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Problematizing Consent Campaigns in the #METOO Era

#METOO Campus sexual violence higher education

Inga Schowengerdt, Sharon Lamb and Charlotte Brown

DOI: GWS/4/1/4     03 Mar 2021

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Abstract

The increasing prevalence of campus sexual assault begs the question of whether consent campaigns, and interventions that preceded them, may be effectively paying lip service to this issue rather that creating meaningful reform. In this paper, we focus on poster campaigns that promote consent as a solution to campus sexual assault. We begin by reviewing the various definitions and critiques of consent. Our sample of 194 posters was obtained through Google and Pinterest searches on various search terms (e.g. “university consent sexual.”) Using Willig’s (2013) 6 Stages of Discourse Analysis that leads the researcher through discursive constructions, positioning, discourses, subjectivities, action orientations, and practices, we discuss themes and discourses around the idea that consent is simple; that women are to be strong sexual agents; that sex requires a conversation; and that onlookers must be responsible citizens. The first three of these discourses reveal a neoliberal perspective of individual choice that can lead to self-blame, letting universities off the hook. Our analysis invokes Foucault’s thoughts on prisons which, in an endless state of reforming, maintain the status quo. We argue that consent is a minimal ethical requirement and mutuality may be a better guide to having ethical sex.

Keywords

#METOO, Campus sexual violence, higher education

Introduction

Campus sexual violence (CSV) is a concern that college campuses have taken up as a Title IX issue with concomitant interventions within institutions of higher education (IHE). The problem is not new, and remains persistent despite IHE interventions: Surveys of undergraduates suggest an average rate of completed sexual assault of 21% and 7% for females and males respectively in the academic year of 2014-2015 (Krebs et al., 2016). Older studies report that 44% of women and 7% of men report at least one unwanted sexual encounter while attending college, while 25% of women and 1% of men report at least one incident of attempted unwanted sex (oral, anal, or vaginal) (Flack et al, 2007). Sexual and gender minority students may be particularly vulnerable, given reports that non-consensual penetration or sexual touching by force or incapacitation was reported by 23.1% of female and 24.1% of TGQN (Transgender, Genderqueer, Questioning and ‘Not listed’ gender) undergraduates (Cantor et al., 2015). The deep roots of this issue are evident in a comparison of reporting rates: More recent reporting rates appear comparable or slightly higher than those revealed in prior surveys (The College Sexual Assault study (CSA) (Krebs et al., 2007), National College Women’s Sexual Violence Survey (NCWSV) (Fisher,et al., 2000), Community Attitudes on Sexual Assault (CASA) (Massachusetts Institute of Technology, 2014)). Central to many of IHE interventions to curb CSV is the concept of consent, in both its attitudinal and behavioral (performative) forms. Attitudinal consent is expressed in a sexual encounter through ongoing participation. Performative consent requires an action like an answer to a yes/no question which permits various acts before they are enacted. Performative consent appears to be favored in interventions to reduce CSV, on the grounds of its superiority in circumventing ambiguities in interpretation, and thus preventing CSV based on ‘misunderstandings.’ We see this in the “no means no'' campaigns which burgeoned in popularity around the turn of this century (Koss, 2011), with some IHE going so far as to formalize the acquisition of sexual consent between students to involve contractual paperwork (see for example Antioch College, 1990). In this paper, we query the messaging in sexual consent campaign posters on North American IHE campuses, what was implied therein, and which discourses were disrupted or unintentionally promoted.

What is Consent?

Recently, there has been a renewed, increasingly nuanced and critical discussion of consent (as established in ongoing, informal, or short-term sexual relationships) that engages with accounts of ‘problematic’ experiences. These experiences are not always described as nonconsenting, but include physical and emotional discomfort and/or a lack of willingness (e.g., Beres, 2018; Bogle, 2008; Thomas et al., 2017; Wade, 2017). There has also been considerable debate around the idea of consent in theoretical psychology and philosophy and many have found basing the ethics of a sexual encounter on the idea of consent, troubling, and even untenable (Gavey, 2017; Lamb, Gable, and de Ruyter, 2021). Gavey (2005; 2017) discovered that some women consented to sex that left them “feeling used and disrespected, and sometimes fearful and betrayed.” Women were engaging in sexual encounters that were troubling in that they were not completely consented to and yet did not rise to the level of rape. There was a consent of sorts, but Gavey called this form of consent ‘covering your back’ consent, and her findings highlight ways in which gender norms position female acquiescence as the less risky, more likely, outcome.

The Trouble with Consent as a Gold Standard

Beres (2014, 2018) argues that consent alone is inadequate, as such a standard is naïve to gendered subjectivities and behavioral scripts. Cahill (2016) argues that neither consent nor desire makes sex ethical and that various contexts can invalidate verbal consent when both or either are present. West (1995) originally addressed this issue by writing that some consensual sex is positively unethical, that there are times in which some forms of consensual sex can disrupt a person’s sense of autonomy, sense of self-possession, and more. Blogger and philosopher Perrin (2014) presents an interesting overview, calling the recent focus on consent a “fetish,” suggesting that consent has been “given sacred or supernatural importance,” thereby effectively ignoring the elephant in the room that represents what he describes as the ‘modified yes’; for example, consent given without clarity to what is being consented to, or with reservation, or under perceived pressure. Evidence of the ‘modified yes’ may also be seen in the ways that girls’ and women’s accounts of sexual aggression are linguistically and conceptually incongruent with legal and performative definitions of consent (Koss, Gidycz, & Wisniewski, 1987, Testa et al, 2016). Such findings point not only to the value of avoiding stigmatized ‘outsider’ language in assessments of unwanted sexual contact, but also to the paucity of cultural discourse, vernacular and consent-based approaches in giving voice to girls’ and women’s sexual experiences (Koss, Gidycz, & Wisniewski, 1987; Testa et al., 2004). Muehlenhard’s decades-long program of research also speaks to the inadequacy of consent, in both performative and attitudinal forms (Muehlenhard et al., 2016). Both, according to Muehlenhard and her colleagues, fall short in their failure to distinguish between consent and sexual wanting and their tendency to reinforce heteronormative sexual scripts. Finally, McKinnon (1989) has argued that in patriarchal society, genuine female consent in heterosexual encounters is impossible because the option of non-consent is not equally viable under such conditions. The prioritization of the heterosexual norm is in turn reflected in the relative homogeneity of the consent literature in attending selectively to cisgender, heterosexual populations. In what appears to be the visual media equivalent of a band-aid cure, analyses of consent campaigns have found that they often strive to be visually inclusive, using images of same and mixed gender couples alongside the same slogans. Though this sends the message that consent is for everyone, it also suggests that it is the same for everyone, thereby ignoring power differentials and research grounded in gender identity and sexual orientation (Burkett and Hamilton, 2012; Fahs and Swank, 2011). Discourse in campaigns surrounding sex, consent, and identity is therefore characterized by a relative exclusiveness which may be libelous when applied in inclusive groups and settings (Grant & Nash, 2019; Turchik et al., 2017).

Noting that not all consensual sex is wanted, and that consent itself is obtained within an intricate web of power relations and is therefore not ‘freely’ chosen, consent-based approaches are under evidence-based scrutiny (Adam and Ryan, 2008; Fahs et al., 2020; Gavey, 2005). The inability of the performative consent approach to explain and prevent ‘problematic’ sex has led to the denouncing of interventions based on mantras such as ‘no means no’ and ‘yes means yes’ as ineffectual, lowering standards for communicative competence, and ignoring historical-cultural context (Harris, 2018). The performative approach has also been called out for reinforcing conceptual and linguistic obstacles for girls and women when both constructing meaning around and describing their experiences of sexual encounters that were to a degree unwanted, yet consensual. In their analysis of female participants' reflections on consensual and non-consensual experiences, Thomas and colleagues (2017), vividly illustrate the insufficiency of available language in heterosexist discourse to describe female sexual experiences. Participants’ heavy use of hedging, qualification, and overlapping terminology when relating memories of wanted/unwanted, consenting/unconsenting sex, poignantly exemplifies how this thin narrative repertoire draws from a discourse associated with male sexual experience, inhibits participants’ attempts to construct and articulate meaning, and prevents investigators’ ability to interpret them through standardized definitions of consent, rape and coercion. Implicit constraints such as these reflect what Gavey refers to as the ‘cultural scaffolding’ of rape, wherein normative constructions of heterosex support rape and ‘problematic sex’ by prioritizing male desire at female expense (Gavey, 2005). That is to say, the cultural scaffolding around non-consensual sex precludes the possibility of unfettered consent (see discussion in Du Plessis, 2008) and detracts from sexual agency in social context by limiting what Cense (2019) refers to as ‘narrative agency.’ As desire alone may be inadequate to render sex ethical, mutual desire is an ethically superior criteria in sexual negotiations as compared to consent (Cahill, 2014; Lamb et al., 2021).

The Problem with Consent Campaigns

Following from such broad critiques of consent as perpetuating problematic sex, are studies that interrogate social media consent interventions specifically, such as the campaigns popular with IHE. Beres’ (2018) analysis of media images promoting consent uncovered an emphasis on verbal (performative) indicators as well as the ‘sexiness’ of consent, presumably to offset perceptions of such communication as boring and unspontaneous. Also common were contingencies, including subjective displays of ‘enthusiasm’ to denote desire, whether consent had been previously requested and denied, and factors that corroborate legal definitions, including the absence of complicating factors such as intoxication. Adopting an educational style of intervention (concerns with which are addressed at greater length later in this section), such campaigns present unwanted sex as the result of ignorance in how to communicate about sex, which may be overcome through instruction. However, this causal relationship is not supported by the findings of Beres, which shows a preference for non-verbal indicators of sexual consent used in other social invitations. This preference was also noted in Muehlenhard, Humphreys, Jozkowski, & Peterson’s (2016) summary of the literature on consent. Harris (2018) further notes that performative consent-based approaches are built on ‘communication myths’ about equitable access to sexual agency and behaviors; in other words, socially constructed and perpetuated fallacies concerning the latitude with which women respond to male sexual advances. Support for this premise may be found in data that suggest that women avoid, soften and qualify sexual refusal to prevent social sanctions and consequences (Kitzinger and Frith 1999). In sum, the literature portrays consent-based approaches as, at best, a questionable basis for interventions, and also as responsible for obscuring and ignoring instances wherein individuals describe sex as problematic but not non-consensual (Warshaw and Koss, 1988).

As consent campaigns appear to be the front line of attack in education and sometimes accompany more expensive trainings and classes, consent campaigns predominantly promote verbal, or ‘affirmative’ consent (e.g., Antioch, 2014-2015). The utility of this approach may be limited in light of its incongruence with how intimacy is negotiated, as studies of college students have found that female students were more likely to express consent verbally, while male students were more likely to rely on non-verbal cues to determine whether their partners consented (Jozkowski, Peterson, Sanders, Dennis, & Reese, 2014). Such sex differences in heterosexual encounters exemplify the interaction of gender roles and how consent is evaluated, (as discussed in Beres, 2018), such as males’ relatively higher reliance on indicators such as attire, intoxication and previous sexual behavior when assessing consent. Studies using unstructured and semi-structured interviews with Canadian and American young adults found that participants used a combination of contextual cues, refusal signals, and evaluation of their partner’s active participation (or the lack thereof) to gauge consent. Their findings suggest that men and women alike are adept at reading each others’ levels of comfort (Beres, 2010), and consider such ‘tacit knowing’ to be easy, making verbal consent unnecessary (Beres, 2010; Jozkowski and Hunt, 2013). Tacit knowing appears to be preferred by adolescents as well as adults, as a survey of college and high school students found that performative verbal consent is the least frequent means of communicating consent for men and women (Jozkowski, Sanders, Peterson, Dennis, & Reece, 2014). To further complicate matters as concerns CSV, many campaigns consider affirmative consent to be invalid after any alcohol has been consumed, a qualification which is logistically encumbering since most college students drink (National Institutes of Health, 2015).

Of particular concern in relation to consent campaigns’ emphasis on performative verbal consent is that while consent may indicate a legally permissible sexual encounter, it is not equivalent to a desired one. There is abundant evidence that women – and men – consent to sex for reasons other than desire (e.g., consenting out of feelings of obligation to a partner, to avoid arguing, or fear of emotional or physical reprisals) and often experience genuine ambivalence about sexual encounters (Beres 2014; Beres et al., 2004; Gavey, 2005; 2017; Muehlenhard & Peterson, 2005; Peterson & Muehlenhard, 2007; Yusuf & Muehlenhard, 2016). Finally, the ability to discern between consent, and the lack thereof, does not deter would-be sexual predators, as they attach little significance to consensual indicators at the time of the offence, believing that they can retrospectively change the victim’s view. Perhaps unsurprisingly, another emergent theme in the literature includes that ‘soft’ use of indicators of women’s non-consent, including verbal non-consent, were treated by male participants as opportunities to persist and attempt to negotiate sex (Jozkowski & Hunt, 2014).

Before interrogating what consent campaigns are doing, it is important to speak to the larger issue of how they promise to achieve their aims. Most prevention campaigns (like those in Beres, 2018, discussed earlier) attempt to raise awareness using an Information Deficit Model (Christiano & Niemand, 2017) and some attempt to teach skills (e.g., the Vermont Consent Campaign, 2012; the Campus Toolkit by the Canadian Federation of Students in Ontario, 2018). There is evidence that these approaches work under certain conditions, but many are poorly designed (Christiano & Niemand, 2017). There is also the hope that “raising awareness” campaigns have an effect on the way people talk about sexual encounters, and promote a discourse that goes against what has been named as “rape culture,” a culture in which victimization is taken lightly, perpetrators are rarely to blame, and women are condemned for not protecting themselves (Suarez & Gadalla, 2010). The long history of interventions around CSV, taken alongside its persistent incidence rates, and mixed results regarding intervention effectiveness (Anderson and Whiston, 2005, Centers for Disease Control and Prevention, 2014, Jouriles et al, 2018, Senn et al., 2015) begs for an examination of the discourse in these efforts and their materials. For IHE to most effectively reduce CSV and rape culture, they ought to utilize approaches that are effective and applicable; and if consent campaigns are to be a part of this effort, the discourse used in them must promote these outcomes intentionally and selectively in the face of the competing discourse of ‘cultural scaffolding.’

Summary

In this paper, we build on the extant literature on messaging in sexual consent campaign posters, such as those widely adopted by IHE, that promote and teach about sexual consent as a means of addressing CSV. Purposefully, we focused on posters created for use on North American IHE campuses, what was implied therein, and which discourses were being disrupted or unintentionally promoted. Thus, this interrogation resonates with, and seeks to build on those of Beres (2014; 2018). The timeliness of returning to this topic with regard to IHE in the United States is underscored by the potential for federal and policy approaches to CSV to shift with presidential administrations. In 2011, under the Obama administration, the US Department of Education Office for Civil Rights (OCR) sent a “Dear Colleague” letter to IHE requiring them to respond in a timely and effective manner to complaints of college student sexual assault (U.S Department of Education, 2011) and use a standard of evidence more lenient than the judicial system might. In 2014, the initiative ‘It’s on us’ (www.itsonus.org), issued guidance on how IHEs should handle sexual assaults under Title IX federal law and created a task force to work with IHE to develop best practices for addressing sexual violence. While the more recent political context includes the #metoo movement, the Women’s March, and the resignations and condemnation of major political and popular figures with regard to predatory behavior and sexual assaults, it is also the one in which the Department of Education (DoE) rescinded the Obama initiatives to combat sexual assault on campus (U.S Department of Education, 2017) pushed for the narrowing of definitions of sexual harassment and reducing accountability for IHE response to reports of sexual violence (New York Times, 2018). These changes in federal policy cast CSV as an organizational, or even as an interpersonal issue, rather than a national social issue, and shift the responsibility of determining how best to prevent and respond to it to individual institutions. The DoE’s recent attention to the legal interests of IHE and those accused of sexual violence under the Trump administration contrasts with the #metoo movement, wherein victims’ rights and the inadequacies of institutional and societal responses are central. As we write, the advent of the Biden administration marks an opportunity for federal policy makers and IHE alike to revisit and revise approaches to ameliorating CSV, making this a potentially liminal moment as concerns the use of sexual consent campaigns. While IHE may primarily address their responsibility not through adjudication of offenders but by providing programming, research has yet to conclusively offer answers to the questions of what makes sense for a new era, what kind of programming is effective, and effective for whom (Beres, 2018). These gaps in the literature call for research that evaluates consent-based approaches to reducing CSV, as well as suggesting alternate approaches that might be better suited to the ways in which college students negotiate intimacy.

While this paper does not fulfill the gap in the literature with regard to a comparison of college-level approaches towards reducing nonconsensual sex, it does attempt to trouble the idea of consent by examining the discourse in consent campaign posters, using the posters as “stand-ins” for the overarching interventions used on campuses today. In the end, we describe an alternative measure of morally acceptable sex between two or more people and discuss how the discourse around such a standard would vary significantly from the discourse of consent.

Methods

Sample

A sample of 198 posters were obtained through Google and Pinterest searches: In one month (September 12 - October 14 of 2017), we searched under the following search terms, “sexual assault poster,” “college sexual assault poster,” “sexual assault posters,” “university consent sexual,” “college campus consent sexual,” “drinking consent sexual,” “fraternity consent,” “sorority consent,” and “consent campaign posters”. We stopped searching when we began obtaining more anti-rape posters than consent campaign posters. From the initial sample of 198, four posters were deleted due to lack of relevance. More than half of the posters were obtained through the words “university consent sexual” and “consent campaign posters.”

To focus our sample, we attempted to exclusively include posters created for use on IHE campuses. We ruled out European posters while also noting that these campaigns are occurring globally in Western and Westernized countries; thus, this analysis may be applicable internationally. It was assumed that posters displaying university names, emblems and names of university committees were posters used on the respective university campuses. Moreover, it was not confirmed whether these campaigns were actual poster campaigns appearing on bulletin boards on campuses, whether they were online campaigns, or whether they actually were ever implemented once created. Our decision to use Google and Pinterest to collect data (rather than contacting colleges and requesting campaign materials, for example) thus limits our ability to comment on the implementation of specific images. However, since our inquiry does not focus on individual campaigns, nor their implementation, this did not constrain, nor compromise our analysis. Additionally, this approach yielded images from different categories of sponsors (universities, frats, NGOs) from a broad spectrum of IHE. This allowed us to collect visual data without excluding campaign sources, until we determined that we had hit a point of saturation. Critically, the number of posters and the repetition of themes, discourses, and images, permits us to consider ideologies, discourses, and subjectivities as part of a larger discourse around consent on college campuses.

Our final sample of 194 “posters” was comprised of 104 US & Canadian IHE posters, 17 additional clearly marked as originating from a fraternity or a sorority, 60 originating from sexual assault prevention NGOs, and 13 of which we were unable to categorize. Of the 194, 150 were from a Google search and 44 were from the Pinterest search.

Analysis

This study applied a Foucauldian Discourse Analytic (FDA) approach and a social constructionist epistemological position was taken (Zitz, et al, 2014). Broadly, discourse analysis (DA) is a cluster of methods that study the use of language and its role in social situations, different forms being associated with different disciplines. Different kinds of DA have distinct objectives: Early studies focused on the relationship of sentences to other sentences within the same text, however, others explored coherence within discourse, how experiences became transformed when reconstructed as narratives, and how mental scripts shaped meaning making around narratives (Givens, 2008). Types of DA may also be seen to vary at levels of approach, from micro-interpersonal to historical-political (Parker, 2015).

FDA views statements as constitutive of objects, positionings, experience and identities; Language thereby positions a “speaker” and “receiver” in various ways, which afford distinct ways of being and feeling (Willig, 2001, 2013). Statements, text, etc. are therefore qualitative data that can be described and counted, and reveal how social worlds are constructed. Typically, FDA will look at extended excerpts from talk or texts, while consent campaigns attempt to change a culture via words and images. However, FDA was employed due its ability to look at what language, images, and concepts do or attempt to do; that is, who it may serve, and how it may work. FDA is also consistent with our objective of studying consent campaigns to reduce CSV because it views language as the stuff of which social experience, norms and practice are made of (Burns, 2003, 2015). In this way, the validity of language as data is supported by the fact that its use is both subjective and selective (Willig, 2008). Finally, in adopting FDA, we have also followed the recommendations of the APA Publications and Communications Board Task Force Report on Qualitative Methods (Levitt et al., 2018, p. 28) and used qualitative methodology tailored to the phenomena under study.

Gill (2000) writes of the “spirit of skeptical reading” (p. 178) that permeates DA. In this spirit, we are less interested in the generalizability of what we find but in the meaning of the common discourses at this particular time in history in the US and Canadian context and the work these slogans and images are doing. Gill also explains, “A discourse analysis is a careful, close reading that moves between text and context to examine the content, organization and functions of discourse. In the final analysis, a discourse analysis is an interpretation…” (p. 188). As such, and in keeping with our social constructionist position, we acknowledge that our interpretations are one among many subjective possibilities.

The posters we analyzed contained texts which position the viewer and the creator as well as the images on the poster. We began with Willig’s (2008, 2013) 6 Stages of Discourse Analysis that leads the researcher through the following analytic steps (see also Branson, 2014, Shorthouse, 2016):

1. Discursive constructions/objects - Identification of the constitutive foci, and themes of discourse; in short, how objects (e.g., consent) ‘show up’ either by being named or implied, sometimes in conflicting ways, so as to illuminate discursive constructions.

2. Discourses - Wherein discursive constructions are compared and contrasted, and located in the broader discourse/s.

3. Action orientations - Examination of the function of how objects are constructed - what is gained/attempted, the implications for behavioral applications of subjects. We take this to mean what the discourse describes as imperative to differentiate “action orientation” from “practice” (see below).

4. Positioning - wherein subjects are identified and ‘located’ within the broader worldview presented, along with associated rights and responsibilities.

5. Practice - Ways of ‘doing’ opened or closed for subjects positioned within discourse. Because discourse is selective, identifying implications of discourse for practice often includes both identifying what is included (opened) and what is omitted (closed). In the case of consent, practice might include things that can/should be said (asking for performative consent) and actions that are/should not be done (not giving consent ‘correctly’ due to ambiguity, uncertainty, etc.).

6. Subjectivities - How subjects are positioned not only influences their options for ‘doing’ but also their ways of being, or seeing. This final stage connects implications for lived experience and perspective to discourses, as mediated by positioning and practice.

To this end, the authors reviewed both the texts and images in the posters several times looking first for discursive constructions, then the positioning of individuals speaking/writing vis a vis their intended audience, as well as the positioning of people or institutions within the posters. We then identified various discourses and following the marking of these, looked for the kinds of subjectivities made available with each discourse. Following these analyses, we discussed whether there was any action orientation suggested by the discourses and what the implications for practice were. The authors reviewed the posters alone, together, and in a research group where five other individuals were included in the process.

When we identify consent posters in the analysis, we use the name of the IHE adopting the poster. We do not mean to suggest authorship, as it was difficult to decipher because other organizations are not always given credit on the posters.

Results

Our analysis suggests that current campaigns appear to have two primary aims. The first is that, unsurprisingly, they teach that for sex to be unproblematic, there needs to be consent. Consent is taken as the hallmark of affirmative agreement between participants, and that which neutralizes the possibility of violence or coercion. Campaigns, however, appear to sometimes have a secondary aim which is to promote positive sexuality, thereby reducing shaming of female sexuality. They attempt to do this through the acknowledgement of female “desire” and “pleasure” that are typically missing in sex education and discourses of female sexuality (Fine, 1988; Fine & McClelland, 2006; Lamb, 2013; Tolman, 2015). This appears to be attempted by turning the ‘no means no’ approach on its head, and instead promoting affirmative consent, as in “yes means yes”.

After identifying these two overarching purposes, using Willig’s (2013) FDA analysis approach we arrived at three discourses/themes. We explore these as themes below with attention to discursive constructions, positionality, subjectivities, action orientation, and suggested practice. These three themes that we analyze below are as follows: 1) consent must be taken as simple and straightforward; 2) women as gatekeepers need to be more assertive; and 3) there is a neoliberal contract focus that supports individual responsibility without attention to background conditions. In looking at these themes, we also consider how the positions of initiator and responder appear to be fixed positions, as well as the idea that intimacy needs policing. We explore these discourses in terms of what they do, and the actions which they do and do not permit. In the end, we consider how consent campaigns can undermine an ethic of mutuality in sexual relationships and might, intentionally, or unwittingly, support never-ending “reform” that maintains the status quo (Foucault,1977).

Consent is Simple to Understand and Straightforward in Practice

The ‘Consent is as Simple as Tea’ video (May & Blue Seat Studios, 2005) has received over five million views on YouTube, but exists in other forms as well. It is also used on campuses in spirit or in actuality. Perhaps taking their lead from this popular video, many of the consent campaigns appeared to be attempting to convince their college student audience of a simple rule, that if verbal consent is not present, sex is not permitted. Some go as far as saying that sex without verbal consent is rape: “Consent is simple. If it’s not yes, it’s no;” “Snoozing is not choosing;” “Sex without consent is rape;” “Consent is an enthusiastic yes. If it’s not yes, it’s rape;” “It’s not sex when she doesn’t want it.” This let’s-make-this-simple approach might go hand in hand with “yes means yes” posters. But they also seem to be accompanied by checklists, some with actual checks in boxes, implying that as you check the boxes, you can be sure that the sex you have requested will be consensual. The irony present in creating such checklists is that if ethical sex is simple to achieve (by following these guidelines) the length of the list suggests it is rather complicated. One poster we reviewed had no less than 17 conditions for what “consent is…” and another a lengthy set for what “consent is not” (Illinois Wesleyan University). These checklists are offered to potential perpetrators so that the presumed initiator will understand if they have obtained consent. A Buffalo State College poster asks the following questions, “Is it clear? Is it not coerced? is it active?” and adds that consent is the responsibility of the person initiating, can be withdrawn at any time, and that the person approached can’t be incapacitated when giving consent. A Florida State University poster says consent is “active, sober, verbal” and not the “absence of a no.” With regard to alcohol, some posters indicate incapacitation as negating valid consent while others indicate consuming any alcohol negates an individual's ability to give legitimate consent. The list adds that consent is “active” “a choice” “based on equal power” and “a process.” Samuel Merritt University, in their “Ask First, Consent is Hot, Assault is Not” campaign gives examples of questions to ask such as “Does this feel good?” and “Do you like this?” and “What’s your favorite safe word?”, the last of which appears odd because one would think that a preliminary question might be whether a partner wants to have the kind of sex that would require a safe word. These findings resonate with those of Beres (2018), who also found that consent was constructed as verbal (performative), sexy, free, sober and clear -- in sum, ‘unambiguous’. In the end, although many posters want to simplify consent with slogans such as “Ask first” or “Consent is Simple”, the amount of information squeezed into a single poster belies this point. It can appear as if the final product was the result of a committee whose members wanted to put all possibilities down on the poster they created. It also supports an underlying approach that education, and more of it, is what is needed to stop sexual violence, a point we return to later.

How are readers who encounter such posters positioned by them? The “consent is simple” message, along with the checklists of how one can tell if one has obtained consent appear to position men as morally incompetent. One particular poster lists such obvious signs of lack of consent that it seems to be sarcastically presuming men to be completely unaware: “leave me alone means no,” “get away from me means no,” and even the shocking “screaming means no”. One reading of the rationales for such a poster could be that it counters social narratives, also reflected in tropes in media and pornography, wherein women initially express resistance, sometimes dramatically, and end up enjoying the encounter. However, we find this interpretation unconvincing on the grounds that if a perpetrator will not leave a potential partner who is screaming alone, it would seem they need more than simple education about the meaning of consent.

Also, as happens when two subject positions are created in a campaign, the educator and the one needing educating -- see Beres’ (2018) discussion of the ‘ignorant subject’ -- the one needing educating can be pictured as an empty vessel one only needs to pour information into in order to change behavior. Moreover, a third party, the IHE itself, is not positioned in the dialogue and, as we discuss later, in the discussion, is perhaps left off the hook.

Women at the Gate, Women Be Strong

Though consent is presented as gender neutral, women, in these campaigns, are constituted discursively in idealized subject positions, often as needing to be impeccably assertive, knowledgeable subjects who know what they want, reminiscent of Lamb’s (2010) critique of feminist positioning of adolescent girls. The woman depicted discursively in these posters not only knows what she wants at the moment of consent but also keeps track of the changes in what she wants as she participates. While campaigns assert it is the initiator's responsibility to obtain verbal consent, women are rarely positioned as the initiator and thus have an implied responsibility to say yes or no; that is, monitor the gate. This is reflected in the amount of education occurring around the right way to give consent. Her gatekeeping is an action orientation that this discourse makes clear in that she is duly instructed and reminded that the woman can’t show ambivalence. She needs to be “clear” and “coherent” (“consent is clear, coherent…”) as depicted by the White undergrad in a pink shirt at Loyola Marymount University (LMU CARES - Loyola Marymount University) who makes clear and coherent decisions not only as sex begins but throughout the encounter. The action orientation (Willig, 2013) is that it is incumbent upon women to be in a position of constantly considering, evaluating, and deciding, attending to the waxing and waning of their desire and their will to move forward. When they change their minds, they are reminded to close the gate by stating this clearly. When they are desirous, they are reminded to assert this enthusiastically. Confusingly, it is also the man’s obligation to read attitudinal signs, such as a partner turning her back on him, as a waning of desire or even on some posters, as a clear but unspoken no. There are indeed posters that feature two women and, less frequently, two men, or that ambiguously present a woman and a man without labeling who is being urged to be clear and coherent. We argue, however, that given the context of Title IX and concerns about campus assault, whether or not the poster makes the point that anyone can be taken advantage of, the assumption still remains that women are the ones who need to be educated.

Women are also represented in image and in words as strongly saying yes, (“consent is an enthusiastic yes”) as well as strongly saying no. This appears to be the way posters suggest ideal gatekeepers, women who do their job assertively and enthusiastically. They appear to be aimed at encouraging women to embrace their desire and enjoy sex (could this realistically be said to be aimed at men too?) and to feel confident that they can say no and/or change their minds and change a yes to a no). Unfortunately, and likely unintentionally, they also create an ideal that is likely unattainable or inauthentic in practice, that may leave women feeling inadequate and insecure regarding attaining the feminist empowered ideal featured not only in the media but in feminist writing about women (Lamb, 2010).

The idea that women can change their minds appeared on a number of posters. Undercutting the age-old stereotype of women not being able to make up their minds, these subjects change their minds in a strong and agentic way. For example, the popular American actress and model, Amber Rose, is featured in one poster stating, “If I’m laying down with a man butt-naked and his condom is on, and I say, you know what? No. I don’t wanna do this. I changed my mind.” The rest of the sentence is implied, which most likely is some variation of “that’s my right and he had better stop.”

As discussed in the methods section, one benefit of FDA is that it allows opportunities to note not only which subject positions are included, or ‘opened’ – but also those which are omitted, or ‘closed’ (Willig, 2008). Though not focal in discourse, omissions fail to be fully invisible, in the sense that they act to fill ‘negative space,’ and such selectivity brings proactively constituted objects, positionings and action plans into sharper relief. In this case, the campaigns were notable in not including women who might have begun sex in a state of ambivalence and switch to yes. The ambivalent woman is the one to beware of, to read attitudinally, because she is on the verge of no. There is no practice associated with encouraging an ambivalent person from a maybe to a yes, and doing so is overarchingly cast as problematic even though the literature shows this occurs frequently for a variety of reasons (Gavey, 2005; Muehlenhard & Peterson, 2005; Muehlenhard, Sakaluk & Esterline, 2015). Nor is there a practice associated with those whose enthusiasm increases instead of wanes (Beres, 2010). She presents a problem to the committee because persuasion or seduction is viewed as a form of coercion.

This woman also presents a problem because she is not initially in touch with her desire, on her own, but is influenced by another person and possibly, via another person’s interests and touch becomes aroused and more interested in the possibility of pleasure. The only way she is to be persuaded, if that is even the correct word, is through conversation, lest touch be offensive or non-consensual. We argue that the woman who might like to be persuaded by a partner’s touch might also be a woman less comfortable with having a conversation about what she likes or doesn’t like.

When an emphasis is on women’s strength and decision-making, there may be more than a hint of the returning of the old-fashioned idea of a gatekeeper, one that permeated sex education texts and advice columns from a century ago, which presented the idea that boys’ lust was girls’ job to manage. Even though we read in the posters that men are supposed to take the initiative in both getting consent and reading signals of women, we ask whether the emphasis on strong women is simply another form of encouraging the gatekeeper, reinforcing that it is a woman’s responsibility to manage a man’s advances. Of course, in modern times, this is depicted as a friendly conversation. But in reality, men can be aggressive and some men look for women who could be intoxicated and coerced (Graham et al., 2014) and even when not intoxicated, women who experience aggression can freeze in fear or confusion (Jozkowski & Hunt, 2014).

Scripts that rely on the initiator/gatekeeper dynamic are also heteronormative, casting men as the pursuers and women as responders, whether or not they suggest otherwise with same-sex photos accompanying the wording around this dichotomy. The utility of this script is therefore dually undermined by its rigidity (ignoring the fluidity of roles within sexual encounters) and its inability to account for encounters involving same-sex partners or non-binary individuals. And, as with the gatekeeper metaphor, as Beres (2007) points out, the discourse around consent fixes one partner in one position throughout an interaction.

In summary, considering the lived reality of sex, there are many reasons women might not be able to live up to the ideal of the empowered and assertive gatekeeper including their ambivalence at the start or during sexual encounters due to changes in desire, lack of pleasure, or even pain, which is a common experience (Herbenick, Schick, Sanders, Reece, & Fortenberry, 2015). While rolling over and away may be a message that a partner is responsible to be responsive to, consent campaigns suggest a different kind of messaging, one that is clear voiced, enthusiastic, and deliberate. In the end, the ultimate effect might be that these campaigns pitch strength to women presumed weak. They position the more typical ambivalent woman as a problem. There is one place within the world of these posters that ambivalence gets sorted out: through conversation.

The Conversation

In this section we look at the discourse around conversation more carefully and interrogate why it appears to be the suggested practice for ethical sex. Different from the posters that promote the expectation of a clear and coherent yes (or no), these campaign posters focus on the requirement of having a conversation before and also sometimes during sex. What is appealing is that it suggests that both people can change, ask, deny, desire. There is an implicit equality which solves the problem of some of the posters that seem to fix women in the responder position and men in the initiator position.

But what seems problematic about “the conversation” is the performative choreographing of sex via conversation. The idea of negotiating via contracts what to do during sex seems borrowed from S&M or B&D practice, that is, the agreeing and contracting for how far, how painful and the when to stop “safe word” (Lipton, 2019). In S&M or B&D the initial contract exists so that individuals can get into their roles, have fun and get pleasure out of it. This spirit of play and adventure is absent from the posters that provide examples of what a conversation would be like: “Can we try this?”, “No, not right now, can we try this instead?”, “Yes absolutely.” “Consent is a conversation. Have it.” (New School for Social Research).

The idea of a “conversation,” though, also seems suspect if it is meant to actually mean negotiating a contract in the neoliberal understanding. Although the idea of neoliberalism comes from economics regarding a free market, applied to social policy it advocates for personal responsibility rather than communal and institutionalized solutions to social problems (Bay-Cheng et al, 2015). Neoliberalism ignores background conditions and power inequities, vulnerabilities in partners and different capacities to assert oneself whereas in real life, people come to sex acts with a variety of temperaments, backgrounds, and issues (Lamb, Gable and De Ruyter, 2021). While a true conversation may reveal all of this, we worry, similar to Harris (2018), that the conversation suggests a lack of expectation to read the other person’s desire, which means fewer expectations that a partner will use their ethical sensibility and empathy, both of which make sex at the same time “good” and good. We also worry that the dual consciousness required to be simultaneously “in it” while at the same time evaluating it (pausing in one’s mind at every point to assess pleasure and willingness) is not very workable or desirable. Studies on dual processing in relation to the body, and embodiment, suggests that it divides cognitive resources and detracts from the quality of subjective experience (APA, 2007). Self-policing of sex in an ongoing way seems counterintuitive to pleasure if some pleasure is to be had in losing oneself in the feelings and in another person.

Discussion

In this paper, we focused on campaigns that promote education around consent as a solution to campus sexual violence. We troubled the idea of consent, as many philosophers and feminist theorists have done, and through a discourse analysis have attempted to show the way the messaging may work against its purported aims. While we sympathize with the desire to have a clear behavioral sign and/or indication of willingness, given the current contexts of sex on campus and among young people, the problematics of rape culture, and the issue of “drinking while consenting,” we were wary of the consent campaign approach. Under the scrutiny of FDA analysis, we looked at campaign posters' messages, specifically what was implied through their messaging and which discourses were being disrupted or unintentionally promoted. We did not investigate the extent to which these posters are used on campuses, nor what media whereby they were publicized, if at all. Rather, in a discourse analysis, the results presented do not speak to how many or how often a discourse is available, but instead, an ideology that seems to be present to the public that may represent an institutionalized way of thinking and talking about events in a way that reflects power.

In questioning the campus consent campaigns, we don’t intend to undermine efforts to make the campus a safer environment for students, particularly female and TGQN students who are more frequently the victims of sexual assault (Cantor et al., 2015). What we intended was to draw attention to attempts to stop CSV that might not work, might undermine an understanding of what ethical sex is, and might obscure the roles and responsibilities of IHE regarding CSV.

The oversimplification of consent to sexual encounters which tends to remove information about context, supports a neoliberal use of a discourse of individual choice (Bay-Cheng et al., 2015). When campaign producers focus on the individual, whether it is on the individual making a simple yes or no choice, or an initiator simply asking for consent, they also are supporting a personal responsibility approach ignoring contextual and societal contexts that undermine the saying or the hearing of consent. Bay-Cheng discusses (2008; Bay-Cheng & Bruns, 2015) how women are encouraged to take the neoliberal view of individual responsibility and individual consequences in a way that keeps them beholden to prescribed norms of sexuality and compels self-blame. Ignoring background conditions of oppression, trauma, and marginalized identities, the responsibility is inequitably shifted to girls and women of color and lower socio-economic class making invisible associated structural injustice and material disparities. In the end if it is all about bad choices and good choices, the college and judicial system are guiltless; especially so in these times when the DoE has rescinded the 2011 letter and the new policies may be poised to take its place. By supporting these inexpensive campaigns, often promoted by earnest women’s centers and student groups, fraternities and sororities, the university may be perceived, or desire to be perceived as vindicated. However, in actuality, their efforts may be superficial or ineffectual. We maintain the benefit of the doubt, however, that IHE are primarily concerned with student welfare, a stance we feel is justified given that many, if not most IHE have maintained their adherence to the standards set by the DoE’s 2011 guidelines even after they were rescinded.

The long history of institutional interventions around this issue, taken alongside the persistent, and even increasing prevalence of campus sexual assault is reminiscent of the dynamic described between prisons and prison reform by Michel Foucault in his work on the history and functions of prisons, Discipline and Punish (1977). He concluded that French prisons function to produce specialized criminal recidivists, an effect that runs contrary to their intended/supposed function of reducing crime by punishing and rehabilitating inmates and that this was not due to poor management of prisons. He wrote that the discourse of prison reform has been in existence as long as the prison system, and so is entangled in its history. We note this here in that Foucault’s concerns speak to the tensions between the need for reforms and the interests of the parties positioned to conduct them (Gilmore, 2015, Whatcott, 2018). Thus, we raise the question with regard to campus reforms around sexual violence. The long history of the co-occurrence of campaigns and continued assaults suggests that these campaigns give the appearance that campuses are investing in meaningful reform while the status quo continues to exist.

We end by wondering why consent campaigns with their confusing language and their neoliberal demands for personal responsibility exist in the way that they do on campus. The answer to that question would take longer than this discussion space permits, however, we can gain insight from Foucault’s cautions about preserving the status quo. It may be important to ask whether these campaigns and the social skills training that accompanies them (e.g., this is how to consent; this is how to have a conversation), preserve the status quo of assaults on campus, as they lay responsibility at the feet of the college students. When universities take this approach, they suggest that what is missing, and by extension underlies the problem of this category of sexual assault is awareness, and awareness, by extension, has the power to solve the problem of unwanted sex between students. Such campaigns give little attention to problems of campus climate, rape culture, or institutional apathy. They cast students as uninformed but trainable.

Cook and Messman-Moore (2017) explored the impact of voicing non-consent in relation to rape and found that women who voiced non-consent were more likely to acknowledge their experience as rape or sexual assault. What is troubling about this, as concerns this study, is that affirmative consent-based education and policy may have the unintended consequence of contributing to rape victims feeling as if their experiences aren’t valid if they didn’t express ‘rejective non-consent’. Consent campaigns are certainly not the only proponents of ‘no means no’ messaging, and it is neither fair, nor our intention to suggest that the experiences of women who don’t voice non-consent, such as those in this study, might not struggle to define and understand their experiences. Nevertheless, if consent campaigns add to the ambiguities around unwanted sex by promoting scripts that are not informed by the actual ways young people communicate prior to and during sex, they are in need of revision. If consent campaigns add to the individual burdens of those traumatized by sexual coercion, messaging that ‘only yes means yes’ and thus implying that ‘only no means rape’, they do a disservice to the community of survivors who already take on too much blame (Lamb, 1996).

We agree with Beres (2018) that the ‘gender neutral’ approach taken in consent materials is problematic. Addressing interactions between gender, power and consent, and the gendered nature of CSV without alienating males requires creative approaches, and in thus avoiding the subject, an opportunity to ensure goodness-of-fit is lost. Comparative studies of consent involving samples with inclusive gender identities are sparse and further research would be useful to support such refinements.

In the end, we argue that a better ethical foundation for sexual encounters might be mutuality, as recently discussed in (Lamb, Gable and de Ruyter, 2021). Mutuality is defined here as something akin to the philosopher Iris Murdoch’s idea of loving attention to the other, which means attention to the individual in front of oneself, in all their particularity (identities, background conditions, trauma, and temperament). It assumes one is acting from a position of recognizing the good in someone else, and having “genuine and direct regard” for that good (Murdoch, 1970, p. 13). The idea of mutuality disrupts the notion that one can only be considerate of another person and care for their well-being, if one is in a relationship with the other person. It negates the idea that if this is hookup sex, all you need is a solid contract. Mutuality insures care for the other in a way desire and consent does not. It may not be able to be legislated in court, but like other college guidelines it can be suggested and taught.

The campaign posters reviewed have very little to offer regarding the ethical underpinnings of human relations beyond the idea of the contract, and rarely evoke empathy or care. The way they provide a facade of assurance that campus sexual violence is being addressed deters the innovation and implementation of new approaches that better serve the aim of reducing CSV. We thus call for a form of sex education on campuses that honors the emotional intelligence of people of all genders, requires empathy and sensitivity, positions sex as between human beings with pasts, current stresses, emotions, temperaments, and other qualities to attend to, one in which sex can be both casual and caring.

Further investigation should attend to the following research findings: that interest waxes and wanes in a sexual encounter; that many individuals in their lived experience of drinking and having sex would argue that their consent after drinking was ethical; that we ought to expect from partners sensitivity to pain, loss of interest, hesitancy, and changes in consent. If we give up on asking partners for nuanced, attitudinal readings of the other, we give up on empathy, and have sex by legal standards that the panopticon of the university sets down.

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