By Siobhan Becker
On Oct. 2, Gov. Andrew Cuomo ordered the State University of New York system to reconfigure their sexual assault policies. The definition of consent will be remodeled to avoid confusion caused by varying definitions of sexual consent.
In a memorandum to the Board of Trustees at SUNY, Cuomo broadened the definition of consent with five main points:
- “Consent is clear, knowing and voluntary.”
In other words, consent means “yes,” the other person is aware of your intentions and verbally or physically expresses that they, too, want to be sexually intimate.
- “Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity.”
The word “active” here implies deliberate speech or action. A vocal “yes” or “no” indicate consent or lack of consent. “Maybe” is not a firm answer and should not be mistaken for a”yes.” If a child under the age of 10 asks his mother or father for a pet and the answer is “maybe,” that child is not likely to stop asking until he or she gets a “yes.”
This definition also addresses body language. Physical actions that say “yes” or “no” like nodding or shaking one’s head also suggest deliberate action.
Under this standard, playing hard-to-get will not be interpreted as consent. No one can argue that turning away or pushing someone off is a sign of mutual consent. Someone may be too nervous or afraid to speak up. Anxiety and fear are not feelings associated with consent.
The absence of action cannot be considered consent. That’s passive. A shrug of the shoulder also indicates a lack of consent.
- “Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity,” the rules will say.
One “yes” does not encompass all varying future requests for sexual activity. For instance, someone who has agreed to engage in oral sex does not automatically agree to engage in anal or vaginal sex.
- Previous relationships or prior consent cannot imply consent to future sexual acts.
This provision keeps people from using relationships or previous sexual activity as a form of power over another person. Consent granted last week or even yesterday does not constitute present consent. Consensual sex gives both partners equal control.
- A person is deemed incapable of consenting when that person is mentally defective, mentally incapacitated, physically helpless (whether induced by drugs, alcohol or otherwise), or asleep; and, be it further.
Although this last point would seem like common sense to a reasonable person, it prevents an unreasonable person from making the case that he or she did not know that the person they had non-consensual sex with was unable to give consent.
The SUNY system’s new definition of consent protects a wider range of students from various forms of sexual assault, narrowing the definition of sexual assault down to sexual activity performed without consent.
However, SUNY fails to define sexual activity. “Any one form of sexual activity” may be interpreted 500 different ways by 500 individual students in the SUNY system. Also missing is a provision requiring an individual to ask for consent form his or her partner. While the definition certainly states that consent is essential to any sexual activity, there is a lack of emphasis on the individual’s responsibility for his or her actions.
If one incidence of sexual assault is unacceptable, then holding students accountable for their actions in the bedroom should be part of SUNY’s response.