Sexual Assault and the Meaning of Consent

Sexual assault is hardly limited to higher education, but a confluence of factors -- including the prevalence of alcohol consumption -- make it a serious concern on and off college campuses. Sexual assault is a serious crime no matter where it occurs, but administrative regulations and some laws have codified the meaning of sexual consent in an attempt to both protect potential victims and make such cases easier to prosecute. Sexual consent generally refers to the unambiguous agreement of both parties to engage in sexual conduct, free from undue pressure. Individuals who are under the influence of alcohol or other drugs are legally unable to give consent.

California is the first state to enact a statewide campus sexual assault prevention and awareness statute, which requires private and public colleges and universities in the state to comply with certain standards and procedures. A key provision of the law is the requirement that college administrations adopt the concept of "affirmative consent" with respect to sexual activity, meaning consent is not assumed but rather "enthusiastically" given.

Anti-Hazing Laws

Hazing at colleges and universities refers to certain rituals, often humiliating and/or dangerous, sometimes practiced by fraternities and other social organizations on campus. A number of states passed anti-hazing laws after several cases of students died while engaged in a hazing ritual made headlines. Most states now have such laws, some with much stiffer penalties than others. Examples include the following:

• California - Up to one year in prison and a $100 to $5,000 fine
• Florida - Charged as a third-degree felony, up to five years in prison (considered the toughest in the nation)
• Alabama - Maximum $500 fine
• Colorado - $50 to $750 fine

Other criminal charges, such as voluntary manslaughter, assault and battery, or even false imprisonment, may also be filed in hazing cases. In addition, schools may be held liable for hazing-related injuries.

Academic Freedom and Free Speech

The legal concepts of academic freedom and free speech as laid out by the First Amendment certainly overlap, but are not the same. While the First Amendment's guarantee of free speech applies to the regulation of speech by a public institution (including many colleges and universities), academic freedom refers to the rights within the academic context in both public and private institutions.

Academic freedom was first mentioned in a Supreme Court case in 1952, when Justice Douglas dissented in a case involving a New York statute banning state employees from membership in so-called "subversive groups." He argued in his dissent that without a state purpose for banning such membership, it blunted academic freedom. A 1940 statement from the Association of American Colleges and Universities (AAUP) asserted the following:

"Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter that has no relation to their subject..."

Click on a link below to learn more about the rights and responsibilities of college students and teachers.