Texas becomes latest state to debate 'affirmative consent' to prevent sexual assault

'Affirmative consent,' which was mocked when Antioch College made it policy in the 1990s, has become increasingly popular as institutions take sexual assault more seriously.

Jon Herskovitz/Reuters/File
People walk at the University of Texas campus in Austin, Texas, on June 23, 2016.

Texas may be the next state to replace "no means no" with "yes means yes." 

State Sen. Kirk Watson last week became the latest lawmaker to introduce legislation that would require universities to change their sexual assault policies to reflect the standard of "affirmative consent." If Senate Bill 970 is passed, Texas will join California, New York, and a handful of other states with similar laws, as well as hundreds of individual universities across the country. 

Public attitudes today toward affirmative consent – the idea that sexual consent can only be obtained through explicit verbal or physical cues, rather than a lack of protest or resistance – bear little resemblance to the negative response the concept received in the early 1990s when first introduced at Antioch College. Once mocked on Saturday Night Live and denounced as the pinnacle of political correctness gone wrong, affirmative consent policies are now finding widespread acceptance on a growing number of college campuses as a result of student activism efforts, mounting pressure on universities to crack down on sexual assault, and a larger shift in romantic and sexual gender norms. 

"It’s becoming the new standard," says Harry Brod, a professor of sociology at the University of Northern Iowa and an expert on issues of consent. "There's still resistance, but it's becoming the new standard." 

While the concept first came to America's attention in the early nineties, it has only begun to gain momentum in the past several years, experts say. 

"I don't think anybody really took it seriously until very recently," says Justine Tinkler, associate professor of sociology at the University of Georgia. "It’s been a very rapid change in the way people think about it in terms of widespread familiarity with the term." 

The concept first began to gain nationwide traction when California introduced its affirmative consent law in 2014, Professor Tinkler says. Under the California law, schools with students receiving financial aid are required to uphold an affirmative consent standard in disciplinary hearings and educate students about the policy. 

The sudden spotlight on affirmative consent laws, combined with increasing pressure placed on universities by the federal government to better communicate with students on matters of sexual misconduct, has created a generation of college students increasingly familiar with, and informed on, the concept of affirmative consent, Tinkler says. 

That's not to say that affirmative consent policies aren't still controversial. Some critics of "yes means yes" argue that such standards put an undue burden on those accused of sexual assault, who must prove their innocence by providing evidence of obtaining permission at every step of a sexual encounter. 

Others, echoing a common criticism of Antioch's policy in the 1990s, say the standard just isn't practical. 

"Date rape is no joke, but in trying to stop it, Antioch, along with scores of other colleges across the country, sets out to codify the sexual behavior of adolescents," reads one New York Times opinion piece from 1993. "That's not a bad goal, but it's awfully tricky, and inherently almost impossible to implement.

But such complaints, while certainly present on college campuses, are more common among older generations than younger ones, Tinkler says, adding that in conversations with her students at the University of Georgia, many seem to take the concept of affirmative consent for granted. 

Support for such policies, considered something of a radical feminist cause in the 1990s, has especially grown among young men, Professor Brod notes. 

"This is less of a gendered issue than it was," he tells the Monitor in a phone interview. "More and more men are coming forward and not just supporting this, but really being active on it." 

As the affirmative consent movement finds growing acceptance on college campuses, activists and policymakers have begun to consider new ways to hold accountable not just those who commit sexual assault, but those with knowledge of it. Another controversial bill co-sponsored by Senator Watson would require university employees and some student leaders to report instances of "sexual harassment, sexual assault, family violence or stalking" to the campus president within 48 hours of becoming aware of the incident – or potentially face misdemeanor charges. 

While some campuses already have internal rules requiring faculty and student leaders with knowledge of a sexual assault to report, experts say the move to criminalize those who don't report is largely unprecedented. 

"This is the first I've seen in terms of bystander reporting," Suzanne Hultin, who tracks campus assault bills for the National Conference on State Legislatures, told the Dallas Morning News. "This one definitely sticks out."

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