Article: New “Affirmative Consent” law in New York State Colleges

There is a new legal requirement in a few states — including New York — which have recently adopted laws requiring colleges and universities within their jurisdiction to revise their codes of student conduct to include some new mandates related to sexual conduct. (Eligibility for state financial aid programs is the carrot and stick that gets schools to adopt these new student conduct codes.)

Although no doubt acting from the best of intentions, aiming to prevent collegiate sexual assaults, but also without the best of information (that sometimes results in exaggerated claims), the legislators who enacted these new laws — commonly referred to as “yes means yes” laws — nevertheless have left students in a situation that is ill-defined, both for them and the schools enforcing the new mandate, and which could leave them caught up in what can be a seriously unfair process.

While backers of the bills stressed they were not changing state criminal law, they have managed to achieve the worst of both worlds, by asking colleges to set themselves up to judge whether conduct that can have severe consequences occurred.  Those consequences could possibly include expulsion, an end to a student’s education, and a record likely to harm employment prospects gravely. Meanwhile, the legislation skips important legal protections – such as a high standard of proof, and the guarantee of a fair hearing with an opportunity to examine witnesses and present an effective defense – that would be required in a criminal court.

The laws aim to go beyond the “no means no” standard, which is intended to enable an unwilling would-be partner to signal rejection of an approach.  Rather than requiring the unwilling party to resist or protest, the “yes means yes” standard would mean any sexual activity would be an offense unless each party had first explicitly consented.

Take California’s statute, the nation’s first: the “affirmative consent” requirement it imposes on campus Codes of Student Conduct requires that before any sexual activity may begin, those involved must receive the “affirmative, conscious, and voluntary agreement” of the other party. New York’s law, though broader in other areas, closely resembles California’s “affirmative consent” mandate.

One thing the law does is to invalidate the defense of one partner that he or she did not realize a sexual act was unwelcome to the other partner. While under a “no means no” standard, silence might be interpreted as consent, “yes means yes” would disqualify that defense.

Nor is “yes means yes” merely a preliminary formality. The new law states affirmative consent requires ongoing reassurance of consent before each new stage of sexual activity, and can be revoked at any point. Further, affirmative consent cannot be assumed even if the persons involved are in a dating relationship or have a shared sexual history.

While New York’s public university system had already adopted “yes means yes” provisions before the new law’s enactment, by September 2016, the new law will cover all college and post-graduate schools based in New York, for activities on or off campus. The law also sets new requirements for what college administrators must do in the tribunals they run to consider complaints of “yes means yes” violations.

Further, an advisory legal group, the American Law Institute, is now working on a revised model criminal law which could make sexual relations without affirmative consent at least a misdemeanor. If picked up by state legislatures, that “yes means yes” approach could affect all state residents, not just those in post-secondary studies.

The next installment in this series will report on an early court challenge to a college’s attempt to enforce the new “yes means yes” law; in that case, a California state judge ruled a college’s attempts to enforce the new code provision violated a student’s due process rights and lacked sufficient evidence for its decision the student had violated the new conduct code.