sexual harassment. The Office of Civil Rights in the U.S. Justice Department has been clamping down on enforcement of such policies.

In May 2014, the U.S. Department of Education Office of Civil Rights announced it was investigating MSU’s handling of sexual misconduct claims as a result of three separate Title IX claims filed with that office over the alleged mishandling of such cases. Officials from the government were on campus meeting with students, staff, faculty and administration to delve into the university’s sexual assault and sexual misconduct programs. A report has not been issued yet.

But the policy issues and federal focus aside, the issue of sexual consent can be a muddied journey, particularly when drugs or alcohol are involved. The National Institute on Alcohol Abuse and Alcoholism reports that 60 percent of college students 18- 22 consumed alcohol in the past 30 days, while 40 percent reported binge drinking.

Under the MSU policy those who are drunk or on drugs may not be able to consent to sexual activity because they are “incapacitated.”

But for Schneider, that alcohol consumption can be negated “if the person consented before hand.”

Jeffrey Montgomery, one of the founders of the Woodhull Sexual Freedom Alliance in Washington, agrees there is a problem with sexual assault on college campuses, but wonders if the current trend in policies might not be “overboard.”

“In my view the framing of the question is problematic,” he said. “It advances this idea that sex has to have regulations on what makes it good or bad.”

He said the tensions over sexual consent and sexual misconduct can put a heavy shroud over sexual activity.

“To have the question of whether or not one has consented to sexual activity, in an already litigious culture, is a thing that instead of bringing sexual bliss — it puts a whole different feeling on trying to develop relationships with people,” he said.

And proving that consent can be difficult. Coakienos said the only way someone could prove such consent would be text or email conversations. But he admitted getting that kind of documented consent at each step of the way would be difficult. He called it a “scary thing” to know that one could be accused of not obtaining consent and have no way to prove consent was given.

Montgomery said ultimately such policy focuses “turn something pleasurable into something worth litigation.”

He said too many are focused on “revenge” rather than intimacy in America, and part of that is a focus on demonizing and regulating sexual activity.

“I think the policies are too broad,” he said. “College and universities are protecting themselves from legal issues.”