Legislative Memo: Addressing Campus Sexual Assault

Sexual assault on college campuses is a serious and complex problem that has up to now been addressed through dysfunctional disciplinary processes that fail to offer a just outcome for both accuser and accused.

The Governor’s budget bill proposes a number of important reforms to address this important issue, most notably: a strong bill of rights for victims and survivors, campus climate surveys, “onboarding” for new students and amnesty from discipline related to campus violations for students who report incidents of sexual misconduct. However despite these crucial reforms, the Governor’s proposal does not achieve a satisfactory balance of justice for both accuser and accused.

Key elements of the proposal raise serious concerns, most significantly:

    •  The vague definition and inappropriate requirement for affirmative consent for every element of a sexual encounter;

    •  The perpetuation of the myth that young people under 17 cannot consent to any type of sexual activity;

    •  Inadequate protection of due process rights of persons accused of misconduct; and

    •  Inappropriate insulation of universities against responsibility for systemic problems

For these reasons, the NYCLU urges lawmakers to reject Part H of the executive budget bill and take up the issue of sexual violence on college campuses after the state budget is approved.

Improving the response from college and university administrations to allegations of sexual violence on campus is critical and deserves the kind of deliberate attention that can best be provided outside of the pressures of the state budget process.

A Flawed Definition of “Affirmative Consent”

Part H of the executive budget bill creates a new definition of affirmative consent for sexual activity on college campuses. The definition reads as follows:

A student who engages in sexual activity without meeting these consent requirements is subject to disciplinary action, including expulsion. This marks a fundamental shift in how colleges deal with allegations of sexual assault.

Where once it was the responsibility of a sexual assault victim to demonstrate that he or she said no to unwanted sexual activity, now the accused would have to prove not only that there was no force involved, but that the accuser had affirmatively agreed to every element of a sexual encounter. Neither approach makes sense – and neither approach holds out the promise of a fair and just result.

The vague definition of “affirmative consent” runs the risk of being used to punish consensual activity.

The provision that affirmative consent cannot be obtained through “silence or lack of resistance” is likely to be interpreted to require verbal consent, even though there are many non-verbal ways in which “clear, unambiguous, knowing, informed, and voluntary agreement” can be communicated.

The standard dissolves into incoherence when applied to real-life, intimate relations. Must a college student really risk expulsion for failing to ask for and receive verbal permission before putting an arm around a friend’s shoulder at the movies or placing a hand on a thigh – or elsewhere? Non-verbal affirmation may be difficult to define, but it is the reality under which many consensual sexual encounters take place.

Additionally, the definition also requires consent prior to every discrete step in a sexual engagement: “seeking and having consent accepted is the responsibility of the person(s) initiating each specific sexual act.”

This compounds the confusion. How many times in a sexual encounter and at what stages must a request for consent be submitted? Is a hand on the bottom a different sexual act than a hand on the breast?

Particularly in the context of young people entering into and ending intimate relationships – at a time when they are often still developing their understanding of the norms of those relationships – the proposed definition is a recipe for confusion and misunderstanding and easily becomes a vehicle for wrongful, after-the-fact accusations of failing to obtain consent when relationships sour.

The NYCLU proposes the following amendments to reduce the potential for confusion and avoid wrongful punishment:

1.   Amend the definition of consent to encompass non-verbal consent by adding the following language in Section 6440:

2.   Amend the definition of incapacitation to differentiate intoxication from impairment. The definition should separate out those factors that establish a per se lack of capacity (i.e., being asleep, unconscious, or involuntarily restrained) from those which may be evidence of impairment but are not dispositive (i.e., impairment due to drugs or alcohol).

3.   Remove the flawed, irrebuttable presumption that persons under 17 cannot consent to sexual activity. A modern policy addressing sexual violence on college campuses should not reinforce the outdated and flawed paradigm that still exists in New York’s criminal law and punishes voluntary sexual activity based on the legal fiction that individuals under the age of 17 are incapable of giving consent. Thousands of teenagers under the age of 17 voluntarily engage in sexual activity and neither they nor their partners should face expulsion from college unless the activity actually non-consensual.

4.   Remove the requirement that consent be obtained for each specific sexual act. Intimate sexual activity between two people is a fluid process that is not naturally halted at each phase for consultation. While we understand the intent behind this requirement: to ensure that if an individual willingly assents to “making out” with a partner, that does not mean that s/he can be presumed to consent to intercourse, for example, the requirement that affirmative consent be obtained for each and every specific sexual act is unnaturally restrictive of a couple’s sexual activity. The requirement that when a partner withdraws consent, sexual activity must stop is adequate to protect against unwanted escalation of sexual activity.

Amended as described above, section 6440 of the new provision of the Education Law would read as follows:

A Biased Process for Determining Responsibility for Sexual Misconduct

The goal of these reforms should be to create a fair, humane and reliable system to address accusations of sexual assault. A fair process will simultaneously uphold fundamental principles of due process and equal rights, but assure survivors of sexual assault – and the entire college community – of fair and meaningful recourse. To be fair, the system must provide the basic elements of due process: notice and an opportunity to be heard by a fair and impartial body.

Unfortunately, the proposed reforms would replace a system that has done injustice to survivors with one that does injustice to the accused.

Seven fundamental flaws in Part H of A.3006/S.2006 are incompatible with the principles of due process. To create a fair and balance process the NYCLU proposes the following amendments:

1.   Add a “Bill of Rights for the Accused.” Section 6442 should be amended to affirm the right of the accused to be informed of the particulars of the charges; to hear and have access to all relevant evidence, with adequate notice and time to prepare a defense; to confront and cross-examine witnesses; to present any available defenses; to have the assistance of counsel; and to be heard by an impartial adjudicator.

While the proposal appropriately takes pains to prevent victim-blaming ¹  and re-traumatization ²  of victims/survivors, the absence of any language recognizing the due process rights of the accused sends the unmistakable message that the rights of the accused don’t matter, and specifically that a student who is accused could be precluded from providing evidence of consent or from the right to be informed of the accusations and to cross-examine witnesses.

2.   Provide for adequate training provisions. While the training provisions in Part H ³  would ensure that persons investigating and adjudicating complaints can adequately support victims/survivors, they should be amended to cover issues of due process, impartiality, and the rights of the accused. Persons adjudicating complaints should also be trained about the effects of alcohol consumption and the nature of alcohol-induced blackouts.  All training should be required to meet evidence-based standards for validity and reliability. 

3.   Provisions for “no contact” orders, interim suspensions and other measures prior to an adjudication of sexual assault charges should be limited and cannot be imposed absent a clear standard that requires a showing of good cause and/or necessity.  Otherwise the accusation alone becomes grounds for punishment.

4.   Limit evidentiary restrictions. Some evidentiary restrictions are necessary to protect the victim ⁴  , but the rules must allow consideration of mental health issues and sexual history and mental health when it can be shown that the information is relevant to a claim or defense. There can and should be limits on the introduction of evidence of past sexual history and mental health, but those limits should mirror the rules already established for judicial proceedings, which properly balance protections for victims with the need for finders of fact to assess relevant evidence. When persons adjudicating these proceedings are well trained, they should be capable of striking the appropriate balance on a case-by-case basis. 

5.   Ensure the Right to Counsel. The ambiguities of the “affirmative consent” policy and the absence of due process protections are magnified exponentially when either party lacks legal representation. And the stakes – including possible expulsion, criminal ramifications, and prolonged trauma – are high. Section 6443(4)(b)(1) should be amended to guarantee both the victim/survivor and the accused the right to counsel of their choice, and where the allegations raise potential violations of the criminal law, the college or university must provide counsel at its own expense.

6.   Campus sexual assault guidelines should be limited to campus behavior. The provision for campus administrators to exercise authority over any conduct that has a vague “nexus” to the university reaches too broadly.

7.   The sexual assault reforms should not shield universities from responsibility for systemic problems.  The Governor’s proposal requires college climate surveys, but provides: “Nothing in this section shall be subject to discovery or admitted into evidence in a federal or state court proceeding or considered for other purposes in any action for damages brought by a private party against a college or university.” ⁵  This provision would create a special privilege for evidence of systemic failures to address sexual assault and make it hard to hold university’s accountable for systemic failures. It should be deleted.

Conclusion

While the Governor’s budget proposals offer some important improvements in the treatment of sexual assault on campus, they also create significant problems that require further deliberation by the legislature outside of the budget process.

¹  The Victim/Survivor’s Bill of Rights establishes the right to “[b]e free from any suggestion that the victim/survivor is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid such a crime.” A.3006/S.2006, proposed section 6442(1)(e).

²  The Victim Survivor Bill of Rights includes the rights of the victim/survivor to “[d]escribe the incident to as few individuals as practicable and not to be required to unnecessarily repeat a description of the incident.” A.3006/S.2006, proposed section 6442(f)

³  A.3006/S.2006, proposed section 6443(4)(b)(2).

⁴  A.3006/S.2006, Proposed section 6443(4)(b)(8).

⁵  See A.3006/S.2006, proposed section 6444(5).