Though it may come as a surprise, “affirmative consent” is not language included in any New York law governing sex crimes, even though “lack of consent” is an element of every sexual offense. This may seem strange because you might remember a New York law being passed requiring “affirmative consent” not too long ago, and frankly, you are not wrong. In 2015, New York Governor Andrew Cuomo signed “Enough is Enough,” a law designed to combat sexual assault on college and university campuses in New York. “Enough is Enough” mandated that all colleges and universities, public and private, adopt a uniform definition of “affirmative consent” in their university and college policies. It did not, however, change the way that New York criminal law defines or determines consent.
New York colleges and universities require that sexual partners have “affirmative consent” prior to engaging in sexual activity. In this context, “affirmative consent” is defined as “a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.” Therefore, if a student is accused of sexual misconduct, it often becomes the accused’s burden to show that the sexual activity was acted upon with “affirmative consent.” Affirmative consent can be given verbally, or by actions; the key being that the method of communication creates “clear permission regarding willingness to engage in the sexual activity.”  “[S]ilence or lack of resistance, in and of itself, does not demonstrate consent.” Id. (Emphasis added). Accordingly, the clearest way to confirm “affirmative consent” is with a direct conversation between individuals prior to engaging in sexual activity. Not surprisingly, students are not always having these conversations. Thus, what genuinely felt like “affirmative consent” to one student, may not be interpreted as such by another; so much so that a student may find themself before a disciplinary board or in a Title IX hearing having to defend what s/he believed was “affirmative consent.”
Outside of the college and university context, many people charged with sexual assault under the New York Penal Law often find themselves asking, what is the criminal law in New York when it comes to affirmative consent? Well, as previously noted, New York criminal law has not adopted the language of “affirmative consent.” Rather, it is “lack of consent” that must be proven by the prosecution in every sexual offense case. Section 130.05 of the New York Penal Law specifically outlines the different ways in which “lack of consent” may be shown, summarily including sex by force, sex where an illegal age differential exists (i.e. statutory rape), mental or physical disability or incapacitation, and/or defined imbalances of power that render consent impossible according to the law. Under New York criminal law, the burden lies with the prosecution to show that by one of the ways defined in 130.05, there was a “lack of consent” between the individuals. So, will New York ever adopt “affirmative consent” as defined in “Enough is Enough” into its Penal Law? It’s very unlikely, primarily because to do so would shift the burden to prove consent from the accuser to the accused. That, in essence, would fundamentally contradict the presumption of innocence and shake the integrity of the criminal justice system to its core.
Of course, the legal definition of consent will continue to evolve in the near future. And if we have learned anything from the adoption of “affirmative consent” into the New York college and university system - in addition to the lessons learned from the Me-Too movement as a whole - one thing is clear: it is ALWAYS best to make sure that both parties engaging in sexual activity have expressed a clear, knowing, and voluntary (read: not intoxicated or impaired) consent to do so. Because even if not in the language of the New York Penal Law, the spirit of affirmative consent will protect you in any forum. Thus, make sure you have it...