Governor Andrew Cuomo Proposes Plan to Combat Sexual Assault on SUNY Campuses

Governor Andrew Cuomo and the State of New York are the latest players to join the nation-wide movement to reduce the number of sexual assaults occurring at the country’s colleges and universities. On Thursday, October 2, 2014, Governor Cuomo approved the first-ever statewide policy addressing sexual assault on all sixty-four State University of New York (“SUNY”) campuses.

“There has been an epidemic of sexual violence in this country that is truly disturbing and it is plaguing our college campuses,” Cuomo said in a press release. “It is time for New York to take what is a difficult, uncomfortable topic and lead the way, and that is exactly what this resolution passed by the SUNY Board of Trustees today will do. This is not just a SUNY problem, but SUNY can lead and SUNY can reform on campus safety so we can better protect our students, and make our university communities a safer place for our children.”

Previously, SUNY schools had the ability to create individual sexual misconduct policies for each of its campuses. However, under Governor Cuomo’s new plan, SUNY campuses no longer have this type of latitude. For example, all SUNY campuses are now required to adopt a uniform definition of affirmative consent, which, according to the Governor, is as follows:

Consent is clear, knowing and voluntary. 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. Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. Previous relationships or prior consent cannot imply consent to future sexual acts. A person is incapable of consenting when that person is mentally defective, mentally incapacitated, physically helpless (whether induced by drugs, alcohol or otherwise), or asleep.

The new SUNY resolution also requires:

• Uniform Amnesty Policy: SUNY schools must now provide immunity for related drug, alcohol and code of conduct offenses to those who report sexual assault.
• Uniform Confidentiality and Reporting Protocol: SUNY schools must now employ a universal system that encourages timely reporting of sexual misconduct claims and makes certain that students have access to all confidential resources.
• Sexual Assault Victim’s Bill of Rights: All campuses must now publish and distribute information regarding an alleged victim’s option to report sexual assault to campus, local or state police (as opposed to having the institution exclusively handle the case).
• Comprehensive Statewide Training For College Administrators and Campus Police: Training on how to universally prevent, recognize and address claims of sexual assault. Training will also include information about a common set of policies and procedures that should be used in handling sexual assault.
• Statewide Public Awareness Campaign: The goal is to increase awareness among college students, high school students and parents.
• Campus Climate Surveys: In order to assess the pervasiveness of campus sexual assault, colleges and universities will be required to conduct campus assessments.

Interestingly, Cuomo’s unprecedented decision to implement this system-wide plan comes just days after California Governor Jerry Brown signed a bill into law that redefines the meaning of consent in California. Under California’s so called “yes means yes” law, colleges and universities are required to adopt a clear affirmative consent standard for students engaging in sexual activity. Similar to the standard now being imposed in SUNY schools, the California legislation eradicates the concept of “no means no” under which sexual conduct must be expressly refused in order to be considered non-consensual. Now, silence or lack of resistance does not amount to consent. Rather, participants are now required to express "affirmative, conscious, and voluntary agreement to engage in sexual activity”, either through verbal communication or unambiguous, non-verbal cues at each stage of the sexual activity.

New York and California are at the forefront of bringing the issue of college campus assault into the national and local spotlight. Interestingly, it appears that the SUNY resolution is only the first step in Governor Cuomo’s campaign to combat college sexual assault. “What I would hope is that from this example, and from this experience, we develop a state law, and we pass that law and it will cover every school in the state,” said Governor Cuomo. “If it goes well on the SUNY system, then we will codify it and then hopefully pass it as a law in the state, so it is imposed on all schools, public and private.” The Governor also revealed that he is working to adopt similar sexual assault standards for all of New York’s private colleges. New York, if it passes a statewide law on this issue, would be the second state (behind California) to adopt the affirmative consent standard for college campuses.

It is indisputable that the standards for dealing with sexual misconduct on college campuses are becoming more and more stringent at both the state and federal level. In light of Governor Cuomo’s new plan, we urge both public and private colleges and universities to review and, if necessary, revise their sexual assault and harassment policies. Private and public institutions should get ahead of the curve and provide immediate and comprehensive sexual assault training to students, faculty, law enforcement and staff in order to ensure compliance with Governor Cuomo’s new plan and the U.S. Department of Education’s heightened Title IX expectations.

If your institution would like further information, please email James G. Ryan at jryan@cullenanddykman.com or call him at  516-357-3750. This article was written with Hayley Dryer, an associate at the firm.