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

[arkirk]

Leave it to the Ferguson Cops eh?

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.

You are just kicking the can down the street to another arbitrary agency. If these parties are in some way under the auspices of the school, then they have an obligation to set the rules of conduct at such events and enforce them. The same is true of social clubs where sexual activity occurs. Cops have a wide variety of prejudicial flavors. Well enforced rules of conduct would generally preclude the cops becoming involved unless the activity moved outside the venue.

Intoxication is a real serious stumbling block in determining consensuality. There appears to be more of a problem with adolescents than with adults in this area...many young adults in college seem to regress into adolescence with a few drinks. If we are to take Loren's suggestion seriously, the cops should cover the activity as it leaves the venue or if an attendee or attendees violate the law within the venue. That however would mean the activities already were in violation of the rules of conduct in most cases. I think a school for example would have every right to take separate disciplinary actions in addition to what the criminal justice system would do, just like a social club would have the right to boot a member who reflected badly on its reputation.

 

[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.

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.

Wrong. It's because of what can be done _to_you_ in that state. I assume at your age you've had a colonoscopy. I assume you have seen people under the influence of twilight sedation in the office - they are not terribly active. Ask your doctor.

 

[Arctish]

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?

You didn't answer the question I asked. Did Ben's reluctant agreement to satisfy the crazy ex-girlfriend who broke into his house in the middle of the night make their encounter perfectly consensual, or not? Derec has been arguing that it did. Do you agree with him?

 

[Arctish]

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.

You're still trying to conflate what colleges do to enforce Codes of Conduct with criminal prosecutions.

Many years ago some students at my college got angry at a teacher for giving them a poor grade and decided to chop down the iconic pine tree our college used as it's symbol. They were expelled for violating the student Code of Conduct by destroying school property. They were also prosecuted in federal court for destroying a tree listed on the National Historic Register. Those were two separate, independent actions. The federal court didn't care about the school Code of Conduct, and the school 1) had no authority to enforce federal laws, and 2) did not have to wait for the court to convict before expelling the students.

At another college I attended, a student was kicked out for breaking several windows in the main Administration building three weeks before graduation. He avoided a trial in small claims court by agreeing to pay restitution but was forced to leave campus and lost his chance at getting a diploma.

I know of another student who was kicked out of college for refusing to bathe. That's not even a crime, but it was a violation of the Code of Conduct so his association with his school was terminated.

All three of those incidents involved Code of Conduct violations, and in all three the school was empowered to sever it's relationship with those students. Two of them were also crimes. But just because those Code violations were also crimes does not mean those colleges carried out criminal prosecutions. A disciplinary process at college and a criminal prosecution are separate matters handled by separate authorities. They might be handled concurrently or they might not. It doesn't matter. Colleges and Universities enforce their Codes of Conduct, and that's all.

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.

Colleges and universities have nothing to gain and much to lose by becoming safe havens for sexual predators. I would rather colleges and universities spell out what consent means in explicit detail so that even the most ignorant, hormonally driven idiot can understand where the line is drawn and be held responsible for the choices he or she makes to respect them or not.

 

[Loren Pechtel]

You are just kicking the can down the street to another arbitrary agency. If these parties are in some way under the auspices of the school, then they have an obligation to set the rules of conduct at such events and enforce them. The same is true of social clubs where sexual activity occurs. Cops have a wide variety of prejudicial flavors. Well enforced rules of conduct would generally preclude the cops becoming involved unless the activity moved outside the venue.

I don't consider it can-kicking to direct it to the organization intended to deal with such matters.

Given the cost to the person expelled I don't think amateurs should be playing in the game.

Intoxication is a real serious stumbling block in determining consensuality. There appears to be more of a problem with adolescents than with adults in this area...many young adults in college seem to regress into adolescence with a few drinks. If we are to take Loren's suggestion seriously, the cops should cover the activity as it leaves the venue or if an attendee or attendees violate the law within the venue. That however would mean the activities already were in violation of the rules of conduct in most cases. I think a school for example would have every right to take separate disciplinary actions in addition to what the criminal justice system would do, just like a social club would have the right to boot a member who reflected badly on its reputation.

There are people who are too drunk to reasonably consent. However, that's not the sort of case we are talking about here. We're talking buzzed, not incapacitated. If she really were incapacitated how did she go to where they had sex? Most of these cases involve her actively going there at the level of intoxication that supposedly rendered them unable to consent.

 

[Loren Pechtel]

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.

Wrong. It's because of what can be done _to_you_ in that state. I assume at your age you've had a colonoscopy. I assume you have seen people under the influence of twilight sedation in the office - they are not terribly active. Ask your doctor.

While I have had one you're actually wrong in assuming it--I'm not quite to the age where they're done routinely. My wife has also had two by now. All three were general anesthesia, not twilight. She would not have been able to resist an assailant--but neither could an elderly person. By the time I finally left (scheduling snafu) I was fully back to normal.

 

[Loren Pechtel]

You're still trying to conflate what colleges do to enforce Codes of Conduct with criminal prosecutions.

Consider: We are talking life-changing punishment. That's normally associated with criminal acts.

Pretending it's merely a civil action doesn't change this.

Many years ago some students at my college got angry at a teacher for giving them a poor grade and decided to chop down the iconic pine tree our college used as it's symbol. They were expelled for violating the student Code of Conduct by destroying school property. They were also prosecuted in federal court for destroying a tree listed on the National Historic Register. Those were two separate, independent actions. The federal court didn't care about the school Code of Conduct, and the school 1) had no authority to enforce federal laws, and 2) did not have to wait for the court to convict before expelling the students.

I think the school should have waited for the court decision.

At another college I attended, a student was kicked out for breaking several windows in the main Administration building three weeks before graduation. He avoided a trial in small claims court by agreeing to pay restitution but was forced to leave campus and lost his chance at getting a diploma.

In other words, a confession. I'm fine with that.

I know of another student who was kicked out of college for refusing to bathe. That's not even a crime, but it was a violation of the Code of Conduct so his association with his school was terminated.

It's obvious who is the guilty party here.

Colleges and universities have nothing to gain and much to lose by becoming safe havens for sexual predators. I would rather colleges and universities spell out what consent means in explicit detail so that even the most ignorant, hormonally driven idiot can understand where the line is drawn and be held responsible for the choices he or she makes to respect them or not.

You're still assuming the decisions are right. When you're dealing with a preponderance of the evidence standard you're going to be making a lot of errors.

 

[Toni]

Consider: We are talking life-changing punishment. That's normally associated with criminal acts.

It's much more akin to being fired from a job than it is being convicted of a criminal offense. Being fired does not normally involve a criminal trial or charges.

Universities have the right and also the obligation to enforce codes of conduct and to do their best to ensure a safe environment for students and staff. And also to ensure that the university's reputation as an institution of higher learning and its integrity remain intact. Otherwise, they risk devaluing not only the university but also the degrees which students earn and then trade upon to get jobs and further their careers. That degree from Harvard is as valuable as it is because of Harvard's reputation--not just academic reputation.

Pretending it's merely a civil action doesn't change this.

Pretending that dismissal from a university is akin to a criminal conviction and prison sentence doesn't make it so.

Many years ago some students at my college got angry at a teacher for giving them a poor grade and decided to chop down the iconic pine tree our college used as it's symbol. They were expelled for violating the student Code of Conduct by destroying school property. They were also prosecuted in federal court for destroying a tree listed on the National Historic Register. Those were two separate, independent actions. The federal court didn't care about the school Code of Conduct, and the school 1) had no authority to enforce federal laws, and 2) did not have to wait for the court to convict before expelling the students.

I think the school should have waited for the court decision.

Why? There were two separate issues: Students violated the university's code of conduct by destruction of property of the university. The destruction of that particular piece of property was significant enough to merit dismissal.

The federal court case was a separate issue altogether. It is similar to a drunk driver killing a father. There is a criminal case: drunk driving. There is also a civil case to compensate the family. Even if the criminal case were lost, the family still has recourse with a wrongful death suit. Criminal cases do not award damages.

Colleges and universities have nothing to gain and much to lose by becoming safe havens for sexual predators. I would rather colleges and universities spell out what consent means in explicit detail so that even the most ignorant, hormonally driven idiot can understand where the line is drawn and be held responsible for the choices he or she makes to respect them or not.

You're still assuming the decisions are right. When you're dealing with a preponderance of the evidence standard you're going to be making a lot of errors.

I would be very interested in what you would consider sufficient evidence to dismiss a student for sexual assault of another student.

 

[Toni]

I disagree. Preponderance of the evidence means a lot of wrong decisions.

Really? Evidence, please. This is the standard used in civil court. It seems contrary to reason that it would continue to be used if it were a poor standard. Also, please remember that 'beyond a reasonable doubt' standard also results in a lot of wrong decisions. See the Innocence Project for some particularly egregious examples.

You favor it, thus you favor punishing the wrong students.

Wow: Disagree with Loren and it means you favor punishing the wrong students and who knows what other injustices!

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.

Is 0.08 BAC the standard the California statute has determined to be a point at which consent cannot be given.

This may be interesting:

http://oade.nd.edu/educate-yourself-alcohol/blood-alcohol-concentration/

BAC 0.06-0.099% Slight impairment of balance, speech, vision, reaction time, and hearing. Euphoria. Reduced judgment and self-control. Impaired reasoning and memory.

 

[Derec]

Universities have the right and also the obligation to enforce codes of conduct and to do their best to ensure a safe environment for students and staff.

But that code must then be enforced fairly and not capreciously. If male students are being expelled because they had sex with female students who have been drinking then so should female students also be expelled for having sex with male students who have been drinking - sauce for the gander should be sauce for the goose! But that is certainly not happening. Or even better, come up with reasonable codes of conduct that don't put a significant portion of the student body in violation. There are few things worse than making a rule that most people (or at least a significant percentage) are breaking and then enforce that rule very selectively. It's just an invitation to total abuse of power.

I would be very interested in what you would consider sufficient evidence to dismiss a student for sexual assault of another student.

Certainly not her word alone. Nor her being observed drinking before she had sex. Also not her deciding she'd been "raped" a full year later after she already wrote him that she "had a great time" the following day.

 

[Toni]

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?

This isn't really quite the case where medical procedures are concerned. One signs a waiver, outlining the procedure to be performed and authorizing (or denying) the medical personnel to make certain other medical decisions and actions if deemed in the best interest of the patient's health. In the case of a colonoscopy, one normally authorizes the removal of polyps and their evaluation for cancer and any other medical treatment. Similar documents for other procedures are drawn up, gone over at length and signed or declined...

I'm surprised that a colonoscopy was performed without any anesthesia as any patient movement could be detrimental. I *think* I was mostly awake for mine, and watching it on the screen, actually.

 

[Derec]

Really? Evidence, please. This is the standard used in civil court. It seems contrary to reason that it would continue to be used if it were a poor standard. Also, please remember that 'beyond a reasonable doubt' standard also results in a lot of wrong decisions. See the Innocence Project for some particularly egregious examples.

That is the standard for torts and not all civil actions. And colleges used to use "clear and convincing proof" for sexual assault matters (and still use it for other matters) until the Obama administration directive. According to the Obama administration, CACP didn't generate enough expulsions in marginal cases like when the female accuser was actually charged with filing a false police report (North Dakota case) or where a girl took a guy's virginity and then accused him of "rape" a full year later (Vassar case).

Wow: Disagree with Loren and it means you favor punishing the wrong students and who knows what other injustices!

It has been explained numerous times. When it comes to being expelled from school the consequence of a false positive (innocent student gets expelled) are much more grave than that of a false negative (guilty student doesn't get expelled). Therefore a system where likelihood false positives is reduced by increasing burden of proof is preferable to a system where that is not the case (preponderance of evidence). With poe you end up with many false positives even when applied fairly. But in the case of sexual assault you have the additional ideological assumption that accusation alone renders a claim much more likely true or not, especially when the accused student is prevented from mounting an effective defense.

Is 0.08 BAC the standard the California statute has determined to be a point at which consent cannot be given.

Who knows. They will probably take evidence of "was observed drinking" as sufficient like the UGA inquisitors did.

This may be interesting:

BAC 0.06-0.099% Slight impairment of balance, speech, vision, reaction time, and hearing. Euphoria. Reduced judgment and self-control. Impaired reasoning and memory.

Which is probably why many people, men and women, drink when they are on the prowl. In any case, nobody in their right mind thinks that somebody with that BAC is incapable of giving consent.

 

[Derec]

One signs a waiver,

A serious question for you and other radical feminists on here:
Do you think people should be required to sign waivers before having sex? Or just college students? Or just college students living in the Stalinist utopia that is California?

P.S.: I am a bit afraid of floating this idea for fear that the state legislature might take it up next session, but what about a mandatory chastity belt for all students with an "ignition interlock" that only opens if the wearer blows 0.00% BAC?

 

[Arctish]

You're still assuming the decisions are right. When you're dealing with a preponderance of the evidence standard you're going to be making a lot of errors.

I would be very interested in what you would consider sufficient evidence to dismiss a student for sexual assault of another student.

I would be very interested in seeing his data on the rate of erroneous convictions and/or dismissals that result from using the preponderance of evidence standard.

 

[Arctish]

According to the Obama administration, CACP didn't generate enough expulsions in marginal cases like when the female accuser was actually charged with filing a false police report (North Dakota case) or where a girl took a guy's virginity and then accused him of "rape" a full year later (Vassar case).

Oh, really? I suppose you have a source for this utterly preposterous claim. Is it the same MRA site where you found that list of misattributions and misquotes? If so, I suggest you fact check the nonsense they post. They appear to be very unreliable.

Wow: Disagree with Loren and it means you favor punishing the wrong students and who knows what other injustices!

It has been explained numerous times. When it comes to being expelled from school the consequence of a false positive (innocent student gets expelled) are much more grave than that of a false negative (guilty student doesn't get expelled).

The false negative means a rapist is still on campus mingling with the other students. Given the data posted earlier in this thread about the average number of rapes per campus rapist, the most likely consequence of a false negative is more rapes. That is detrimental to both the student body and the school itself, not to mention the effect on the person who was raped.

Perhaps you think that's just fine and dandy. Most people don't. Most people want to reduce the number of rapes as well as correctly identify and properly punish the rapists.

Who knows. They will probably take evidence of "was observed drinking" as sufficient like the UGA inquisitors did.

Did you ever bother to read any UGA publications on drinking and consent?

 

[bigfield]

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)

Sorry, it wasn't my intention to misrepresent you. I took it as a given that one must consent to the anaesthesia as part and parcel of the operation.

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.

So if someone can give consent in advance of a medical operation, can they also give consent to an authorised partner in advance of sex? And if so, how does this reconcile with the requirement for ongoing consent?

The legislation says (with emphasis added):
"(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent."

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.

That would make for some interesting gynaecological exams.

 

[bigfield]

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?

This isn't really quite the case where medical procedures are concerned. One signs a waiver, outlining the procedure to be performed and authorizing (or denying) the medical personnel to make certain other medical decisions and actions if deemed in the best interest of the patient's health. In the case of a colonoscopy, one normally authorizes the removal of polyps and their evaluation for cancer and any other medical treatment. Similar documents for other procedures are drawn up, gone over at length and signed or declined...

That is still consent in advance.

 

[Arctish]

One signs a waiver,

A serious question for you and other radical feminists on here:
Do you think people should be required to sign waivers before having sex? Or just college students? Or just college students living in the Stalinist utopia that is California?

P.S.: I am a bit afraid of floating this idea for fear that the state legislature might take it up next session, but what about a mandatory chastity belt for all students with an "ignition interlock" that only opens if the wearer blows 0.00% BAC?

Who needs a signed waiver when all that's necessary is for people to get actual, genuine, not-to-be-confused-with-a-drunken-stupor consent? Is it because some people have a problem keeping their hands to themselves when they see something they want? Why should the rest of us have to suffer because of a few a-holes who don't care whether the person they're f**king with wants to be f**ked?

 

[Stu]

A serious question for you and other radical feminists on here:
Do you think people should be required to sign waivers before having sex? Or just college students? Or just college students living in the Stalinist utopia that is California?

P.S.: I am a bit afraid of floating this idea for fear that the state legislature might take it up next session, but what about a mandatory chastity belt for all students with an "ignition interlock" that only opens if the wearer blows 0.00% BAC?

Who needs a signed waiver when all that's necessary is for people to get actual, genuine, not-to-be-confused-with-a-drunken-stupor consent? Is it because some people have a problem keeping their hands to themselves when they see something they want? Why should the rest of us have to suffer because of a few a-holes who don't care whether the person they're f**king with wants to be f**ked?

If the accused need to prove that they received affirmative consent, and it's illegal to record the consent, there aren't many options available. But a waiver is problematic because consent can be withdrawn at any time before or during sex, so it's either not a full defence or can be used as a defence when consent has been withdrawn.

How is one supposed to defend against a claim of rape when one has received affirmative consent? I see a lot of advice about not raping, but the combination of changes mean that if someone is accused of rape it's not up to anyone to prove that, it's up to them to prove otherwise. I don't think anyone here is directly endorsing the punishment of the innocent, but that will be the end result if protections for the innocent are removed and there is no way for the innocent to defend against a claim.

 

[Arctish]

Who needs a signed waiver when all that's necessary is for people to get actual, genuine, not-to-be-confused-with-a-drunken-stupor consent? Is it because some people have a problem keeping their hands to themselves when they see something they want? Why should the rest of us have to suffer because of a few a-holes who don't care whether the person they're f**king with wants to be f**ked?

If the accused need to prove that they received affirmative consent, and it's illegal to record the consent, there aren't many options available. But a waiver is problematic because consent can be withdrawn at any time before or during sex, so it's either not a full defence or can be used as a defence when consent has been withdrawn.

How is one supposed to defend against a claim of rape when one has received affirmative consent?

The same way one is supposed to defend against a claim of theft when one has received affirmative consent to take someone else's car for a trip across town. The same way one is supposed to defend against a claim of forgery when one has received a signed check. The same way one is supposed to defend against a claim of vandalism when one has received permission to trim a neighbor's hedge that is obstructing one's view of the street from one's driveway.

No system will shield you from evil people lying to the police about you. That doesn't mean we have to endure rapes on campus, especially the ones that can be prevented when everyone knows they need genuine, honest-to-dog, affirmative consent before they engage in sex acts with someone, not just drunken or reluctant acceptance of their advances.

So if your only objection is that you want colleges to use the preponderance of clear and convincing evidence when determining if someone has violated the Student Code of Conduct and should be expelled, I agree with you. The evidence should be both sound and sufficient. But if you're arguing that affirmative consent won't keep bad people from filing false rape charges, well, of course it won't but that's no reason to allow rapists to keep on raping students, is it?

I see a lot of advice about not raping, but the combination of changes mean that if someone is accused of rape it's not up to anyone to prove that, it's up to them to prove otherwise. I don't think anyone here is directly endorsing the punishment of the innocent, but that will be the end result if protections for the innocent are removed and there is no way for the innocent to defend against a claim.

I think a lot of people are endorsing the punishment of the innocent, by arguing on behalf of sexual predators and suggesting students who report rapes are liars.