BUFFALO, N.Y.—Administrative policy may be the new pillow talk on college campuses across New York.
A universal “affirmative consent” standard is now part of a sexual assault prevention policy adopted across the state’s public university system, spelling out for students that only “yes”—not silence or a lack of resistance— is the cue for sexual activity.
The so-called “Yes Means Yes” standard could spread to private campuses next year by way of legislation favored by Gov. Andrew Cuomo as states face pressure to improve their handling of campus sexual assaults.
Supporters say it takes away the ability of someone accused of assault to claim confusion about the accuser’s wishes, while reminding and empowering students to talk about consent before engaging in sex.
“It’s not about policing, it’s about educating,” said Andrea Stagg, an associate counsel for the State University of New York who was on the working group that wrote the sexual violence prevention policy for the system’s 64 campuses.
On SUNY’s state-operated campuses, there were 238 cases of sexual violence or assault during the 2013–14 academic year, SUNY statistics show.
Complaints can be adjudicated either through campus disciplinary proceedings, campus police, or outside law enforcement agencies, depending on the wishes of the victim.
A Justice Department report released Thursday said only about 20 percent of all campus sexual assault victims go to police, adding to a national conversation that has gotten louder with President Barack Obama’s September launch of the “It’s On Us” awareness campaign and a recent Rolling Stone article describing an alleged gang rape at the University of Virginia. The magazine has since said it couldn’t stand by its reporting.
“All we’re saying is that in order for some type of sexual activity to occur with consent, everybody who’s participating in that act has to actively consent,” said SUNY associate counsel Joseph Storch, a member of the working group.
“Not that they were so drunk that they weren’t able to fight the person off. Not that they were asleep and someone took advantage of them.”
California adopted a “Yes Means Yes” measure in August and New Jersey and New Hampshire are considering the standard.
Students say getting an out-loud yes adds a potentially awkward level of formality to intimacy, even if they agree it’s necessary.
On the Books
“It’s a conversation that does need to happen before anything does happen,” said Buffalo State College senior Katherine Middleton. But “it makes it almost seem more like a business deal than an act that happens.”
At private Colgate University in Hamilton, senior Emily Hawkins said she’d welcome a state law that extended the policy to all New York campuses, if only to get people to take it seriously.
“Legislation brings legitimacy to these types of things,” she said. “It seems unnecessary to me to have to legitimize sexual assault prevention, but if law brings legitimacy, then yes, why not throw it on the books?”
Cuomo views the policy for SUNY’s 463,000 students as a test case for the rest of the state.
Assemblywoman Deborah Glick, chairwoman of the chamber’s Higher Education Committee, said the new standard will help men and women alike.
“Women have faced for centuries, ‘she said no but I knew she meant yes,'” the Democrat said, “so this is a clearer definition and provides for greater clarity for all parties involved.”
A spokesman for Sen. Kenneth LaValle, Glick’s counterpart in the Republican-controlled state Senate, did not respond to requests for comment, nor did a spokesman for the state GOP.
But the state’s Conservative Party chairman, Michael Long, called the policy “meaningless.”
“After something happens, it becomes he said or she said,” Long said. “If you want to talk about giving permission for sexual activity—I’m not trying to be cute here—one would have to get a sexual consent form signed. Maybe an official consent form signed would mean something.”
SUNY Definition of Affirmative Consent
Affirmative consent as defined in the State University of New York’s sexual assault prevention policy:
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.
From The Associated Press