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Perhaps the most discussed phrase within any of the many laws made by Tennessee legislators during the recently concluded 107th General Assembly is "gateway sexual activity." contained within a rewrite of the state's sex education statute.
Classroom instructors who promote or condone "gateway sexual activity" will be subject to a $500 fine under SB3310, which Gov. Bill Haslam signed into law Friday, May 11, 2012, after having his own discussions with state education officials.
"Gateway sexual activity is so vaguely defined it could be holding hands, hugging, anything that teenagers do like that," said Rep. Mike Stewart, D-Nashville, during House floor debate.
The bill drew wide attention nationally – a Google search for "gateway sexual activity Tennessee" produced 3.8 million results – as well as within the Legislature. A New York Times op-ed piece, for example, begins:
"Earlier this month state senators in Tennessee approved an update to our sex education law that would ban teachers from discussing hand-holding, which it categorizes as 'gateway sexual activity.'"
Proponents of the bill declared such contentions are flatly wrong. Rep. John DeBerry, D-Memphis, declared in a House floor speech: "Everyone in this room knows what gateway sexual activity is" and it's not holding hands.
The bill itself says this: "Gateway sexual activity means sexual contact encouraging an individual to engage in a non-abstinent behavior."
So does that cover holding hands? Or how about a teenage girl sitting in a boy's lap, which Stewart said would trigger the new law?
Our inquiry began with David Fowler, a lawyer and former state senator who is president of Family Action Council of Tennessee (FACT), a Christian conservative organization. He drafted the bill and lobbied for passage, saying it is needed because the current "family life curriculum," though containing language to promote abstinence, is so vague that it allows discussion of "anything that doesn't make you pregnant."
In particular, Fowler cites an episode at a Nashville high school wherein a contracted sex education instructor used graphic visual aids and verbal descriptions that some parents found highly offensive.
The use of the words "sexual contact" in the bill's declaration of the meaning of "gateway sexual activity" refers, Fowler says, to the definition of "sexual contact" in the state's criminal law.
The term there is defined as the "intentional touching" of another person's "intimate parts, or the intentional touching of the clothing covering the immediate area of … any other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification."
Further, the criminal code defines "intimate parts" as "the primary genital area, groin, inner thigh, buttock or breast of a human being."
Hands aren't mentioned, Fowler notes, therefore hand-holding is clearly not covered by the new law. As for lap-sitting, he says, "an element of common sense" would dictate that "in most situations" that would not be "gateway sexual activity" because it is not done for "the purpose of sexual arousal."
Legal scholars are not so sure.
"A fair reading of the statute suggests that hand-holding would not be considered gateway sexual activity but it is conceivable that failing to stop a student from sitting in another student's lap and kissing, or in some other way acting romantically toward that person could come under the statute," said Chris Slobogin, director of the criminal law program at Vanderbilt University Law School.
Dwight Aarons, professor at the University of Tennessee College of Law, said that even hand-holding could be covered under some circumstances. For example, he envisioned students being shown a movie in a darkened room, a hand-holding couple with hands falling into one student's lap and one student squeezing the other's hand.
Would the teacher observing such behavior be condoning gateway sexual activity if not moving to stop it?
"It really does depend on the context," Aarons said. "People can come to this on different approaches."
He said bill overall seems a "cumbersome" way of dealing with the issue and could be seen as the Legislature "passing the buck."
"Members of the General Assembly can say they've addressed the situation," he said. "But in the end, it's the people in the schools who have to deal with it."
As for the term "gateway sexual activity," Aarons said, "I sort of scratch my head and wonder what they're exactly talking about."
"I hope it's a term of art that's known in the profession. But that may be wishful thinking."
Gateway sexual activity, then, probably does not include hand-holding. And there are certainly some things that it would include. But there seems a lot of gray area in between.
TN.gov: Senate Bill 3110
Video of House floor debate on SB3310/HB3162,
New York Times: "God and Man in Tennessee," April 28, 2012
Interviews with David Fowler, May 4, 2012
Interview with Chris Slobogin, May 8, 2012
Interview with Dwight Aarons, May 9, 2012