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Under current law, there are various standards for appraising consent in cases of alleged sexual assault. SB 967 would not consider it a defense to prosecution if a reasonable person “should have known” or understood that consent was not granted. In addition, this bill would clarify the language regarding situations where the victim is incapable of appraising the nature of the act. This would effectively adopt an affirmative consent standard, not just for college kids, but for everyone in Texas.
Though undoubtedly well intended, the issue with this bill and all such proposals seeking to deal with consent is not only the way in which these cases are handled on educational campuses but also ambiguity that will always exist with such definitions. Certainly not because of their intent, but rather the inability of statute to account for the context and complexity of situations in which abuse can be alleged.
As the Stop Abusive and Violent Environments Organization (SAVE) notes in a letter they published: "Legal scholars and policy experts have often differed on how to best define ‘consent,’ but ‘affirmative consent’ is certainly among the most contested. Opponents argue that it unconstitutionally flips the burden of proof to the accused, removes the presumption of innocence, and illogically ignores the spontaneity of how sex really happens."
Such ambiguity could have the effect of criminalizing normal sexual activity between adults. Using the forceful arm of government to regulate in such a manner leads to more issues than it does resolutions.
This bill infringes on the principle of limited government by establishing a vague standard of prosecution in cases of alleged sexual assault. It is easily foreseeable that this will lead to the prosecution of people who have engaged in normal consensual sexual activity merely on the basis that there was not a verbal exchange of agreement for each escalating activity in a sexual encounter.