CUNY Board of Trustees Approves New Sexual Misconduct Policy

December 2, 2014

Yesterday, the City University of New York (CUNY) Board of Trustees approved a new sexual misconduct policy aimed at providing clarity and consistency as to how CUNY schools handle allegations of sexual harassment and sexual assault. Though the policy is not, to FIRE’s knowledge, posted in full online, excerpts from the policy and news coverage indicate the following: one dodged bullet, notable procedural safeguards for accused students, and a provision to watch out for when the full text is released.

First, the dodged bullet: Critics were successful in persuading the Board not to eliminate a provision in the old policy that granted accused students the right “to remain silent without assumption of guilt.” A draft (PDF) of the bill circulated last month proposed cutting that language, but it is critically important that the presumption of innocence remain even when an accused student remains silent. This is especially true when a student may be subject to both a campus disciplinary hearing and a criminal investigation, because anything he or she says at the campus hearing may be used later in criminal court.

In other good news, according to CUNY’s website, both parties to a hearing will have the opportunity to cross-examine testifying parties. The policy grants complainants and respondents enumerated rights that include

the right to receive notice of the charges, be represented by a person they choose including an attorney, to present evidence, call and cross-examine witnesses, to receive notice of the outcome and to appeal.

Last month’s draft (PDF) specifies that in cases involving allegations of sexual assault or violence, cross-examination will not be conducted by the parties directly; however, they may opt to pose questions to each other through their representatives or through a chairperson. If this language is retained in the version passed by the Board, it will be a refreshing departure from the trend of colleges denying the accused student the opportunity to question his or her accuser, even indirectly. The Supreme Court wrote in California v. Green (1970) that cross-examination is the “greatest legal engine ever invented for the discovery of truth,” and it is essential that it play a role in adjudications of serious allegations that involve questions of credibility and few if any witnesses.

The previously-circulated draft policy also included other procedural safeguards, such as a minimum of five days to review evidence before a hearing and limitations on interim suspensions that may be imposed in “extraordinary circumstances.” These are welcome developments, and FIRE commends those who advocated for and contributed to the procedural safeguards provided by the policy.

Finally, a word of caution: CUNY’s new policy appears to adopt an “affirmative consent” standard. As FIRE warned when the state of California and the State University of New York (SUNY) system adopted this standard, requiring that students receive affirmative, ongoing consent throughout a sexual encounter poses serious questions about how accused students could possibly defend themselves against charges that they did not meet this standard. CUNY’s website states:

[The policy] defines consent as “an informed, voluntary and mutual decision to engage in agreed upon sexual activity.” Consent, it says, “can be given by words or actions as long as those words or actions create clear permission regarding willingness to engage in (and the conditions of) the sexual activity.  Silence or failure to resist does not, in and of itself, demonstrate consent.”

These excerpts suggest that CUNY’s policy is arguably not as exacting as California’s or SUNY’s respective versions of affirmative consent. But if the full text of CUNY’s policy resembles those policies more completely, more may be required of CUNY students. For example, the California statute’s specification that “[a]ffirmative consent must be ongoing throughout a sexual activity” is stated three full sentences after it purports to define affirmative consent. Likewise, the resolution passed by the SUNY Board of Trustees in October followed its definition of affirmative consent with a number of additional declarations, including that “[c]onsent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity” and “[p]revious relationships or prior consent cannot imply consent to future sexual acts.” FIRE will keep an eye out for this sort of language when the full text of the policy is released.

Cases:  California: Affirmative Consent Bill Threatens Student Due Process