A new rule guiding student sexual relations at the University of Minnesota was approved unanimously by the Board of Regents on Friday, more than two weeks after it was implemented on campus.

The “affirmative consent,” or “yes means yes,” policy took effect Aug. 24. The move followed a series of behind-the-scenes conversations among regents, administrators and student leaders, who wanted the policy in place by the time freshmen arrived on campus.

“This has been a productive process,” U President Eric Kaler said at Friday’s meeting. “The board’s attention to this issue has resulted in a better policy, and I appreciate that.”

The policy is an administrative one, but the board decided to offer its own approval. Board Chairman Dean Johnson said student leaders had pushed for the early implementation. The president’s and provost’s offices were also involved, he said.

“Good lines of communication were established, and I hope there’s a trust established between administration, board and students over this issue,” Johnson said.

The policy was supposed to start in July, but the regents postponed it pending a review from the Office of the General Counsel. Regent Michael Hsu, who proposed the delay at the board’s July 8 meeting, said he thought the language in an earlier version was too ambiguous.

The updated policy says sex is OK only if those involved offer “informed, freely and affirmatively communicated willingness to participate in sexual activity that is expressed by clear and unambiguous words or actions.” Without that, the activity falls under the U’s definition of sexual assault.

Key in the new language is the clarification that “clear and unambiguous” consent is based on what a reasonable person would understand as consent in a given situation. The “reasonable person” standard was pivotal in moving the rule forward, Hsu said.

“[It] helped people become more comfortable about the fact that this policy is not criminalizing all sexual activity,” he said.

Critics of affirmative consent policies, which are growing in popularity at colleges and universities across the country, say they place an unfair burden on the accused to prove they obtained consent.

This summer, courts in three states criticized affirmative consent in cases where accused students didn’t receive due process.

U Student Body President Joelle Stangler said regents have raised additional concerns about adjudication and the rights of the accused — issues Johnson said may take some additional work moving forward.

Colleges have only begun enacting affirmative consent policies in the last year, so there is little data available on their effectiveness. Hsu said Friday that he would like to see research on the U’s policy.
“It’s implemented, and now we will pay close attention,” Johnson said. “And hopefully we’ll have a safer campus, a better campus, a more responsible campus.”

In the future, the board may keep a closer eye not just on affirmative consent, but on a range of administrative issues. Stangler said she sees the board’s involvement in this policy — which some regents said was an overstep by the board — as a change in course.

“It definitely demonstrates a new direction the board is taking in their decisionmaking,” she said. “We might be looking at a more engaged board that wants to have more of a say, or at least a greater understanding, in the day-to-day operations of the institution.”
Emma Nelson • 952-746-3287