"'Can I put my hand there?': New York law changes the rules of the college hook-up"
By Marnie Eisenstadt
What if you had to ask if it was okay
to put your hand on the other person's butt during foreplay? What if you had to
ask again before touching her breast? What if there was a law that said you had
to do this?
In New York, there is now on all college campuses. A bill signed into law July 7 requires both parties to obtain consent for sex and each nibble and caress that sometimes paves the way. The law applies only on college campuses. At its heart is a simple concept: instead of "No Means No," it's "Yes Means Yes."
It switches the dynamic of consent in what could be an empowering way. The hope is that by changing the power structure of the hook-up and making it law, college sexual assaults will decrease. The legislation, proposed by Gov. Andrew Cuomo and called "Enough is Enough," was passed unanimously by the state Legislature.
It's difficult to find fault with the law's goal of reducing sexual assault. But some, including feminists and legal scholars, say laws like New York's overstep, and risk turning into a criminal someone who honestly misread a sexual cue. And the laws ask college students to turn into a contract what is often a fumbling dance for otherwise sophisticated adults.
The law is not a criminal one, but violating it could result in criminal charges, as well as disciplinary action by the school. Colleges in New York have until September of 2016 to comply by re-rewriting their conduct codes and policies.
New York and California are the only states with affirmative consent laws, and they only apply to college campuses. But there is a movement to make the same laws apply for everyone. The American Law Institute, which helps write the nation's criminal codes, is in the process of re-writing the sexual assault penal code to incorporate "Yes Means Yes."
As Lady Gaga penned an essay with Cuomo in Rolling Stone to gain support for New York's college law, two dozen legal scholars, including retired federal Judge Nancy Gertner, wrote a memo warning against the dangers of such laws.
In Syracuse, Mayor Stephanie Miner, a lawyer, refused to sign on as a supporter while Syracuse University Chancellor Kent Syverud penned an op-ed in support of it.
A hook-up contract?
No matter what precautions you take, the hook-up now poses serious legal risks: "You look at the legal system we're building and it's incredible risky to hook up with someone you're not married to," said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida.
"It changes the rules of the game. It gives the game rules," Lake said.
The national push for restrictive rules and laws comes at a time when attitudes and practices around sex are becoming riskier, Lake said.
And the New York and California laws don't address binge drinking on college campuses, except to say that a person cannot give consent if they are under the influence.
Lake and some other legal scholars have said the laws threaten to make it much easier to falsely accuse someone of rape and sexual assault.
Lake said college students are already figuring out the work-around to the rules to avoid being caught up in sexual assault allegations. They've realized that it's much less risky to hook up with someone who doesn't go to your school. "It's hard to investigate on another campus," Lake said.
There is a movement to extend the same consent rules to everyone. The draft sexual assault law being written by the American Law Institute would make sex without express consent a misdemeanor anywhere. The institute, made up of legal scholars and judges, writes draft penal codes that are often adopted by states and the federal government. ...