March 2, 2015
As we noted in our last post, we will be taking a closer look at the specific provisions of New York’s proposed sexual violence legislation over the next week or so. With the Governor’s Office urging New York colleges and universities to endorse this legislation, it is particularly important that institutions understand its provisions. Before turning to the first provision we will examine – “affirmative consent” – a few general comments. The first is whether this legislation is really needed. While everyone can agree on the importance of dealing with sexual assaults on college campuses, the federal government has done so, and continues to do so, in a comprehensive way. As the law and guidance have evolved, few could argue that Title IX does not comprehensively address sexual assault on campus. Another layer of government regulation in this area is not necessarily helpful. This seems particularly so here, where much of the legislation mirrors already existing federal requirements. And, in those circumstances where it does not directly track the corresponding federal statutes, regulations and guidance, it creates the potential for confusion and ambiguity. In some instances, the legislation may even be subject to arguments, by students and other concerned parties, that it conflicts with federal law, including specifically the federal government’s announced requirements under Title IX (although it is assumed that this is not its intent). While the legislation may provide political mileage and reinforce the attention that needs to be devoted to this important issue, it remains to be seen how substantively helpful it will be. Today, we want to focus on the legislation’s “definition of affirmative consent to sexual activity,” found in Section 6440. (The very fact that legislation is proposed requiring all institutions to adopt uniform definitions for campus misconduct policies is itself seemingly unprecedented.) While the publicity surrounding the legislation suggests that it requires institutions to adopt a definition of consent that is “novel,” that is simply not the case. The legislation’s basic definition of consent is:
Affirmative consent is a clear, unambiguous, knowing, informed and voluntary agreement between all participants to engage in sexual activity. Consent is active, not passive. Silence of lack of resistance cannot be interpreted as consent. Seeking and having consent accepted is the responsibility of the person(s) initiating each specific sexual act regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. Consent to any sexual act or prior consensual sexual activity between or with any party does not constitute consent to any other sexual act. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identify or gender expression. Consent may be initially given but withdrawn at any time. When consent is withdrawn or cannot be given, sexual activity must stop. Consent cannot be given when a person is incapacitated.
This requirement of an “affirmative” expression of consent is already typical in most college and university policies. Not explicit in the legislation’s language is that affirmative consent can be evidenced by conduct, i.e., active participation in the sexual activity, which is typically addressed expressly in existing institutional policies. While the legislation requires institutions to adopt this specific language, hopefully institutions may supplement this language by continuing to recognize that the required “agreement” can be evidenced by active (and voluntary) participation in the conduct in issue, thus providing more clarity to this standard. Where the definition raises some potentially significant questions is in its subsequent explanation of incapacitation. The definition of consent in the legislation continues by providing:
Incapacitation occurs when an individual lacks the ability to fully and knowingly choose to participate in sexual activity. Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm. (Emphasis added.)
If there is one area where colleges and universities would welcome additional guidance, it is in the often vexing task of distinguishing between “intoxicated sex” and sex that occurs while a participant is incapacitated, and therefore cannot provide consent. In a number of contexts, including in the criminal justice context as well as in sexual assaults on campus, incapacitation and intoxication have been understood to reference two very different concepts, although distinguishing between the two is often not easy at all. To help students understand the difference, many college and university policies in defining incapacitation expressly talk about it in terms of the ability to understand the “who, what, when, where” of the sexual contact. Rather than provide much needed clarification and guidance, the definition in the legislation as currently written may create more confusion. If the legislation actually mandates use of the above language (and, only the exact above language) to define consent and incapacitation, that language contains no practical measuring stick by which incapacitation is to be determined. This is a missed opportunity to assist both administrators who grapple with this already difficult issue, as well as the rest of the campus community seeking to understand the institution’s (or, here, the Legislature’s) expectations. Further, the language raises potential questions as to whether a different -- lower -- standard is to apply. Under the proposed legislation, the definition of incapacitation is tied to an individual’s lack of ability to “fully” choose to participate. That reference may be subject to an interpretation that mere intoxication (or even something less) might be enough to render someone incapacitated, but if the definition ended there that might not necessarily be the case. But the definition continues by providing: “Incapacitation includes impairment due to drugs or alcohol,” with no further definition of “impairment.” This begs the question whether anyone who is “impaired” is incapable of giving consent. To put this issue in some context, driving while ability is “impaired by alcohol” (which is very similar language) in New York is the lowest level offense and occurs when someone has a blood alcohol content of more than .05 but less than .07. Under BAC estimators, a level in excess of .05 could be triggered by a 120 pound female drinking as little as two glasses of red wine over a 90 minute period. If that is the intended standard, incapacitation will exist (and nonconsensual sexual contact will occur) in far more circumstances than anyone now considers to be the case and would make almost any alcohol consumption enough to legally prevent what is otherwise consensual sexual activity. We do not believe that the intent of this legislation is to reduce incapacitation to this level of mere “impairment”; presumably, the intent is to provide that an individual is unable to consent to sexual activity if the individual is impaired to the point of being incapacitated. However, without further clarification or guidance, it leaves the issue subject to debate. If the Legislature really wants to provide meaningful assistance to students and institutions, it will look at providing more clarity about the issue of “incapacitation.” In coming posts, we will explore additional aspects of the proposed legislation in relation to the current standards in this area.