Updated with a clarification from Hertel, 8:46 p.m.
Gov. Gretchen Whitmer is heralding state Sen. Curtis Hertel Jr.’s latest attempt to include consent training in Michigan public schools’ sex education classes.
The governor said in a statement Tuesday that reducing the number of sexual assaults “starts with teaching our kids about consent,” and pointed to the lack of such education as a major cause of sexual assault on college campuses.
The latest legislative push comes after Michigan State University senior Bailey Kowalski came forward last week in a previously anonymous lawsuit against MSU over her alleged gang rape by members of the men’s basketball team.
Kowalski said she was a freshman when she was assaulted and counselors discouraged her from contacting police.
The governor is a sexual assault survivor and MSU alumna herself. While serving as state Senate minority leader, Whitmer said during a 2013 floor speech that she had been sexually assaulted as a college student.
“Right now, we’re not doing everything we can to spread awareness about affirmative consent, and as a result, 1 in 5 women and 1 in 16 men are victims of sexual assault while they are college students in Michigan,” Whitmer said in a statement on Tuesday. “Our students deserve better. By passing this bill, we can send a message to Michiganders that sexual assault will not be tolerated in our state.”
Senate Bill 270, sponsored by Hertel (D-East Lansing), would teach students that “silence and lack of resistance do not serve as consent; consent can be rescinded at any point during the sexual encounter; and the existence of a dating relationship between two people doesn’t imply consent,” according to a press release from Hertel’s office.
The legislation was not available online early Tuesday evening. But according to a copy of the bill obtained by the Michigan Advance, consent must be “affirmative and conscious and involve a freely given agreement to engage in sexual activity.”
If the individual is incapacitated due to alcohol or drugs or is asleep or underage, consent cannot be given, the bill says. It would require education on “dating violence” and would “create a school environment in which sexual assault and dating violence are not acceptable and victims of sexual assault and dating violence are provided help and support.”
The measure also would amend a section of state law to say that abstinence education “must” be taught. The law currently states that it “shall” be taught.
The program “must emphasize that abstinence from sex is a positive lifestyle for unmarried young people” because it’s the only way to guarantee unwanted pregnancy and sexually transmitted infections and diseases are avoided, according to the legislation.
Hertel told the Advance that the amendment was prompted by the Legislative Services Bureau, which he says is recommending that change on all old statute language in other sections of law that also say “shall” instead of “must.”*
Michigan schools teach abstinence and other means of avoiding sexually transmitted diseases and infections, such as condoms. Programs that advocate for “abstinence only until marriage” have been criticized by researchers as unrealistic and ineffective.
Hertel said his legislation does not strengthen abstinence education, something he said he does not support. Leaving it intact was a compromise, he said.
“Sometimes in legislation, you work on what you think is passable,” Hertel said. “I would make lots of changes … [but] consent is the most important issue missing from sex ed right now.
“I’m more committed to that than anything,” he said.
Hertel’s latest reintroduction of the plan came after failed attempts to insert “affirmative consent” to sex ed classes at public schools in previous years.
Hertel introduced similar legislation in 2017 and 2015. In 2015, former state Rep. Tom Cochran (D-Mason) also introduced a House version of the plan.
The new focus on consent would be included in sex ed classes at whatever age a local school district chooses to have the classes. Under existing state law, local school districts decide when to include such classes in the curriculum — often in high school, but sometimes earlier.
“When we send our kids off to college, we should worry about their grades and how we’re going to afford the cost, not if our children are safe on their campus of choice,” Hertel said in a statement. “We have to change our culture surrounding sexual assault and the only way to change our culture is through education. It is clear we need to have more robust conversations and they need to start earlier.”
Clarification: This story has been updated with Sen. Curtis Hertel’s comments about the bill and abstinence education.