A quick stroll through the Student Activity Center will reveal they’ve done some redecorating. Whereas the construction of the new Nicholas Recreation Center across the street will create a space for students to improve their physical fitness, the new posters hanging in the SAC focus on augmenting emotional and relationship health.
“Let’s start the convo,” the posters read. Accompanying the slogan are colorful hearts reminiscent of Valentine’s Day candies inscribed with phrases like “May I…?” “Is this ok?” and “Rspct my no.”
The signage is part of Consent Hearts, a recent campaign from the Gender and Sexuality Campus Center aimed at promoting affirmative consent on campus. The campaign webpage leads to more resources on consent, one of which is a handout from the National Sexual Violence Resource Center on how to ensure consent in an intimate situation.
“Always ask for consent before you begin any sexual activity, including kissing, cuddling, and any kind of sex — even if your partner consented in the past,” the handout reads.
The 2017 University of Wisconsin Parent Handbook for Talking with College Students About Alcohol sings to a similar tune. It encourages parents to start the conversation about alcohol and consent before their children get to campus and to emphasize to them that consent “must be asked for and received” before any sexual activity occurs.
UW law professor Cecelia Klingele said she has noticed a nationwide trend of campuses pushing for affirmative consent, usually alongside an element of verbalization — using words to ask for consent. Some states have already passed or proposed affirmative consent laws, which, according to the Affirmative Consent Project, take existing legislation a step further by requiring anyone who initiates intimacy to receive a verbal “yes” from the other person before making sexual contact, followed by ongoing consent throughout the encounter.
In Wisconsin and many other states, the law does not require such a degree of affirmation.
Nonetheless, Klingele said it is not uncommon for universities to provide students with definitions of consent that may far surpass legal standards.
“There’s a reason that, usually, those education efforts are defining consent in a way that is much more structured and rigorous than the law itself would demand,” Klingele said. “The idea is that … we’re trying to encourage people not to walk at the edge of the cliff, but rather only to engage in sexual conduct with each other when it’s clear and obvious that there is consent — not when there might or might not be.”
Between mandatory first-year prevention programs, University Health Services resources and other university-affiliated efforts, UW repeatedly provides lessons on consent, alcohol and sexual assault. The way the language of these messages differ from that of the actual law, though, can impact students in a variety of ways.
Through the lens of the law
State sexual assault legislation is found under Wisconsin Statutes 940.225, where the legal definition of consent also resides.
Unlike the Consent Hearts campaign and the Parent Handbook, the legislature declares consent to be verbal or nonverbal actions, but they must still indicate a freely-given agreement to engage in sexual activity. People who are unconscious or otherwise unable to physically communicate unwillingness are presumed incapable of consenting — it must be given by someone “competent to give informed consent.”
According to the statute, a person can be incapable of consenting if they are intoxicated by drugs or alcohol to a certain degree. Anyone who has sexual contact or intercourse with someone who reaches this level of intoxication which “renders that person incapable of giving consent” is purportedly guilty of second-degree sexual assault — a Class C felony.
But wait, there’s a caveat.
State law stipulates an individual is culpable of this crime when the aforementioned applies and if two addendums hold true as well:
- “The defendant has actual knowledge that the person is incapable of giving consent” and
- “The defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent”
Under Chapter UWS 17 of the Wisconsin legislature, UW uses this exact statute in determining if a student has violated university policy prohibiting sexual assault. Aside from the substitution of ‘respondent’ for ‘defendant,’ the wording is identical.
Lauren Hasselbacher, campus Title IX Coordinator, said before formal sexual misconduct investigations begin, her office provides and explains this and other relevant policy language to the involved parties.
“That can be more technical and a bit more complex than maybe how we speak about it in our everyday language, and for that reason … we’ll discuss [the policy language] with them to explain what that means,” Hasselbacher said.
Outside of UW investigations, students may not learn the legal meanings of terms related to sexual misconduct, since — as Hasselbacher noted — day-to-day discussion of this topic tends to use more casual wording.
But Molly Zemke, UHS Violence Prevention Manager, stressed the importance of providing Badgers with an understanding of the legal definition of consent, something Zemke said UHS does in all of its programming.
According to evaluation data in an email sent to The Badger Herald by Hasselbacher, after completing the U Got This! violence prevention and policy disclosure program, more than 95% of incoming UW students were able to correctly identify sexual assault as any sexual contact occurring without consent. In contrast, the 2016 UW-Madison Sexual Assault Climate Survey Task Force Report revealed only 32% of female undergraduates felt “very or extremely” knowledgeable about how the university defines sexual assault and misconduct.
This disparity begs the question: what do UW students actually take away from consent lessons and prevention programs?
Learning the ropes
The ‘Sexual Violence’ section of the UHS website displays a definition of sexual assault similar to what appears in the law books, except for two key differences.
First, the section of Wisconsin sexual assault laws stating the offender must have had both knowledge of the person’s incapacity to consent and intent to still engage in sexual contact does not appear within the UHS definition.
Second, instead of circuitously referring to the level of drunkenness at which someone can no longer consent as “a degree which renders that person incapable of giving consent,” UHS introduces the term “incapacitation.” In the university’s official policy language, incapacitation is defined as, “the state of being unable to physically and/or mentally make informed rational judgments and effectively communicate,” which is why consent given by someone in this condition is considered invalid.
Though providing a name for the point at which drunk people can no longer consent may be preferable to how it is described by the legislature, attempting to label an objective threshold of drunkenness presents problems of its own, according to a national advocacy organization toolkit on campus sexual assault and alcohol.
In response to the reportedly frequently-asked question of how much alcohol someone needs to drink to be considered incapacitated, prevention specialists could not provide a clear-cut answer.
“Incapacitation can be a tricky term, as it is used in both law and policy but is rarely defined in ways that students can apply to their sexual encounters,” the toolkit reads. “Everyone’s body reacts to alcohol differently depending on body size, food eaten that day, other drugs ingested and other factors.”
According to the report, even prevention specialists were unsure of how to distinguish when an intoxicated person becomes incapacitated, especially because everyone reacts to alcohol differently.
Katherine Loving, UW Healthy Campus Manager, said this type of uncertainty among students is one thing alcohol education programs like AlcoholEdu and Badger Step Up! aim to mitigate.
“There are many factors that go into determining how alcohol impacts an individual, but that’s partly what we’re trying to educate students about, is what that might look like,” Loving said.
Zemke said some indicators of incapacitation included in prevention programs are unconsciousness, trouble walking straight or slurred speech.
Peter Grimyser, a UWPD detective of almost 20 years, added vomiting, odor of alcohol, combativeness and emotional instability to the list. But, some people may get extremely drunk without manifesting the typical signs, in which case Grimyser said caution is the best option.
“If you aren’t sure if someone is sober enough to consent, play it safe and don’t engage in any sexual activity,” Grimyser said in an email to The Badger Herald.
Harry Quick, a UW freshman, expressed a similar outlook on how to handle uncertain situations involving the intersection of alcohol and sex. Though in explaining why he would not romantically pursue someone who may be too drunk to consent, he identified many of the same warning signs present in university prevention programs, Quick said he did not learn much from U Got This!, AlcoholEdu or Our Wisconsin.
Quick said people can mute or fast forward through some of the programs, which contain relatively “basic” concepts stretched over the span of a couple hours. Instead of taking the program’s lessons and applying them to his life, Quick tends to follow his moral compass in determining whether or not a sexual encounter involving alcohol would be consensual.
“If I can think clearly, if I can still do calculus in my head and they can’t walk in a straight line, then it’s not good at all,” Quick said. “It’s morally wrong.”
When Quick and other students analyze the risk factors in situations where consent and alcohol may meet, they are also each doing so in a unique way. Based on upbringing, culture, religion, ethnicity and countless other contributing factors, Klingele said, people develop their own understanding of appropriate sexual behavior.
Hasselbacher said UHS recognizes that students each have alternate grasps on consent based on their experiences before and during college as well.
“We know people are coming in with different backgrounds, different understandings, and that can come in part from our campus trainings … and so that’s why within the particular context of an investigation, we want to be clear about what we’re doing and what we’re investigating,” Hasselbacher said. “Our prevention services are coming from a different perspective because they’re talking about how to improve campus climate, improve relationships, improve communications across the board, regardless of if something may or may not be a specific policy violation.”
Defining clear communication
Without a common understanding of consent and permissible sexual behavior, Klingele said it is very likely that people will misinterpret one another’s cues. This, Klingele believes, is one reason why, similar to the Consent Hearts campaign, universities encourage explicit verbalized communication between sexual partners — to prevent instances where non-consent is mistaken for consent and to avoid the harm that can result.
When alcohol is added to the mix, Klingele said, this only further complicates the situation by impairing a person’s ability to perceive their sexual partner’s feelings.
Realistically, Klingele said, drunken sexual encounters still occur frequently at UW.
“How many people on this campus in a weekend get so wasted that they can’t really communicate very effectively much of anything … ?” Klingele said. “And how many of those people engage in sex? Probably not an insubstantial number, unfortunately.”
Klingele surmised that the next day, students probably don’t refer to state statutes in determining what happened the night before. Instead, they likely interpret the events through the same internal belief system surrounding sex that Hasselbacher said differs from person to person.
Some students may technically reach the standard for sexual assault by incapacitation but feel okay about the previous night’s encounter, Klingele said. Other students, she added, may also be considered victims under the statute, and may also feel victimized.
Klingele emphasized the importance of acknowledging how sexual assault laws interplay with the variety of individual perceptions of consent in the U.S. Lessons from family members, school and the university all contribute to what individuals consider acceptable sex practices to look like, Klingele said.
“When there is a mismatch between their expectations [of consent] and what they experience, that’s when people are hurt, and in some of those cases, they are hurt in ways that the criminal law can do something about,” Klingele said. “Unfortunately, in a large percentage of cases, they may be hurt and there may not be much the criminal law can do to address it.”
Klingele said it is important to remember that even though students may colloquially consider certain behaviors to be immoral or problematic, it doesn’t necessarily mean they are illegal. On the flipside, Klingele also said the fact that a case may not end in a conviction does not mean a crime was not committed.
Judging by recent statistics, this holds true.
According to the UW-Madison Sexual Assault Reports Snapshot, UW received 318 total reports of sexual assault in 2017. Of those, only 23 cases involved a respondent identified as a UW student. Twelve of the 23 complainants ultimately chose not to go forward with the disciplinary process.
Of the 11 remaining cases that resulted in an investigation, UW determined the respondent to be responsible in five of them.
This not to say no harm was done in the other six cases, or in the ones that never made it to the investigation process — the complainant was perhaps just unable to meet the burden of proof for UW policy standards.
Almost all campus messages to students about consent refer to sexual assault as being any sexual interaction lacking consent, or where one party is inebriated beyond the point of being able to consent. Except in official UW policy, the university tends to leave out the part about needing to prove the offender intentionally pursued sexual contact with someone they knew to be incapacitated.
When asked what should be done when university consent lessons do not translate exactly to real life, Klingele suggested teaching students more about how America handles crime. That way, they can at least be aware of the legal realities that lay below the precipice.
“I think people have to be better educated about what the criminal justice system does and doesn’t do, and fundamentally, it doesn’t redress all wrongs that happen,” Klingele said. “Many ways in which people harm each other aren’t going to be punished by the criminal law, and when universities give students definitions of consent that go well beyond what would be required under a law, the idea is that we keep you far away from the edge of the cliff.”