SUNY Board of Trustees Approves ‘Affirmative Consent’ Standard for Sex

The State University of New York (SUNY) system is taking major steps to standardize its sexual assault policies across all 64 of its campuses. Last week, at the urging of New York Governor Andrew Cuomo, SUNY’s Board of Trustees approved a resolution (PDF) to require, among other things, that SUNY students receive “affirmative consent” for sexual activity. It’s written a little differently than California’s new law, which we have covered extensively on The Torch, but it’s also problematic.

The resolution says:

[A]ll SUNY campuses shall adopt the following uniform definition of affirmative consent, and widely disseminate this definition to the college/university community:

• Consent is clear, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity.
• Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.
• Previous relationships or prior consent cannot imply consent to future sexual acts.
• A person is deemed incapable of consenting when that person is mentally defective, mentally incapacitated, physically helpless (whether induced by drugs, alcohol or otherwise), or asleep ...

This definition in the New York resolution does not explicitly require consent to be “ongoing” as California’s law does. Its statement that “[c]onsent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity,” however, may serve the same purpose. It is not clear what “one form of sexual activity” means. Given the push for a more widespread adoption of the standard for California college students, this could easily be interpreted to mean that students must receive affirmative consent for each act within a sexual encounter.

Additionally, just like with California’s law, supporters of this definition are likely to disagree about what kind of nonverbal communication is adequate. As I explained here on Monday, advocates for California’s affirmative consent standard seem to have deemed inadequate such non-verbal cues as leaning forward, tilting one’s head, and opening one’s mouth just inches away from a partner who just asked permission for a kiss. New York’s new standards are therefore likely to bring California’s confusion to the Empire State.

Let’s take a step back for a moment: Why does FIRE care about sexual consent standards? FIRE doesn’t actually have an institutional opinion on what the best way to get consent might be, or what is the “right” way to engage in sexual relations. Those are normative questions that aren’t within FIRE’s mission. But these new standards bring with them serious problems of due process, and that is a concern for FIRE. Is “affirmative consent,” however stated, a rule that can be applied fairly? Given the many unclear aspects of affirmative consent standards that have so far been enacted, there is real doubt that it can. Effectively shifting the burden of proof onto the accused, especially in a situation where we know that such proof will almost certainly be impossible to come by, threatens the due process rights of accused students. Yet as we have pointed out before, when the question was posed to Assemblywoman Bonnie Lowenthal, one of the California bill’s co-authors, of how a student would prove that he or she had affirmative consent, she told the San Gabriel Valley Tribune, “Your guess is as good as mine.” If the concept of fundamental fairness matters, then this answer should raise red flags for everyone.

Returning to the SUNY resolution, there is another aspect worth considering. The resolution also reads:

Resolved that all SUNY campuses shall conduct the uniform campus climate assessment in order to gauge the prevalence of sexual assault on campus, test students’ attitudes and awareness of the issue, and provide campuses with information to help them form solutions for addressing and preventing sexual assault on and off campus ...

FIRE hopes that in attempting to gauge campus climate, SUNY doesn’t subject its students to the same invasive and personal questions that Clemson University and scores of other institutions have. It should also be aware of its limitations: It may not require students to answer questions about the intimate details of their own experiences either with consensual sex or with assault. At the same time, compiling data based on a self-selecting group of survey respondents may yield skewed results.

Some of the Board’s resolution will be valuable. For example, under the terms of the resolution, SUNY will work with state police to develop best practices for how to respond to allegations of sexual assault. Particularly because colleges and universities lack the training and authority to properly handle allegations of violent crimes (including the ability to actually keep rapists off the streets), cooperation with law enforcement is essential. The resolution also provides that institutions must provide information about accuser’s rights and the resources available to victims. This, too, is a positive step, but it must be matched by a mandate that institutions provide information and resources for accused students.

According to the resolution, SUNY schools must adopt the new policies within 60 days, and they must provide a report on their progress by March 31, 2015.