Sexual Totalitarianism Comes to New York Campuses

By James Ostrowski

My book Progressivism: A Primer on the Idea Destroying America contains several passages that I am sure some readers thought were exaggerations.  That includes the title itself.  However, there have been three race riots after police killings in America since the manuscript was completed.  My warning about an “increased risk of civil unrest” due to racial tensions has also been confirmed by these events.  

Yet another prediction in the book stated that “under progressivism, the state will grow until it controls everything and absolutely. That is, it will grow into a totalitarian state.”  In that regard, consider a brand new law about to be enacted in New York State that may be the first law of its kind that regulates the procedures by which people choose to engage in various kinds of sexual activity.  Surely, there were no such laws in the states commonly known as totalitarian in the last century: Communist China, Nazi Germany and the Soviet Union.  New York State has now boldly gone into the bedroom where such tyrannies had not gone before.


The new statute requires all colleges and universities in New York to adopt a policy of “affirmative consent” concerning sexual contact of any kind.  The definition of such contact in the statute is broad enough to include ballroom dancing!

“Affirmative consent” means “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 itself, does not demonstrate consent.”  Part of the problem with this definition is that, in spite of what its proponents claim, it is not at all clear what it means.  Lawyers, litigants and academic bureaucrats will now fight it out over the actual meaning of the definition.  Students, keep in mind that when you are with your significant other, your “decisions” may very well be re-litigated in quasi-judicial hearings with enormous consequences such as suspension, expulsion, loss of scholarships and permanent disgrace. 

While the specific meaning of the new definition is not clear, what we can discern is that New York’s higher education students are now in a brave new world where their apparently voluntary sexual activity is for the first time regulated by the State.  There are numerous ramifications of this, none of them good.  First, the most intimate and private area of life is now subject to detailed oversight after the fact by academic bureaucrats.  Second, this aspect of life, previously governed by societal norms, customs and rituals and by the behavior of the individuals themselves, has now been turned over to the State and its laws and regulations.  And all this was done with no opposition, little debate or public attention.  As usual, the useless Republican Party provided no opposition.

How should New York students respond to the progressive state’s great leap forward into their private lives?  This is where it gets interesting.  I will approach this question from the point of view of a lawyer advising his clients.  The new definition of affirmative consent clearly deemphasizes implied consent and increases the importance of explicit consent.  Thus, sexual intimacy, in a massive shift from the practices of the previous eons, will henceforth be governed more by explicit discussions, as has been the standard operating procedure only in transactions with prostitutes, and less by implicit understandings.  Moreover, since the new rules implicitly shift the burden of proof from the accuser to the accused, any ambiguity even in spoken terms will tend to be resolved against the accused.  Thus, I would advise students to get it in writing first.  But since contracts are interpreted in favor of the party who did not draft them, I would advise men, who are more likely to be the accused, to rely only on contracts drafted by the female.  The contract should be signed prior to the consumption of any alcohol.  A witness or notary would be helpful in this regard.  A written contract should have a checklist of the various forms of activity and should cross-reference the various body parts of each participant and spell out which parts may touch which other parts and for how long.  To ensure that the contract has been followed, a video recording of the events might be advisable, which will of course require a separate contract governing the disposition and custody of the video.  

Even a written contract will not guarantee one will not be charged since the rules also state that prior consent does not mean current consent and that consent can be revoked at any time.  Thus, a new contract will be required for each transaction and, should any implied withdrawal of consent occur, such as a murmur of dissatisfaction, all contact must cease until a new contract is executed, free of any drug or alcohol consumption.  Also, since consent cannot be given by a person who lacks legal capacity, I would prefer that clients receive a certification by a physician that the other party does not suffer from a psychological disability and is not taking any drugs that might impair judgment. Finally, any ill-defined “coercion” could vacate a written contract.  “If you don’t _______, I won’t help you with your homework later.

If the reader is tempted to think I am writing this as a form of satire, sadly, I am not.  I am simply providing practical legal advice in response to a drastic change in the law.  In that regard, I would have this advice for those who wish to avoid the expensive and time-consuming procedures that are not even guaranteed to avoid future legal problems with New York colleges and universities: do not enroll in a college or university in New York State after the passage of this radical new law, particularly if you a male and thus the much more likely party to be dragged into a college court of sexual inquisition

Before matriculating at any institution in any other state, make sure they have not enacted an “affirmative consent” policy.  If for some reason, you are compelled to do so, I would strongly advise you not to “date” anyone, including your spouse, who might be able to invoke this policy against you in a college disciplinary proceeding.  I mention spouses because the policy applies to violations that occur off-campus or even abroad.

For now, in New York, only college students will be terrorized by affirmative consent.  The statute makes an attempt to limit its application to academic contexts.  It is not clear that the attempt will be successful and the new definition may spill over into criminal or civil proceedings involving the general population.  Moreover, the State Legislature is one pen stroke away from making affirmative consent applicable to the entire population of the State.  As I explained in my book, progressivism has no limiting principle but what it can get away with at any particular time.  Progressive policies are always advancing in scope and power so the bizarre legal precautions this new policy has made necessary for students may soon by imposed on all of us in New York.

Alas, the passage of this new totalitarian law with no opposition in one of our largest states should be a wake-up call to anyone who thinks my warning of the imminence of a totalitarian state was exaggerated.

James Ostrowski is a trial and appellate lawyer from Buffalo, New York. He has written a number of scholarly articles on the law and subjects ranging from drug policy to the commerce clause of the US Constitution. He is author of Progressivism: A Primer on the Idea Destroying America.