Wednesday, August 12, 2020
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Teaching ‘yes’ means ‘yes’ for sexual consent

Now under consideration in the Maryland General Assembly is HB 365, which would require the Montgomery County Board of Education to provide instruction on affirmative consent as part of the Family Life and Human Sexuality curriculum in grades 7 and 10.

A map of the united states. California is blue; illinois and new york are green; montana, utah, arizona, colorado, kansas, minnesota, iowa, missouri, michigan, tennessee, north carolina, pennsylvania, maine, new jersey, delaware, new hampshire, massachusetts, hawaii, alaska, maryland are yellow; indiana, virginia, and louisiana are blue-green; all other states are red.
States that have an affirmative consent law (green, blue); none (red); under consideration (yellow).
Blue-green indicates that statewide campus assault laws don’t include affirmative consent.

The bill, sponsored by Delegates Ariana Kelly and Marice Morales, both Democrats representing Montgomery County, is a response in large part to recent sexual assault cases and incidents where both parties were drunk and juries have failed to reach a unanimous conviction. The US Department of Education, using Title IX, instructed schools, in conducting their own disciplinary investigations, to lower the standard of proof to a “preponderance of the evidence” rather than the criminal standard of “beyond a reasonable doubt.”

For example, although no criminal prosecutions have resulted, the national headquarters for the Sigma Alpha Epsilon fraternity recently suspended its chapter at Northwestern University in Evanston, Illinois, following allegations, not prosecutions, that fraternity boys had drugged and sexually assaulted several women, the Chicago Tribune reports. Furthermore, the Interfraternity Council, which governs social fraternities on campus, indefinitely suspended all social activities for all campus fraternities, according to a Northwestern University spokesman.

“Echoes of the toxic ideology on which social fraternities were founded still ring today,” a statement from the IFC read. “We are acutely aware of the exclusivity, financial elitism, sexism, heterocentrism, and discrimination that have and still continue to exist in our community.”

The move follows recent changes in the laws of Illinois that mandate affirmative consent as a defense for sexual assault on college campuses. “Affirmative consent” means “clear, unambiguous, knowing, informed, and voluntary agreement between all participants to engage in each act within the course of sexual activity,” according to the Affirmative Consent Project.

New York and Connecticut also have laws requiring affirmative consent as part of a sexual assault investigation, but laws in Illinois and these states only apply to college campuses (Maryland is also considering a similar bill). These bills, under consideration in several states, shown in yellow on the map above, are a response to the Dear Colleague letter from the US Department of Education, issued in 2011. These guidelines threaten the loss of federal funds to educational institutions that don’t handle allegations of sexual assault properly.

Betsy DeVos, now the US secretary of education, has hinted that she’s going to take a closer look at that guidance. Sofie Karasek, director of education and co-founder of the organization End Rape On Campus, told MTV News that Title IX, since the federal department’s guidance, has played a big role in keeping students safe on college campuses.

The law “provides direct accommodations to students on the ground,” she was quoted as saying. “If you need a classroom change, or dormitory shift, or you’re trying to go to the library at hours when your perpetrator is going to be there—those are all going to be things students depend on and are guaranteed under Title IX. So being able to have a person at the helm of the education department that recognizes that is really important in terms of enforcement.”

And because Ms DeVos said she would reevaluate that guidance, college students are wondering if she might not be that person at the helm. Ms Karasek’s organization has advocated for healthy relationship education as part of sex ed, which includes information about affirmative consent, because by the time kids get to college, habits have already formed.

“Sometimes, it’s a little bit too late to try to change the culture once folks have gotten to the university age,” the Washington Post quoted Ms Morales as saying about the proposed law.

As we have reported, sexual assault between non-consenting students also takes place in high school and has left more than a few girls demoralized and injured. California, so far, is the only state to require the teaching of affirmative consent as part of sex education in high school.


Many sex ed classes across the country, including those in Montgomery County, already teach affirmative consent as part of the standard curriculum, because it’s a good idea. But only California requires it by law. Teaching it is one thing, and nobody is against teaching it to kids in a social setting; the law creates a whole new set of questions.

Putting a requirement in the law on schools will tend to shift the burden to those schools if something should go wrong. Could a girl who is assaulted by an 11th grader, after this Maryland law has been in effect for several years, turn around and sue the school for not teaching affirmative consent properly? It would make sense that courts would apply some sort of deliberate indifference standard, as they do with inter-student bullying, but laws need to be clear about situations like this, because they’re going to come up.

Legal considerations aside, I still don’t know if this bill will have any success. But I certainly applaud Delegates Kelly and Morales for moving the conversation about how young people think about romantic relationships forward and protecting students against sexual assault. It has destroyed lives, it has ruined the educational trajectory, and it has devastated the families of too many students in Maryland and across the country.

“We really want to flip the script on the old ways people used to talk about sex, which sometimes created a misbelief that boys should be coercing girls into something,” the Post quoted Ms Kelly as saying. “As a mother with a son, I don’t want him growing up with that impression.”

Neither do I. This is why, even though universities aren’t the organizations to prosecute crimes and they’ve botched those investigations in many cases, the Dear Colleague letter has to get the full support of our new administration. It’s imperfect, of course, but only because sex is a tricky issue to legislate, especially when we start imposing requirements on schools.

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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