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Why Maryland’s proposed affirmative-consent law is ‘unworkable’ and ‘harmful’

When Maryland lawmakers last year considered whether to codify the “affirmative consent” standard for sex on college campuses, the due-process group Stop Abusive and Violent Environments (SAVE) asked them to first try the approach “in their own personal lives” for a month.

“Not surprisingly, not a single legislator took us up on our offer,” yet now some of them want to teach the standard in Montgomery County’s public schools, SAVE President E. Everett Bartlett wrote in prepared testimony for last week’s hearing on HB 365.

The bill’s definition of affirmative consent “may sound good in theory, but for teenagers, it is in fact far removed from any semblance of reality,” Bartlett wrote, noting a New York Times story about teenagers struggling to identify ways to unambiguously communicate such consent under California’s new law.

The proposed definition in the Maryland bill is an “unworkable” minefield of ambiguity, says Bartlett:

“…clear, unambiguous, knowing, informed, and voluntary agreement…”

In reality, most sexual activities involve implied consent. So does a passionate head-nod count as “clear”? Does the phrase, “Let’s do it!” count as “unambiguous”? Does removing one’s own clothing represent “informed” agreement?

The second part of the definition reads:

“…to engage in each act…”

So what counts as an “act”? Each individual kiss? The removal of each article of clothing? What about a hug?

The third part of the definition reads:

“…within the course of sexual activity…”

So how is sexual activity defined? Does it include a good-night kiss? An affectionate embrace? What about prolonged snuggling? 

The bill is also “harmful” because it “trivializes the seriousness of sexual assault,” plays down binge drinking, turns every “romantic embrace into a potential legal minefield” and clears the way for sex partners to “retroactively claim they didn’t give consent,” Bartlett says.

SAVE also warned in an email blast this week that two states are considering codifying elements of the Obama administration’s “Dear Colleague” letter on campus sexual harassment and assault, which may not survive the Trump administration’s Department of  Education.

A Mississippi bill cleared the House and is under consideration in the Senate that refers to accusers as “survivors” and would impose the “more likely than not” preponderance evidence standard, limit cross-examination and keep attorneys from playing an “active role.”


Connecticut lawmakers are planning a public hearing on “codifying federal Title IX protections” that SAVE says would “codify and expand” the Dear Colleague letter.

Read SAVE’s testimony on the Maryland bill.

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