‘Yes means yes’ sex­ual as­sault bill dies; cam­pus of­fi­cials and ac­tivists de­bate next step

The Enquire-Gazette - - News - By JOSH MAG­NESS Cap­i­tal News Ser­vice

AN­NAPO­LIS — A bill that would re­quire Mary­land in­sti­tu­tions of higher ed­u­ca­tion to revamp their sex­ual as­sault poli­cies did not re­ceive a vote this year, set­ting up a de­bate be­tween univer­sity of­fi­cials and ac­tivists about how to ad­dress the prob­lem on col­lege cam­puses.

HB1142, the Af­fir­ma­tive Con­sent Stan­dard bill, re­quires state col­leges and uni­ver­si­ties, both pub­lic and pri­vate, to adopt a sex­ual as­sault pol­icy that in­cludes an af­fir­ma­tive con­sent stan­dard. Af­fir­ma­tive con­sent — or “yes means yes” — re­quires clear and vol­un­tary con­sent be­tween all par­ties be­fore en­gag­ing in sex­ual ac­tiv­ity, no mat­ter their cur­rent re­la­tion­ship or state of in­tox­i­ca­tion.

A ma­jor­ity of pub­lic uni­ver­si­ties and some pri­vate ones in Mary­land al­ready have an af­fir­ma­tive con­sent stan­dard in their sex­ual as­sault poli­cies.

But many of those schools — in­clud­ing the Univer­sity Sys­tem of Mary­land, which over­sees 12 in­sti­tu­tions of higher ed­u­ca­tion — are op­posed to the bill, say­ing that the “rea­son­able per­son” stan­dard in the leg­is­la­tion could con­flict with a cur­rent stan­dard the schools use — “pre­pon­der­ance of the ev­i­dence.”

“Pre­pon­der­ance of the ev­i­dence,” means a per­son can be con­victed of a crime if there is enough proof to make the al­le­ga­tions more likely to be true than not. The “rea­son­able per­son stan­dard” says it is not a valid ex­cuse for the ac­cused to say they thought they re­ceived con­sent if he or she failed to take steps a “rea­son­able per­son” would take to de­ter­mine whether con­sent was given.

“The in­clu­sion of a rea­son­able per­son test lan­guage in this bill … cre­ates po­ten­tial con­fu­sion,” said Joann A. Bough­man — the se­nior vice-chan­cel­lor for aca­demic af­fairs for the Univer­sity Sys­tem of Mary­land — dur­ing a House Ju­di­ciary Com­mit­tee hear­ing on March 8.

The is­sue of sex­ual as­sault is some­thing Han­nah Stein knows all too well. A male ac­quain­tance sex­u­ally as­saulted Stein, a ju­nior psy­chol­ogy and crim­i­nal jus­tice ma­jor at the Univer­sity of Mary­land, af­ter she went to his room one night dur­ing her fresh­man year, she said.

Stein said things started mov­ing “very, very quickly,” and she told the as­sailant she was un­com­fort­able. But he kept go­ing, she said, caus­ing her to freeze up.

That is why Stein sup­ports en­shrin­ing an af­fir­ma­tive con­sent stan­dard in col­lege sex­ual as­sault poli­cies.

“Not ev­ery­one re­sponds to trauma in the same way,” Stein said. “Dur­ing mine, I didn’t phys­i­cally fight back, I said I was un­com­fort­able but how many times did I say it? Did I need to say it more than once?”

The Univer­sity of Mary­land Sys­tem im­ple­mented a new sex­ual as­sault pol­icy in June 2014, amend­ing it in June of the fol­low­ing year, that in­cludes an af­fir­ma­tive con­sent stan­dard. St. Mary’s Col­lege of Mary­land has an “ef­fec­tive con­sent stan­dard” in their pol­icy, which is sim­i­lar to af­fir­ma­tive con­sent.

Nei­ther Mor­gan State Univer­sity nor Bal­ti­more City Com­mu­nity Col­lege has an af­fir­ma­tive con­sent stan­dard.

It’s a mixed bag for pri­vate col­leges in Mary­land. Johns Hop­kins Univer­sity, for ex­am­ple, states that con­sent is a “clear ‘yes,’ ver­bal or oth­er­wise; it can­not be in­ferred from the ab­sence of ‘no.’” How­ever, there is no def­i­ni­tion of con­sent in Wash­ing­ton Col­lege’s sex­ual as­sault pol­icy.

Frost­burg State Univer­sity, as a part of the Univer­sity Sys­tem of Mary­land, has an af­fir­ma­tive con­sent stan­dard. But Emily Ca­puto, the univer­sity’s Ti­tle IX Of­fi­cer who sup­ports af­fir­ma­tive con­sent, tes­ti­fied against HB1142, as did a rep­re­sen­ta­tive from St. Mary’s Col­lege.

Ca­puto said the leg­is­la­tion would move Frost­burg State away from of­fer­ing the “vic­tim-cen­tric ap­proach that we’ve worked re­ally hard to have our poli­cies fall in line with.”

Ca­puto said she has con­cerns about the por­tion of the bill that re­quires both par­ties — not just the ac­cused — to make sure con­sent was given.

“When you have lan­guage like that,” Ca­puto said, “what is more likely to hap­pen is the per­son who is ac­cused of sex­ual as­sault will say, ‘But, the sur­vivor didn’t get my con­sent to en­gage in parts of the sex­ual ac­tiv­ity.’”

If that hap­pens and the univer­sity de­clines to in­ves­ti­gate fur­ther, Ca­puto said, it could open the school up to claims of gen­der dis­crim­i­na­tion, as most peo­ple ac­cused of sex­ual as­sault are male.

Colleen Daly, di­rec­tor of me­dia and strate­gic com­mu­ni­ca­tions for End Rape on Cam­pus, a group that seeks to end sex­ual vi­o­lence in col­leges, said she was “con­fused” why col­lege of­fi­cials are op­posed to the bill.

“With af­fir­ma­tive con­sent … noth­ing is chang­ing in both par­ties need­ing con­sent,” Daly said, “it just changes the bur­den from a neg­a­tive — ‘I said no’ — to a pos­i­tive — ‘I said yes.’”

But not ev­ery­one is in fa­vor of af­fir­ma­tive con­sent. E. Ed­ward Bartlett, the pres­i­dent of Stop Abu­sive and Vi­o­lent En­vi­ron­ments — a group that, ac­cord­ing to its web­site, works to “pro­tect all vic­tims and stop false al­le­ga­tions” — said the stan­dard is not fea­si­ble.

“It says that for ev­ery sex­ual ac­tiv­ity, af­fir­ma­tive, ex­plicit con­sent needs to be pro­vided,” said Bartlett, who tes­ti­fied against the bill be­fore the House Ju­di­ciary Com­mit­tee on March 8. “That means for ev­ery good­night kiss, for ev­ery ca­ress, for ev­ery step along the way.”

The is­sue caught the at­ten­tion of some prospec­tive col­lege stu­dents as well.

Sarah Wil­liams, Abby Richard­son, Michala Wild­man and Emily Cillee — juniors at Oak­ton High School in Vi­enna, Vir­ginia — tes­ti­fied in sup­port of HB1142 be­fore the ju­di­ciary com­mit­tee. They be­came in­ter­ested in the topic af­ter in­ves­ti­gat­ing re­ports of sex­ual as­saults in Ivy League schools for an Ad­vanced Place­ment class.

Work­ing on the re­search project was eye-open­ing for Wil­liams, who said she now has an ad­di­tional cri­te­ria to con­sider when ap­ply­ing to col­lege.

“I’ve started to look at sex­ual as­sault rates as a fac­tor,” Wil­liams said, “be­cause, be­ing a young woman, it is scary to go off by my­self and know that it could hap­pen.”

Daly said more at­ten­tion should be placed on teach­ing mid­dle and high school stu­dents about the im­por­tance of re­ceiv­ing clear con­sent.

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