In New York, “no” still means “no,” but a new law now requires “Yes” to mean “yes.”
In an attempt to reduce incidents of sexual assault on college campuses and to fairly and firmly sort out crimes from mere misunderstandings, there is a new standard of “affirmative consent.” This means that before any on-campus sexual relations can commence, partners must give clear consent. If later there is an accusation or conflict about what happened, a claim that the other person didn’t say “no” or didn’t resist or fight back will no longer be enough.
When I first read about this legislation, I let out a long sigh. Some behaviors cannot be legislated without bringing failure and more sadness to the world. My teeth still grit over the Nassau County Legislature’s attempt in 2002 to mandate civility and proper language in parks.
Upon actually reading what has been put on the books, this new law appears reasonable, workable and it addresses a dead-serious problem in an adult fashion. The biggest threat will come from what may be piled on top that may make a farce or a joke out of it. There may be a need to readdress and clarify some provisions, before it falls into the wrong hands.
A major upstate newspaper mischaracterized it as the “Can I Put My Hand Here?” law, requiring mutual consent “for each nibble and caress…” Wrong.
The new law requires all institutions of higher education to adopt a common definition of “affirmative consent” as part of its code of conduct: “A knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” The consent can be given by word or action, and there are a number of common sense, common decency amplifications (for example, if anyone is too drunk to give consent, or falls asleep, all sexual activity must stop). The text of the law would be a good starting point for sex education classes in high schools and for frank discussions between parents or guardians and their kids. Not enough young people get either of those, so here we are.
In the past few years, college campuses across the country have been criticized for how seriously or consistently they dealt with sexual assault allegations (11 colleges in New York, more than any other state, are under federal investigation for mishandling allegations). The law will create basic standards, forcing more campuses to get their act together.
Students will have a clear choice between reporting incidents to the campus police and the in-house judicial system, or to the outside law enforcement system (with built-in amnesty if drinking or drug rules were violated). Unlike bills that got bogged down in a few other states, New York’s law doesn’t create a presumption of guilt.
New York joins California as the second state with a uniform “affirmative consent” law on the books.
The law isn’t perfect. In a lot of cases, it will still be one person’s word against another, with third parties trying to sort out if that nod meant consent. Does pulling someone closer mean consent? Many situations will go unfixed and unresolved, but this creates a reasonable, understandable, minimum level of justice. It will also change a lot of the conversations on campus.
A national affirmative consent advocacy organization has developed a consent kit, including a written contract (“Yes! We Agree to Have Sex!”), a pen, breath mints, for some reason, and a condom. Couples are urged to photograph themselves signing the contract. How many forms and photos will be accidentally uploaded to social media? How many will be collected in fraternity house contests? If this isn’t implemented right, this can all go wrong fast.
Even couples married 20 years can’t always get the signals straight. This law can give young people a better chance to learn them right.
Michael Miller (firstname.lastname@example.org) has worked in state and local government. He lives in New Hyde Park.