What "Yes Means Yes" Means for New York Schools: The Positive Effects of New York's Efforts to Combat Campus Sexual Assault through Affirmative Consent

By Delamater, Chandler | Albany Law Review, Winter 2015 | Go to article overview

What "Yes Means Yes" Means for New York Schools: The Positive Effects of New York's Efforts to Combat Campus Sexual Assault through Affirmative Consent


Delamater, Chandler, Albany Law Review


INTRODUCTION

In October 2014, Governor Andrew Cuomo announced a resolution passed by the State University of New York (SUNY) Board of Trustees establishing a comprehensive uniform sexual assault policy for the SUNY system, to be adopted by SUNY-operated schools by December 2014. (1) Less than a year after instituting the SUNY policy, the Governor signed the "Enough is Enough" legislation (2) into law, amending the Education Law to expand the policy and require that all public and private colleges and universities in New York "adopt a set of comprehensive procedures and guidelines" (3) aimed at combatting campus sexual assault. (4) Governor Cuomo's actions came about in the midst of what he described as "an epidemic of sexual violence in this country that is truly disturbing and ... plaguing our college campuses." (5) Epidemic is certainly an appropriate characterization of the current situation these colleges are facing. It is estimated that nearly (20) percent of college women have experienced some form of sexual assault. (6) The issue has garnered a great deal of media and political attention as it has become apparent that many schools are failing to appropriately and meaningfully address the problem of sexual assault. (7)

These problems have been as prevalent in New York's public and private institutions as they have across the country. In 2014, the United States Department of Education's Office of Civil Rights ("OCR") released a list of fifty-five schools that were under investigation for violations under Title IX of the Education Amendments of 1972 over their handling of sexual assault allegations made by students. (8) The OCR identified four New York institutions that were under investigation: City University of New York Hunter College, SUNY at Binghamton, which are state-funded institutions, and Hobart and William Smith Colleges, as well as Sarah Lawrence College, which are privately funded. (9)

New York's "Enough is Enough" Law was enacted to address the serious institutional difficulties that schools face in handling sexual assault complaints. (10) Beginning on October 5, 2015, all schools in New York are required to amend sexual assault policies by adopting a "Sexual Assault Victims' Bill of Rights," (11) a drug and alcohol amnesty policy, (12) protocols to ensure confidentiality and emphasize a victim's right to make both criminal and disciplinary complaints (13) and annual campus climate assessments. (14) Also included among the reforms are significant training and public awareness requirements. (15) The law substantially followed the policy adopted by the SUNY system nearly a year before. (16) One of the most significant and controversial changes required under the law and the SUNY policy is the requirement that New York schools adopt an "affirmative consent" definition. All New York schools must now define "consent" as follows:

"Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. 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. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression." (17)

New York schools are also required to include several guiding principles in codes of conduct:

a. Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.

b. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.

c. Consent may be initially given but withdrawn at any time.

d. Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. …

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