By Joe Cohn at Transunion.com
As the legislative session comes to a close, Gov. Andrew Cuomo is making an eleventh-hour push to gain support for a well-intentioned but poorly conceived campus sexual assault bill.
The bill, A05400, would require colleges and universities to employ an “affirmative consent” standard in campus sexual assault hearings. Under such a standard — also called (oversimplistically) a “yes means yes” standard — fact-finders presume a lack of consent, relying on the accused to prove that consent was in fact given affirmatively, consciously, and voluntarily.
Supporters of this standard argue that the legislation is necessary to protect students from sexual assault because an incapacitated person cannot give consent, and moreover, sometimes a victim is too scared to say “no.” But an affirmative consent bill isn’t necessary to protect incapacitated or threatened victims on campus, and will actually harm students’ rights.
No one disputes, as a practical matter, that mutual consent is necessary for sexual interactions to be lawful, or that incapacitated students can’t consent to sexual activity. But what the bill’s supporters haven’t told the public—or, apparently, lawmakers—is that New York state law already acknowledges that incapacitated individuals lack the capacity to consent. Likewise, the law already recognizes that individuals do not have to say “no” or otherwise resist unwelcome sexual advances when credible threats of violence make it unreasonable to require a victim to do so.
The bill requires campus judiciaries to find students accused of sexual assault guilty unless the student can convince a campus court that he or she obtained ongoing and affirmative consent. But proving one’s innocence of accusations of sexual assault—allegations that typically concern misconduct occurring behind closed doors, without witnesses, and often under the influence of intoxicants—is practically impossible.
Indeed, when Assemblywoman Bonnie Lowenthal, co-author of an affirmative consent bill recently passed in California,
was asked how a student could prove consent, she answered, “Your guess is as good as mine.” If you don’t find Lowenthal’s answer particularly reassuring,you’re not alone.
Unless students record the entirety of each of their sexual encounters, or trade text messages afterwards that confirm the interaction was consensual, it is unclear how they are expected to demonstrate that they obtained affirmative consent. After all, even with an agreement signed in advance, a person has the right to revoke consent at any time.
Affirmative consent also renders plainly lawful sexual activity punishable by colleges. Couples routinely touch each other without advance permission. If an individual finds the interaction unwelcome, the criminal code asks them to communicate their disinterest to their partner. Only if the initiator proceeds despite the request to stop does he or she run afoul of the law and social norms. But under the affirmative consent standard, even a student who ceases contact immediately upon being asked to do so is guilty of sexual assault on campus because he or she didn’t obtain consent up front.
These complications led former New York Lieutenant Governor Betsy McCaughey to sharply criticize the bill for “criminaliz[ing] normal sexual interactions.” And the above concerns are among the reasons that affirmative consent has been opposed in the pages of TIME, the New York Post, New York magazine,the New York Daily News, and The New York Times. The New York Civil Liberties Union, which also opposes the bill, put it this way: “Unfortunately, the proposed reforms would replace a system that has done injustice to survivors with one that does injustice to the accused.”
The bottom line is that Cuomo wants to govern how New York’s college students have sex — an intrusion that the general public would not accept, which may be why the governor has made no effort to require this standard of all New Yorkers.
Instead of passing a bill that undermines due process, New York should ensure that students know where to turn after being assaulted. The state should provide first responders with the tools and training to assist victims, provide law enforcement with the funds to test and utilize rape kits, and insist that all parties be treated with respect when cases are heard. This more measured approach to addressing campus sexual assault would significantly aid victims without disregarding the rights of the accused.