A new legislative deal in New York will make the state one of the country’s most aggressive in fighting campus sexual assault, but due process advocates warn it could lead to innocent people being railroaded out of college.
Under the deal reached Tuesday, which is expected to be quickly approved and signed into law, every college in New York, public or private, will be required to adopt the “affirmative consent” standard for handling claims of sexual assault on campus.
Under such policies, a person is held to have committed sexual assault if they engage in any sexual action with another person, from kissing to intercourse, without getting prior, explicit consent. This approach, also known as “only yes means yes,” stands in contrast to the “no means no” standard that prevails in criminal law, where consent may generally be assumed if a person does not give verbal or physical resistance (and is not incapacitated).
The new policy has been a top priority of Gov. Andrew Cuomo, who was so eager to pass the proposal in the final days of the legislative session that he co-authored an opinion piece with pop star Lady Gaga to promote it.
The compromise means New York will become the second state, after California, to require private colleges receiving state financial aid to adopt affirmative consent. In addition, it will create a new state police unit focused on campus assault, and will require all colleges to distribute a “student bill of rights” telling students about their options should they be sexually assaulted.
The final compromise version of the bill alters the definition of affirmative consent somewhat by making it substantially shorter than the version Cuomo sought. It has eliminated language saying that consent must be “informed,” and “unambiguous,” and also moderated language saying that prior sexual activity did not imply consent for future sex.
Despite the moderation, the bill is still a big victory for Cuomo, and will help fuel ongoing efforts by activists to spread the policy further. A similar bill is under consideration in the Connecticut legislature, and Sen. Kirsten Gillibrand has called for the standard to be implemented nationwide. (RELATED: Gillibrand Says ‘Yes Means Yes’ Should Go Nationwide)
Supporters of affirmative consent claim the policy is common sense, but opponents argue that the policy is a naïve one that doesn’t match the way people in the real world have sex. As a result, critics say the policy invites dubious sexual assault allegations that will be difficult to defend against and could lead to innocent students being expelled.
Hans Bader, a senior attorney with the Competitive Enterprise Institute, said the law goes into dangerous territory, especially because it covers more than just sex.
“The problem is people talk about these bills as if they’re about sex,” Bader told The Daily Caller News Foundation. “Ninety-eight percent of the problem is they deal with touching.” Bader said it’s easy to convince people that affirmative consent is sensible for sexual intercourse, because sex is a two-person activity both people typically need to participate in.
“You just say, ‘Hey, you wanna have sex?,’ and there you go,” Bader said. In contrast, he said, expecting prior affirmative consent for other erotic activity is ludicrous and doesn’t conform at all with how people really act.
“Nobody [asks their girlfriend] ‘May I touch your breast?’ before they do it. They just do it,” said Bader. As a result, he argues that New York’s law could lead to the expulsion of many individuals who engaged in ordinary intimate behavior with their partners, while doing very little to stop genuine assaults.
Bader said this oversight was occurring, in part, because sex is an awkward topic and lawmakers dislike discussing its specifics.
“You can’t have a decent discussion about this, because people don’t want to be graphic,” he said. “So you get a soundbite. People say ‘Rape is bad and consent is good, so this is a good bill!'”
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