ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, April 3, 2012

Binding Consent for Rough Sex?

Over at the Koncision blog, Ken Adams has a post about a novel called "Fifty Shades of Grey" in which bondage is a theme.  He analyzes the language of the fictional contract for a bondage relationship.  He does quite a number on it.  But we don't see the need to get all tied up in knots about a fictional agreement when there one could be bound and gagged by a real world contract that covers the same ground.  It is the notorious Antioch College Sexual Offense Protection Policy.

We do not have access to the actual policy, but according to the Foundation for Individual Rights in Education's website (the FIRE), the policy defines consent as follows:

Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct. The following are clarifying points:
  • AntiochConsent is required each and every time there is sexual activity.
  • All parties must have a clear and accurate understanding of the sexual activity.
  • The person(s) who initiate(s) the sexual activity is responsible for asking for consent.
  • The person(s) who are asked are responsible for verbally responding.
  • Each new level of sexual activity requires consent.
  • Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs.
  • Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).
  • At any and all times when consent is withdrawn or not verbally agreed to, the sexual activity must stop immediately.
  • Silence is not consent.
  • Body movements and non-verbal responses such as moans are not consent.
  • A person can not give consent while sleeping.
  • All parties must have unimpaired judgement (examples that may cause impairment include but are not limited to alcohol, drugs, mental health conditions, physical health conditions).
  • All parties must use safer sex practices.
  • All parties must disclose personal risk factors and any known STIs. Individuals are responsible for maintaining awareness of their sexual health.
These requirements for consent do not restrict with whom the sexual activity may occur, the type of sexual activity that occurs, the props/toys/tools that are used, the number of persons involved, the gender(s) or gender expressions of persons involved.

The FIRE hates this stuff, but it seems a perfectly reasonable way to educate college students about the perils of date rape, which may be why Gettysburg College has adopted a simlar policy.  But that is not to say the definition of consent could not use Ken Adams's touch.  Ken, give it your best shot!

In the meantime, while the FIRE celebrates Antioch's demise, Wikipedia reports that it reopened in October 2011.


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