Two Maryland lawmakers are pushing legislation that would require the state’s public schools to teach a “yes means yes” standard for sexual consent, wading into a national debate as they try to change the way young people think about romantic relationships.
Maryland would become only the second state to require public schools to teach affirmative consent if the legislature and Gov. Larry Hogan (R) approve the proposal by Dels. Ariana B. Kelly and Marice Morales, both Montgomery County Democrats. California adopted a similar mandate in 2015, in the wake of rape allegations involving a student at Stanford University who argued that his sexual encounter with an intoxicated young woman was consensual.
A bill sponsored by Kelly and Morales that would require Montgomery County Public Schools to teach affirmative consent in sexual-education classes will be the focus of a hearing Tuesday before the House Ways and Means Committee, which oversees education policy. 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.
“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,” Kelly said. “As a mother with a son, I don’t want him growing up with that impression.”
A growing national debate has accompanied a movement by college campuses across the country to adopt affirmative-consent standards for adjudicating sexual assault allegations — essentially telling students they must have explicit consent from their partner to engage in sexual activity.
The changes come partly in response to a 2011 letter from the U.S. Department of Education warning colleges that they risk losing federal funding if they don’t adjudicate sexual-assault cases based on a “preponderance of the evidence” standard, rather than the criminally required “beyond a reasonable doubt.”
Both California and New York have passed laws requiring colleges to use affirmative-consent standards in weighing charges of sexual assault. Morales proposed similar measures during Maryland’s last two legislative sessions, but they failed to advance. She said she believes that changing what is taught at the high school level could be just as effective in curbing sexual assault.
“Sometimes, it’s a little bit too late to try to change the culture once folks have gotten to the university age,” Morales said.
Affirmative-consent proponents have encountered little resistance while trying to make the concept part of sex-ed requirements, even among conservatives and local education officials, who tend to push back against statewide mandates.
“As a social matter, affirmative consent is a great thing — you obviously don’t want your children engaging in sexual activities that they’re not enthusiastic and excited about,” said Leigh Goodmark, who teaches a gender-violence clinic at the University of Maryland Law School. “As a legal matter, it’s much trickier.”
Still there is some opposition. Harry Crouch, president of the National Coalition for Men, called the push to teach affirmative consent part of an effort by “people who don’t like men that much” to “expand the definition of sexual assault to the extent that everybody is guilty of something almost every day.”
And Del. Kevin B. Hornberger (R-Cecil County), who sits on the Ways and Means Committee, said he generally supports the idea of affirmative consent, which he taught in college as a peer educator. But he questioned the need for a statewide mandate to teach the concept.
“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.”
Montgomery County’s Board of Education initially opposed the local version of the bill. Patricia Swanson, the board’s legislative aide, said members wanted assurances that schools could teach affirmative-consent in an age-appropriate way and without running afoul of the district’s existing curriculum guidelines.
Kelly and Morales amended the local bill to say that districts could tailor the lessons as they see fit.
Swanson then recommended that the board support the new version of the bill, which has near-unanimous support from the county’s 24-member House delegation. A school board vote is scheduled for Tuesday morning, before the committee hearing in Annapolis.
It is not clear whether school boards elsewhere in Maryland would support a statewide bill. John R. Woolums, head of government relations for the Maryland Association of Boards of Education, said his group “generally opposes bills that directly prescribe curriculums,” but that it sometimes deviates from that position, depending on the proposal.
Health educators acknowledge that students are often skeptical of affirmative consent at first, especially the idea of asking for permission at every step of a sexual encounter.
“A lot of people push back and say, ‘This is so awkward,’ ” said Shafia Zaloom, who teaches human sexuality at the Urban School of San Francisco and has created an affirmative-consent curriculum for other schools to use.
“But the notion that we are silent during sexual encounters is strange to me. Sex is a dialogue,” she said. “We have to be engaged and paying attention enough to honor people’s desires, needs and limitations.”