New York Will Define "Affirmative Consent" For Every College In The State & Make It The Standard, In A Bid To Curb Sexual Assault

On Tuesday, New York state lawmakers announced a deal Tuesday to pass legislation that use affirmative consent as New York's standard for adjudicating campus sexual assault cases statewide. The plan, proposed and fiercely championed by Gov. Andrew Cuomo (D) this legislative season, would also require that colleges distribute a so-called “Sexual Violence Victim and Survivor Bill of Rights” to all students and establish a statewide amnesty policy for victims concerned that drug use or alcohol abuse during an incident of sexual assault could land them in trouble.

Moving towards an affirmative consent standard on college campuses has proven controversial; some commenters have worried aloud that states are overreaching and instigating highly impractical legal standards onto students’ sexual activity. Activists and progressives, in turn, have argued that redefining the nature of consent is vital to cracking down on what the politicians have characterized as a sexual assault epidemic across university campuses.

All 64 of the State University of New York campuses adopted an affirmative consent standard back in December 2014, and the City University of New York followed the system’s example. But private institutions have remained free to investigate and adjudicate sexual assault claims according to a less rigorous definition of sexual consent, which generally hinges on whether or not either party to a sexual encounter explicitly said no.

According to the new standard, consent to sexual activity should be “knowing, voluntary and mutual decision among all participants to engage in sexual activity.” When the governor’s “Enough is Enough” plan is passed, most likely next week, New York will become the second state after California to extend the affirmative consent policy that to cover public and private institutions alike.

As part and parcel of lawmakers’ attempts to grapple with the complexities that campus sexual assault poses for universities seeking to protect students’ rights and their own reputations, the new legislation will also institutionalize an amnesty policy for reporting assaults that took place when both parties were using drugs or committing other illegal behaviors. And then, least controversially, the new bill requires universities to distribute pamphlets to students on their rights and the support services available to them if they experience sexual assault.

Cuomo welcomed the news that the New York state legislature had reached an agreement on the proposed changes in a statement.

“I am proud that with this legislation New York will become a national leader in the fight against sexual assault on college campuses,” the governor said in a statement. “This action is a major step forward to protect students from an issue that has been plaguing schools nationwide for far too long.”

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The Department of Education is currently investigating 11 colleges and universities in New York for their mishandling of sexual assault cases.

According to New York Assemblywoman Deborah Glick (D-Manhattan), much of the debate around the proposed policy shift did not involve much of the new plan’s substance, but instead revolved around the language the new bill used to characterize sexual assault survivors and accused students. After some lawmakers raised concerns over the implicit biases involved in using the terms “victim” and “accused,” the New York lawmakers changed the policy to utilize “reporting individuals” and “respondents.”

Cuomo made strengthening campus protections against sexual assault a priority during the 2015 legislative session. He hosted a screening of the documentary, The Hunting Ground, about campus sexual assault. The governor even co-authored an opinion piece in Billboard with Lady Gaga, who has been a strong advocate against sexual assault, in favor of the legislation.

“This situation is unacceptable,” the op-ed concludes. “The likelihood that college students are not getting the assistance and support they deserve is heartbreaking, and the knowledge that sexual predators are left free to attack again is criminal. This bill will tackle this crisis head-on, because the status quo needs to change.”

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But the shift towards an affirmative consent model remains controversial. A number of media commentators, including George Mason University law professor David Bernstein, have charged that the redefinition places an overly strenuous burden on college students seeking to engage in sexual activity.

“The vast, vast majority of 'sexual contact or behavior' is initiated with only *implicit consent,*” Bernstein wrote on The Washington Post website last June. “Just leaning over to give your date (or your spouse) a kiss without asking first and receiving a yes comes within stated definition of sexual assault, regardless of how many times you’ve done it before without objection.”

Making sure that your partner is enthusiastically consenting to each and every step of the hook-up is an unwieldy proposition, critics charge, and one that could open many students up to unfair charges of sexual abuse.

But Glick, the chairwoman of the Higher Education Committee, notes that the move towards affirmative consent doesn’t meant that the state is trying to turn sexual assault into a contractual encounter through and through. Instead, as many activists have argued, emphasizing the “yes” rather than the “no” aspects of consent ensures that all partners are paying attention to the cues, both verbal and nonverbal, to ensure that the sexual activity is desired.

“It’s a question of putting everyone on notice that they have to be in a consensual situation,” Glick told The New York Times. “It also sends a message to the institutions that they have to up their game on how sexual assault on campus is viewed and treated.”

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As Amanda Marcotte noted in Slate during the controversy over California’s “affirmative consent” law last fall, moving to a higher standard codifies the common-sense expectations we already have about how to interact with our partners during sex.

“The affirmative consent law sets the bar for sex at roughly the same level that we have for going to someone's house: Don't do it if you're not invited, and don't use the fact that someone invited you into his or her living room as an excuse to abscond with a stereo,” Marcotte writes.

(For a good primer on how affirmative consent works — and how easily it is to tell when someone is not affirmatively consenting — one blogger suggests that we try pretending that we are asking our partners instead if they would like a cup of tea.)

Obviously, changing the law doesn’t mean that New York legislators can control how the universities or the courts will interpret these new affirmative consent standards when it comes to dealing with campus sexual assault. But the piece of legislation that Cuomo proposed in New York does indicate that the state government intends to take the problem of sexual assault on college campuses, public and private alike, seriously. It signals to universities and students alike that we should work harder to provide students with the resources to make their complaints heard on campuses with a drinking and dating culture that all too easily blurs the lines between what counts as consensual and what does not.

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