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NY Legislators and Governor Strike a Not-So-Grand Deal on Campus Sexual Assault Bill
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Last week, indicated that legislative leaders had struck a deal with Governor Andrew Cuomo to pass his campus sexual assault legislation. Unfortunately, while offering some minor improvements over previous proposals, the final language of still seriously threatens the basic rights of accused students.
Before diving into the bill鈥檚 problems, it鈥檚 worth noting one welcome feature of the legislation: its use of neutral terminology. The bill thankfully uses the term 鈥渞eporting individual鈥 to refer to a victim, survivor, complainant, claimant, and victim with witness status, and it uses the terms 鈥渁ccused鈥 and 鈥渞espondent鈥 instead of 鈥減erpetrator.鈥 Biased terminology that refers to all reporting individuals as 鈥渧ictims鈥 and accused students as 鈥減erpetrators鈥 presupposes guilt.
This bright spot notwithstanding, the bill is largely flawed.
The most troubling aspect is the bill鈥檚 mandate that colleges and universities adopt policies requiring that students accused of sexual assault prove that they obtained the affirmative consent of their partners. No one disputes that consent is required for sexual interactions to be lawful. But an affirmative consent standard will result in judicial procedures that focus less on whether the individuals involved actually consented to the sexual activity and more on whether they can prove it.
Providing evidence that proves parties reached agreement is straightforward when it comes to interactions governed by contract or other legal documentation. That proof, however, is usually absent when it comes to sexual activity. (, prostitution, and other contractual agreements about sex may be exceptions.) So when considering sexual activity between college students, if someone is accused of failing to obtain affirmative consent for sex, he or she is unlikely to be able to produce any evidence suggesting that he or she did, in fact, receive consent. What evidence would be sufficient to establish that consent had been freely given, and is that evidence likely to exist? In practical terms, this means that the accused is presumed guilty and is unlikely to be able to prove his or her innocence.
The problems created by affirmative consent policies have been catalogued in publications across the country, including , , , , , and . Commentators from across the political spectrum (see , , and , for just a few) have critiqued the philosophy behind affirmative consent laws and the practical problems they will create. FIREprovided our initial analysis of affirmative consent laws in our statement on California鈥檚 affirmative consent bill and in by 果冻传媒app官方鈥檚 Executive Director, Robert Shibley. The common thread: Affirmative consent is a flawed idea.
Here鈥檚 one example of how the problems with affirmative consent manifest: An of the bill stated that 鈥渁ffirmative consent must be ongoing throughout a sexual activity and can be revoked at any time,鈥 thus requiring accused students to prove that they obtained consent for each and every sexual act separately. The final version attempted to resolve this problem by cutting that language, but it fell short of resolving the issue because it still states that 鈥淸c]onsent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.鈥 While that statement would be uncontroversial in a system where the accuser was required to prove the lack of consent, when the accused bears the responsibility of proving consent, as is the case under this law, that language in essence is a requirement that the accused be able to prove repeated agreements to engage in each separate act.
In addition to imposing a burden-shifting scheme, the bill also provides a so-called 鈥渟tudent bill of rights.鈥 But while it spans multiple pages, this 鈥渂ill of rights鈥 gives very few meaningful protections to the accused. In fact, the bill doesn鈥檛 provide accused students with any rights that aren鈥檛 already the norm across the country or already required under federal law. (For example, it provides both parties the right to appeal, where federal law requires only that if an appeal is provided to one party it must also be provided to the other. FIREis unaware of any institution that doesn鈥檛 provide any appeals whatsoever.)
The closest this legislation comes to providing substantive procedural protection to the accused is a provision granting the accused the right to 鈥渂e accompanied by an advisor of choice who may assist and advise a reporting individual, accused, or respondent throughout the judicial or conduct process including during all meetings and hearings related to such process.鈥 On July 1, federal regulations go into effect providing students with the right to have the advisor of their choice 鈥減resent鈥 during these proceedings. The language in this bill of rights is an improvement only if it is interpreted to provide the right to active assistance of counsel throughout the process, but it鈥檚 not clear at this point if that鈥檚 how it will be interpreted. Simply receiving advice and 鈥渁ssistance鈥 (whatever that means) is inadequate. I explained why the right to representation by counsel is so crucial in a column for . Recently, FIREco-founder and civil rights attorney Harvey Silverglate wrote for about why representation by counsel in campus hearings is a necessity. The right to counsel was also endorsed by the editorial boards of the and the .
Another disappointing aspect of the 鈥渂ill of rights鈥 is a provision that allows reporting students to have the right to 鈥渂e free from any suggestion that the reporting individual is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid the violations.鈥 This is certainly an appropriate instruction to provide to first responders, so as not to chill victims from bringing forward meritorious claims. But this bill doesn鈥檛 say who must avoid suggesting that a reporting individual is at fault. Does a student witness violate this rule if he or she tells an investigator that the reporting student initiated the sexual activity, or should have consumed less alcohol? If so, the provision seriously distorts the fact-finding process鈥攁nd arguably raises First Amendment concerns, to boot.
But perhaps the most counterproductive provision in the bill of rights is the one that leaves the decision as to whether to disclose a crime or violation in the hands of the reporting student. While complainants should always maintain agency over whether they want to cooperate with a law enforcement investigation, it is dangerous to leave law enforcement in the dark about serious accusations of violent behavior鈥攏ot least because, if the charge is true, the victim may be under pressure from the perpetrator to keep the police out of it. And let鈥檚 not forget that if most sexual assaults are committed by a handful of repeat offenders, , the failure to report meritorious claims of sexual assault to the police increases the risk of future assaults.
In sum, this legislation is an unwelcome development for people who believe in fundamental fairness鈥攐ne that doubles down on the of steering sexual assault complaints away from law enforcement and into amateur campus tribunals that are ill-equipped to handle such serious matters. New York鈥檚 approach will probably not reduce the prevalence of sexual assault on campus, but it will likely lead to more unjust punishments.
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