Democrat Senator: We Must Legislate What People Say Before They Engage in Sex

New York Democratic Sen. Kirsten Gillibrand, one of the most prominent lawmakers fighting campus sexual assault on Capitol Hill, said Monday that controversial affirmative consent laws should be made the standard nationwide.

Gillibrand was speaking as part of an MSNBC-hosted panel event on sexual assault at the Fashion Institute of Technology in New York, which is a part of the State University of New York (SUNY) system. During the panel, she praised SUNY’s recent adoption of affirmative consent at the urging of Governor Andrew Cuomo, and was asked whether she thought the standard could potentially be implemented at the national level.

“I definitely have been studying it and looking at it,” she said, according to an account by Capital New York. “I think there’s something there, and I think that is where our debate needs to go.”

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Affirmative consent, often known as “only yes means yes,” is a standard which holds that an individual commits sexual assault if they do not receive explicit prior consent for each sexual act they commit with a person. This standard is an alternative to the “no means no” standard that prevails in criminal law, where a rape or sexual assault only occurs if a person explicitly refuses their consent, or is incapacitated and unable to either grant or refuse consent.

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The standard is currently required by law at all California colleges receiving state money, and is voluntarily used at several others. Gillibrand didn’t elaborate on how she would attempt to make the policy a national one, but the federal government could likely force the standard on almost all other schools by adding it to the contents of Title IX, the federal law prohibiting sex discrimination at all schools receiving federal funds.

Affirmative consent has been sharply criticized by civil liberties advocates such as the Foundation for Individual Rights in Education (FIRE), who say the standard creates a presumption of guilt and does not correspond to what the sexual relationships of young people actually look like.

Supporters, however, argue that the law is needed in order to aid and empower victims who currently struggle to obtain justice if they are raped in the context of a dating relationship or after consuming alcohol.

Gillibrand also used the panel event as an opportunity to try regaining control of the sexual assault narrative. Recently, activists have been hindered by the revelation that Rolling Stone’s bombshell story about a gang rape at the University of Virginia was potentially fabricated, as well as by a Department of Justice report indicating that campus sexual assault rates are far lower than activists claim.

“Regardless of the measure you use…too many rapes are happening on our college campuses today, and not enough justice is being delivered,” said Gillibrand, according to the New York Observer.

Sexual assault has been one of Gillibrand’s top issues during her time in the Senate. In particular, in the past two years she spearheaded the effort to address sexual assault in the military by attempting to remove sexual assault investigations from the military chain of command.


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