NM says yes to affirmative consent

Affirmative consent supporters. Photo by Steve Rhodes.

New Mexico public colleges and universities will be required to update their handling of sexual assault and sexual harassment after Gov. Michelle Lujan Grisham signed HB 151, an update of the Higher Education Sexual Violence Prevention Act.

According to the bill, affirmative consent means “affirmative, conscious and voluntary agreement to engage in sexual activity.”

That consent “cannot be implied, assumed or inferred from silence or lack of protest or resistance.” And it “can never be given by a party who is asleep, unconscious, incapacitated due to the influence of drugs, alcohol or medication or unable to communicate due to a mental or physical condition,” the text states.

That means defendants or schools can’t successfully argue that the victim was drinking too much or “didn’t say no.”

Advocates had been pushing for this change 2019, said Marshall Martinez, executive director of Equality New Mexico, but previous efforts included K-12 schools.

This year was different, after some significant issues on college campuses. “We felt like now was the time where we needed to urgently and in an emergency address campus providers,” Martinez said.

UNM already uses the affirmative consent standard, according to a legislative analysis. UNM also has a decade-old Sexual Misconduct & Assault Response Team (SMART), an immediate victim services response team that also provides training.

And NMSU reported that they use the affirmative consent standard when evaluating allegations and they use the preponderance of the evidence standard for investigations.

All campuses are required to have a person someone can report to when they have experienced any sort of sexual violence. Now, when schools conduct an investigation they will have to use affirmative consent and “preponderance of the evidence” as standards.

Schools will also be required to teach about affirmative consent during orientation and notify students where on campus they can go to make any sort of reports of sexual violence. 

Lastly, it will require that the people who receive these reports on campus must have a relationship with a crisis center so that way when a student files a report they can refer students for counseling and support services. 

The changes must be in place by the beginning of the next school year.