Last week, reports indicated that legislative leaders had struck a deal with Governor Andrew Cuomo to pass his campus sexual assault legislation. Unfortunately, while offering some minor improvements over previous proposals, the final language of A08244 still seriously threatens the basic rights of accused students.
Before diving into the bill’s problems, it’s worth noting one welcome feature of the legislation: its use of neutral terminology. The bill thankfully uses the term “reporting individual” to refer to a victim, survivor, complainant, claimant, and victim with witness status, and it uses the terms “accused” and “respondent” instead of “perpetrator.” Biased terminology that refers to all reporting individuals as “victims” and accused students as “perpetrators” presupposes guilt.
This bright spot notwithstanding, the bill is largely flawed.
The most troubling aspect is the bill’s mandate that colleges and universities adopt policies requiring that students accused of sexual assault prove that they obtained the affirmative consent of their partners. No one disputes that consent is required for sexual interactions to be lawful. But an affirmative consent standard will result in judicial procedures that focus less on whether the individuals involved actually consented to the sexual activity and more on whether they can prove it.
Providing evidence that proves parties reached agreement is straightforward when it comes to interactions governed by contract or other legal documentation. That proof, however, is usually absent when it comes to sexual activity. (BDSM, prostitution, and other contractual agreements about sex may be exceptions.) So when considering sexual activity between college students, if someone is accused of failing to obtain affirmative consent for sex, he or she is unlikely to be able to produce any evidence suggesting that he or she did, in fact, receive consent. What evidence would be sufficient to establish that consent had been freely given, and is that evidence likely to exist? In practical terms, this means that the accused is presumed guilty and is unlikely to be able to prove his or her innocence.
The problems created by affirmative consent policies have been catalogued in publications across the country, including The American Interest, TIME, The New Republic, Reason, New York Magazine, and The Atlantic. Commentators from across the political spectrum (see Fredrik deBoer, Hans Bader, and Michelle Goldberg, for just a few) have critiqued the philosophy behind affirmative consent laws and the practical problems they will create. FIRE provided our initial analysis of affirmative consent laws in our statement on California’s affirmative consent bill and in later commentary by FIRE’s Executive Director, Robert Shibley. The common thread: Affirmative consent is a flawed idea.
Here’s one example of how the problems with affirmative consent manifest: An earlier version of the bill stated that “affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time,” thus requiring accused students to prove that they obtained consent for each and every sexual act separately. The final version attempted to resolve this problem by cutting that language, but it fell short of resolving the issue because it still states that “[c]onsent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.” While that statement would be uncontroversial in a system where the accuser was required to prove the lack of consent, when the accused bears the responsibility of proving consent, as is the case under this law, that language in essence is a requirement that the accused be able to prove repeated agreements to engage in each separate act.
In addition to imposing a burden-shifting scheme, the bill also provides a so-called “student bill of rights.” But while it spans multiple pages, this “bill of rights” gives very few meaningful protections to the accused. In fact, the bill doesn’t provide accused students with any rights that aren’t already the norm across the country or already required under federal law. (For example, it provides both parties the right to appeal, where federal law requires only that if an appeal is provided to one party it must also be provided to the other. FIRE is unaware of any institution that doesn’t provide any appeals whatsoever.)
The closest this legislation comes to providing substantive procedural protection to the accused is a provision granting the accused the right to “be accompanied by an advisor of choice who may assist and advise a reporting individual, accused, or respondent throughout the judicial or conduct process including during all meetings and hearings related to such process.” On July 1, federal regulations go into effect providing students with the right to have the advisor of their choice “present” during these proceedings. The language in this bill of rights is an improvement only if it is interpreted to provide the right to active assistance of counsel throughout the process, but it’s not clear at this point if that’s how it will be interpreted. Simply receiving advice and “assistance” (whatever that means) is inadequate. I explained why the right to representation by counsel is so crucial in a column for The Hill. Recently, FIRE co-founder and civil rights attorney Harvey Silverglate wrote for NPR’s Cognoscenti about why representation by counsel in campus hearings is a necessity. The right to counsel was also endorsed by the editorial boards of the Los Angeles Times and the Grand Forks Herald.
Another disappointing aspect of the “bill of rights” is a provision that allows reporting students to have the right to “be free from any suggestion that the reporting individual is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid the violations.” This is certainly an appropriate instruction to provide to first responders, so as not to chill victims from bringing forward meritorious claims. But this bill doesn’t say who must avoid suggesting that a reporting individual is at fault. Does a student witness violate this rule if he or she tells an investigator that the reporting student initiated the sexual activity, or should have consumed less alcohol? If so, the provision seriously distorts the fact-finding process—and arguably raises First Amendment concerns, to boot.
But perhaps the most counterproductive provision in the bill of rights is the one that leaves the decision as to whether to disclose a crime or violation in the hands of the reporting student. While complainants should always maintain agency over whether they want to cooperate with a law enforcement investigation, it is dangerous to leave law enforcement in the dark about serious accusations of violent behavior—not least because, if the charge is true, the victim may be under pressure from the perpetrator to keep the police out of it. And let’s not forget that if most sexual assaults are committed by a handful of repeat offenders, as data suggests, the failure to report meritorious claims of sexual assault to the police increases the risk of future assaults.
In sum, this legislation is an unwelcome development for people who believe in fundamental fairness—one that doubles down on the failed policy of steering sexual assault complaints away from law enforcement and into amateur campus tribunals that are ill-equipped to handle such serious matters. New York’s approach will probably not reduce the prevalence of sexual assault on campus, but it will likely lead to more unjust punishments.