Tuesday, October 7, 2014

Dear Gov. Cuomo . . .

I have been a fan of the Cuomo family ever since I thrilled to your father's landmark keynote address at the 1984 Democratic Convention. No speech in my lifetime resonated with me like that one did. His cries for social justice still speak to me, and I can quote parts of that speech from memory more than 30 years later.

Sadly, your recent actions embracing the "affirmative consent" standard on college campuses tarnishes a remarkable legacy. Sexual assault is a problem that should not be ignored, but the "affirmative consent" standard is not the appropriate way to address it. Respectfully, it is an ill-conceived and hastily crafted policy that evinces a disturbing hostility to the due process rights of the accused. All of us can and should be allied in the fight against sexual assault without making it easier to punish the innocent for offenses they did not commit.

It is both ironic and disconcerting that the rush to respond to the public outcry about sexual assault on campus has had the perverse effect of allying progressives with law and order conservatives who typically have fought the expansion of due process rights at every turn. This is not something I would have expected of you.

The problems with the "affirmative consent" standard are many. First and foremost, there is no consensus as to what "affirmative consent" means. It is for this reason that Mia Karvonides, Harvard’s Title IX officer, has said that Harvard's new policies do not include an affirmative consent standard. She noted: “The closest any college comes to a defined affirmative-consent approach is Antioch College. Under their policy, consent is given step by step at every point of engagement during an intimate encounter. You must verbally ask and verbally get an answer for every point of engagement. ‘May I kiss you? May I undo your blouse?’ Etc.” You will recall that Antioch was widely ridiculed for this policy, even on Saturday Night Live, because it doesn't comport with the way the vast majority of law-abiding people interact in the real world. To enact this law will create "rapists" where they don't really exist.

To further illustrate that the standard is without a clear definition, California recently enacted the standard into law on its college campuses. The co-author of the bill in the Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent. She said this: “Your guess is as good as mine." That comment is as chilling as it is telling. It is not something New York should embrace.

Second, to the extent the law can be read to require an accused student to prove that he obtained consent, this flips on its head the long-settled burden of proof and would make the act of love-making -- an act that occurs somewhere in the world countless times every second -- a presumptive offense merely on the basis of an accusation. That would work a sea-change in our law, with far-ranging, and possibly disastrous implications.

Our elected officials represent not just our daughters but our sons as well. The "affirmative consent" standard is the easy, but not the appropriate, way to respond to the public outcry about sexual assault on campus. Innocence Project guru Mark A Godsey has said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases."

Every civilized society must strive to eradicate heinous criminality by punishing offenders, but it also must insure that the innocent aren't punished with them. It is not "either/or" -- we can and should be concerned about both rape victims and the wrongly accused. In the current rush to appease angry voices on campus, the absence of concern about the innocent is very troubling. We expect you, of all people, to evince that concern, Governor Cuomo, even though we know it is not the easy way forward.