Only in California - Sexual Activity First Needs "Affirmative Consent" From Sober Parties

[Jarhyn]

Admittedly, this new law greatly disturbs me. We are not ready for it as a species. It is no better than anti-sodomy laws, in many ways.

I say this because for a significant portion of the population, an explicit 'yes' while sober is entirely anethma to the social exchange that the sex is intended to accomplish. Between the sheer number of people I know who have rape fantasies, the number of people who attend conventions where alcohol fueled sex is the only reason many attend, and the BDSM subcultures, this opens the door to untold volumes of abuse.

Essentially I can't live in California, or even visit, if I want to have any kind of sex that would make my dick hard enoug for it to happen in the first place, or which wouldn't open a giant gaping legal liability for my partner.

I don't see anything wrong with having these kinds of desires between consenting people.
But if your desires require that you not be absolutely certain of their consent in order to feel the thrill, you are at a HIGH RISK of being someone who has forced sex on an unwilling partner.

Are you okay with seeing yourself as someone who has "oops! accidentally!" forced sex on a person who does not want it? And then going out and doing that again to another person?

It's a more complex question, I think, than you are really prepared to consider. I have forced sex on an unwilling partner.
I've been an unwilling partner. I have a complex relationship with myself such that I'm not the only activity in my brain. Because of that, 'I''ve even been BOTH willing and unwilling at the same time. It's a sticky situation when you realize that there are humans out there who can rape themselves, particularly by definition of this law. And even outside the definition of the law.

I would not undo any of those experiences, and having them have made me more than I was. If it happened and I was looking down on me as if I were a god, I'd not intercede. Neither of me would, for the most part. And neither would the guy I had nonconsensual sex with. Not everything is as cut and dry as you think it is. A far more healthy outlook is that sometimes we end up in situations we don't like, and sometimes that has a profound effect on what I'd call someone's 'personal animal'. But that's not exclusive to, nor necessarily bound to, sex. People often make a huge deal out of rape, but there's nothing intrinsic in the universe that requires it be that way.

 

[Derec]

Well, society thinks we can't drive after a few drinks. And they're willing to put us in jail over that one - hardly a pedestal!

That has to do with reduced reaction times and fine motor skills that are necessary to operate heavy machinery (i.e. motor vehicles) safely on public roadways.
The DUI laws have nothing to do with somebody losing ability to consent to doing stuff just because they are over 0.08% BAC. A drunk person can still hail a cab without the cabbie being arrested for robbery and kidnapping because the drunk could not consent to a cab ride and paying for it.

But in seriousness, I don't think any of these are intended to be "a few drinks"

Universities have increasingly been expelling male students when their female partners had any alcohol whatsoever (in the UGA case for example the female was deemed "too drunk to consent" merely because she was observed drinking - by anonymous witnesses - some time before the sex even though she was able to walk to and from the dorm room and composed coherent text messages proving that she wasn't "too drunk to consent" by any objective definition of the term) and this California law makes it explicit that it requires "sober consent" which doesn't leave much wiggle room for what millions of people are doing every single weekend.

 

[bigfield]

By derec :A person can still consent while being in a black out state.

Usually persons in a black out state are recognized as individuals unable to formulate and certainly unable communicate consent to...anything.

Are you seriously claiming that a person in such a state cannot consent to anything? What about a taxi ride home?

 

[bigfield]

And it is really easy to give and get. I'm plumb flummoxed by this idea that finding out whether your partner actually wants sex seems so foreign and difficult for so many of you. I am simply stumped. I do not get this mindset AT ALL. Can you really honestly not envision how two or more people could communicate desire and want that is unambiguous? What a frighteningly insecure world!

You repeat this strawman over and over.

The complaint is that your high standard for consent is unreasonable.

It's as if you have never had sex with a submissive partner. Some people are extremely passive during foreplay and sex, and not just those in D/s relationships. There's nothing inherently wrong or dangerous about that.

 

[Arctish]

this California law makes it explicit that it requires "sober consent" which doesn't leave much wiggle room for what millions of people are doing every single weekend.

Exactly!

Not much wiggle room = not much grey area for a sexual predator to exploit and not much chance an unwitting student finds him- or herself in that gray area of not knowing if the sex he or she had was consensual. The more clearly consent is defined, the easier it is to know if you have it.

 

[Arctish]

And it is really easy to give and get. I'm plumb flummoxed by this idea that finding out whether your partner actually wants sex seems so foreign and difficult for so many of you. I am simply stumped. I do not get this mindset AT ALL. Can you really honestly not envision how two or more people could communicate desire and want that is unambiguous? What a frighteningly insecure world!

You repeat this strawman over and over.

The complaint is that your high standard for consent is unreasonable.

It's as if you have never had sex with a submissive partner. Some people are extremely passive during foreplay and sex, and not just those in D/s relationships. There's nothing inherently wrong or dangerous about that.

I wouldn't say that. If your partner is so uncommunicative he or she does not exhibit any sign of consent other than passively accepting whatever you're doing, there is definitely something wrong. And to continue without knowing for damn sure that's what he or she wants is definitely dangerous.

There's nothing onerous about seeking confirmation of consent, even from a shy or inhibited partner. If you can't get an answer, then you proceed at your own risk.

 

[bigfield]

You repeat this strawman over and over.

The complaint is that your high standard for consent is unreasonable.

It's as if you have never had sex with a submissive partner. Some people are extremely passive during foreplay and sex, and not just those in D/s relationships. There's nothing inherently wrong or dangerous about that.

I wouldn't say that. If your partner is so passive he or she does not exhibit any sign of consent other than passively accepting whatever you're doing, there is definitely something wrong. And to continue without knowing for damn sure that's what he or she wants is definitely dangerous.

Being extremely passive is not the same as a being "so passive he or she does not exhibit any sign of consent". One can tell the difference between a partner in distress and a partner who is not, based on unconscious cues. But it would be extremely difficult to communicate that in a criminal court and satisfy the standard of "affirmative consent".

There's nothing onerous about seeking confirmation of consent, even from a shy or inhibited partner. If you can't get an answer, then you proceed at your own risk.

Of course there's nothing onerous about it. That's not the point. The point is that it is not necessary, and therefore making it the moral and/or legal standard is unreasonable.

 

[Rhea]

Usually persons in a black out state are recognized as individuals unable to formulate and certainly unable communicate consent to...anything.

Are you seriously claiming that a person in such a state cannot consent to anything? What about a taxi ride home?

Interestingly, when you go to get a colonoscopy and they deliberately put you in a "black out state" (you are awake and compliant but cannot make decisions nor remember them), they will not allow you to take a taxi home. You must have a ride from a known safe person. Because, no, they conclude that you are not able to consent to whatever might happen in that taxi.

 

[bigfield]

Are you seriously claiming that a person in such a state cannot consent to anything? What about a taxi ride home?

Interestingly, when you go to get a colonoscopy and they deliberately put you in a "black out state" (you are awake and compliant but cannot make decisions nor remember them), they will not allow you to take a taxi home. You must have a ride from a known safe person. Because, no, they conclude that you are not able to consent to whatever might happen in that taxi.

Interesting that a colonoscopy doesn't require affirmative consent.

Is a person who is in a black out state due to drinking able to consent to a taxi ride home?

 

[Rhea]

I don't see anything wrong with having these kinds of desires between consenting people.
But if your desires require that you not be absolutely certain of their consent in order to feel the thrill, you are at a HIGH RISK of being someone who has forced sex on an unwilling partner.

Are you okay with seeing yourself as someone who has "oops! accidentally!" forced sex on a person who does not want it? And then going out and doing that again to another person?

It's a more complex question, I think, than you are really prepared to consider. I have forced sex on an unwilling partner.
I've been an unwilling partner. I have a complex relationship with myself such that I'm not the only activity in my brain. Because of that, 'I''ve even been BOTH willing and unwilling at the same time. It's a sticky situation when you realize that there are humans out there who can rape themselves, particularly by definition of this law. And even outside the definition of the law.

I would not undo any of those experiences, and having them have made me more than I was. If it happened and I was looking down on me as if I were a god, I'd not intercede. Neither of me would, for the most part. And neither would the guy I had nonconsensual sex with. Not everything is as cut and dry as you think it is. A far more healthy outlook is that sometimes we end up in situations we don't like, and sometimes that has a profound effect on what I'd call someone's 'personal animal'. But that's not exclusive to, nor necessarily bound to, sex. People often make a huge deal out of rape, but there's nothing intrinsic in the universe that requires it be that way.

I am willing to consider it. It is not arousing to me in any way to contemplate unwilling sex. But I can see from what you say that for some people it is. One must assume that later, you are glad you did, based on what you've written ("one of the best nights of my life").

However, none of that changes the absolute fact that pursuing that kind of activity puts your at very high risk of including someone who does NOT agree with you. And that would make you a rapist.

If a person has this desire, and does not find partners who share it, but act on it with strangers, they ARE RAPISTS. I don't see how their personal sexual desires absolve them of that. Even if your sexual arousal requires the sensation of force, you are not excused from having consent. If you can set up an atmosphere where people consent by being there, (and then the "forcing" part happens within that controlled "community" of people who consent to that) then you have a better likelihood of avoiding a rape charge.

If that is your personality, you're required to control it in society. I don't see how anyone can expect any way around that.

 

[Rhea]

Interestingly, when you go to get a colonoscopy and they deliberately put you in a "black out state" (you are awake and compliant but cannot make decisions nor remember them), they will not allow you to take a taxi home. You must have a ride from a known safe person. Because, no, they conclude that you are not able to consent to whatever might happen in that taxi.

Interesting that a colonoscopy doesn't require affirmative consent.

Oh, but it does. You have to sign a form affirming that you agree to the procedure they are about to perform. And the anesthesia.
(I personally hate anesthesia, and I opted to have my most recent colonoscopy without it. It hurt like a motherfucker, but I prefer that to being blacked-out, and the pain only lasts a few minutes.)

Is a person who is in a black out state due to drinking able to consent to a taxi ride home?

I was pondering that as I wrote the above. I have no idea what the law says, but I would posit that perhaps they are not (not alone, anyway) and for all of the same reasons - they are at risk of terrible danger because they are not aware or able to resist. While still being the lesser of many evils such as letting them drive or making them sleep in the street. I would typically recommend a safe sober friend over a taxi, any day. Still, I would have a hard time throwing the book at someone who was trying to save a life by using one.

 

[Jarhyn]

It's a more complex question, I think, than you are really prepared to consider. I have forced sex on an unwilling partner.
I've been an unwilling partner. I have a complex relationship with myself such that I'm not the only activity in my brain. Because of that, 'I''ve even been BOTH willing and unwilling at the same time. It's a sticky situation when you realize that there are humans out there who can rape themselves, particularly by definition of this law. And even outside the definition of the law.

I would not undo any of those experiences, and having them have made me more than I was. If it happened and I was looking down on me as if I were a god, I'd not intercede. Neither of me would, for the most part. And neither would the guy I had nonconsensual sex with. Not everything is as cut and dry as you think it is. A far more healthy outlook is that sometimes we end up in situations we don't like, and sometimes that has a profound effect on what I'd call someone's 'personal animal'. But that's not exclusive to, nor necessarily bound to, sex. People often make a huge deal out of rape, but there's nothing intrinsic in the universe that requires it be that way.

I am willing to consider it. It is not arousing to me in any way to contemplate unwilling sex. But I can see from what you say that for some people it is. One must assume that later, you are glad you did, based on what you've written ("one of the best nights of my life").

However, none of that changes the absolute fact that pursuing that kind of activity puts your at very high risk of including someone who does NOT agree with you. And that would make you a rapist.

If a person has this desire, and does not find partners who share it, but act on it with strangers, they ARE RAPISTS. I don't see how their personal sexual desires absolve them of that. Even if your sexual arousal requires the sensation of force, you are not excused from having consent. If you can set up an atmosphere where people consent by being there, (and then the "forcing" part happens within that controlled "community" of people who consent to that) then you have a better likelihood of avoiding a rape charge.

If that is your personality, you're required to control it in society. I don't see how anyone can expect any way around that.

The problem is that this law has already invalidated any legal situation where 'being there' is sufficient for consent. There were ways in which communication was had over what implied 'too far', what was utterly unacceptable, what things induced trauma for each of us, and what merely was unpleasant or uncomfortable. We knew each other well enough to understand all the layers of 'meta' around the activity, that what he didn't want before, and could neither want not fail to want when it happened, was a conflation that he wanted to experience. And after was glad I was the one who he had it with.

But this law runs roughshod over the potential legality of that encounter. It declares it illegal on at least three levels. We were drunk (nearly black-out drunk) there was no 'yes', and if I had asked he would have said 'no'.

I would far rather have the power to have a judge not have his hands tied by such explicit laws, and I would far rather not have a law which would require in addition to public drunkenness and public exposure and probably trespassing, a rape charge at booking.

 

[bigfield]

Interesting that a colonoscopy doesn't require affirmative consent.

Oh, but it does. You have to sign a form affirming that you agree to the procedure they are about to perform.

But you are not capable of ongoing consent during the procedure, even though you are conscious.

Is it OK to give affirmative consent to sex in advance of sex but not during sex?

 

[Rhea]

Oh, but it does. You have to sign a form affirming that you agree to the procedure they are about to perform.

But you are not capable of ongoing consent during the procedure, even though you are conscious.

Is it OK to give affirmative consent to sex in advance of sex but not during sex?

(You notice you clipped out the part about agreeing ALSO to the anesthesia)

I would want it to be OK. That one can affirm in advance: These are the things that while I am sober, I am agreeing to. These are the authorized people, this is the authorized limit. One would be prudent to include some safeguards (such as the docs office includes the agreement that a same-sex witness will also be there -the nurse - this is true in gynocological exams, as well) such as a safe word. But I would think we could handle advance sober consent. Don't you? Of course for most people teh "safe word" is "Stop" and so that would have to be honored. Unless your kick is force in which case your safe word has to be something else.

 

[Loren Pechtel]

No, it will increase men getting falsely punished for "rape" that never happened because under this law because it classifies some perfectly consensual sex as "rape".

It's not perfectly consensual if there's any doubt that it was voluntary, sober, and affirmative consent. Remember Ben and the psychotic ex-girlfriend who broke into his house and demanded he sexually satisfy her? Would you say the sex they had was perfectly consensual?

So people who have had anything to drink can't consent to sex?

 

[Loren Pechtel]

We are saying that treating this as a civil matter does not change the basic fact that it's a decision to punish--and we very rightly have decided that a decision to punish requires a high degree of certainty that the person is guilty.

This is an attempt to do an end-run around the constitution, an unfortunate hallmark of how government has been operating these days.

An end run around the Constitution? Are you serious?

Colleges and universities do not prosecute crimes. They enforce Codes of Conduct at their institutions.

They are in effect punishing what they consider to be rape.

That's a criminal matter that should require proof beyond a reasonable doubt.

Yesterday I said I thought a lot of the confusion in this thread is due to the overlap between criminal investigations of rape allegations and the investigations colleges and universities do. Two posters immediately assured me there was no confusion, and yet you are the third poster today to once again conflate the two. If there is no confusion, why are you arguing for allegations of rule-breaking to be treated as crimes?

You misunderstand. I'm saying that you are trying to punish crimes as rule-breaking and get away with a far lower standard of evidence.

Is the idea a person must seek actual, genuine, not-to-be-confused-with-drunken-stupor affirmative consent before they engage in sexual activities with their maybe, perhaps, not-quite-sure-if-willing-but available partner is so very onerous? Would you rather see colleges and universities forced to lawyer up with prosecutors, public defenders, and an impartial judiciary before they can investigate a violation of the Code of Conduct? Does this apply to all violations of the Code of Conduct or is it just for when men have sex with drunk women?

The cases in question do not involve a drunken stupor. They involve someone who had a bit to drink which probably lowered their inhibitions but didn't render them unable to decide yes or no.

I would rather see the colleges do nothing at all in such cases. They should not be treading on criminal territory, leave it to the cops.

 

[Loren Pechtel]

More significantly, if this is what the white house wanted, it would have been explicitly stated in the same letter that said universities had to use a preponderance of evidence standard. In fact since the "clear and convincing" standard is mentioned as something not to be used, universities would be right to steer clear of codifying any protection against expulsion based on a higher standard. And it's also clear that, right now, men are being expelled on the lower standard since this is the basis for dozens of lawsuits at the moment.

It's not a defence of the preponderance of evidence standards to say that they might not be expelled on weak evidence if they demonstrably are and there are no protections against it.

Are you arguing against preponderance of evidence in all Code of Conduct cases, or just the ones that involve sex?

If there is a preponderance of evidence that a student plagiarized a term paper, is that not enough to expel him/her?

If there is a preponderance of evidence a student drove his/her car across the football field and ruined the turf, is that not enough to warrant punishment?

If there is a preponderance of evidence a student did not attempt to get consent before putting his/her thingamajiggy on somebody's thingamabob, would it be wrong for a college to enforce their rules about doing that sort of thing - rules the student knew about when he/she signed the Student Code of Conduct agreement as part of the admissions process?

Expulsion is a punishment. I don't think preponderance of the evidence is enough for an expulsion, period.

We tolerate it in civil matters because the harm of a wrong judgement is roughly equal. In a case like this wrongfully expelling is far worse than not expelling someone who should have been expelled. Thus we should use a higher standard.

 

[Loren Pechtel]

I think we all agree we don't want colleges and universities punishing the wrong students, or imposing excessively harsh punishments on the right ones.

I disagree. Preponderance of the evidence means a lot of wrong decisions. You favor it, thus you favor punishing the wrong students.

Which brings us back to affirmative consent. If you want to stay on the right side of the Code of Conduct, it helps to know where the lines are drawn. The proposed bill marks the line between consensual and non-consensual sex at the place where both participants indicate their willingness knowingly, soberly, and without coercion. That doesn't make misunderstandings impossible. It won't stop lying liars who lie. But it clarifies things by establishing a fixed point in a fluid situation. Either both indicate their willingness to proceed or the sex they have might be considered non-consensual, and non-consensual sex acts have serious consequences under the Code of Conduct. That's good to know, yes?

1) The measure isn't as reported, you're arguing a strawman.

2) The supposed measure put the burden on the defense which is not how our system is supposed to operate.

- - - Updated - - -

If I were a woman I think I'd be pretty upset that some in society seem to think I couldn't give consent after a few drinks. They're not china dolls that need to be put up on a pedestal because they're so fragile.

That part of the law just seems rather paternalistic.

Well, society thinks we can't drive after a few drinks. And they're willing to put us in jail over that one - hardly a pedestal!
But in seriousness, I don't think any of these are intended to be "a few drinks"

BAC .08 is about impaired reflexes, not impaired decision making.

 

[Loren Pechtel]

Are you seriously claiming that a person in such a state cannot consent to anything? What about a taxi ride home?

Interestingly, when you go to get a colonoscopy and they deliberately put you in a "black out state" (you are awake and compliant but cannot make decisions nor remember them), they will not allow you to take a taxi home. You must have a ride from a known safe person. Because, no, they conclude that you are not able to consent to whatever might happen in that taxi.

No. It has nothing to do with a black out state.

Rather, it's because in some people the after effects of anesthesia can do strange things to one's decision making. Things like groping the taxi driver.

 

[Derec]

this California law makes it explicit that it requires "sober consent" which doesn't leave much wiggle room for what millions of people are doing every single weekend.

Exactly!

Not much wiggle room = not much grey area for a sexual predator to exploit and not much chance an unwitting student finds him- or herself in that gray area of not knowing if the sex he or she had was consensual. The more clearly consent is defined, the easier it is to know if you have it.

Even if it would deter or help punish actual predators it would do it at the expense of punishing a much greater number of non-predatory people that enjoy alcohol with their sex. You might as well bring back prohibition to reduce DUIs. It would certainly have that effect, but at a cost that no liberal society should be willing to incur.
Which is why it is so ironic that it is so-called "liberals" who advocate such government intrusions into people's sex lives. Not much difference between radical left and radical right on this issue either - the only difference is what particular boogeyman they want to slay ("the gays" or more generally "sin" vs. "rape culture").