The State University of New York (SUNY) system, one of the country’s largest public college systems, has adopted the “affirmative consent” standard for identifying sexual assault. The policy will affect some 460,000 students spread across 64 different SUNY campuses.
The new policy has been anticipated for several months, after New York Governor Andrew Cuomo asked SUNY to craft new sexual assault rules that would include the standard. Its adoption imitates California, which recently passed a new law mandating that affirmative consent be used at every college receiving state funds.
Cuomo issued a statement lauding the new standard, saying it was “setting an example for other states and school to follow.”
Affirmative consent, alternatively known as “only yes means yes,” is a standard which holds that an individual commits sexual assault if they do not receive prior consent from a partner for each particular sexual act they engage in. The policy is in contrast to the prevailing criminal standard often called “no means no,” where implied consent may exist and sexual assault only occurs if a person explicitly refuses to consent to sex or is otherwise unable to consent (due to being underage or incapacitated).
SUNY’s definition of “affirmative consent” is detailed, stretching out for eleven sentences. It reads, in full:
Affirmative consent is a clear, unambiguous, knowing, informed, and voluntary agreement between all participants to engage in sexual activity. Consent is active, not passive. Silence or lack of resistance cannot be interpreted as consent. Seeking and having consent accepted is the responsibility of the person(s) initiating each specific sexual act regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. Consent to any sexual act or prior consensual sexual activity between or with any party does not constitute consent to any other sexual act. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity or gender expression. Consent may be initially given but withdrawn at any time. When consent is withdrawn or cannot be given, sexual activity must stop. Consent cannot be given when a person is incapacitated. Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity. Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
Critics such as the Foundation for Individual Rights in Education (FIRE) have sharply attacked affirmative consent, arguing that definitions such as SUNY’s ultimately endanger the rights of accused students without meaningfully reducing sexual assault itself. Some advocates, such as Vox’s Ezra Klein, have embraced that accusation, agreeing that the law could imperil the innocent but saying it is necessary to stop rape on campus. Activists argue that 20 percent or more of female college students endure sexual assault before leaving campus, although that figure has been sharply criticized.
While affirmative consent is the most notable part of SUNY’s new policy, it has a host of other components and innovations. It provides immunity for various drug and alcohol offenses on-campus to anybody who reports a sexual assault in order to encourage reporting. The policy also include a “bill of rights” for victims of sexual violence, such as a right to not “repeat unnecessarily” one’s account of an alleged sexual assault and a right to “be free from any suggestion that a victim/survivor is at fault” for offenses against them.
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