Civil Liberties

Law Professor Will Sue SUNY Over 'Affirmative Consent' Because It Doesn't Require Believing All Rape Victims

"Yes means yes" policies grant too much due process to the accused, says Wendy Murphy.


Law professor and victims-rights advocate Wendy Murphy says she'll sue the State University of New York (SUNY) if it uses the "affirmative consent" standard to adjudicate campus sexual-assault cases. Affirmative consent—the principle that absence of a "no" is not enough to suffice as sexual consent, which must rather be explicit and ongoing—was first foisted upon California colleges in September 2014 and has since spread to school systems across the country, including SUNY. New York Gov. Andrew Cuomo announced in December that the statewide SUNY system was adopting an affirmative consent policy. 

Pursuant to the new policy, SUNY students wishing to avoid sexual assault charges must make sure to obtain "clear, unambiguous, knowing, informed, and voluntary agreement" prior to any sexual act. "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," the SUNY policy states. "Consent to any sexual act or prior consensual sexual activity between or with any party does not constitute consent to any other sexual act….Consent may be initially given but withdrawn at any time….Consent cannot be given when a person is incapacitated (which) includes impairment due to drugs or alcohol (whether such use is voluntary or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 cannot otherwise consent." 

Hardly a lax sexual standard, no? In fact, many think policies like these go too far—porn star James Deen called California's affirmative consent policy "the dumbest fucking law I've ever heard of," which is only a tad more emphatic than many legal experts have been about their opposition. [Reason writers including myself have detailed our disapproval copiously.] But that's not Murhpy's beef with the policy. No, the ex-prosecutor thinks SUNY's affirmative consent standard is not tough enough.

Murphy told New York policy rag Capitol that the affirmative consent standard offers a lower level of victim protection than is required under Title IX, the federal law aimed at preventing sex-based discrimination in education (and the somewhat dubious rationale for the Department of Education's foray into campus-rape policies). Under Title IX, universities investigating sexual harassment or assault charges must consider whether the accused's actions were "unwelcome" and "offensive." From Capitol:

When college administrators evaluate an incident using affirmative consent, accused perpetrators are able to argue that they mistakenly believed they had obtained consent. Any weight given to the accused's "mistake" deflates the victim's right to determine that the activity was unwelcome, Murphy said.

"It's really this basic: Affirmative consent allows schools to rule against a victim, even in a clear case of misconduct, on the grounds that the offender made a mistake about the victim's consent," she said.

Apparently, under Murphy's formulation, the subjective impressions of those making assault claims are sacrosanct—if alleged victims say they saw an encounter as unwelcome, it was assault. But the subjective impressions of the accused (i.e., the perception that consent had been obtained and sexual activity was welcome) are so insignificant that they shouldn't even be considered. Murphy seems to literally be arguing that the accused should get no right to a defend themselves because doing so might actually work. Best just to kick out anyone accused of assault, lest we upset the delicate ecology of anyone's delusions! 

Murphy told Capitol she has "insider" contacts at SUNY who will alert her to any assault allegations adjudicated using the affirmative consent standard, and she already has a standard lawsuit at the ready when that happens. 

"Any school that determined whether an incident occurred by applying the affirmative consent standard is asking for trouble, because, number one, it's inconsistent with Title IX, and two, because it's a worse standard. It's an unconstitutional standard," she said. "My feeling is that it's a lawsuit that is going to be easy to win."

Is she right? Cuomo's office and SUNY say no way, and a federal education official told Capitol that the Department of Education does not require schools to use any particular definition of sexual consent. Yet Murphy has a history of winning cases against colleges. Complaints she brought against Princeton University and Harvard Law School over their handling of sexual assault cases resulted in the Office of Civil Rights finding these schools guilty of Title IX violations.