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Minnesota State's colleges and universities consider 'yes means yes' sex policy

ST. PAUL — Student leaders for Minnesota's largest higher-education system want to replace "No means no" with "Yes means yes" when it comes to obtaining consent for sex.

Minnesota State's Board of Trustees is expected to vote in March on a change to its sexual misconduct policy, which applies to students and employees alike, as well as anyone who has sex on campus.

The new language says consent must be expressed through "words or clear, unambiguous action," and can be revoked at any time.

The state-run system has 30 public colleges and seven universities. The student government bodies for all seven universities have endorsed the change, known as "affirmative consent."

Lexy Byler, a Minnesota State University Moorhead student and vice chair of Students United, the state university student advocacy group, said the policy aims to remove all doubt that people engaging in sex are willing participants.

"You shouldn't be feeling like there's any question about it," she said. "It's trying to eliminate that gray area."

Affirmative consent more widespread

Antioch College in Ohio was the first to implement affirmative consent language, in 1991, to much ridicule. But it's becoming the norm now.

California made it mandatory for their colleges in 2014, and New York did the same a year later. Today, well over a thousand U.S. colleges have implemented similar policies, including the University of Minnesota, in 2015.

Katie Eichele, director of the Aurora Center, which serves the U, said asking permission for sex may not come naturally to older generations, but college students seem to get it.

"From our educational data, we know that many of our students coming into our campus believe in asking for and getting consent," she said.

Eichele said students who face school suspension or expulsion for violating the affirmative consent policy typically failed to ask permission.

"The hiccup usually comes with the accused individual assuming they have access and permission to engage in the behavior because someone can read their mind. They don't even ask, they just do," she said.

Critic: 'Bad college policy'

Samantha Harris, vice president of policy research for the nonprofit Foundation for Individual Rights in Education (FIRE), said affirmative consent is "a model for ideal communication between sexual partners" but it makes for bad college policy.

"There is consensual sex that happens without that due diligence," she said.

Harris said such policies are especially fraught because compared with the criminal justice system, it's relatively easy to be punished for a student conduct violation. Most colleges use the "preponderance of the evidence" standard and don't guarantee access to a lawyer or the right to question the accuser.

"Students can be expelled from school often with very little process," Harris said. "I wonder whether they've truly thought through the implications."

Three years in the making

Byler said Students United has been working on affirmative consent for at least three years but it's been their No. 1 priority this year. She expects it'll pass in March, in part because of momentum from the nationwide #MeToo movement to end sexual violence.

"You can't ignore the climate right now in the United States," she said.

"This is something that has really wide support among our students."

What is affirmative consent?

The definitions vary by college and contain several paragraphs, but here are some key phrases from affirmative consent policies at some Twin Cities schools:

Minnesota State (proposed): "informed, freely given, and mutually understood willingness to participate in sexual activity that is expressed either by words or clear, unambiguous action."

University of Minnesota: "freely and affirmatively communicated words or actions given by an informed individual that a sober reasonable person under the circumstances would believe communicate a willingness to participate in the sexual contact."

University of St. Thomas: "clear conduct or words that indicate a person freely agrees to engage in a sexual act at the time of the act ... a freely given 'yes' (through words or conduct), not the absence of 'no.'"

Macalester College: "words or overt actions by a person that clearly and affirmatively communicates a freely given agreement to perform a particular sexual act at the time of the act ... a mutually understood and freely given 'yes,' not the absence of 'no.'"

St. Catherine University: "an explicitly communicated reversible mutual agreement ... when all parties exchange mutually understandable affirmative words or overt action indicating their agreement to participate voluntarily in sexual activity."

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