Joining a growing trend, New York enacted a law in 2015 to combat sexual violence on college campuses. While that purpose is laudable, the “Enough is Enough” law strikes an unwise balance between the desire to protect students from criminal acts and the need to protect innocent students from false accusations.
Governor Andrew Cuomo touted the law as “the nation’s most aggressive policy” to end sexual assaults on campus. Unfortunately, laws like New York’s often encourage schools to accept every sexual misconduct accusation at face value while depriving accused students of the opportunity for a fair hearing before they face expulsion or suspension.
A sexual assault consists of sexual contact or intercourse without consent. While criminal laws generally define consent as a voluntary agreement, student disciplinary codes in New York must now define consent more narrowly.
The law requires universities to add specific language to its code of conduct about consent to engage in sexual behavior. Most of that language is uncontroversial and tracks existing law. Consent cannot be coerced by force, intimidation, or threats. Consent can be withdrawn at any time and sexual activity must stop at that point. Consenting to sex in the past does not automatically constitute consent for all future sex acts.
The code must also provide that consent may only be given by someone who is capable of consenting. A frequent issue in sexual assault accusations on campus is whether the accuser was too intoxicated to give consent. The code must state that a person who is incapacitated and unable to make a voluntary choice to have sex is incapable of consenting.
More troubling is the new law’s requirement that a university’s code of conduct must include this definition of “affirmative consent”: “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.”
Consent is often conveyed by participation in a sex act. Active participation is an “action” that signals “clear permission” and “willingness” to have sex. The line between active and passive participation, however, is difficult to draw. It is true that using force to resist a sexual assault is not required to convey lack of consent. At the same time, the failure to resist at all, including verbal resistance by saying “no” or “stop” or “I’m not ready for to have sex with you,” may well signal consent.
Some people are quiet and passive by nature. Consensual sex is no less consensual simply because a participant is silent. In a criminal prosecution, a jury may view passive participation and silence as strong evidence of consent. The required code of conduct places students accused of a code of conduct violation in a difficult situation by depriving them of opportunity to demonstrate that passive consent was given for a willing sexual encounter.
Public colleges and universities are required to respect the constitutional guarantee of due process before they deprive an individual of liberty or property. Courts have consistently found that students have a property interest in their educations and may have a liberty interest in avoiding reputational injury that results from discipline.
The New York law pays too little attention to the due process rights of accused students. In particular, the law not only allows but requires colleges to suspend accused students immediately, with no hearing or other procedural safeguards, when the students are “determined to present a continuing threat to the health and safety of the community.” The law does not explain how that determination is to be made in the absence of a hearing.
No determination that a student is a “threat” can be made fairly in the absence of a hearing at which the accused student has the right to contest the evidence, to present his own evidence, and to require wrongdoing to be proved. While the law allows a student to request a “prompt review, reasonable under the circumstances” of the interim suspension, it is not clear that schools will deem a full hearing that adequately safeguards the rights of the accused to be “reasonable under the circumstances.”
In any event, due process usually demands that a hearing be held before a deprivation occurs. A “review” of a suspension that has already been imposed is no substitute for basing a suspension on proof at a fair hearing that is sufficient to overcome the presumption of innocence. The time in school that a student loses during an interim suspension cannot be returned if an eventual hearing determines that the student did nothing wrong and poses no threat at all.
Due Process Safeguards
The due process safeguards that must be provided for accused students at a final disciplinary hearing are inadequate. The law gives accused students the right to testify and present evidence, but it makes no mention of the right to confront and cross-examine the accuser. In fact, the accuser is even required to attend the disciplinary hearing. Cross-examination of accusers exposes false accusations and has long been recognized as the most powerful assurance that accusations are tested fairly.
While the law requires schools to have a student’s responsibility determined by impartial decisionmakers, the law does not require schools to base findings of responsibility on “clear and convincing” evidence. Many schools have used a less demanding “more likely than not” standard that gives students too little protection against false accusations.
Governor Cuomo believes the New York law is a model for the nation. In fact, the law makes it much too easy for schools to expel innocent students who are falsely accused of sexual misconduct. The law needs serious revisions before it can be regarded as a model to be followed by other states.