In Matter of Weber v State Univ. of N.Y., Coll. At Cortland, the Third Department confirmed a SUNY determination to expel a student for sexually assaulting another student, finding that the victim never consented to sex.
This case is pretty clear cut and would not be that remarkable if it wasn’t for the Third Department’s recent decision in Matter of Haug v State Univ. of N.Y. at Potsdam, which I discussed here.
In the matter of only a few weeks, the Third Department has reached two contradictory decisions on SUNY disciplinary determinations for sexual assault. Although the facts in Haug were not as clear as in Weber, in neither case did the victim affirmatively consent to sex as required under the SUNY sexual assault policy. Yet, in Haug, the Third Department overturned an expulsion determination because, it held, the victim’s act of taking off her shirt was somehow implicit consent to sex. In Weber, in contrast, it was the perpetrator of the assault who took off the victim’s clothes.
I truly hope that this is not the line that the Third Department is drawing on consent. When SUNY’s policy says affirmative consent is required, it is affirmative consent that the courts should look for. Requiring anything less for consent is rewriting SUNY’s sexual assault policy and not according SUNY’s disciplinary determinations the deference that they are due. That is not the courts’ role.
The Third Department’s order can be found here.