Best of ‘The Torch’: New York’s Affirmative Consent Law Affirmatively Confuses Students (VIDEO)

By August 4, 2016

EDITOR’S NOTE: This video is part of this week’s “Best of The Torch” retrospective, where we search the archives to bring you FIRE stories worth a second look. Almost a year later, this remains among FIRE’s most popular posts. The accompanying YouTube video has been viewed more than 36,000 times. It was originally posted October 28, 2015.


In an effort to address sexual assault on college campuses, New York became the second state to pass an affirmative consent—or “yes means yes”—law this summer, putting college students at risk of punishment if they cannot demonstrate that they received “clear permission” to engage in “sexual activity.” But how many students know about the new law they’re required to follow? What kinds of actions constitute sexual activity? And how exactly can they demonstrate or get consent

FIRE’s Shelby Emmett went looking for answers from students at New York University in New York City. What she found, though, were more questions.

Many students didn’t even know the new law had been passed, while others said they heard about it only in passing.

The law doesn’t define a “sexual act,” and students were split about whether something as ubiquitous as kissing counted. Answers ranged from a shaky “I think so?” to a firm “definitely” to a non-committal “no, not really.”  

Some students said they used “body language” to cue their partners about consent, while another student said the new law seems to mandate more, including “a verbal confirmation that they’re ready to have sex with you.”

Yet another thought that no matter what a potential partner said—even if he or she verbally consented—students had to be on the lookout for physical cues, too. “I think a lot of the times people can say something but not really mean it,” the student said.

There was also confusion about the law’s requirements when one or both parties have been drinking. The text of the law says that “depending on the degree of intoxication,” a student might not be able to consent. How drunk is too drunk?

“It’s a gray area,” said one student. “It’s hard to tell whether you’re too drunk, or whether they’re too drunk.”

The question that stumped students the most was how they would prove they had consent if accused of sexual assault.

“I don’t know, actually,” said one.

“Oh my gosh. Well I think that’s really difficult because it ends up being your word against the other person’s,” said another.

One student in particular summed up the concern that the law simply doesn’t reflect how sex works in the real world: “I’m not gonna have everyone I sleep with sign a document saying, ‘Yes, I consent to having sex with you.’”

Under the affirmative consent standard, where one must be able to demonstrate that consent was ongoing at each step of a sexual encounter, even that might not be enough.

Subscribe to FIRE’s YouTube channel to receive automatic notifications when new material is posted.