By Blake Neff
A newly-released video shows that New York students remain confused about the implications of a new affirmative consent law that dramatically changes how they are expected to act in sexual situations.
Under a New York law enacted last summer at the urging of Gov. Andrew Cuomo, all colleges receiving state funds are required to handle sexual assault complaints using the standard of “affirmative consent.” This standard, also known as “yes means yes,” means that a student commits sexual assault if they do not receive explicit approval for every sexual act they engage in, from kissing to intercourse. This policy stands in contrast to current criminal law (sometimes called “no means no”), where sexual assault occurs when a person explicitly refuses to consent and is ignored or overpowered.
Confused yet? New York college students certainly are. A new video produced by the Foundation for Individual Rights in Education (FIRE), a campus civil liberties group, suggests that affirmative consent laws are hardly intuitive to students at New York University (NYU) in Manhattan:
In the video, students are unclear about what falls under the purview of affirmative consent. When asked whether kissing qualifies as a “sexual act” requiring affirmative consent under the new law, students are divided.
“Maybe not?” guesses one student.
“I think so,” says another.
“No, not really,” another says firmly.
One girl in the video admits that after a date she has kissed a boy without first asking if she had his consent. Under New York’s new law, this would be sexual assault and her college would have to punish her accordingly.
Students also showed confusion over the intersection between alcohol and sex, admitting they weren’t sure about the difference between simply being drunk and being incapacitated (and therefore unable to consent).
“It’s a gray area,” a student said. “It’s hard to tell whether you’re too drunk, or whether they’re too drunk.”
“There’s a little ambiguity, that ‘I’m a little drunk,’” another said.
The students also admitted they’d have no idea how to prove they obtained consent if they were accused of sexual assault.
“It ends up being your word against the other person,” one girl said.
“I’m not gonna have everyone I sleep with sign a document saying, ‘Yes, I consent to having sex with you,’” said another student. Ironically, even that dramatic step might not be enough under New York’s law, since a document showing consent for sex wouldn’t necessarily prove consent to being kissed, or touched on the arm, or anything else.
One male student admitted he was particularly frightened by the implications of affirmative consent.
“That’s what scares the shit out of me,” he says near the end of the video. “If anything happens, if someone says that I did everything, or something was misconstrued, I’m automatically the villain, automatically the bad guy, and it’s up to me to prove that I’m not, which is interesting because in America it’s supposed to be innocent until proven guilty.”
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