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Law professors line up against New York’s new campus sexual-assault law

Critical lawmaker: ‘An uncertain, vague system hurts students’

As “rape culture” continues to grow as a hot-button issue, New York Gov. Andrew Cuomo has emerged as one of the prominent forces seeking to make college campuses a safer place for students.

The Democrat signed the “Enough is Enough” legislation (A08244) earlier this month, which lays out procedures and guidelines that colleges must follow in cases involving “sexual assault, dating violence, domestic violence and stalking prevention.”

The new law extends policies that Cuomo instituted by executive order in the State University of New York system to all colleges in the state. It’s the second statewide law, after California’s, to mandate the “affirmative consent” standard across higher education institutions.

The governor is getting strong criticism from civil-liberties advocates, however, including a state lawmaker who says the law will hurt victims as much as falsely accused students.

‘Knowing, voluntary, and mutual decision among all participants’

The new law sets out “a uniform definition of affirmative consent, a statewide amnesty policy, and expanded access to law enforcement to ensure the safety of all students attending colleges in New York State,” according to a Cuomo press release.

It defines affirmative consent as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” The approved bill says consent “can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.

“Silence or lack of resistance, in and of itself, does not demonstrate consent,” it says.

The law extends immunity for certain campus violations, such as alcohol and drug use, to those reporting incidents of sexual violence.

It requires colleges to distribute a “bill of rights” to all students informing them of legal options and resources, including their right to contact outside law enforcement, and mandates further training requirements for certain college employees. Colleges must submit data on reported cases of sexual assault to the state Education Department and explain and how such cases are dealt with.

Several key figures championed the bill, including House Democratic Leader Nancy Pelosi; John Flanagan, leader of the majority Republicans in the state senate; and entertainers Whoopi Goldberg and Lady Gaga. Only one county executive in the state failed to support it, according to Cuomo’s press release.

There are many “amazing” features of the law, according to Laura Dunn, a self-described “survivor” whose nonprofit SurvJustice combats sexual violence.

“I think the idea of uniform policies [statewide] on gender violence is amazing,” Dunn told The College Fix in an email. New York “has showed that it has a uniform approach with sufficient community buy-in to ensure it can make meaningful strides to reduce campus sexual violence and improve responses to gender violence.”

But legal experts told The Fix the law is worrisome.

‘I thought she gave clear permission’ is now a viable defense

It’s “bad policy, almost from top to bottom,” said Joseph Cohn, legislative and policy director for the Foundation for Individual Rights in Education. It “flips the burden of proof” on the accused, and it “doesn’t matter what the penalty is – it’s very difficult to prove one’s innocence.”

Cohn fears the law will lead to more expulsions of students under questionable circumstances.

The law is “horribly unrealistic” because it misunderstands how the average sexual encounter works for college students and ignores the common presence of drugs and alcohol, which can impair judgment and sometimes communication, according to John Banzhaf, a law professor at George Washington University.

“The opportunity for misunderstanding is much greater with ‘Yes means Yes,’” Banzhaf said, using the informal term for affirmative-consent standards, partly because consent can’t be inferred between two partners with a consensual sexual history.

“The way to deal with this problem is to have a law that says ‘no means no,’” he said.

Wendy Murphy, adjunct professor of sexual violence law at the New England School of Law and a prominent litigator, thinks the bill puts women in danger and backtracks on progress made by the passage of Title IX.

Because the law codifies affirmative consent, “a perp can say ‘i though she gave clear permission,’” Murphy wrote in an email. “This is not allowed under title ix – which asks only whether an act was ‘unwelcome’ — an appropriately subjective question.”

With no subpoena power, campus investigations can’t help victims

A Republican lawmaker went so far as to write an op-ed in the New York Post also criticizing the law for harming victims.

Assemblyman Kieran Lalor, who represents Dutchess County, wrote that “victims’ pursuit of justice will be impaired by a vague set of rules and an enforcement system outside of the courts that won’t have the same access to evidence and witnesses” because it lacks subpoena power.

KieranLalor.New_York_State_AssemblyLalor, a former social studies teacher and Iraq war veteran, told The Fix in an email that the law “doesn’t protect anyone” and ensures the “continued erosion of due process rights for students.”

“An uncertain, vague system hurts students,” he said. “There’s little confidence in this bill. It will deny justice and encourage injustice on every campus.”

Others have responded satirically. Rachel Lu, who teaches at the University of St. Thomas, wrote a guide for The Federalist titled “5 Ways to Ensure Safe Sex.”

Under the heading “Witnesses,” Lu wrote, “To ensure fair play on all sides, both lovers should ideally supply a ‘second.’ I recommend pastors or professors. They’ll have more credibility in court.” Other solutions include “Video Footage,” “Safe (Sex) Houses,” “Pre-Coital Agreements” and “Chastity.”

Though Assemblywoman Deborah Glick of Manhattan said the bill doesn’t require students to both sign a contract before every sexual encounter as Lu envisions, according to The New York Times, at least one company is peddling “consent contracts” to students.

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IMAGES: saebaryo/Flickr, New York State Assembly

About the Author
Madison Iszler is a senior majoring in politics, philosophy and economics (PPE) at The King's College. She is the editor-in-chief of her college's student newspaper, the Empire State Tribune. Her articles have been published by the New York Post, Forbes, BNO News, the Sun-Sentinel and other publications. Madison is an avid soccer fan and is interning for the New York Post for summer 2015.

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