ANNAPOLIS (April 6, 2016)—A bill that would require Maryland institutions of higher education to revamp their sexual assault policies will 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 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 University 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.
On the other hand, Caputo said more work should be done to bridge the gap between activists and university officials, who largely share the same goals. There should also be more effort to reach a standardized affirmative consent rule under criminal law, she said.
Stein said she was upset to learn of the bill's death for this session. Considering she submitted testimony in favor of the bill, she said, it hurts a little bit more.
"It's hard not to take something like that personally," she said. "I think (the bill not passing) keeps us and keeps the state stuck in this grey area of what is consent; we know what it's not, but what is it?"