P: What about the person on top? Did you see any movement or motion from that person?
Jonsson: Yeah. So first, he was only moving a little bit. And then he started thrusting more intensely.…
P: And what could you see the person on the bottom doing?
Jonsson: Nothing.
Jonsson and his friend, Carl-Fredrik Arndt, got off their bikes and walked closer. Jonsson called out, “Hey, is everything all right?” The man, on top, lifted his body and looked up. Jonsson came closer. The man stood up and began backing away.
Jonsson said, “Hey. What the fuck are you doing? She’s unconscious.” Jonsson said it a second time. “Hey. What the fuck are you doing?” The man began to run. Jonsson and his friend gave chase and tackled him.
The person Jonsson tackled was Brock Turner. He was nineteen, a freshman at Stanford and a member of the university’s swim team. Less than an hour earlier, he had met a young woman at the Kappa Alpha party. Turner would later tell police that they had danced together, talked, gone outside, and lain down on the ground. The woman was a recent college graduate, known thereafter, under the protections of sexual-assault law, as Emily Doe. She had come to the party with a group of friends. Now she lay motionless under a pine tree, next to a dumpster. Her skirt was hiked up around her waist. Her underwear was on the ground next to her. The top of her dress was partially pulled down, revealing one of her breasts. When she came to in the hospital a few hours later that morning, a police officer told her she may have been sexually assaulted. She was confused. She got up, went to the bathroom, and found that her underwear was gone. It had been taken for evidence.
P: What happened after you used the bathroom?
Doe: I felt scratching on my neck and realized it was pine needles. And I thought that I may have fallen from a tree, because I didn’t know why I was there.
P: Was there a mirror in the bathroom?
Doe: Yes.
P: Could you see your hair in the mirror?
Doe: Yes.
P: Can you describe what your hair—how your hair appeared?
Doe: Just disheveled and with little things poking out of it.
P: Do you have any idea how your hair ended up that way?
Doe: No idea.
P: What did you do after you finished using the restroom?
Doe: I went back to the bed. And they gave me a blanket, and I wrapped myself. And I went back to sleep.
2.
Every year, around the world, there are countless encounters just like the one that ended so terribly on the lawn outside the Kappa Alpha fraternity at Stanford University. Two young people who do not know each other well meet and have a conversation. It might be brief. Or go on for hours. They might go home together. Or things may end short of that. But at some point during the evening, things go badly awry. An estimated one in five American female college students say that they have been the victim of sexual assault. A good percentage of those cases follow this pattern.
The challenge in these kinds of cases is reconstructing the encounter. Did both parties consent? Did one party object, and the other party ignore that objection? Or misunderstand it? If the transparency assumption is a problem for police officers making sense of suspects, or judges trying to “read” defendants, it is clearly going to be an issue for teenagers and young adults navigating one of the most complex of human domains.
Take a look at the results of a 2015 Washington Post/Kaiser Family Foundation poll of one thousand college students. The students were asked whether they thought any of the following behaviors “establishes consent for more sexual activity.”
1. Takes off their own clothes
Yes
No
Depends
No opinion
All
47
49
3
1
Men
50
45
3
2
Women
44
52
3
1
2. Gets a condom
Yes
No
Depends
No opinion
All
40
54
4
1
Men
43
51
4
2
Women
38
58
4
1
3. Nods in agreement
Yes
No
Depends
No opinion
All
54
40
3
3
Men
58
36
3
3
Women
51
44
3
3
4. Engages in foreplay such as kissing or touching
Yes
No
Depends
No opinion
All
22
74
3
*
Men
30
66
3
*
Women
15
82
3
*
5. Does not say “No”
Yes
No
Depends
No opinion
All
18
77
3
1
Men
20
75
4
1
Women
16
80
2
1
Consent would be a straightforward matter if all college students agreed that getting a condom meant implicit consent to sex, or if everyone agreed that foreplay, such as kissing or touching, did not constitute an invitation to something more serious. When the rules are clear, each party can easily and accurately infer what the other wants from the way he or she behaves. But what the poll shows is that there are no rules. On every issue there are women who think one way and women who think another; men who think like some women but not others; and a perplexing number of people, of both sexes, who have no opinion at all.
29. For each of the following, please tell me if you think the situation IS sexual assault, IS NOT sexual assault, or is unclear.
Sexual activity when both people have not given clear agreement
Is
Is not
Unclear
No opinion
All
47
6
46
*
Men
42
7
50
1
Women
52
6
42
–
What does it mean that half of all young men and women are “unclear” on whether clear agreement is necessary for sexual activity? Does it mean that they haven’t thought about it before? Does it mean that they would rather proceed on a case-by-case basis? Does it mean they reserve the right to sometimes proceed without explicit consent, and at other times to insist on it? Amanda Knox confounded the legal system because there was a disconnect between the way she acted and the way she felt. But this is transparency failure on steroids. When one college student meets another—even in cases where both have the best of intentions—the task of inferring sexual intent from behavior is essentially a coin flip. As legal scholar Lori Shaw asks, “How can we expect students to respect boundaries when no consensus exists as to what they are?”