There are many places where the law and sex education intersect, and they can be broken down into several categories. Certainly there is some overlap among them, but for the purpose of this post, the categories are: state law and policy on sex education, laws affecting sex educators in the classroom, and laws affecting youth. You can register for our in depth, interactive, 12 session series here.
State Law and Policy on Sex Education
First, there are the places where the state law or local regulations explicitly address sex education. Most often these laws treat what must be taught, though too frequently they focus on what cannot be taught. They also frequently address the involvement of families in sex education. For example, there are 30 states that require some form of sex education, but only 18 states require that sex education be medically accurate, and 19 states are required to stress that sex should only be within the context of marriage.
Most states’ laws explicitly allow parents the ability to opt their child out of a sex education program, meaning that if a parent disagrees with the content of the lesson, they may excuse their child from attending. However, five states’ laws require that if a young person is to attend a sex ed class, their parent must proactively opt in to the class. This is problematic, because it has been clearly demonstrated that states which require an opt-in to sex education have a significantly lower attendance rate.
Laws affecting sex educators in the classroom
In addition to the laws that dictate the content of sex ed curricula, there are laws that impact educator behavior in the classroom. The first of these are mandatory reporting laws. These laws require professionals who have frequent contact with children to report suspected child abuse either to the school administrator, or directly to a legal authority. The laws usually define what types of disclosure must be reported as red flags for “abuse.” This can be a problem, because it can discourage open communication in the classroom. For example, in some states the age of consent is 16, and anyone under 16 who is sexualy active is legally incapable of consenting to sex, and thus a victi of sexual abuse. Now image you are teaching sex education in 9th grade, and a 15 year old student says something that leads you to believe that they are sexually active. Do you have to report this information? And if so, where does this report go?
Over the past decade, a working knowledge of Title IX (“Title Nine”) has become essential for educators. This federal law is used to prevent not just sex discrimination, but sexual harassment in schools. Teaches need to know what types of conduct may be considered sexual harassment, and who they need to report it to if it is sexual harassment. Students can be guilty of conduct that violates Title IX. However, teachers and administrators can also be implicated in Title IX violations. Teachers can be liable for conduct that constitutes sexual harassment. However, they can also violate Title IX if a teacher creates (or fails to alleviate) a “Hostile environment.” A Hostile Environment is created when conduct in a classroom is so “severe, pervasive and objectively offensive” as to deny a student access to an education. A curriculum that explicitly excludes or offends a student on the basis of sexuality could be found to violate Title IX.
Laws that affect young people
By far the largest category are laws around sex that directly affect young people. One disturbing category here is laws the around sexting. Sexting is the sending and receiving of sexualized images of middle and high-schoolers. In many states it is treated as distribution and possession of child pornography, and punishable as a felony. This is a huge problem, because in a recent survey, 14 percent of students had sent sexually explicit images of minors (often themselves), and 23 percent had received sexually explicit images. Young people have been convicted of child porngraphy and sentenced to prison for sending or forwarding images, even when judges did not want to do this.
Many states have passed laws directly addressing sexting, making it less than a felony, but this has happened inconsistently. Not only is it essential for educators to know what the laws are, but also how to talk about sexting rationally, neither making light of the issues nor causing panic about the possible consequences.
Closely related to this are laws related to non-consensual posting of images and “revenge porn.” These laws deal specifically with someone posting sexually explicit images of others without their permission. Very often these images are of people who they have been in a relationship with, often following a bad breakup – thus revenge porn. Laws addressing non-consensual images and revenge porn vary widely from state to state. Some states criminalize the posting of all non-consensual sexual images equally, no matter if there was a dating relationship or not. Some states mandate greater penalties (jail time and/or fines) if the posted images were taken in the context of a dating relationship. And some states require that the images posted be part of a blackmail scheme. Like the laws, the penalties for revenge porn also vary dramatically, from probation to up to five years in prison.
Accessing sexual health services
Questions inevitably come up around adolescents accessing sexual health services, specifically around privacy. “Can I get tested or treated for STIs without that information showing up on insurance forms?” “How old do I have to be to get prescription birth control or an IUD? And can I do this without my parents permission?” “Do I need parental consent for an abortion?” These are complex questions that often involve both state and federal law. In some states you can access sexual health services and urgent medical care without parental consent, however in some states you cannot. In some instances, resources are made available through federal laws, e.g. Title X, which deals specifically with low cost family planning services. But young people need guidance in how to access those resources.
Among the most relevant age-related sex laws are the age of consent laws, often referred to as the Stauttory Rape laws. These laws set the age at which a person is legally capable of consenting to sex. Every state has its own age of consent law, and they are wildly inconsistent. For example, in Massachusetts, the age of consent is 16; if a person under the age of 16 has sex, they are a victim of statutory rape. In many states there is a close-in-age exception, a so called “romeo and juliet” law, which provides an exception if the sexually active minors are of a similar age. For example, in Connecticut the age of consent is 16, but there is a close-in-age exception of 2 years. So in Connecticut, if a 15 year old has sex with a 17 year old, because the age difference is 2 years, there is no statutory rape.
Laws around dating violence
One out of every ten adolescents have experienced some form of physical violence by an intimate partner, and 33% of girls have experienced some form of physical, emotional, or verbal abuse by a dating partner. Only 33% of young people who have experienced dating violence have ever told anyone about the abuse. Students need to recognize red flags, but even more important, they need to know how to access help. Educators need to know the laws around dating violence, not only to be able to identify illegal conduct, but in order to talk about how a teen in an abusive relationship might access help.
Finally, these days so many news discussions around sex and law currently circle around sex trafficking, more accurately referred to as “Commercial sexual exploitation of minors.” Educators should understand these complex issues, and recognize red flags that might be indicators of CSEC. We are not suggesting that a discussion of sex work and commercial sexual exploitation of minors should be a part of school-based sex education, however educators should know what commercial sexual exploitation is and looks like. And because of its ubiquity in the media, they should also know how to talk about this with panicked parents and administrators.
Join us on zoom, starting September 2nd through February 17th (1st & 3rd Thursdays, 4e/3c/2m/1p), as we dive deep into these topics. Register for this series here.