A Comment on the Relationship Between Arousal and Affirmative Consent in Columbia’s Gender-Based Misconduct Policy

Monday, December 9, 2019

Student advocates recently raised an important question about whether physical arousal is relevant to Columbia’s definition of affirmative consent in sexual interactions. This post responds to that question. 
When a gender-based misconduct complaint is filed, Columbia’s Title IX investigators have the responsibility to assess whether there was affirmative consent for the sexual interaction, as do hearing panelists, if a hearing is held. In some situations, what the students said to each other, along with other information about the interaction provided by the students and any witnesses, will be enough to enable the investigators or hearing panelists to make that determination. In other situations, especially where students did not verbally agree or disagree to engage in a sexual interaction, the Title IX investigators will assess whether there was affirmative consent based on evidence related to how a reasonable person in an accused student’s position would perceive the other person’s facial expressions, sounds, and physical reactions.
Someone’s physical condition, the sounds they make, and what that all means to a reasonable person engaging in a sexual act may be relevant but do not answer that question in isolation. A student who has been accused of gender-based misconduct might tell the investigators that they understood these sounds or physical condition to be signs of affirmative consent. If all evidence of arousal was off-limits to investigators, that would mean that a student who might have understood the other person’s sounds or physical condition as an indicator of consent could not talk about that or have that information considered. Importantly, at the same time, evidence of arousal is not dispositive, meaning that such information would not prove — and rarely proves — that affirmative consent occurred or did not occur. A student who brings a gender-based misconduct complaint has the right to tell the investigator that those or other signs of arousal were an involuntary physical response to nonconsensual sexual contact. All of Columbia’s investigators and hearing panelists receive extensive training, including on the well-established point that sexual arousal does not in and of itself establish that a person gave affirmative consent to any type of sexual interaction and that involuntary physical arousal can certainly be present in scenarios where sex is not consensual.
In fact, information about sexual arousal is rarely relied upon in our Title IX investigations. But our policy, along with state and federal law and our core commitment to fairness for all students, all require that a student who is accused of gender-based misconduct be presumed “not responsible” unless and until there is sufficient evidence to overcome that presumption. For this reason, we do not categorically rule out consideration of any detail of a student’s account, including possible nonverbal indicators of consent. At the same time, it is clear to all who implement Columbia’s policy that sexual arousal alone is not evidence that affirmative consent has been given. The bottom line is that our policy and our ethical commitment is to have a process that takes all reports of gender-based misconduct seriously and that investigates those reports with sensitivity to the issues and fairness to all.