In a recent post at Minding the Campus, KC Johnson outlined Andrew Cuomo’s efforts to bring affirmative consent to college campuses.

Cuomo Joins the No-Due-Process Club

The politics of campus due process are most unusual. Since the emergence of crime as a major (federal) political issue in the 1960s, Republicans have tended to be the tough-on-crime party, Democrats more concerned with the rights of the accused, especially when the accused are poor or racial minorities. (Obviously there have been exceptions in the case of both parties.) But in the case of campus sexual assault, it’s been the Democrats—from President Obama on down, and especially including Senators Kirsten Gillibrand and Claire McCaskill—that have been the tough-on-crime advocates demanding the decimation of due process protections. Republicans have either been willing accomplices (Marco Rubio, Chuck Grassley) or basically acquiescent (the House Republicans who have allowed the Office for Civil Rights to escape without meaningful oversight).

It remains to be seen how—or even if—Congress will further weaken students’ due process rights over the next two years. But the odd politics of campus due process means that students’ rights are particularly vulnerable in the nation’s most liberal states. California led the way, enacting an “affirmative consent” law that effectively replaced the presumption of innocence with the presumption of guilt. When asked how an accused student could defend himself under the law’s terms, the measure’s co-sponsor, Assemblywoman Bonnie Lowenthal (D-Long Beach), candidly replied, “Your guess is as good as mine.”

Cuomo and the Language of “Survivors”

Affirmative consent came to New York via an executive order from Andrew Cuomo. Now the Democratic governor seeks to codify the concept into law. Cuomo’s fiscal year 2016 executive budget contains a wholly non-budgetary provision—a plan to rewrite, by statute, the definition of sexual assault, though only when the state’s college students are accused through a campus disciplinary process. Cuomo seems intent on outdoing Assemblywoman Lowenthal for indifference to due process.