The University of Rochester has updated its student sexual misconduct policy to be clearer about consent and incapacitation, says Morgan Levy, director of equal opportunity compliance and Title IX coordinator for the UR.
"Those are two areas where we felt that our students needed more clarification," she says. "There were perspectives out there in the student body that incapacitation was someone has one beer and they're incapacitated and can't consent, all the way to someone has to be completely passed out in order for it to be incapacitation."
The standard that the university uses, Levy says, is whether a sober, reasonable person in the same position should have known that the other party was incapacitated and incapable of consenting to sexual activity.
Consent is informed, freely given, and mutual, the new policy says. Silence does not constitute consent, it says, and no one should rely solely on nonverbal cues or assumptions. If confusion or ambiguity arises, the policy says, sexual activity should cease until both parties are clear on what the other wants.
Levy says that more campuses are using the "affirmative consent" model, which means that the involved parties display a demonstrated intent to have sex. The California State Senate recently approved legislation that requires the state's colleges and universities "to adopt anti-sexual assault policies that include a written standard for personal consent," according to the Associated Press.
Critics say that affirmative consent micromanages sexual activity and risks turning men into retroactive rapists if their partners experience post-encounter remorse.
"Yes, the new standard might help in the adjudication of sexual assault allegations," says an editorial on the California bill in the Los Angeles Times, "but its language still seems both vague — what exactly would constitute an unambiguous sign of consent? — and unnecessarily intrusive.
Levy says there hadn't been a huge outcry over the UR's previous sexual misconduct policy, but there was of a general recognition that the university could be clearer in some areas, particularly consent and incapacitation.
She says the new policy is a positive move for the university.
"I think it's really going to be helpful and meaningful for our students," Levy says, "particularly our undergraduate students."
The UR reported a total of 16 "forcible sex offenses" in 2012, according to a report supplied by Levy. That number includes all of the university's campuses, including the Medical Center and the Eastman School of Music. Forcible sex offenses are rape, sodomy, sexual assault with an object, and forcible fondling.