Editorial: Lawmakers should say no to 'yes means yes'

The Detroit News

The #MeToo phenomenon, along with a movement to punish and prevent sexual assaults on college campuses, has drawn significant attention to protecting women and combating abuse at all levels. Now some Michigan lawmakers want to fight assault by teaching K-12 youth to abide by an affirmative consent standard.

That may sound like a fine idea, but it sets up unrealistic expectations for romantic encounters. And as we’ve seen on college campuses, such standards often erode due process rights for those accused of assault.

Legislators are looking to require Michigan schools with sexual education programs to include focused lessons on affirmative consent, otherwise known as “yes means yes.” 

Legislators are looking to require Michigan schools with sexual education programs to include focused lessons on affirmative consent, otherwise known as "yes means yes."

Sen. Curtis Hertel, D-East Lansing, introduced SB 620 in October, and Rep. Tom Cochran, D-Mason, introduced HB 5734 in March. Both bills are waiting for hearings from the respective education committees. Supporters of the bills claim the “no means no” standards are outdated and do not stress the importance of clarity. To correct this problem, they are seeking for sexual education courses to teach students that “yes means yes.”

Essentially, students would learn that consent requires unambiguous affirmation. And they would be taught that consent must be given continuously — every step of the way.

According to Hertel, there is a cultural problem that needs solving.

“Sexual assault is the least prosecuted crime in America,” Hertel says. “Clearly, we’re doing something wrong.”

In speaking with university administrators, Hertel says they told him the best way to prevent sexual assault on campuses was to teach affirmative consent to students before they go on to college.

“There are cues in human interactions,” Hertel says. “Someone can tell if their partner is uncomfortable with something. Talking to them makes sense.”

Joe Cohn, the policy and legislative director at the Foundation for Individual Rights in Education, believes the legislation has good intentions for combatting sexual abuse – and he says teaching consent is part of that – but the bill’s current wording doesn’t “mesh with reality.”

“People aren’t mind readers,” he says. “This bill would teach that you have to pause every few minutes to confirm you still have consent.”

But actual sexual encounters don’t really work that way. 

Heather MacDonald, a fellow at the Manhattan Institute, believes sexual education standards aren’t going to effectively change anything.

“We have a culture that is sexualized,” Mac Donald says. “Whether these standards will have any effect on behavior is unlikely.”

While there are clear instances of sexual encounters without consent, these teaching standards aren’t effectively targeting those cases. Instead, they are focusing their firepower on cases in which the so-called “guilty parties” did not actually intend harm.

Teaching students affirmative consent and to be continually suspect of sexual partners is a slippery slope. Any citizen accused of a crime is considered innocent until proven otherwise. But these proposed sexual education standards will breed the mentality that someone accused of sexual assault is guilty until they can prove their innocence. That’s what’s happened on many college campuses. 

“It’s going to condition younger people to expect consent to be judged along those lines,” Cohn says. 

Other states like California have taken affirmative consent further by making “yes means yes” legally binding on college campuses, and there’s growing calls for similar laws in other states. That’s the wrong direction for Michigan to go.

Our schools can teach students to be decent human beings without setting up expectations that aren’t compatible with reality and that fundamentally harm basic due process rights.