Consent without a 'yes'

According to Penn’s policy on sexual and relationship violence and stalking, consent can be given nonverbally. With the addition of new administrative positions and processes to combat sexual misconduct at Penn, student awareness of the definition of consent will be important in future cases brought to the attention of the University.

Consent is a “mutually agreed upon” decision that can be “given by clear words or actions,” Penn’s policy states.

“Students are often confused about consent and its definition," sexual violence prevention educator Jessica Mertz said. “In order to understand what sexual violence is, you must understand what consent is and is not.” She explained that consent must be clearly affirmative and not coerced. “Consent cannot be presumed because someone is not resisting or hasn’t verbally said ‘no,’” she added.

In addition to Mertz’s new position, Penn also created a position for a sexual violence investigative officer, now filled by Christopher Mallios. Sexual misconduct cases are currently handled in the new Office of the Sexual Violence Investigative Officer, rather than through the Office of Student Conduct, where they were formerly handled.

Debate continues to swarm around what the definition of consent should be, as well as how and when nonverbal consent can be given.

A study by Jason Burrow et al. at the University of the Pacific examined the perceptions college students have about how women give consent. The study, published in the Electronic Journal of Human Sexuality, reported that both men and women think most women communicate consent nonverbally, but communicate nonconsent verbally. “If nonverbal responses are typically interpreted as indicating consent,” the study says, “then it is critical that nonconsent be communicated verbally and quickly so that misunderstandings do not occur.”

Another study, published in the Journal of Sex Research by Kristen Jozkowski et al. reported that there is a gender divide between college-aged students on perceptions of sexual consent. Men in the study tended to interpret nonverbal cues as consent, while women tended to interpret verbal cues as consent.

Regardless, some form of affirmation must be given as consent. “Consent may not be inferred from silence, passivity or lack of resistance alone,” Penn’s policy states.

Penn is not the only university to include nonverbal communication in its definition of consent.

Yale University’s policy defines consent as “the presence of an unequivocal ‘yes’ — verbal or otherwise — not just the absence of a ‘no.’ The category ‘nonconsensual sex’ includes rape but is more expansive than rape.” Columbia University and Cornell University also outline in their policies that consent can be given both verbally and nonverbally, but must be given clearly and without intimidation.

Princeton University, on the other hand, defines consent as “voluntary, informed, uncoerced agreement through words and actions freely given,” rather than one or the other, “which a reasonable person would interpret as a willingness to participate in mutually agreed-upon sexual acts.”

Related: A look at what is considered "consent" at Penn

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