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When students in two of the U.S.’s largest states return to campus in August they will find that the definition of what constitutes sexual assault has changed. While the change is fairly dramatic and impacts many, it has been accomplished with surprisingly little fanfare. The lack of coverage may be hailed as a sign that the change is broadly supported. However the net result is that students may not be cognizant of it until they arrive in the fall.

Recently New York became the second state to pass affirmative consent legislation. Under the new law, consent now requires an affirmative agreement between the two parties or what can also be defined as clear, unambiguous assent to the sexual interaction. This is a wholesale change from the former ‘no means no’. The legislation also creates a victims bill of rights and increases training for law enforcement, as well as college and university employees.

In signing the law at New York University last week, Governor Andrew Cuomo said that the legislation, an expansion of a policy in effect since last year at the state’s public universities, would help end sexual assault "and the imbalance of power that women face across the board

Cuomo was not alone in pushing for this bill. He famously teamed up with Lady Gaga, among others, to urge passage and penned a widely read op-ed with the superstar in support of his “Enough is Enough” campaign.

New York’s law comes shortly after the passage of similar legislation in California. The bill, signed by California Governor Jerry Brown last year was the first in the nation to force colleges and universities receiving state financial aid to adopt an “affirmative, conscious, and voluntary agreement to engage in sexual activity.” Under the law consent to sex requires an affirmative ‘yes’ rather than the absence of a ‘no’. Going forward college’s receiving aid are required to use this redefinition to both investigate claims of assault and instruct their students.\

The notion of affirmative consent may be new to the state legislative arena, but it is not a new concept or practice. As Eliza Gray reports, even before the recent laws were passed in California and New York affirmative consent was already being used at approximately “800 post-secondary institutions”.  What is new, however,  is that we now have state’s codifying what in the past would have been included in a Student Code of Conduct.

While widely supported, the new legislation is also not without some conflict. As Gray notes, Harvard’s recently revised policy did not embrace affirmative consent. According to “Harvard’s Title IX Officer, Mia Karvonides… the school rejected [the] policy because there is no ‘standard definition of affirmative consent.”

Critics are also worried that under the new definition those accused of assault – most commonly male students - may be denied due process. This concern has been exacerbated by the notorious Rolling Stone article about a sexual assault at the University of Virginia (UVA). The article, which was later retracted, caused a firestorm of controversy and led to the closure of a campus fraternity (that fraternity was subsequently reinstated by the University). Unfortunately the focus on stories like these take away from what statistics show is an alarming problem. A recent study by the Kaiser Family Foundation and the Washington Post, for instance, finds that:

  • *One in five college women are victims of sexual assault
  • *Sex assault at college is both common and life changing
  • *Male victims fear they will not be believed

Moreover, the institutions charged with handling claims of assault have come under increasing scrutiny by federal authorities, the Obama administration, Congress, and others. The concern has been provoked by well-publicized cases like that of Columbia University student Emma Sulkowicz who as part of her senior thesis committed to carrying a mattress on campus as long as her alleged rapist was allowed to remain on campus. Sulkowicz also carried her ‘rape protest mattress’ across the stage during Columbia’s commencement ceremony this past May. But it isn’t just high profile cases like Sulkowicz’s which have sparked renewed focus on this issue, it is also the data.

According to reports more than fifty colleges and universities are facing “federal investigation for their handling of sexual abuse allegations.” In addition, the Education Department notes that sexual assault on campus increased from 3,443 in 2011 to 4,062 in 2012.

These numbers are reinforced by studies like a 2014 inquiry by Huffington Post which found that:

  • *less than 1/3 of college students found guilty of assault were dismissed from the institution
  • *students found responsible for sexual assault were expelled in 30% of cases and suspended in 47% of cases

The data underscore the need for action in this area. The question is whether affirmative consent policies will make a difference? For all the support the affirmative consent movement is currently enjoying, research regarding whether it will be effective in cutting down on the number of sexual assaults on campus, as well as the investigation and prosecution of these claims, is still inconclusive.


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