“Affirmative consent” is a fuzzy concept even for adults, which is why one of them taught 10th graders in California that they must say “yes” every 10 minutes during sex or it becomes rape.
The concept was enshrined in state law in October 2015, and since then California has remained the only state to legally require “yes means yes” be taught in public schools.
Maryland could soon be the second.
It would “provide instruction on affirmative consent as part of a specified curriculum in specified grades in public schools in the county beginning in the 2017-2018 school year.”
But that’s just the start for the sponsors, Montgomery County Democratic Dels. Ariana Kelly and Marice Morales, according to the Post:
The two lawmakers say they are drafting a companion piece of legislation that would extend the mandate statewide.
Both measures would define consent as “clear, unambiguous, knowing, informed and voluntary agreement between all participants to engage in each act within the course of sexual activity.”
Local education officials would be required to teach the concept in both seventh and 10th grades, but individual districts would be able to decide how to tailor the lessons in an age-appropriate way.
The Post report fails to note that affirmative consent essentially shifts the burden of proof onto the accused student, which in the vast majority of cases is a male being accused by a female.
It inexplicably cites the National Coalition for Men, whose president said affirmative consent is driven by “people who don’t like men that much,” as the face of the opposition.
But the consent standard has better known and less polarizing critics who cite the lack of due process inherent in affirmative consent, including the Foundation for Individual Rights in Education and the Maryland-based female-led advocacy group Stop Abusive and Violent Environments.
FIRE in particular has warned that affirmative-consent provisions do not put students on notice of what behavior can get them punished. Tracking the language of other bills and campus codes, the Maryland measure requires consent for “each act within the course of sexual activity” – which could mean anything from changing positions during intercourse to each kiss and touch preceding intercourse.
The bill also does not define “sexual activity,” a problem it shares with a college-specific bill signed into law in Connecticut last summer.
One Republican lawmaker on the committee hearing the bill, Del. Kevin B. Hornberger of Cecil County, makes a federalism argument rather than a due-process argument to keep the county-level pilot from going statewide, the Post says:
“What works best for Montgomery County doesn’t necessarily work best for Cecil or any of the other jurisdictions in this state,” Hornberger said. “The positive from this experiment is that it puts the conversation out there and raises awareness of affirmative consent.”
Hornberger was also a “peer educator” in college who taught affirmative consent. Chances are he was never accused of rape months after a sexual encounter because the consent did not consist of a continuous stream of “yes” statements.