By Laura Edghill at World News Group
Last week, California became the first state in the nation to require lessons about sexual consent in high school sex education classes. The legislation mirrors laws passed last year mandating colleges and universities in both California and New York apply an “affirmative consent,” or “yes means yes” standard when investigating campus sexual assaults.
“California must continue to lead the nation in educating our young people—both women and men—about the importance of respect and maintaining healthy peer and dating relationships,” Assemblyman Rocky Chávez said.
The bill’s sponsors say the law is intended to educate high school students on the importance of candid, open communication during sexual encounters, in an effort to guard against sexual assault. But advocates for abstinence education say that while preparing students to protect themselves from sexual assault is important, the “affirmative consent” conversation is based on the flawed assumption that the best we can do for students is teach them risk reduction, rather than risk avoidance.
“We are very concerned that we are seeing a move toward consent being the arbiter of whether or not teen sex is appropriate,” said Valerie Huber, president of the National Abstinence Education Association. “We think that is a disservice to our teens and it also ignores all the scientific research showing young people are much better off both now and in the future if they don’t have sex.”
The bill states sexual activity is only considered consensual when both partners clearly articulate their willingness to participate through “affirmative, conscious, and voluntary agreement” at every stage.
Lawmakers adopted last year’s college-level laws in both California and New York amidst a firestorm of rising public scrutiny regarding sexual assaults on campus. More than a dozen other states are currently considering similar “affirmative consent” laws.
But the laws have not been universally applauded. Critics point out that while the laws require colleges and universities to use the “affirmative assent” standard in their internal investigations, it is not a criminal legal standard. Anyone found guilty of violating the standard under campus policy will not necessarily be convicted under criminal law as well.
“There is a serious concern among the legal community about the ramifications of ‘affirmative consent,’ that it could, in fact, compromise due process,” Huber said.
Advocates of students’ rights also argue the law unfairly impedes student freedom by trying to dictate when and where they have these conversations.
“What we would support is teaching students about how desirable it is to have better communication about their partner’s boundaries up front,” Joe Cohn, an attorney with the Foundation for Individual Rights in Education, told The Guardian. “That is not a bad thing. But teaching students that it is a requirement dramatically undermines student rights.”
The law at both the college and high school levels also fails to clearly define the accused’s rights. Educational institutions are at liberty to draft their own criteria for proving guilt or innocence with varying potential consequences, ranging from restrained disciplinary action to expulsion.
For high school parents who wish to exercise their authority to have these types of sensitive conversations with their own children, California does offer an opt-out policy for sex education. School districts are required to notify parents, make curricula available, and allow students to opt-out with parental approval.
Although the new law is slated to take effect on Jan. 1, it is dependent on the California Department of Education revising curriculum to meet the new standard. That’s not scheduled to happen until 2018.