October 29, 2014

University Policies In Line With Cuomo’s Sexual Consent Policies

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Correction appended

Cornell officials say the University is already aligned with Governor Andrew Cuomo’s (D-N.Y.) recent affirmative consent policy — in contrast to a “no means no” definition of consent for sexual activity.

On Oct. 2, Cuomo declared that New York State would require all 64 State University of New York schools to ensure their policies on sexual assault included a provision for affirmative consent, following the passing of a California bill requiring students to obtain consent that is “affirmative, conscious and voluntary” before engaging in sexual activity.

The California bill — SB-967 — mandates that in order for any college in California to receive state funding, the college must adopt a policy concerning sexual assault that requires affirmative and ongoing consent that “can be revoked at any time” from all parties involved in a sexual encounter.

“It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity,” states the bill, which was signed into law on Sept. 28. “Lack of protest or resistance does not mean consent, nor does silence mean consent.”

Cuomo will also work to adopt affirmative consent legislation for New York’s private colleges. However, Judicial Administrator Mary Beth Grant J.D. ’88 says she believes Cornell already observes such a policy.

“If we think about it as a continuum with ‘no means no’ versus a ‘yes means yes’ type of consent, I would say we are much closer on the continuum to ‘yes means yes,’ even though we’ve never articulated it in exactly that way,” Grant said.

According to Cornell’s current sexual assault policy, Policy 6.4, consent is defined as “words or actions that show a voluntary agreement to engage in mutually agreed-upon sexual activity.” According to Grant, this aligns with the idea that silence cannot be accepted as “yes.”

“One of the things that I think is important to know is that when somebody is experiencing trauma, it can impact the language part of the brain,” Grant said. “While the stereotype might be that somebody who’s being assaulted will fight back and scream no, it’s actually not the most common response.”

“I think students feel like having an affirmative consent is somehow going to be awkward. It doesn’t have to be.” — Mary Beth Grant

Grant added that silence is particularly common in campus sexual assaults because of the relative frequency of “acquaintance rapes” in comparison to “stranger rapes.”

“There are a lot of other reasons, but that is one of the things that we see frequently, where there is a freezing rather than a fighting back,” Grant said. “I think that it’s one of the philosophical reasons why this makes sense.”

Cornell’s official definition of consent also includes a note that says a person may not “presume consent” because of situational context. Grant emphasized the importance of ensuring continuing consent in all cases.

“We’ve had many situations where somebody might be naked in bed with someone, willing to do something, but not willing to do something different,” Grant said. “We get many, many cases where there is consent for one act and not for another act. You really have to make sure that there’s communication.”

Speaking on communication throughout sex, Grant expressed sentiments similar to those outlined in SB-967. As the bill says that consent must be ongoing throughout a sexual encounter, Grant pointed out that “consent can be withdrawn at any time.”

“Someone can initially be fine with it and for whatever reason change his or her mind,” Grant said. “The other person has to listen to that.”

Grant addressed the pervasive fear that obtaining a “yes” may make a sexual situation unnecessarily uncomfortable, saying she thinks affirmative consent “just makes sense.”

“It just makes sense to make sure that everybody is clear and good with what’s going on,” she said. “I think students feel like having an affirmative consent is somehow going to be awkward. It doesn’t have to be.”

Laura Weiss, director of the Women’s Resource Center, said she thinks affirmative consent is not anything new, and should be viewed as the normal definition of consent.

“If it’s not affirmative and enthusiastic, then what is it — reluctant and coerced?” Weiss said. “I think affirmative consent is consent. I feel like it’s parsing things out really closely to think that there’s some kind of difference between those things. We don’t have retroactive consent.”

Grant also said it is “hugely important” to acknowledge that consent is not something only to be obtained by men from women,  but a mutual agreement from all parties involved. She said the earlier assumption feeds into stereotypes about gender roles.

“It’s the stereotype that men always want sex and they are indiscriminate about who the partner is,” Grant said. “[In reality], of course they care about the partner. Of course they want to be able to choose.”

Both Grant and Weiss said they were inspired by the recent increase in national attention to issues of sexual violence.

“Institutional policy and social momentum, those two things are sometimes out of whack with one another,” Weiss said. “But I think that as a nation, the conversation is really moving on sexual violence and around consent.”

Weiss said she thinks Cornell will continue to address issues of sexual assault.

“I think that universities as a whole need to keep up,” she said. “I would think that as the conversation evolves, policies will need to evolve to keep up with that too, and my hope would be that there will be a process for that at Cornell.”

Grant agreed, saying she thinks there will be more consent-related discussion on campus, both among students and faculty.

“I think it’s really good that there is heightened scrutiny because it gives the institution the ability to really look carefully at practices and policies,” Grant said. “As the whole nation goes through and examines what are the best practices, I think we will continue to keep up with the best practices and trends and try to figure out what makes sense for our campus.”

Correction: A previous headline for this story said that the University backs Governor Andrew Cuomo’s affirmative sexual consent policies, when in fact, Cornell officials stressed that the University’s current policies already reflect what Cuomo has proposed.