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Legislating affirmative consent is misguided

House Bill 133, which has already received approval in the Health and Human Services Committee, would require public schools and universities throughout the state to set affirmative consent as the standard for all their activities addressing and investigating problems of sexual assault, intimate partner violence, dating violence, harassment and stalking.

What is affirmative consent? According to HB 133, it is the “affirmative, conscious and voluntary agreement to engage in sexual activity,” which cannot be implied, assumed, or given by a person who is unconscious or incapacitated by alcohol or drugs. If participants in a sexual act do not affirmatively consent, one of them has committed assault against the other.

The concept of affirmative consent gained widespread attention after a New York woman made public details of her relations with comedian Aziz Ansari during a date in 2018. She says she sent many cues she was uncomfortable; he says he thought she consented to sex non-verbally.

Affirmatively expressing consent brings clarity to this grey area. As a norm of social interaction, affirming consent can avoid misunderstandings that produce lasting damage.

But HB 133 proposes to turn affirmative consent into a legal standard, and thus creates other problems that Rep. Elizabeth Thomson, D-Albuquerque and the bill’s author, and other supporters may not have anticipated. In particular, the bill threatens to harm progress toward an important objective of victims’ advocates: increasing reporting rates.

Sexual assault and rape are among the most under-reported crimes nationwide. Surveys find that very few assault victims on college campuses report their experiences. Getting survivors to come forward is critical so they can get support, services and protection.

The problem is the affirmative consent standard seems to make female students at the University of New Mexico less likely to say they will report sexual assault to campus authorities.

My research team conducted three experimental studies in 2017 and 2018 involving approximately 800 students who participated in the university’s “Grey Area” sexual assault and harassment prevention training, which includes education about affirmative consent.

The training had many positive effects. For example, students came away less likely to endorse popular “rape myths” that blame victims and undermine the credibility of accusers. Women students grew more likely to endorse ideas about gender equality and many said they felt affirmed in their rights.

Yet in all three studies, women students left the training less likely to say they would report assault to the university, even if they also expressed greater confidence that they would be believed and not retaliated against if they did report.

Why? The standard of affirmative consent classifies much ambiguous human interaction as assault. And since assault is punishable by university policies as well as state law, the consequences for students may include expulsion or incarceration.

In personal interviews, students say consent is confusing, especially at parties when encounters involve substances. One student said she would be reluctant to report her experience and therefore “affect someone permanently.” Another added that through the training, he learned he may have assaulted someone in the past.

Though well intentioned, HB 133 is flawed. Affirmative consent is a desirable ideal, but legislating it as a standard to define assault and impose punishments runs the risk of setting back much of the progress that advocates have made in getting survivors of sexual violence to come forward and speak of their experiences.

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