The New Prophylactic: Yes Means Yes

Recently, the State University of New York (SUNY) system joined California colleges and universities in adopting "Yes Means Yes" policies. These polices are akin to an affirmative consent law, which aims to fundamentally change the way sexual assaults are dealt with across campuses. For SUNY, like California, this will be a wide-reaching change. The SUNY system encompasses 64 campuses and has nearly 460,000 enrolled students. The initiative is a departure from the previous "no means no" policies in that it requires affirmative, voluntary, and conscious consent to engage in sexual activity. Under the old policy, an agreement to engage in sexual activity could safely been inferred from words or conduct, both assertive and passive, clearly indicating assent; and a simple "no" (or lack of any response at all) was supposedly all it took to make any such activity impermissible. Now, both parties must inquire and affirmatively reply, yes, they agree to engage in sexual activity.

Adoption of "Yes Means Yes" affirms that when investigating reports of sexual assault, the only consent that is accepted under law is that of a conscious and sober person who is completely agreeing to sexual activities, and not agreeing under threat or the influence of drugs, alcohol, or medication. Silence, or lack of resistance does not mean consent, and someone who is under the influence of drugs, alcohol, medication, unconscious, or asleep cannot affirmatively consent to sexual activity.

While I applaud the effort to make college and university campuses safer, I don't believe adopting these policies, at least in their current form, are the best way to do so, and enforcement will ultimately come at the expense of an accused's rights. Campus sexual assault cases are often referred out for prosecution and prosecuted in state court. The major problem of "Yes Means Yes" is that such a prosecution under these laws/policies would likely, and impermissibly, assume the guilt of the accused, running afoul of fundamental fairness and due process. Moreover, the cases will tread in murky waters when it comes to investigating cases of two people in established relationships; sexual activity where alcohol is involved (which frequently occurs on college campuses); and standard he said/she said situations, and/or "morning after regrets."

Affirmative consent is aimed at protecting victims and those who are reporting assaults, but I fear it may encourage false accusations and impermissibly and unconstitutionally shift the burden of proof onto defendants. Accusers may not only be empowered to stand up for themselves (a good thing), but may also be emboldened to make false claims in order to avoid embarrassment, conceal regrets, leverage position in disagreements, or to seek retribution for perceived slights. And the "under the influence" proviso? With that, Administrators aren't simply engaging in burden shifting. They are also unilaterally changing adult rape from a general intent crime to one of strict liability, essentially giving the accused no defense, and "no shot", where alcohol and drugs may be involved.

I have successfully defended many sexual assault cases; it's not always easy to do so, even with the burden of proof being on the prosecution. If the burden is shifted to the defendant to affirmatively prove consent, defending such cases becomes more of an uphill battle. For this reason, I'm afraid that what "Yes Means Yes" really will mean is that any student who has been accused of sexual assault or misconduct should decline to participate in any campus based mediation or hearing, refuse to answer any related questions, and immediately seek experienced and skilled outside legal representation, like me, as sexual assault cases will now be more complex in terms of how they must be defended.

About the author:

Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA) where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale, "10.0 Superb" rated by Avvo, and rated by Lead Counsel for verified experience, peer recommendations and a spotless record. Brad has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of felonies in both state and federal courts in MA, NY and throughout New England and across the country.