Some defense-minded law professors and others have criticized revised college sexual misconduct policies that shift the definition of sexual assault from involuntary sexual relations to a lack of affirmative consent. But affirmative consent is the right standard. It best protects an individual's autonomy and is the best way for someone to know if a partner is engaging in sex voluntarily. Ambiguity should be seen as sexual assault. Ambiguity is not permissible in other contexts: When I don't respond to the panhandler, I certainly am not consenting to the removal of my wallet. It is also the proper standard because two people shouldn't be engaging in activity that risks having a child if they can't even communicate the word "yes" to each other.

Colleges have an important role to play in changing social norms, but the solution has to start before college and extend beyond college. This is true, in part, because victims of sexual assault are not only found on college campuses. For example, college campuses played no role in the alleged sexual assault of Lady Gaga by a music producer or the alleged acts of Bill Cosby.


Parents, schools and civil society need to teach children at an early age that any sexual touching (not just "rape") is wrong without affirmative consent. We have lost the battle if colleges are the first place where young men and women learn the rules related to the boundaries of sexual behavior. The message has to be taught both to boys and girls; contrary to stereotypes, boys/men do not always want sexual contact.

Boys and girls also need to be taught how to reduce victimization. Boys can avoid accusations of sexual assault by knowing the character of the person with whom they have sex and ensuring that sex is always with affirmative consent. Girls can avoid ambiguity being interpreted as consent by telling their partners only a "yes" means "yes." Parents need to give girls permission to say "yes" so that boys don't ever think that "no" means "yes." Boys and girls must be told that becoming incapacitated, or messing around with an incapacitated partner, increases the risks of sexual assault.

This advice should not be confused with victim blaming. It is never a victim's fault that sexual assault occurs or that one is falsely accused of sexual assault. But pragmatism makes this advice necessary.

In addition, both boys and girls must be taught to step in if their friends appear likely to become a victim or a perpetrator. That's what friends do. If you haven't seen the various videos produced by the University of Oregon ("It's on Us) and some of its students ("A Needed Response"), you should. Their point is right and poignant: This type of message should be conveyed to children too.

With effective education, only rarely will the college disciplinary process need to be involved. People like Yale law professor Jed Rubenfeld think colleges are ill-equipped to adjudicate sexual assault and that the criminal law system is the proper forum. But campuses commonly handle other non-academic matters, most commonly those related to drugs or being a minor in possession. Sexual assault should not be insulated from campus conduct codes, especially when 19 percent of college-age women say they have been sexually assaulted at college. Clearer definitions of unacceptable conduct would promote student safety and reinforce social norms.

The criminal law system cannot be the only place where these cases get attention. Criminal statutes may be more lenient than college rules because the consequences are more serious. Moreover, victims often do not come forward and prosecutors do not charge.

A new California law that requires California schools to adopt an affirmative consent approach isn't draconian but common sense. Under it, a perpetrator can't claim, "I thought she consented" if the perpetrator's mistaken belief arose from his own "intoxication or recklessness," or absent taking "reasonable steps" to see if the victim actually consented (perhaps by asking and obtaining an affirmative yes). Also, the accused is out of luck if he believed that the complainant affirmatively consented, but he "knew or reasonably should have known" that she was asleep, unconscious or too incapacitated to understand the sexual activity or communicate.

I support letting campuses handle sexual assault cases under an affirmative consent standard. But, to be clear, parents have an important role to play in keeping their children out of the disciplinary system by instilling positive values regarding sex, respect and autonomy.

Merle H. Weiner is a Philip H. Knight Professor at the University of Oregon School of Law. Her email is mweiner@uoregon.edu.