Maryland General Assembly passes bill to constitute the definition of consent and repeals force
Maryland Gov. Wes Moore, bill sponsors, and MGA legislative interns at bill sign ceremony (Maryland GovPics/Flickr Images)
Content Warning: This article contains language discussing sexual harassment, assault, violence, and rape.
House Bill 0496, cross-filled with Senate Bill 0758, an act titled, “Criminal Law – Sexual Crimes – Definition of Consent and Repeal of Force” constitutes a legal definition of consent and removes the requirement for a victim to prove force or the threat of force from an alleged nonconsensual sexual act to be considered a sexual assault in the state of Maryland.
It was passed by the Maryland General Assembly on April 5 and signed into law by Gov. Wes More on May 16.
The state of Maryland currently does not have a legal definition of consent for sexual activity. Instead, survivors must prove they resisted or were afraid to participate due to the threat of force.
In the existing statute law in registered sex crimes, section 3-304 by the Maryland Department of Public Safety and Correctional Services states “a sexual offense in the second degree is any sexual act with another by force or the threat of force, without the consent of the other.”
In May 2018, Former Governor Larry Hogan signed Senate Bill 402, which enacted Maryland schools to have age-appropriate consent education and respect for personal boundaries. Educational programs have been sent out from elementary to higher levels of education.
The University of Maryland has on and off-campus resources, educational programs and student organizations to teach survivors and those who want to learn about what they can do to empower themselves, to take action against any type of prosecution and to advocate for sexual assault and violence.
These on-campus programs include CARE to Stop Violence at the UMD Health Center, The Office of Civil Rights & Sexual Misconduct, student organizations such as Prevent Sexual Assault, Black Girls 2 and Maryland Coalition Against Sexual Assault, an off-campus program that works with college students through peer programs.
The University of Maryland defines consent as “ a person who has the ability and capacity to exercise free will and make a rational judgment can give consent,” university policy states. “Consent may be expressed either by words and/or actions. It is the responsibility of the person who wants to engage in sexual activity to ensure that they have consent from the other party and that the other party is capable of providing consent.”
Delegate Emily Shetty, the main sponsor of HB496, stated in the Judiciary Committee hearing “That's what we're teaching kids in schools and what most people throughout Maryland believe. Maryland currently has no legal definition of consent and instead relies on victims to prove that they resisted or were afraid to do so.”
“HB496 does not create an affirmative consent of a ‘yes’ or ‘no’ requirement. Instead, it considers words, actions and the ability to withdraw consent at any time,” Shetty said.
Repealing force as a factor from the current legal definition of rape in the second degree eliminates a focus on the victim and whether they resisted.
Previous legal language did not encompass survivors' cases of “freezing”, the inability to move or speak during an assault and a common response by rape survivors, according to Rape Crisis England & Wales.
“It's still sexual assault even if that force or threat of force is not clear,” said Grace Boudreau, an outreach coordinator for CARE. “There's still a lot of different ways that power imbalances can display and that people can use power imbalances to cause harm.”
Other factors out of many in which one cannot give consent where a chance of force or the threat of force is unclear are coercion, being intoxicated or incapacitated by drugs or alcohol, and being asleep or unconscious.
Some legal experts say that victims are unaware that force or the threat of force is a requirement to report sexual assault as a crime for second-degree rape in the state of Maryland.
“I have had to tell victims who have been violated that the crimes that have been committed against them because there was no force are not rape. ‘Why didn't you resist?’ was questioned. That's not fair,” testified Christine DuFour, a part of The Maryland Criminal Defense Attorneys' Association, in the Judiciary Committee hearing.
House Bill 496 changes the focus on whether there is a clear and voluntary agreement between the people involved and prevents harmful questions that result in blaming them.
The CARE office said the bill will help with educational programs to support survivors of sexual assault better if they choose to go through the legal process or the criminal justice system.
“House Bill 496 will accurately reflect, support and protect the people that this legislation represents and empower survivors of rape and sexual violence to know that they are protected and supported by Maryland law,” a Morgan State University student testified.
The act is expected to be in effect on October 1, 2024.