New York state’s new affirmative consent law, also known as Yes Means Yes, defines legal parameters that college students must meet before engaging in sexual activities.
However, Joe Cohn, the legislative and policy director of Foundation for Individual Rights in Education, explained how the ambiguous wording not only makes it more difficult for those accused of sexual assault to defend themselves, but also makes it easier for people to accuse others of sexual assault. He does not believe this is beneficial for either party.
“It is a well-intentioned piece of legislation but sadly missed the mark of actually addressing the issue of campus sexual assault,” Cohn said. “It converts a lot of the consensual and lawful sex into unlawful sex.”
Cohn said the law is a well-intentioned piece of legislation that falls short of addressing sexual assault at universities, turning a lot of consensual sex into unlawful sex. He brought up an example of two people who had been in a relationship as a reason for the law’s shortcomings.
“Imagine two people in a relationship for a long time, and they have had sex many times before,” Cohn said. “If one of the people touches the other one the way the two have touched a thousand times before and is told on that occasion the partner is uninterested, if the first person stops immediately, they already committed sexual assault, because they didn’t get permission upfront, which is just not how most people engage in a relationship and sexual activity.”
FIRE realized how vague the wording was, so after the legislature passed, the company released a video interviewing NYU students about their understanding of it.
“We wanted to go to NYU because we wanted to see if students were on the same page about what would be acceptable under the law and what isn’t acceptable under the law,” Cohn said. “From a lawyer’s perspective, when you’re sitting at a desk, you can see how that the question of sexual activity between students could be disputed.”
On camera, students discussed college relationships and attempted to define the vague language in the legislation, such as sexual activity and consent.
GSAS student Peter Digennaro said he believes that relationships are conscious decisions, and this statute lacks consideration of those factors.
“In the legislation, there is nonverbal and verbal consent,” Digennaro said. “This is where I think, does that mean the absence of non-consent or does it mean in active consent?”
New York already had specific legislation detailing how those who are unconscious or inebriated express consent. Some are worried that this policy blurs blurs the definition of consent. Amanda Matthews, a graduate student in the Wagner School of Public Service, said each sexual encounter should be evaluated on a case-by-case basis.
“If I am already in a situation with a partner or someone that I’m seeing and I’m alluding to being OK with the progression of physical contact, I take it as consent,” Matthews said. “But the second I say no and you continue, I consider that sexual assault.”
What’s causing even more of a disconnect is that this legislation only applies to students attending college. So a 22-year-old college student and a 22-year-old professional must adhere to different rules governing their sexual activity. Cohn said sexual behavior should not be a robotic asking of permission between each individual touch anyways.
“The new rules can be interpreted in multiple ways, and now, not everyone can know what’s allowed and what’s not allowed,” Cohn said. “That’s the exact, legal definition of vague especially when we deal with the issue of campus sex assault and even process sexual assault and all of its contacts as one of the cornerstone pieces of our mission.”
A version of this article appeared in the Nov. 9 print edition. Email Diamond Naga Siu at [email protected]