The XX Factor

Andrew Cuomo Proposes Affirmative Consent for New York Universities

New York Gov. Andrew Cuomo  

Photo by Richard Drew-Pool/Getty Images

In a speech at NYU on Saturday, Gov. Andrew Cuomo announced plans to push for legislation that would codify how all universities and colleges in the state of New York defined “consent” in their school policies regarding sexual assault. His proposal, modeled on the law that passed in California last year, would require schools to use an “affirmative consent” standard. The law in California, signed by Gov. Jerry Brown, was passed in the state senate with a unanimous vote.

Under the governor’s direction, the board of SUNY schools has already adopted such a standard, which they define as “clear, knowing and voluntary” and “active, not passive.” But for those who invariably worry that the standard is too strict, rest assured: “Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity.” In other words, only have sex with people who want to have sex with you and are communicating that fact. If you are unsure, ask. 

“There are a lot of situation where, if a person feels threatened or overpowered, they may freeze up and not protest, even though they don’t want anything to happen to them, or that they might be incapacitated from drugs or alcohol and can’t protest,” Jaclyn Friedman, the editor of the book Yes Means Yes, explained on PBS back in November. “And, oftentimes, these are used as defenses by rapists, and they get away with it, and are left free to re-offend.” 

Affirmative consent standards make it harder for accused rapists to round up a woman’s soft refusals to implied consent, but Cuomo also hopes that a statewide standard will make it easier for victims to come forward. “When you leave alone a crime, you allow the criminal to do it again,” he said. “And that’s what we’re doing now.” Beyond just the affirmative consent standards, Reuters reports that Cuomo proposes “immunity from drug or alcohol violations for students reporting an assault, a bill of rights for the victim, and policy training for all school officials.” 

The proposed bill would affect both private and public universities, which means that it would include Columbia University, where student Emma Sulkowicz has been drawing attention to the problem of campus rape with an art project where she carries her mattress across campus every day to shame the school for allowing the man she says raped her to continue attending school with her. Sulkowicz will be attending the State of the Union address Tuesday night, as a guest of Sen. Kirsten Gillibrand. These proposed standards might help prevent future situations like the one Sulkowicz alleges by helping to clarify exactly what constitutes sexual assault and how to proceed when you have a student claiming she’s a victim of it.