Recently, New York enacted a deeply flawed law to combat campus sexual assaults that imposes an affirmative consent standard on all colleges and universities “chartered by the Regents or incorporated by special act of the legislature that maintains a campus in New York.” Under such a standard, accused students must be able to prove that they obtained “clear permission” prior to engaging in each act of sexual activity.
Earlier this week, New York Assemblyman Kieran Lalor took to the pages of the New York Post to explain how this well-intentioned new law undermines fundamental fairness, harms both accused students and sexual assault victims, and will lead to injustices. Lalor writes:
The criminal-justice system, rather than campus tribunals, is the place to deal with these matters. The bill’s unintended consequences are thus profoundly unsettling.
The law’s confused standards harm victims of sexual assault as well as the accused. That’s because victims’ pursuit of justice will be impaired by a vague set of rules and an enforcement system outside of the courts that won’t have the same access to evidence and witnesses (a campus tribunal has no subpoena power, for example) that a court would.
And anyone accused will find themselves without guarantees of due-process protections, facing charges from an ill-defined consent standard.
Assemblyman Lalor hit the nail right on the head. His full op-ed is recommended.
Hopefully, legislators and campus administrators across the country will carefully consider all of the adverse effects of affirmative consent before enacting legislation or campus policies with such serious consequences.