In October 2014, Governor Andrew Cuomo announced a resolution passed by the State University of New York (SUNY) Board of Trustees establishing a comprehensive uniform sexual assault policy for the SUNY system, to be adopted by SUNY-operated schools by December 2014. (1) Less than a year after instituting the SUNY policy, the Governor signed the "Enough is Enough" legislation (2) into law, amending the Education Law to expand the policy and require that all public and private colleges and universities in New York "adopt a set of comprehensive procedures and guidelines" (3) aimed at combatting campus sexual assault. (4) Governor Cuomo's actions came about in the midst of what he described as "an epidemic of sexual violence in this country that is truly disturbing and ... plaguing our college campuses." (5) Epidemic is certainly an appropriate characterization of the current situation these colleges are facing. It is estimated that nearly (20) percent of college women have experienced some form of sexual assault. (6) The issue has garnered a great deal of media and political attention as it has become apparent that many schools are failing to appropriately and meaningfully address the problem of sexual assault. (7)
These problems have been as prevalent in New York's public and private institutions as they have across the country. In 2014, the United States Department of Education's Office of Civil Rights ("OCR") released a list of fifty-five schools that were under investigation for violations under Title IX of the Education Amendments of 1972 over their handling of sexual assault allegations made by students. (8) The OCR identified four New York institutions that were under investigation: City University of New York Hunter College, SUNY at Binghamton, which are state-funded institutions, and Hobart and William Smith Colleges, as well as Sarah Lawrence College, which are privately funded. (9)
New York's "Enough is Enough" Law was enacted to address the serious institutional difficulties that schools face in handling sexual assault complaints. (10) Beginning on October 5, 2015, all schools in New York are required to amend sexual assault policies by adopting a "Sexual Assault Victims' Bill of Rights," (11) a drug and alcohol amnesty policy, (12) protocols to ensure confidentiality and emphasize a victim's right to make both criminal and disciplinary complaints (13) and annual campus climate assessments. (14) Also included among the reforms are significant training and public awareness requirements. (15) The law substantially followed the policy adopted by the SUNY system nearly a year before. (16) One of the most significant and controversial changes required under the law and the SUNY policy is the requirement that New York schools adopt an "affirmative consent" definition. All New York schools must now define "consent" as follows:
"Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression." (17)
New York schools are also required to include several guiding principles in codes of conduct:
Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
Consent may be initially given but withdrawn at any time.
Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
When consent is withdrawn or can no longer be given, sexual activity must stop. (18)
This Comment focuses on New York's state-wide adoption of an affirmative consent standard in its colleges, and its potential effectiveness for combating the epidemic of sexual violence against women. (19) Its focus is to examine the usefulness of such a standard in the college disciplinary context. Part 1 explains the context and seriousness of sexual assault on college campuses. Part II discusses Title IX, the Clery Act, and the Campus SaVE Act, the federal laws governing the way colleges handle sexual assault. Part III details the evolution of rape laws over time, and explains the way that consent has traditionally been viewed by the law. Part IV describes the academic and legal theories behind affirmative consent, considering the arguments of both its proponents and its critics. Part V argues that an affirmative consent standard is an appropriate and effective reform within the college disciplinary system, that, when implemented correctly, has the potential to protect students from both sexual assault and its potential ramifications.
CURRENT SEXUAL ASSAULT ISSUE WITHIN COLLEGES
With nearly one in five women experiencing some form of sexual assault while in college, (20) there is no doubt that campus sexual assault is among the most pressing concerns facing academic institutions. Sexual assault is grossly under-reported, with less than 5 percent actually reported to law enforcement officials. (21) The vast majority of sexual assaults are committed by an acquaintance of the victim, giving rise to new concerns about standards of consent. (22) With many sexual assault complaints, the case hinges on whether the sex was consensual, not whether it occurred, leaving the parties locked in a he-said-she-said battle. In such cases, the outcome of the case often turns on the question of "consent," the answer to which may vary radically depending on how that term is defined.
This was true in what was probably the most widely publicized rape controversy in recent memory: the case of Florida State quarterback, Jameis Winston. (23) Winston was accused of sexually assaulting a college-aged woman that he had met at a bar late in 2012. (24) Winston, a red-shirt freshman at the time, was the presumptive starting quarterback for the following season. It was not until nearly one year later that the accusations became public. (25) University and athletic association officials knew that Winston had been accused of rape in early 2013, approximately eight months before Winston would start in his first college game. (26) Despite the knowledge of the accusation, neither the university nor the Tallahassee Police Department initiated investigations into the complaint until the accusation became public during the 2013 football season. (27) Winston would go on to win a Heisman Trophy and lead his team to a national championship for the 2013 season. (28)
Like in the majority of campus sexual assault cases, Winston did not deny having sex with his accuser. (29) Rather, throughout the case, he maintained that the sex was consensual and no crime or conduct code violation occurred. (30) Winston was never criminally charged with rape. (31) The Heisman Trophy winner was ultimately the subject of disciplinary hearing at Florida State approximately two years after the accusation was made. (32) He was cleared of any violations of the school's code of conduct after former Florida Supreme Court Chief Justice Major B. Harding, who presided over the hearing, found that the evidence presented during the hearing did not establish by a preponderance of the evidence that any violations took place. (33) The hearing officer did "not find the credibility of one story substantially stronger than that of the other," leading him to find in favor of Winston. (34)
The Jameis Winston case, in terms of the alleged misconduct and the university's handling of that allegation is not one that is unique to Winston, or to college athletes. Colleges, in an effort to protect the reputation of the institution and its high-profile students, such as athletes, often attempt to keep complaints from coming to light. (35) Most students who are sexually assaulted do not report the assault to the school or the police, and those who do often "face a depressing litany of barriers that often assure their silence and leave their alleged assailants largely unpunished." (36) The challenges facing those students who seek to file a complaint with a school often make pursuing disciplinary sanctions seem pointless or difficult, (37) and many choose to leave their school rather than try to seek justice. (38)
This move by Governor Cuomo comes during a widespread push for colleges to reform the handling of sexual assault complaints on their campuses. In 2013, Congress passed the Campus SaVE Act, an amendment to the Clery Act, which was enacted to reduce the prevalence of sexual assault on college campuses. (39) President Obama also announced a White House Task Force to Protect Students from Sexual Assault in early 2014, in hopes of "ensuring] safe, secure environments for students of higher education." (40) Further, New York is not the only state to address the issue with a statewide reform to university sexual assault policies. In September 2014, California enacted legislation requiring that colleges and universities adopt certain reforms to their policies for sexual assault, including an affirmative consent standard. (41) Since Governor Cuomo announced SUNY's uniform...