Yale released eight hypothetical scenarios that might fall under its "nonconsensual sex" umbrella in response to criticism regarding how the university handles sexual assault — and why it calls sexual assault "nonconsensual sex." The scenarios, which read like Ivy League "Choose Your Own Adventure" prompts (I'm totally naming my kid Ryo), aren't perfect, but student anti-violence activists say they're a good start.
Here are the scenarios:
The discipline imposed in each scenario presumes that the facts described below have been substantiated in the UWC fact finding and hearing processes.
Ryo and Casey are dating. Casey is uncertain about whether they should have sex, but Ryo is persuasive and finally obtains Casey’s voluntary agreement. As they engage in sex, Casey says “wait – stop – that hurts.” Ryo nonetheless continues for several more minutes, restraining Casey. Afterwards, Casey is upset. Ryo apologizes, but says they were past the point of interruption. (While there was initial consent, that consent was withdrawn. The UWC penalty would be expulsion.)
Jessie and Vic have been flirting all semester, and agree to meet at a party. After dancing closely together for a while, Vic proposes going to one of their rooms and Jessie agrees. On the walk to Jessie’s room, they send a few texts, letting Vic’s friends know not to worry and asking Jessie’s roommate to please sleep somewhere else. Once in the room, they begin touching. Each is interested in hearing what the other wants, and each is paying attention to the other’s signals. They reach and sustain clear agreement upon mutually desired sexual activities. (This is consensual sex: Vic and Jessie reached positive, voluntary, unambiguous agreement to engage in sexual conduct together.)
Sidney and Harper are dating. On several occasions they are physically intimate, but within limits set by Sidney, who is opposed to having sex at this stage of their relationship. One night, when they are being intimate within their mutually agreed upon boundaries, Harper begins to cross them. Sidney expresses concern, but Harper is encouraging, saying “it will be okay just this once.” Sidney replies “we shouldn’t do this,” but continues to touch Harper in an intimate way. As Harper initiates sex, Sidney says “this is a bad idea” and begins to cry, but embraces Harper and the two proceed to have sex. (Initial consent was followed by ambiguity. Sidney’s acquiescence to sex was accompanied by too much dismay to constitute unambiguous agreement, especially given Sidney’s longstanding prior refusal to engage in sex. The UWC penalty would likely fall in the range of probation to suspension.)
Jamie and Cameron are at a party. It is crowded on the dance floor and they are briefly pressed together. Later, Jamie encounters Cameron in the hallway and smiles. Cameron, who is now very drunk, follows Jamie into the bathroom and forces Jamie to have sex. (There was no consent to have sex. The UWC penalty would be expulsion.)
Devin and Ansley are engaging in a consensual sexual encounter, which Devin begins to intensify. Ansley responds by pulling away slightly, moving Devin’s hands and saying “not so fast; I’m not sure.” Devin cooperates briefly but then intensifies the contact once more. Ansley inches backwards and then becomes still. Nonetheless, Devin has sex with Ansley. (While the initial sexual activity was consensual, that consent was not sustained. The UWC penalty would likely range from multi-semester suspension to expulsion.)
Alexis and Riley are studying together in Riley’s room. During a break in their studying, they rub each other’s shoulders. Alexis then introduces some intimate touching. Riley moves closer and says “Okay, but I don’t want to go too far – we still have a lot of work to do.” Alexis continues to touch Riley in an intimate way. Riley willingly agrees to some contact, but mostly sets boundaries. Alexis jokes that they deserve to have sex as a reward for their hard work studying; Riley laughs. After their studying is done, Alexis suggests again that they should have sex. Riley responds they should probably get some sleep but continues to touch Alexis. After a few more minutes, Alexis asks once more. Riley pauses, then says okay and pulls Alexis closer. They have sex. (This is consensual sex. Despite initial hesitation, the ultimate agreement to have sex was voluntary and unambiguous. There is no violation of the sexual misconduct policy. The UWC would likely counsel Alexis about the inappropriateness of sexual pressure, and recommend SHARE’s sensitivity training program.)
Morgan and Kai are friends who begin dancing and kissing at a party. They are both drunk, although not to the point of incapacitation. Together they decide to go to Kai’s room. They undress each other and begin touching each other. Morgan moves as if to engage in oral sex and looks up at Kai questioningly. Kai nods in agreement and Morgan proceeds. Subsequently, without pausing to check for further agreement, Kai begins to perform oral sex on Morgan. Morgan lies still for a few minutes, then moves away, saying it is late and they should sleep. (There was initial agreement, but the bounds of that agreement were not clear. Kai may have thought that Morgan had consented to reciprocal oral sex, but took no steps to obtain unambiguous agreement. The UWC penalty would likely be a reprimand.)
Tyler and Jordan are both drinking heavily at an off-campus event. Tyler becomes extremely drunk. Jordan offers to take Tyler home. On the way, Tyler has trouble walking, and makes several wrong turns. Once in Tyler’s room, Jordan initiates sexual activity. Tyler looks confused and tries to go to sleep. Jordan has sex with Tyler. (There was no consent to have sex. A person who is incapacitated—lacking the ability to make or act on considered decisions to engage in sexual activity—cannot give consent. The UWC penalty would be expulsion.)
Alexandra Brodsky ('12 LAW '16), one of the 16 students and alumni who filed a Title IX complaint against Yale in 2011 (the school didn't face any disciplinary action for creating a "hostile sexual environment," but was required to implement new grievance procedures and report to the OCR until 2014), said she thought the scenarios underscore how lenient Yale's policies are.
"The school may claim it has a zero-tolerance policy, but that's clearly untrue when the admin publishes a statement explaining probation would be an appropriate response to a graphically-detailed hypothetical rape," she wrote, noting that #3 and #5 in "perpetuate the myth that a previous sexual relationship makes rape 'less bad' or even impossible — a myth that Yale's own consent education program works to dispel."
But student anti-violence activists do feel the hypothetical scenarios are a good start to an ongoing conversation; according to the Yale Daily News, the newly-formed Students Against Sexual Violence at Yale is scheduled to meet with administrators next week.