Last year New York State enacted one of the most aggressive pieces of anti-sexual assault legislation in the nation. The law aims to reduce instances of sexual assault on New York’s university campuses by requiring schools to “adopt a set of comprehensive procedures and guidelines, including a uniform definition of affirmative consent, a statewide amnesty policy, and expanded access to law enforcement.”
The law defines sexual activity without affirmative consent as rape. Affirmative consent is “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. . . 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.”
Some law professors, victim rights advocates, and civil liberties advocates are now arguing that the law will do unanticipated harms. These critics assert that the new law will hurt falsely accused students as well as students bringing sexual assault claims.
One such critique is that the new law places the burden on the accused to prove that sexual acts were consensual. In all criminal trials, however, the burden of proving a defendant’s guilt is on the prosecution. Joseph Cohn, legislative and policy director for the Foundation for Individual Rights in Education, describes the new law as bad policy because “[I]t’s very difficult to prove one’s innocence.” The law could thus lead to expulsions of students falsely accused of sexual assault.
John Banzhaf, law professor at George Washington University, describes the law as “horribly unrealistic” because it does not account for the common usage of drugs and alcohol on campus. These substances hamper judgment and increase the chances of miscommunication between sex partners, as Alexei Garick described recently in a guest post.
Women’s advocates have also weighed in to criticize the law. Wendy Murphy, professor of sexual violence law at the New England School of Law, thinks the bill is a step backward because it allows perpetrators a successful defense if they can persuasively argue they believed they had received permission to engage in a sexual act. This defense is not currently available under the requirements of Title IX, which only requires the prosecution to prove the sexual act was “unwelcome,” without asking whether the defendant reasonably believed he/she had permission.
Assemblyman Kieran Lalor wrote an op-ed in The New York Post to voice his displeasure with the law. Lalor argues that the “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. “An uncertain, vague system hurts students[.]”
Washington State enacted its own legislation in 2015 to establish statewide disciplinary processes for on-campus sexual assault. RCW 28B.112.005 finds it proper to set “minimum standards for all institutions pertaining to campus sexual violence policies and procedures.” All state-funded two-year and four-year institutions must conduct a campus climate assessment on the prevalence of sexual assault on their campuses and report their findings to the governor and the legislature by December 2016.
RCW 28B.112.010 requires Washington institutions of higher learning to “refrain from establishing a different disciplinary process on the same campus for a matter of sexual violence, based on the status or characteristics of the student involved in that disciplinary proceeding.”
At The Marshall Defense Firm, we defend students accused of sexual assault both in campus disciplinary proceedings and in criminal courts across Washington State.