It’s been just three weeks since Gov. Jerry Brown, D-Calif., signed the nation's first “affirmative consent” — or “yes means yes" — law, yet already lawmakers across the country are copying it.
The ink was barely dry on the California law when Gov. Andrew Cuomo, D-N.Y., announced implementing it's spirit on the 64 campuses of the State University of New York. Cuomo indicated he wanted to expand the policy to all colleges in the state in the form of a law.
“[W]hile SUNY is implementing the policy, learn what is right, what is wrong with the policy, or should there be any tweaks to the policy, because my goal would be to make this a law eventually and to use this implementation at SUNY as a way to be testing the policy to see if there should be any refinements,” Cuomo said.
A week after Cuomo’s press conference announcing the new SUNY policy, a New Hampshire state representative introduced a bill nearly identical to the original California law.
N.H. State Rep. Renny Cushing, D-Rockingham, told the Washington Examiner last week that he introduced the bill because “We need to change the dialogue and we need to start talking about prevention rather than have a legal concern about whether or not someone was capable of giving their consent.”
Next came Chicago Mayor Rahm Emanuel, another Democrat, who introduced a “Bill of Rights” for accusers in the city, which is similar to California’s “yes means yes” bill.
"Consent is clear, knowing, and voluntary," the bill said. “Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent.”
Finally, there was New Jersey, where State Sen. Jim Beach, D-Camden, introduced a bill that would make affirmative consent the law of the land in the Garden State.
“This will begin to change the culture of acceptance of sexual activity under certain circumstances, such as when students are intoxicated, and create an environment in which clear affirmative consent is the standard,” Beach said of the bill.
The affirmative consent laws codify into law a practice of denying due process rights to students accused of sexual assaults. The laws have drawn the ire of defense attorneys across the country who are already suing universities on behalf of students who feel they were wrongly accused and railroaded into a conviction.
The law has even ran afoul of some feminist lawyers, including Robin Steinberg, who told the New Republic’s Judith Shulevitz that, with these laws in place, she would “never” send her boys to college.
Shulevitz also spoke with Harvard Law School professor Janet Halley, who teaches feminist legal theory. Halley said the notion that universities play investigator, prosecutor, judge, jury and executioner is “fundamentally not due process.”
These laws are spreading quickly across the country, based mostly off of the myth that one in five women will be sexually assaulted while in college. Not one law codifies due process rights for the accused, focusing instead on implementing a “preponderance of evidence” standard that means university panels just have to believe the accuser slightly more than the accused.
When the punishment for accused students could involve expulsion — a potentially detrimental hindrance to their futures — it’s time to stop, take a breath, and think.