Do Male Freshmen Know What ‘Rape’ Is, and How to Negotiate Consent?

After high-profile consent cases, the new codifying of sexual behavior and consent on campuses means many young men are learning what they must do when they hook up.

Photo Illustration by Emil Lendof/The Daily Beast

Starting college can be a scary, confusing time in a person’s life. You’re often away from your family for the first time. You have to figure out a major, and the kind of career you will want after college. You need to make new friends and create a new social circle.

But what scares “Andrew” (not his real name), a freshman at Tulane University in Louisiana, the thing that most concerns him about going to college is sexual assault—not being a victim of it, but being wrongly accused of committing it.

“My biggest fear: getting accused when that didn’t actually happen,” he told The Daily Beast.

“Obviously, if you rape someone, you should get in trouble. But the definition of rape is fuzzy,” said Andrew—or at least it is to him. “It doesn’t mean you necessarily forcibly had sex with someone. It’s kind of generalized into sexual assault and the boundaries aren’t necessarily clear.”

Andrew’s blurry understanding of rape and sexual assault contrasts with the clear parameters set forth by state and federal laws. In fact, according to Tulane’s own website.

“Most statutes currently define rape as nonconsensual oral, anal, or vaginal penetration of the victim by body parts or objects using force, threats of bodily harm, or by taking advantage of a victim who is incapacitated or otherwise incapable of giving consent.”

While the law treats rape as a crime separate and distinct from sexual assault or misconduct, Tulane and other colleges do appear to often categorize them together in policy explanations and data purposes (i.e. the most recent set of statistics that one in four women are subjected to sexual misconduct at college encompasses suffering through rape to forced groping).

Still, Tulane makes it clear that sexual misconduct is based in committing sexual act without another party’s consent.

Tulane defines sexual assault as “acts that range from unwanted touching to rape. Sexual assault occurs when a person does not, or is unable to consent to sexual activity. A person is unable to consent when he or she is forced, threatened, intimidated or is mentally or physically incapacitated.”

Andrew, like every other male college student interviewed for this article, underwent at least some form of college-mandated orientation program tackling sexual assault. But it seems young men are confused and fearful themselves around the new climate and codification of sexual relations on campus.

From the release of campus rape documentary The Hunting Ground and Lady Gaga’s “Til It Happens to You” to the recently released study that one in four women will be sexually assaulted at college, campus sexual assault is consistently in larger national news coverage and cultural debates.

Fewer than two months ago, the St. Paul’s boarding school rape trial in Concord, New Hampshire, played out in national headlines in a he-said, she-said that encapsulated all the blurred faultlines around consent for young people today.

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The victim and the accused rapist, Owen Labrie, had two very different takes on their sexual encounter.

Labrie said they never had intercourse, while the victim said she was raped. Labrie’s friends testified that he had bragged to them about having sex with the victim but described it as consensual.

The school nurse testified that the victim told her the sex was consensual.

The victim said at one point she protested during the incident but did not tell Labrie to stop as he performed oral sex and and put on a condom because she froze in fear. She later said she had told him to stop.

Clearly, Labrie had his own personal incentives for pushing his account of the alleged encounter. But the striking disparities in the perception of the night suggest why young men entering college may feel especially confused about what could be considered sexual assault and how it would be recounted in a court of law.

“What’s most interesting about this case is that it would not have been brought 10 years ago, and not because of any changes in law but because of changes in attitude,” Harvard Law lecturer and former judge Nancy Gertner told the The Daily Beast of the “froze” in fear justification the victim used for not telling Labrie to stop.

Young men are now expected to navigate the changing and increasingly nuanced ways consent is discussed—or, rather understand and recognize the ways consent has not been reached.

In addition to trials like the St. Paul’s case, university law faculties are increasingly expressing concerns that school policies may violate the due process for men accused of assault.

In the past year, law professors at Harvard University and the University of Pennsylvania have openly opposed administrative changes to sexual assault policy. Harvard Law professor Elizabeth Bartholet told The Daily Beast, “There’s the risk we will find a lot of people responsible for sexual assault when they shouldn’t be."

Because women are so disproportionately the victims of sexual assault, we rightly focus on them and their experiences, their fears, their responses. A disturbingly high 23 percent of college women said they were victims of nonconsensual sexual contact, dwarfing the 5 percent of undergraduate men who reported being subjected to the same.

The onus on sexual assault prevention and education is focused on men’s actions because it is abundantly clear that men are far more likely to be the aggressor. The numbers vary on what percentage of sexual crimes are committed by men, but according to a government study, 99 percent of convicted rapists are male.

How well do young men understand sexual assault policies? What are their opinions? What are their fears? Why are they confused or, at times, skeptical?

The Daily Beast conducted in-depth interviews with four male undergraduates at a mix of private and public universities in New York, Virginia, and Louisiana.

On certain issues, their responses varied dramatically, such as what their universities mandated with sexual assault education.

For example, Andrew did an online program called My Student Body for Tulane.

Meanwhile, Columbia University instituted a “mandatory contribution by all students—an essay, art, or attending some film—to bring education about sexual respect back to students and make sure everyone understand what consent means,” according to Ben, a junior at the school.

On other topics, the men were remarkably consistent. All said they were well aware that mixing alcohol and sex was recipe for disaster, and that hooking up with someone when they were drunk was wrong.

Studies on campus sexual assault consistently show that alcohol and other drugs have a high correlation with attempted and completed attacks.

A study released earlier tracking women during the first of college found that 83.6 percent of all reported rapes involved incapacitation due to drugs or alcohol—“research has indicated that it is by and large mostly alcohol,” lead researcher Kate B. Carey told The Daily Beast.

It is often considered a form of victim-blaming to advise women to drink less, so the focus has shifted on campuses to encourage both men and women to be highly cautious about having sex with people who appear to have had too much to drink.

In fact, more schools are instituting bystander education programs, as Bloomberg Business noted last year.

These involve encouraging men to take an active role in preventing sexual assault, such as intervening when they see male peers making advances with women who appear to have had too much to drink.

Each male student I spoke to was adamant about not having sex with a girl who appeared drunk, and seemed aware of how to look for at least signs of drunkenness in a potential partner that go beyond her being merely unconscious or even slurring her words.

“If I was in a situation where I was talking to a girl and she kept repeating the same thing, like she asks where I am from and 20 seconds later she asks it again, those are signs she is too drunk. Then, you know it could lead to a lot of problems, so I just leave the situation,” Andrew said.

“I know people who are more OK with sleeping with a girl who has had more to drink than I am OK with. I'm cautious about that. I'll be honest, I drink a fair amount. If I think I am more drunk than you are, that's automatically a bad decision,” said Max, a sophomore at Radford University in Virginia.

Max's response raises the question of how can we rely on inebriated students to decipher if their fellow students are too inebriated to give consent. Again, it’s a question for post-college adults too.

In a New York Times article on how students at the University of Michigan are trained to counsel their peers on sexual assault, Katherine Rosman described an exchange between Sarah Daniels, the assistant dean of students, and a student wondering how you can tell the difference between intoxication, which gets a green light for consent capability, and incapacitation, which is considered to automatically void consent:

“The answer was murky, underscoring how hard it is for adults, let alone college students, to identify clear lines. ‘Incapacitation is beyond intoxication, when you’re unable to make informed judgment, just totally unable,’ Daniels said. “It’s a case-by-case thing,” she said, adding that she wished she could provide more clarity.”

We rarely discuss how nebulous and confusing sexual assault prevention tips are, but as the exchange at the University of Michigan shows, there is a disturbing lack of clarity.

“I paid attention to all the seminars they had [on sexual assault] at the beginning of the year. I think it’s important to know about consent,” ‘James’ (not his real name), a freshman at Binghamton University, told the Daily Beast. “You don’t want to be that guy who, because of a technicality, is getting caught charged for sexual assault.”

“Technicality” suggests James sees being accused of sexual assault as more of an accidental misinterpretation of bureaucratic policies than the result of a brutal, disturbing act.

Yet, before one writes James off as callous or a rape apologist, he also expressed concern about his male peers’ behaviors, immediately adding, “You also want to make sure other guys aren’t lying about it.”

Despite the pre-college programs and lectures students go through, it’s clear from these interviews that many men still do not fully comprehend what constitutes sexual assault or, for that matter, sexual consent.

“If you hook up with a girl and she’s had a couple of drinks but she seems in control, you run the risk of her saying she’s intoxicated and didn’t consent,” said Andrew.

“There’s no surefire way to know what someone will be thinking the next day, so you just have to use your judgment,” said Max.

As a board member of One in Four, a nonprofit devoted to counseling men and women on rape and sexual assault prevention, J.T. Newberry wasn’t surprised to hear men in college were anxious about securing an airtight form of consent, creating “scenarios where it’s ‘Boom! I’ve got this green light.’ They’re looking for a specific line.”

Newberry and One in Four counsel college men to “focus on making sure we’re not hurting someone” rather than “trying to define a specific line that gives you the feeling you could be protected from have some sort of allegation made against you.”

It’s a commendable approach to sexual relations, though one that Newberry also admits is “broad” and “not specific.”

Some sexual assault advocates believe the best way to teach college students about clear consent is to institute affirmative consent policies, as California already has for campuses throughout the state.

Often referred to as “yes means yes,” affirmative consent means sexual partners communicate “affirmative, conscious and voluntary agreement” throughout the course of a sexual encounter, as the California legislate notes.

“We need to focus on affirmative consent every time. Men and women both have responsibilities to provide consent to sexual activity, and it really is sexy to hear your lover say yes!,” Stephanie Gilmore, a sexual assault educator and activist, told The Daily Beast in an email.

So, how should affirmative consent manifest itself in practice?

“Affirmative consent begins at the outset of any desire for sexual activity. It really means that it is about being with a lover who wants to be with you, too,” Gilmore said.

How does one define the “outset” of sexual activity? Is it when we begin undressing, or kissing, or earlier?

Newberry didn’t pinpoint a moment, but stressed “communicating actively and consistently” was necessary throughout every step of an encounter.

“We have this funny different standard when it comes to physical contact that doesn’t exist in other situations,” he said. Some men will go in for the kiss or reach over to cop a feel, as one would say, without thinking twice, but “you would never reach over and take someone’s lunch,” he said.

Male students gave a range of responses when questioned about whether they ask for consent at the beginning of a hookup, i.e. from the first kiss.

“No,” said Andrew, who laughed when asked the question. “Obviously, if you’re hooking up with someone and they’re pulling away, I wouldn’t continue. I definitely feel out the situation."

It’s the kind of answer that seems both normal and yet likely unsatisfactory to sexual assault advocates who stress that consent needs to be conveyed in a much more explicit way than body language alone.

Other young men interviewed gave responses that could have come out of an affirmative consent textbook.

“Even kissing, something like that needs to be consented to, not only by a smile but with a ‘yes.’ Everything needs to be understood clearly,” Ben said.

He did pause when asked if he explicitly asked girls for permission before going in for a kiss.

“Yeah, I like to think I do. ‘Is this OK?’ is something I would definitely say,” he said. “There are a lot of moments before sex that exist in an unspoken body language. Separating body languages from wishes and intents is something we need to become better at as humans. I try to improve my ability, [but] the safest way is to just ask.”

Ben transferred to Columbia University last semester during the height of the controversy over Emma Sulkowicz’s “Carry That Weight” campaign. Sulkowicz spurred debates across the country about campus sexual assault policies when she committed to carrying a mattress around the New York City campus to protest the school’s unwilling to expel her alleged rapist, Paul Nungesser.

Nungesser has since filed a federal complaint against Columbia and its president, Lee C. Bollinger, for gender discrimination in its failure to protect him as Sulkowicz’s project earned more attention—almost universally negative in his case.

Ben speaks like someone who has been ensconced in the trenches of the campus sexual assault debates.

“If someone has been assaulted, you can’t assume they’re going to lie about it. It does happen, but not nearly enough to be worried about if you’re doing the right thing,” he said.

While the numbers vary, studies on sexual assault indicate that false reporting only occurs in a small minority of cases. According to the National Sexual Violence Resource Center, the prevalence of false reporting falls between 2 to 10 percent.

Ben acknowledges there’s a difficult line between caring for victims while not rushing to prosecute those accused.

“We have to find ways to believe people who have been assaulted while not treating the assaulters as guilty," Ben said. "It’s not about who is right and wrong. Simply because someone is not guilty, doesn’t mean they’re innocent."

Yet, speaking to the confusion of navigating two different accounts of a sexual encounter, Ben then added, “But you’re also not going to assume a person is not innocent.”

Guilt and innocence almost seems like an afterthought to Ben, or at least the concern takes a backseat to providing care and support for victims. The focus should be “about telling a person you care about them and that you understand not everything can be proven in court,” he said.

As Ben’s comments suggest, the male students interviewed, by and large, cared more about supporting their female friends than pondering the success of the campus tribunal system or worrying about being accused of sexual assault.

“We don’t let anyone go by themselves to a party. There always has to be at least one person with them. It’s better safe than sorry,” Max said.

He recalled how one of his male friends took his female friend’s drink when she began to feel unwell at a frat party. “He drunk the rest and ended up being roofied,” Max said. “He took the bullet, and it kind of sucked. Now, we warn people, ‘Don’t go into that frat house.’”

Ben said he very much believes it is his and fellow students’ responsibility to intervene if they say the beginning of a situation that could lead to sexual assault.

“It’s much better to risk embarrassing yourself than letting it escalate to something worse.”