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"Yes Means Yes" is the new law on New York's college campuses. Students must obtain consent for every sexual act; being passive is not consent. Photo credit: iStock | Thinkstock

(iStock | Thinkstock)

SYRACUSE, N.Y. -- What if you had to ask if it was okay

to put your hand on the other person's butt during foreplay? What if you had to

ask again before touching her breast? What if there was a law that said you had

to do this?

In New York, there is now on all college campuses. A bill signed into law July 7 requires both parties to obtain consent for sex and each nibble and caress that sometimes paves the way. The law applies only on college campuses. At its heart is a simple concept: instead of "No Means No," it's "Yes Means Yes."

It switches the dynamic of consent in what could be an empowering way. The hope is that by changing the power structure of the hook-up and making it law, college sexual assaults will decrease. The legislation, proposed by Gov. Andrew Cuomo and called "Enough is Enough," was passed unanimously by the state Legislature.

It's difficult to find fault with the law's goal of reducing sexual assault. But some, including feminists and legal scholars, say laws like New York's overstep, and risk turning into a criminal someone who honestly misread a sexual cue. And the laws ask college students to turn into a contract what is often a fumbling dance for otherwise sophisticated adults.

The law is not a criminal one, but violating it could result in criminal charges, as well as disciplinary action by the school. Colleges in New York have until September of 2016 to comply by re-rewriting their conduct codes and policies.

New York and California are the only states with affirmative consent laws, and they only apply to college campuses. But there is a movement to make the same laws apply for everyone. The American Law Institute, which helps write the nation's criminal codes, is in the process of re-writing the sexual assault penal code to incorporate "Yes Means Yes."

As Lady Gaga penned an essay with Cuomo in Rolling Stone to gain support for New York's college law, two dozen legal scholars, including retired federal Judge Nancy Gertner, wrote a memo warning against the dangers of such laws.

In Syracuse, Mayor Stephanie Miner, a lawyer, refused to sign on as a supporter while Syracuse University Chancellor Kent Syverud penned an op-ed in support of it.

A hook-up contract?

No matter what precautions you take, the hook-up now poses serious legal risks: "You look at the legal system we're building and it's incredible risky to hook up with someone you're not married to," said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University in Florida.

"It changes the rules of the game. It gives the game rules," Lake said.

The national push for restrictive rules and laws comes at a time when attitudes and practices around sex are becoming riskier, Lake said.

And the New York and California laws don't address binge drinking on college campuses, except to say that a person cannot give consent if they are under the influence.

Lake and some other legal scholars have said the laws threaten to make it much easier to falsely accuse someone of rape and sexual assault.

Lake said college students are already figuring out the work-around to the rules to avoid being caught up in sexual assault allegations. They've realized that it's much less risky to hook up with someone who doesn't go to your school. "It's hard to investigate on another campus," Lake said.

There is a movement to extend the same consent rules to everyone. The draft sexual assault law being written by the American Law Institute would make sex without express consent a misdemeanor anywhere. The institute, made up of legal scholars and judges, writes draft penal codes that are often adopted by states and the federal government.

Gertner, the retired federal judge who is a member of the institute, has said such a law would be a mistake. If society has come to no clear consensus about the standards for consent, how can the law, she asked in an interview with The New York Times. She and two dozen others warned that the proposed changes to criminal laws across the country could potentially fill the courts with false and frivolous accusations.

But others drastic measures are necessary because sexual assault has reached epidemic proportions, especially on college campuses. In New York, 11 colleges are being investigated by the U.S. Department of Education for mishandling sexual assault allegations.

Nationally, in 2012, there were 5,000 allegations of forcible sex offenses reported by college campuses to the U.S. Department of Education.

It has been a year of national questions about how well colleges handle sexual assault on their campuses: a Columbia University student became a media sensation as she carried a mattress around with her to protest how her allegations of sexual assault had been handled.

Randi Bregman, the executive director of Vera House, was among the dozens of supporters who signed on to Cuomo's "Yes Means Yes" push.

"We're a big believer in an affirmative consent standard," Bregman said. "It's better for the victim and the perpetrator."

A YouTube video that acts out, in a not-safe-for-work manner, how affirmative consent should work during a hook-up has nearly 200,000 views. In it, the man and woman both ask before each touch.

Bregman said the new law will help eliminate "but she didn't say no," as a response to rape allegations, and, over time, change the conversations people have about sex.

Bregman's colleague at Vera House, Loren Cunningham, dismissed the notion that "Yes Means Yes" would result in more false allegations. The number of false allegations for sexual assault crimes is about the same as any other crime: between 2 and 8 percent, Cunningham said.

Cunningham said the new New York law will hopefully get college students, who often are operating in a world of alcohol-tempered one-night stands, to be more thoughtful about their sexual choices.

"It puts more responsibility on the person who is initiating the sexual activity," Cunningham said. The New York law also puts more responsibility on colleges to take seriously and investigate claims of sexual assault, something that schools have been known to shy away from because they are worried about how the allegations can affect their reputations.

Consent in the real world

New York's "Yes Means Yes" law means that students on college campuses in New York will have to ask for consent at every stage of sexual activity. Photo credit: Zoonar | Thinkstock

Cecilia Colesanti is a student at

SUNY Oswego, where "Yes Means Yes" became the rule last year. "I think the policy has good intentions, but

to expect college students, especially freshman, to step back for a minute and

have a conversation about intercourse before anything goes down is kind of

silly," Colesanti said. And once alcohol comes into the equation, "the line of

consent gets fuzzy," she said.

While New York's new college law spells out that someone cannot consent if they are under the influence, it leaves questions about what, exactly, "under the influence" means. In New York's criminal courts, consent is only colored by alcohol or drugs if the person is slipped those substances without their knowledge or they are so intoxicated or high they are physically helpless. The bar for the college consent law is lower.

Colesanti said many of her peers felt more comfortable hooking up after a few drinks. But too many drinks lead to trouble: "The idea that it is unethical to hook up with a girl who is too drunk is not widely respected," Colesanti said. The blame still rests on the girl who drank too much, she said.

Changing the conversation around sexual consent among college students will take more than a year or two. Angie Delgado, also a student at SUNY Oswego, said she gets made fun of when she talks about the need talk about the hook-up before it happens.

"Not many people ask 'Can I do this?' during every step they take," she said. And often, lots of alcohol is involved. That, she said, needs to get more attention.

"I can't tell you how many times I've heard stories of girls waking up in a different room next to a guy they don't remember going home with," Delgado said. "The point is people have come to accept this type of behavior, and what they don't realize is that it can be considered rape."

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