College: Students must agree "why" they had sex to avoid sexual assault charges

Verbal communication shouldn’t have to occur before touching when it occurs between partners or intimates, for whom the touching is itself communicative, the way romantic touching often is (like a hug or kiss). Requiring an “agreement” before it can occur sometimes makes as little sense as requiring an agreement before one person can compliment the other.

Ohio State’s policy may also lead to due-process violations. It states that “Consent to one form of sexual activity does not imply consent to other . . . sexual activity,” and “Consent can never be assumed, even in the context of a relationship.” But a relationship, and a couple’s past consensual sexual activity, can shed crucial light on whether it is plausible that the couple later engaged in the same kind of activity. For example, as we noted earlier, the New Jersey courts, which have the narrowest definition of sexual consent of any state, nonetheless have recognized that the overall “course of conduct” between the complainant and the accused can show “affirmative permission.” Indeed, they have ruled that it can be so relevant and “highly material” that it constitutionally must be considered as evidence, since a jury could infer consent from it. In State v. Garron (2003), the New Jersey Supreme Court ruled that in determining whether the complainant consented to sex, the court must consider her overall “course of conduct over a six-year period” with the accused, such as her visiting his home and her “repeated physical contact” with him, as well as the complainant’s past “kisses” and “grabbing” the accused’s “derrière.” And even in contract law, where stricter consent requirements apply, consent or agreement can be inferred from the parties’ past relationship, such as their “course of dealing,” or “course of performance.”