Ramp Up Consent Training as Students Return to Campus
As students return to campus for in-person learning, problems associated with many young adults living near each other also are likely to return, including sexual misconduct allegations.
While it’s critical to define consent clearly in your institution’s policy against sexual harassment and assault, that’s not enough. Your college or university must educate (or as appropriate, refresh) students on the meaning of “consent” to sexual activity. Proactively train students about what the term means at your school – not only because it’s required by federal law and some state laws, but because improved student understanding of consent is fundamental to an effective campus prevention program.
Understand Title IX and VAWA
The 2020 Title IX regulations (which focus on training Title IX coordinators and other institutional employees, not students) remain in effect, but the Department of Education (ED) plans to amend them. In the meantime, in July 2021 ED’s Office for Civil Rights (OCR) issued a Q&A document clarifying certain aspects of the 2020 regulations, primarily those addressing how schools must respond to allegations of sexual harassment. The Q&A confirms that ED doesn’t require any particular definition of “consent” and separately “encourages schools to undertake prevention efforts.”
In May 2022, ED intends to issue a Notice of Proposed Rulemaking (NPRM) to amend the 2020 regulations; the NPRM will be subject to a public comment period before a final rule is issued. Your school should monitor these developments but shouldn’t delay student consent training based on potential new regulations.
In addition, the Campus Sexual Violence Elimination (SaVE) Act, part of the Reauthorization of the Violence Against Women Act of 2013 (VAWA), requires colleges and universities receiving federal financial aid to offer incoming and current students training on certain topics, including the relevant state definition of consent to sexual activity. While the law doesn’t prescribe how often or in what form the training must occur, it encourages schools to make this training mandatory.
Examine State Laws
As part of their own laws governing campus sexual misconduct, multiple states, including California, Illinois, Minnesota, and New York, mandate student training on the meaning of consent. If you’re unsure about your state’s requirements, consult your legal counsel.
Determine Appropriate Training Formats
Federal law doesn’t require a particular consent training format. Unless dictated by your state law, consider what’s best for your school depending on its type, size, student population, and campus culture.
You may want to use several different formats, such as online training for upperclass students and in-person training for new or transfer students. Small group workshops, for example, can be especially beneficial for discussing sensitive topics like consent, and peer facilitators may encourage incoming students to participate more freely.
Review Online Training Options
Online programming is the most practical and cost-effective option for many schools. However, be sure to have students as well as administrators review potential courses in advance; take their feedback seriously because it could help you avoid selecting a course that students widely dislike. In addition, consider tailoring online training to different student populations, such as requiring separate courses for undergraduates and graduate students.
Consider In-Person Workshops
Many schools find in-person workshops the best format for training on consent. The University of Southern California mandates a 90-minute workshop focused on consent for first-year and transfer students, and requires second-year students to participate in a related workshop on healthy relationships. Other schools using interactive workshops, typically facilitated by peer educators, include Lewis & Clark, the University of Maryland, and the University of Pittsburgh. More formal workshops often incorporate a scenario about consent for participants to work through, and facilitators may find a guide helpful.
But effective workshops also can be unstructured and informal. For example, in connection with Sexual Assault Awareness Month in April 2021, the Ohio State University held “Coffee and Consent” discussion groups in residence halls.
Examine Video Training Tools
A wide variety of institutions employ videos discussing consent (frequently featuring students), such as New York University, Spelman College, and the University of California, Berkeley. Oberlin College presents a series of brief videos about consent, including how it can be affected by drugs and alcohol or power dynamics.
While this approach allows speakers to cover particular elements of their school’s policy, a generic but well-done video, such as Tea and Consent, can also be an effective training tool.
Evaluate Interactive Theater
Rutgers University's SCREAM Theater and SCREAM Athletes productions are among the best-known interactive theater programs written and performed by students for their peers; similar programs include ReACT! at Grand Valley State University, Results Will Vary at Penn State, and Voices Against Violence Theatre for Dialogue at the University of Texas. While each program is unique to its school, all encompass issues of consent in the context of sexual relationships and interpersonal violence.
Remember These Training Content Tips
Ideally, training on consent should:
- Review how your school’s policy defines “consent.”
- Detail how your school’s policy defines the terms “intoxication” and “incapacitation,” explain the distinctions between them, and discuss their respective effects on a person’s ability to consent to sex.
- Encourage students to think about their own (and prospective partners’) level of intoxication before initiating or agreeing to sex – and encourage students to remember that being intoxicated themselves doesn’t negate their responsibility to obtain consent before initiating sex.
- Give examples of incapacitation (such as when a person is asleep, unconscious, unresponsive, or vomiting; displays lack of awareness of their surroundings; or is unable to communicate coherently, walk unassisted, or undress without help).
- Provide examples of non-verbal cues signaling another person is uncomfortable and consent is thus absent (such as complete silence, lack of active participation, or turning their head away).
- Highlight circumstances or behavior that don’t equate to consent (such as being in a current or previous sexual or romantic relationship, having given consent on a prior occasion, requesting use of a condom, or accepting an invitation to a private room).
- Remind students that consent to certain sexual acts (such as kissing or fondling) doesn’t mean a person consents to other acts (such as oral sex or intercourse).
- Explain that if students feel they’re getting “mixed signals” from a prospective partner, the best – and safest – move is always to stop.
- Stress the importance of discussing with potential partners sexual safety, including birth control and avoiding sexually transmitted diseases.
- Address how your institution’s disciplinary process applies your consent definition.
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About the Author
Hillary Pettegrew, Esq.
Senior Risk Management Counsel
Hillary’s areas of expertise include employment law, Title IX, and study abroad issues. Before joining the Risk Research team, she practiced employment law and handled UE education liability claims.