Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

[Brett Sokolow <>]

Groupthink and the consensus of a field should not be confused. Courts are of no single mind on defining welcomeness, an inherent problem itself.  More importantly, when the Supreme Court did define it in Meritor, it defined it in terms of resistance.  Thus, my question is why set us back to 1986?  After 20 years of consent-based education, students are finally starting not only to get consent, but to embrace it.  Survey data is showing this to be true, and we are seeing it play out in case after case. So, after all that effort, we’re supposed to move the ball on them right as they are starting to get it?  I also find using welcomeness as a policy basis for sexual violence to be a somewhat academic suggestion unrelated to what I typically see on college campuses. Unwelcomeness and non-consent are, in reality, not particularly distinguishable concepts as applied by college decision-makers.  And, the fear that consent raises the defense of “I perceived her to be consenting” is no different in my view from “I perceived her to have welcomed the conduct.”  Further, I think consent is more protective of passive non-response than welcomeness is, which is essential when addressing tonic immobility responses. So, why try to fix something that really isn’t broken?  Consent is not a perfect concept, no question, but it works better than any of the alternatives we have.  At least, that’s how it looks to me, having now been engaged in consent education for 22 years in some way, shape or form.  

Regards, 

Brett A. Sokolow

Brett A. Sokolow, Esq.
Attorney-at-Law

President & CEO, The NCHERM Group LLC

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From: John Foubert <>
Date: Friday, October 16, 2015 at 12:11 PM
Cc: "" <>
Subject: Re: affirmative consent and title ix

Regarding Title IX, my understanding, for what it is worth, is that resistance is not required for unwelcomeness. 

I share the editorial because I believe we need to consider and respect multiple points of view in our movement, and from time to time I think that groupthink gets the best of us.

John

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On Fri, Oct 16, 2015 at 10:47 AM, Brett Sokolow <> wrote:

Or consider that Title IX may require affirmative consent as an equitable standard, since resistance is not equitable especially given the neurobiology of trauma.  Consider that legally resistance is the default standard to prove unwelcomeness, though it should not be.  Unwelcomeness has its limits when applied to AOD situations in practice, as well.  

Brett A. Sokolow, Esq.

President & CEO, The NCHERM Group, LLC. 

Executive Director, NABITA

Executive Director, ATIXA

610.993.0229

www.Ncherm.org

www.Nabita.org

www.Atixa.org

Sent from my iPhone

On Oct 16, 2015, at 11:39 AM, John Foubert <> wrote:

Colleagues,

This perspective is one that I think is very important for us all to consider:

http://www.washingtonpost.com/news/in-theory/wp/2015/10/15/title-ix-protects-women-affirmative-consent-doesnt/

John

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John D. Foubert, Ph.D., LLC

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http://works.bepress.com/john_foubert/