After Baylor Scandal, Survivor-Centered Bills Give Texas a Chance to Lead Campus Sexual Assault Fight
Advocates say less than 10 percent of sexual assaults are reported in Texas and legislation focusing on support for survivors is most effective.
The last Texas legislative session gaveled out in June 2015. It was in August of that year that I, along with my co-author Dan Solomon, broke the first major story about Baylor University and sexual assault. The story has continued to unfold ever since, a seemingly bottomless series of revelations about the extent to which the university failed on an institutional level to prevent and respond to harassment and violence on campus.
Now the Legislature is back in session, and lawmakers are filing bills in response to the scandal and the problem it laid bare. At least two bills, by Representative Roland Gutierrez, D-San Antonio, and Senator Joan Huffman, R-Houston, have a punitive focus. Gutierrez’s House Bill 664 would direct the Texas Rangers to investigate what happened at Baylor, while Huffman’s SB 576 would criminally punish employees and student leaders who fail to report harassment or violence.
Huffman and Gutierrez’s bills are typical of how our society responds to sexual assault: by punishing after the fact and criminalizing the process. But there’s also an emerging victim-centered approach that prioritizes support for survivors.
Texas Association Against Sexual Assault (TAASA) spokesperson Christopher Kaiser said that this approach could increase dismal reporting rates. “Historically, the policy response to rape has been to make punishments more severe and processes more rigid, without regard for survivors’ needs,” Kaiser said. “That approach is part of the reason only 9 percent of sexual assaults are reported in Texas. Instead, we need policy that reflects survivors’ experiences and trusts individuals to know the safest courses of action for them.”
This is the progressive tack that Senator Kirk Watson, an Austin Democrat and Baylor alum, is taking in a package of five bills he filed last week.
“I was extremely disturbed by what occurred at Baylor,” Watson told the Observer. “It’s shocking. … It should also spur us to do all we can to make sure students are safe on campus.”
Watson’s SB 967 would broaden the legal definition of consent. No longer is it assault only if the victim is unconscious or physically incapable of resisting, but if Watson’s bill becomes law, a victim who is unable to understand the nature of the act or unaware that assault is occurring also cannot consent. It also adds a “reasonable person” clause. With SB 967, you could no longer claim a defense to a charge of assault if “a reasonable person should have known or understood that the other person did not consent to the conduct.”
Three of Watson’s bills (SB 966, SB 969 and SB 968) aim to protect students who report from being punished if they were violating the school’s code of conduct — by drinking alcohol, for example — at the time they were harmed. Watson would also require colleges to have an electronic, anonymous method for students to report. Senator Sylvia Garcia, D-Houston, has a similar bill. SB 962 would force institutions of higher education to create “an online reporting system for sex offenses.”
Perhaps the most progressive of Watson’s bills, and the one most likely to be controversial, is SB 970. This would make affirmative consent the standard by which institutions of higher education will determine if a student committed assault. Affirmative consent is also known as “yes means yes,” in that instead of relying on someone to verbalize or act out forcefully enough that they do not consent to a sexual act (“no means no”), a person must get an affirmative response from their partner. Or, as Watson said in his press release: “‘No’ means no. But the absence of ‘yes’ should also mean ‘no.’”
Few states have affirmative consent laws in any form, and they are not without their critics. Watson acknowledges this: “With a sensitive topic such as sexual assault, you’ll always have some pushback. And I’ve heard from a couple of people with questions or some outdated thinking. The concept of affirmative consent is likely to be the hardest topic at first.”
But he is hopeful the proposals will become law. “I think the bills have a great chance at moving through the legislative process,” Watson said. “Some Texas schools are already moving toward an affirmative consent standard as well as providing amnesty for student conduct code violations ancillary to a sexual assault incident.”
Wendy Davis, former Texas state senator and gubernatorial candidate, told the Observer that the legislation “provides a framework for students and administrators that is both preventative and responsive.” Davis also said that members of Deeds Not Words, an organization she founded to help young women advocate for equal rights, plan to testify in support of Watson’s bills.
While the legislation is a response to the ongoing scandal at Baylor, the impact is larger. At least 10 institutions of higher education in Texas were under investigation for possible violations of federal law in regards to campus sexual violence as of January, according to the Department of Education’s Office for Civil Rights.
That is why Watson’s bills are necessary right now, and matter so far beyond Baylor. They will, if passed, begin improving safety at all campuses. “I believe the political climate is ripe for Texas to take a step forward on protecting victims’/survivors’ rights,” Watson said. Here’s hoping.