News and Commentary

Statutory Language

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California, Connecticut, and New York have enacted laws that establish an affirmative consent standard on college campuses.


Cal. Civ. Code § 15.5. 67386

(a) In order to receive state funds for student financial assistance, … independent post-secondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking… involving a student, both on and off campus.

The policy shall include all of the following:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity…; and

(2) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.


Chapter 185 Sec. 10 § 10a-55m.

Defines sexual assault, stalking and intimate partner violence policies.

(1) “Affirmative consent” means an active, clear and voluntary agreement by a person to engage in sexual activity with another person;

(2) Established that investigators and adjudicators “shall use the preponderance of the evidence standard in making a determination concerning the alleged assault, stalking or violence.”

New York, indicated in yellow, has enacted the Enough is Enough Act, which requires that consent be affirmative.

New York

Education – Article 129-B – § 6441

Every institution shall adopt the following definition of affirmative consent as part of its code of conduct:
"Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  
Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness
to engage in the sexual activity.  Silence or lack of resistance, in and of itself, does not demonstrate consent. The 
definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression."


Arkansas, North Carolina, and North Dakota have enacted laws that guarantee the right to legal counsel for students accused of sexual assault:


§ 6-60-109

Except for “any allegation of academic dishonesty,” a student:
Who has received a suspension of ten (10) or more days or expulsion may request a disciplinary appeal proceeding and choose to be represented at the student’s expense by a licensed attorney or, if the student prefers, a non-attorney advocate who, in either case, may fully participate during the disciplinary appeal proceeding.

North Carolina

§ 116-40.11

Disciplinary proceedings; right to counsel for students and organizations.

(a) Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented, at the student’s expense, by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation. However, a student shall not have the right to be represented by a licensed attorney or non-attorney advocate in either of the following circumstances:

(1) If the constituent institution has implemented a “Student Honor Court” which is fully staffed by
students to address such violations.

(2) For any allegation of “academic  dishonesty” as defined by the constituent institution.

North Dakota

§ 15-10-56 of the North Dakota Century Code
Any student enrolled at an institution under the control of the state board of higher education has the right to be represented, at the student’s expense, by the student’s choice of either an attorney or a non-attorney advocate, who may fully participate during any disciplinary proceeding or during any other procedure adopted and used by that institution to address an alleged violation of the institution’s rules or policies. This right applies to both the student who has been accused of the alleged violation and to the student who is the accuser or victim. This right only applies if the disciplinary proceeding involves a violation that could result in a suspension or expulsion from the institution. This right does not apply to matters involving academic misconduct. Before the disciplinary proceeding is scheduled, the institution shall inform the students in writing of the students’ rights under this section.

Maryland, indicated in green on the map, has enacted a bill that provides comprehensive protections to students involved in disciplinary proceedings.



An Act Concerning Higher Education–Sexual Assault Policy-Disciplinary Provisions provides for many due process protections, including fair and impartial investigations and assistance by a “licensed attorney… throughout the disciplinary process” (does not state “active participation”).