Say ‘yes' to affirmative consent

As students of two nationally ranked universities, Morgan State and Johns Hopkins, we have a lot in common. We both worked hard, staying up late to finish high school homework and write the perfect application essays. We both shrieked with pride and joy upon receiving our acceptance letters. But something else binds us together: Both of our schools are being federally investigated for their mishandling of sexual violence cases.

In fact, Morgan and Hopkins are just two of four Maryland higher education institutions currently under investigation for failing to uphold their students' Title IX rights by improperly responding to reports of sexual assault. With 161 institutions under Title IX investigation nationally, it is clear that campus administrations are failing to protect their students. This failure takes place both before and after assaults occur, in the lack of proactive education and in the absence of effective review processes for sexual assault cases. “Consent” is a key term debated in both these areas.

Maryland House Bill 1142 aims to clarify the issue of sexual consent on college campuses. If enacted, it would charge all Maryland higher education institutions to ensure their current sexual misconduct policies had a section detailing and defining affirmative consent, popularly known as “yes means yes.”

In many institutions' existing policies, consent lacks definition or is explained as the absence of a “no.” The affirmative consent standard, however, is active instead of passive, requiring the presence of a “yes” from all participants in sexual activity. Affirmative consent as defined in the bill is a “clear, unambiguous, knowing, informed and voluntary agreement between all participants to engage in sexual activity.” This does not require a detailed negotiation before intimacy; one would be able to nod in agreement to sexual advances by a partner or respond positively to a question of “can I touch you here?”

The legislation places the responsibility of obtaining consent on all participants in a sex act of any kind between partners of any gender and sexual orientation. Importantly, consent is active and ongoing, with revocability at any time. Silence or lack of resistance do not constitute affirmative consent — a distinction that is key for the vast majority of campus sexual assault cases in which alcohol or a personal relationship to the perpetrator render the victim unable or unwilling to protest. House Bill 1142 explicitly states that intoxication and incapacitation may not be used to achieve consent. This stipulation represents an important step in supporting victims, challenging the notion that being “too drunk” in public is an invitation to rape. If a person is too drunk to drive, they should be deemed too drunk to consent.

Affirmative consent policies have been adopted in California and last year by the State University of New York system. Other states around the country have also proposed similar legislation.

Opponents of “yes means yes” laws argue that the clarity of affirmative consent threatens “good sex” as we know it. They hold that the intrigue of sexual encounters lies in subtle signals, “mystery” and persuasion. Talking explicitly about one's wants and needs would diffuse the excitement of such an encounter and discourage ventures into new sexual territory. Such arguments promote unhealthy ideas about sex: that it should not be discussed, that it is necessarily coercive, and that the happenings of our own bodies should be shrouded in mystery.

It's time to change the way we think about sex. Switching to a culture of consent not only reduces sexual violence, but fosters the kind of clear communication about our bodies, limits and desires that ultimately leads to more pleasurable sex and healthier relationships. Under House Bill 1142, Maryland colleges and universities can promote a culture of consent in their freshman orientation sexual education.

While both Morgan and Hopkins have recently adopted affirmative consent policies in an effort to amend their treatment of campus sexual violence, the majority of Maryland institutions lack policies that uphold an affirmative consent standard. Will we wait until additional federal investigations force these schools to update their policies? Or will the state of Maryland take proactive action to make campuses safer for all students?

This evening, college students from across Maryland will rally at Lawyer's Mall in Annapolis, starting at 6:15 p.m., to send a strong message to the state legislature: Say yes to affirmative consent.

Ella Rogers-Fett ([e-mail]) is a Johns Hopkins senior and co-director of the JHU Sexual Assault Resource Unit. Kiara James ([e-mail]) is a junior at Morgan State University and an intern at FORCE: Upsetting Rape Culture.