No Means Yes If You Know How To Spot It

[Togo]

You seem to refuse to understand the analogy. It's about responsibility for the consequences if the risky behaviour turns out bad, not about penalising the risky behaviour as such. They may have made the same decisions, but if one but not the other feels violated afterwards, than the consequences have been different, a difference any legal system takes into account.

??? I'm getting lost here. What do you mean when you say a legal system takes into account how people feel after the event? Can you give an example?

If a man and a woman got drunk and rode motorbikes together, and the woman hit a pedestrian who died on the spot, the woman but not the man would be additionally charged for criminally negligent homicide or some such, which comes with jail time of up to 10 years, a multiple of what even repeat offenders have to expect for DUI.

But that's because the woman has done something that the man has not, which isn't the case in the example presented (two people engaging in risky behaviour together). A better analogy would be if the man and the woman got drunk, rode motorcycles, and then hit each other. The law doesn't care who got injured or how much, let alone how they feel about it. All they care about is how much each contributed to the outcome.


There's a concept in law called a 'strict liability offence', which maybe a useful one to include here. For a normal criminal offence you need to prove both that the person acted in breach of the law (Actus Rea) and that they intended to act in that way (Mens Rea). There are, however, a limited number of offences for which you don't need intent (Mens Rea). Speeding is the classic example. It doesn't matter if you intended to drive fast or not, you're guilty if your car moved too fast while you were driving it.

What seems to be being argued for here is moving rape and sexual assault towards a strict liability offence, such that it doesn't matter whether you intended to have sex with someone without consent, merely that consent was not in fact obtained. This would certainly improve the conviction rate, but if existing offences are any guide, it also greatly increases the accidental conviction rate - whereby people are convicted of technical offences they had no idea they were committing. This is why, in law, strict liability offences are largely limited to very minor offences, such as parking tickets, and not used for more serious crimes where the consequences of a miscarriage of justice are more serious.

Bearing that in mind, are people here who support such a shift doing so because they think that miscarriages of justice can be avoided or mitigated in some way? Or is it just that they don't care whether they occur? (because they'd be too small in number to worry about, or because they think it's a price worth paying?)

 

[RavenSky]

There's a concept in law called a 'strict liability offence', which maybe a useful one to include here. For a normal criminal offence you need to prove both that the person acted in breach of the law (Actus Rea) and that they intended to act in that way (Mens Rea). There are, however, a limited number of offences for which you don't need intent (Mens Rea). Speeding is the classic example. It doesn't matter if you intended to drive fast or not, you're guilty if your car moved too fast while you were driving it.

very poor example. If someone cut your brakes and that is what caused you to speed down the hill, you are not going to be charged with speeding. No Mens Rea.

What seems to be being argued for here is moving rape and sexual assault towards a strict liability offence, such that it doesn't matter whether you intended to have sex with someone without consent, merely that consent was not in fact obtained.

wrong. If consent is not obtained, and you have sex anyway, you intended to have sex without consent.

Bearing that in mind, are people here who support such a shift doing so because they think that miscarriages of justice can be avoided or mitigated in some way? Or is it just that they don't care whether they occur? (because they'd be too small in number to worry about, or because they think it's a price worth paying?)

first you will need to support your claim that anyone here supports "such a shift" as opposed to simply disagreeing with your tortured examples of legal terms.

Second, as you argue, Mens Rea means "that they intended to act that way". In law, the concept of "intent" includes "knew or should have known". In other words, back to your example of speeding. The speeding ticket is not issued just Actus Rea, but Mens Rea because you knew or should have known the speed limit in that area.

 

[Playball40]

It is not a "much higher burden" to verify "that one's partner is enthusiastic about what's happening" - it is what normal caring partners do routinely.

Seriously, all this arguing against being a caring considerate lover is really disturbing.

You can normally see their enthusiasm without asking for permission.

Such as??

 

[Derec]

And lacking the skill to read minds is exactly why you want to be explicit, especially when interacting with someone you barely know.

That still doesn't preclude false allegations or prevent actual rapes. It merely classifies perfectly consensual sex as rape.
I am going to ask people that support these policies again.
If you had a video where it is clear that two people engaged in mutually consensual sex would you call it "rape" just because neither party solicited or gave "explicit" consent at each stage of intimacy? And would you say that a woman was the "victim" while the man was a "rapist" just because the woman felt bad afterwards and decided to file a false rape report even though they engaged in exactly the same thing.

You seem to refuse to understand the analogy.

I understand the analogy. I just think your position here is horribly misguided.

It's about responsibility for the consequences if the risky behaviour turns out bad, not about penalising the risky behaviour as such. They may have made the same decisions, but if one but not the other feels violated afterwards, than the consequences have been different, a difference any legal system takes into account.

If they both did the same thing and consented to the same extent you should not be able to call one of them "rapist" and the other "victim" just because one of them regretted the encounter and decided to falsely cry rape. Consent at the time matters, not how people feel later on.

If a man and a woman got drunk and rode motorbikes together, and the woman hit a pedestrian who died on the spot, the woman but not the man would be additionally charged for criminally negligent homicide or some such, which comes with jail time of up to 10 years, a multiple of what even repeat offenders have to expect for DUI.

But there is a difference in what they did - one hit a pedestrian and the other didn't. There isn't a different treatment based on how one of them feels later on.

 

[RavenSky]

That still doesn't preclude false allegations or prevent actual rapes. It merely classifies perfectly consensual sex as rape.

if you don't have consent, it is not consensual sex.

For fuck's sake people, why is this concept so hard to understand?

If you had a video where it is clear that two people engaged in mutually consensual sex would you call it "rape" just because neither party solicited or gave "explicit" consent at each stage of intimacy?

if the video is so clear that the two people were engaged in mutually consensual sex, then it would be obvious that each party gave and received explicit consent at each stage of intimacy... If it is obvious it is explicit.

If I show you a picture of an animal that is obviously a dog would you call it a cat just because.... That is how nonsensical your question is.

But here is a question for you, Derec... If you had a video where it is clear that one person is struggling, trying to say "no" but her mouth is taped shut, where there is no expression of consent on the video at all, would you call it "consensual sex" just because the man claimed it was? Of course you would, because you have. As such, you trying to use a hypothetical video tape as some sort of "gotcha" is just absurd.

 

[Derec]

You know what makes that clip funny?
It's because we can all understand how miscommunication can cause distress, regrets, uncertainty, doubting oneself, kicking oneself, and all of the crazy obsessive behavior George was exhibiting. That's why communication is so important.

The clip also show that people often speak in code, especially when it comes to things like sex (euphemisms for masturbation in another).
We do not expect absolute explicit communication in these matters.

BTW, Elaine was right: maybe coffee was coffee.

It is clear from the circumstances as well as the girl's reaction to George's refusal that it wasn't.

^ That's so silly I was tempted to ignore it, but on the off chance you were trying to make a genuine point about consent, the girl in that clip obviously sought George's consent to come up to her apartment. She didn't just drag him up there when he was too drunk to know what she was doing. So, no, she's not anywhere close to becoming a rapist.

Yes I am making a genuine point. This whole threat was predicated on that consent must be "explicit" and "unambiguous" and never mind . This whole thread is also based on expanding "rape" to not require things like "dragging [the victim] up there" but merely failing to communicate explicitly and unambiguously. So if they had ended up having sex she'd be a "rapist" according to these criteria because she didn't obtain explicit, unambiguous consent.

In reality though, things are different. Let's say two people do miscommunicate about things like coffee or movies. At some point one of them will make a more clear move. In that case three things can happen:
- the other person will make it clear he or she doesn't want to proceed and the first person stops. There is no attempted sexual assault here as miscommunications happen - you resolve them and move on.
- the other person will make it clear he or she doesn't want to proceed and the first person doesn't stop. We have sexual assault or attempted sexual assault in that case only.
- the other person will think ("well I didn't intend for this to happen but what the hell he/she is cute") and responds positively. No sexual assault here as we have consent even if it wasn't spelled out in advance.

Yes. If they both did the same thing, they should be treated equally and face the same possible consequences. However, if one was more responsible for the wrongdoing than the other, that should factor into determining possible punishment. If Person A was 75% responsible for an instance of rule breaking and Person B was 25% responsible, equal punishment might not be justified.

In what particular scenario do you envision such a division of blame?

Once again, the difference is that drunk consent is not the same as valid consent, even if it just so happens that when the drunks sober up they realize they would have consented anyway. It's a gamble. You might get lucky, or you might get accused of a sex crime for molesting a drunk.

Drunk consent is valid consent, whether or not the person would have consented while sober or not. The reason people drink while on the prowl is precisely in order to lower their inhibitions and standards. I.e. in order to hook up with a person they would not be hooking up sober.

I am talking about functioning drunkenness here, not barely conscious, of course.

It's the same principle as other kinds of drunk consent. Drunk signing up for the Navy is not a valid enlistment. Drunk signing a mortgage is not a valid legal agreement. Drunk proposals of marriage are not valid contracts. Drunk anything is not the same as the same thing done sober. This isn't controversial when it comes to leasing a car, so why is it so hard to accept when it comes to sex?

And yet other kinds of drunk consent are perfectly valid. Drunk ordering food is a valid food order. Drunk hailing a cab is a valid interaction - we do not jail cabbies for kidnapping and robbery for driving drunks around. Having sex is more like these than signing up for a mortgage.

That is exactly the situation in the UGA case. She did not molest him. He molested her.

No it is not. At least there isn't any evidence thereof. She did accuse him of forcing himself on her but neither the police nor the university found any evidence thereof.
All they found was that she had been drinking earlier that evening. And even though she was capable to walking to and from his dorm room and compose coherent text messages thus proving she was not too drunk to consent, he was expelled based on her consuming any amount of alcohol rather than based on her being too drunk to consent (which she wasn't) or him forcing himself on her (which he might or might not have been, but for which we have no evidence either way). I.e. what she alleged would have been not only an expellable but also a criminal offense, but there was no evidence of that. On the other hand, he should not have been expelled for what he was expelled (having sex with someone who was observed drinking earlier in the evening).

The Vassar case is less clear cut, and I, too, think Vassar should not have taken the actions it did. I think Vassar is in the wrong on that one.

I think it is much more clear cut and a clear case of a false accusation, as Mary Claire Walker sent the boy a message saying she "had a great time" the following day. It was her the university should have expelled, not him.

 

[Jokodo]

That still doesn't preclude false allegations or prevent actual rapes. It merely classifies perfectly consensual sex as rape.
I am going to ask people that support these policies again.
If you had a video where it is clear that two people engaged in mutually consensual sex would you call it "rape" just because neither party solicited or gave "explicit" consent at each stage of intimacy? And would you say that a woman was the "victim" while the man was a "rapist" just because the woman felt bad afterwards and decided to file a false rape report even though they engaged in exactly the same thing.

You seem to refuse to understand the analogy.

I understand the analogy. I just think your position here is horribly misguided.

It's about responsibility for the consequences if the risky behaviour turns out bad, not about penalising the risky behaviour as such. They may have made the same decisions, but if one but not the other feels violated afterwards, than the consequences have been different, a difference any legal system takes into account.

If they both did the same thing and consented to the same extent you should not be able to call one of them "rapist" and the other "victim" just because one of them regretted the encounter and decided to falsely cry rape. Consent at the time matters, not how people feel later on.

If a man and a woman got drunk and rode motorbikes together, and the woman hit a pedestrian who died on the spot, the woman but not the man would be additionally charged for criminally negligent homicide or some such, which comes with jail time of up to 10 years, a multiple of what even repeat offenders have to expect for DUI.

But there is a difference in what they did - one hit a pedestrian and the other didn't. There isn't a different treatment based on how one of them feels later on.

There's a difference in your scenario as well - one fucked a person who wouldn't have come near them in a sober state of mind and who is traumatised by finding out what they did while the other one didn't. The fact that those different outcomes derive from the same kind of (poor) decisions doesn't make them legally equivalent any more than it does with the motorists.

 

[Jokodo]

In reality though, things are different. Let's say two people do miscommunicate about things like coffee or movies. At some point one of them will make a more clear move. In that case three things can happen:
- the other person will make it clear he or she doesn't want to proceed and the first person stops. There is no attempted sexual assault here as miscommunications happen - you resolve them and move on.
- the other person will make it clear he or she doesn't want to proceed and the first person doesn't stop. We have sexual assault or attempted sexual assault in that case only.
- the other person will think ("well I didn't intend for this to happen but what the hell he/she is cute") and responds positively. No sexual assault here as we have consent even if it wasn't spelled out in advance. .

There is - at least - fourth possibility: The other person is too scared or confused to react in any coherent manner thinking "I really don't want this but better just endure it and get out in one piece, who knows what he/she is capable of if I reject him/her now". And that would make it assault too.

Or a fifth: The other person thinks "I don't want this, but it's my fault for leading him/her on so now it's too late, I'll just have to get done with it". We may or may not want to call that assault, but it's definitely a situation that should be avoided, in the interest of all involved, and which clear communication helps avoid.

 

[Derec]

There is - at least - fourth possibility: The other person is too scared or confused to react in any coherent manner thinking "I really don't want this but better just endure it and get out in one piece, who knows what he/she is capable of if I reject him/her now". And that would make it assault too.

I don't think so, unless the first person was actually threatening the other. If somebody consents under imagined duress that doesn't make that duress real and is not an assault.

Or a fifth: The other person thinks "I don't want this, but it's my fault for leading him/her on so now it's too late, I'll just have to get done with it". We may or may not want to call that assault, but it's definitely a situation that should be avoided, in the interest of all involved, and which clear communication helps avoid.

That is clearly not assault. I agree it should be avoided, but the easiest way to avoid it is for the other person to speak up his or her mind.

 

[Jokodo]

I don't think so, unless the first person was actually threatening the other. If somebody consents under imagined duress that doesn't make that duress real and is not an assault.
<snip>

So, if I walk up to an elderly lady late at night in a dimly lit sidestreet in a shady part of town to ask for directions, and she misinterprets the situation (maybe helped by me wearing a hoody against the cold and my scruffiest beard) and throws her purse in my general direction while hurrying off the other way to avoid getting beaten up as rob her, I get to assume that she just found me really nice at first sight and really wanted to give me a present, and to keep the money? She gave it to me under imagined duress, which doesn't make the duress real and thus here decision to give the money to me must be taken as valid?

 

[Derec]

So, if I walk up to an elderly lady late at night in a dimly lit sidestreet in a shady part of town to ask for directions, and she misinterprets the situation (maybe helped by me wearing a hoody against the cold and my scruffiest beard) and throws her purse in my general direction while hurrying off the other way to avoid getting beaten up as rob her, I get to assume that she just found me really nice at first sight and really wanted to give me a present, and to keep the money? She gave it to me under imagined duress, which doesn't make the duress real and thus here decision to give the money to me must be taken as valid?

How is that in any case comparable to the case where a person imagines a duress and has sex with the first person? In that case the first person doesn't even know that the other person is imagining distress whereas it is pretty obvious in your example. If the first person knows that the other person is imagining duress the onus would of course be on him to stop and disabuse the other person of the misconception, but that wasn't part of your scenario.

 

[Jimmy Higgins]

Why is someone allowed to imagine duress when going for a SYG defense?

 

[Bronzeage]

I don't think so, unless the first person was actually threatening the other. If somebody consents under imagined duress that doesn't make that duress real and is not an assault.
<snip>

So, if I walk up to an elderly lady late at night in a dimly lit sidestreet in a shady part of town to ask for directions, and she misinterprets the situation (maybe helped by me wearing a hoody against the cold and my scruffiest beard) and throws her purse in my general direction while hurrying off the other way to avoid getting beaten up as rob her, I get to assume that she just found me really nice at first sight and really wanted to give me a present, and to keep the money? She gave it to me under imagined duress, which doesn't make the duress real and thus here decision to give the money to me must be taken as valid?

An interesting dilemma.

Is it right to keep something which is valuable and dear to its owner, when one knows it was given under assumed duress? One has better knowledge of the situation than the giver and thus has the advantage. Is it right to exploit this advantage?

If we go with the Derec Dictum, "If somebody consents under imagined duress that doesn't make that duress real and is not an assault," a person could keep the purse. But, having done so once, is now aware of the perceived threat and if another elderly lady feels threatened in the same way, it is the hooded scruff's moral duty to return the purse with assurances no harm was meant.

By this conclusion, it also follows, or maybe precedes, any person who is aware of the possibility another person may be threatened by their appearance alone, can't claim to be blameless when they benefit from another person's fear.

So there, you have it. Perceived, but false duress, grants one freebie.

 

[Jokodo]

So, if I walk up to an elderly lady late at night in a dimly lit sidestreet in a shady part of town to ask for directions, and she misinterprets the situation (maybe helped by me wearing a hoody against the cold and my scruffiest beard) and throws her purse in my general direction while hurrying off the other way to avoid getting beaten up as rob her, I get to assume that she just found me really nice at first sight and really wanted to give me a present, and to keep the money? She gave it to me under imagined duress, which doesn't make the duress real and thus here decision to give the money to me must be taken as valid?

How is that in any case comparable to the case where a person imagines a duress and has sex with the first person?

It is comparable in that in both scenarios, someone is imagining duress and the question we are asking is whether decisions made in such an state of (imagined) duress are valid and binding. I say no, you seem to say yes when it helps a man to get sex but not otherwise. So who's using double standards?

In that case the first person doesn't even know that the other person is imagining distress whereas it is pretty obvious in your example.

But to end up in a situation where the other person is imagining distress without any objective reason and you don't even notice, you must have been doing something wrong all along. Guidelines like ones we're discussing are among other things about avoiding to get into such situations in the first place.

If the first person knows that the other person is imagining duress the onus would of course be on him to stop and disabuse the other person of the misconception, but that wasn't part of your scenario.

And all the rules we are discussing stipulate in addition is that, if the first person doesn't know whether that's the case, the onus is on them to make sure it isn't. What's wrong with that?

 

[Loren Pechtel]

There's a concept in law called a 'strict liability offence', which maybe a useful one to include here. For a normal criminal offence you need to prove both that the person acted in breach of the law (Actus Rea) and that they intended to act in that way (Mens Rea). There are, however, a limited number of offences for which you don't need intent (Mens Rea). Speeding is the classic example. It doesn't matter if you intended to drive fast or not, you're guilty if your car moved too fast while you were driving it.

What seems to be being argued for here is moving rape and sexual assault towards a strict liability offence, such that it doesn't matter whether you intended to have sex with someone without consent, merely that consent was not in fact obtained. This would certainly improve the conviction rate, but if existing offences are any guide, it also greatly increases the accidental conviction rate - whereby people are convicted of technical offences they had no idea they were committing. This is why, in law, strict liability offences are largely limited to very minor offences, such as parking tickets, and not used for more serious crimes where the consequences of a miscarriage of justice are more serious.

As far as I'm concerned there should be no strict liability offenses.

Note that things like speeding aren't really strict liability, but rather it doesn't matter if you knew you were speeding or simply weren't paying attention to the fact you were speeding--you should have known. If you truly had no reason to know you were speeding (for example, the sign lowering the speed limit was hidden) that's a defense.

 

[Rhea]

Consider this, in 1950, if a woman willing went to a man's apartment, where there were no other people, and he subsequently took her to the bedroom and used his superior strength to hold her down and have sex, he would not be prosecuted for rape.

Considering these facts, he should not be prosecuted for rape in 2014 either, for the simple reason that there isn't nearly enough evidence to convict. It's purely "he said she said".

Wow - not even prosecute? How do you know what evidence there is until they get a chance to present it in court, as he is prosecuted?

No, I am not excusing "rapists and domestic abusers". What I am saying is that we need to treat people as innocent until proven guilty. Without evidence you cannot assume they are actually guilty of what they are being accused of.

I love how they don't even get a chance to prove them guilty, though, because you're not allowed to prosecute until after all the evidence is in, according the World of derec.


Which is an EXCELLENT situation for rapists.

 

[ZiprHead]

Way to avoid the fact that you've never met a woman you don't hate.

What a hateful, and very wrong, assertion. But I have come to expect such crude personal attacks from people who have no rational arguments to contribute.
Wanna offer some wisecrack about my sex life or lack thereof? Care to suggest I should fuck men? All happened in this thread alone. You are but a Johnny-come-lately!

Derec, anyone who's been here long enough knows that when you first came here you were scared to death of women. You yourself started a thread asking for advice on how to learn to talk to women. We tried to help you but it's now apparent we failed to help you get over your fears.

 

[Rhea]

We (our community) would be best served to keep it away from personal, friends.

 

[Emily Lake]

Talk about a polarizing subject. The problem is that it's NOT black and white, no matter how much both sides of this debate want it to be. So let's level set with some reality that is contextually relevant to this discussion.

A) Some men intentionally get girls drunk so they can have their way with them without having to actually get consent from them. This is rape. It is sex without consent, and it should never be allowed to happen. It DOES happen, and it happens often on college campuses, where both men and women are young, uncertain, shy, and usually sexually inhibited because we have a cultural with a ridiculous amount of puritan heritage.

B) Some girls have regrets about drunken hook-ups that were consenting at the time, or because they are nutty bunny-boilers. It's not very common, in fact it's quite rare... but it is also not impossible and it has happened. It is a real thing.

Now... there are some things that are NOT AT ALL relevant to this discussion:

• rape or ravish fetishists operating with fully informed consent
• people in long-term relationships who already know each other's signals
• dark-alley-grab-you-and-violently-pin-you-down-rapes
• my personal sex life

Now that we've established some reality... I think it's moot to actually acknowledge that there are real risks on both sides (A and B) of this interaction. The questions that come to my mind are as follows:

1. Is this policy likely to be followed? Is it realistically something that can be implemented?
2. Is it fair and just? Does it provide increased protection from A without increasing the risk of B?

In regard to item 1, I've already stated my concern on this, as have several others. The way the policy is written is unlikely to actually be followed. In reality, sex is uncertain and most college kids are pretty inhibited. The degree of discussion and asking required is unlikely to actually happen in an explicit form. It's much more likely to be implied by action... which pretty much invalidates the entire policy. Trying to implement this approach requires more than a policy at some university - it requires revising an entire set of social mores on sexual behavior, mores that are learned very young.

In regard to item 2, I personally think that if it were implemented and followed as written it would increase protection from A and also reduce the risk of B. There would still be some risk of outright fraud, but that risk is unavoidable, no matter the policy. It circles back, however, to item ! - if it is NOT followed as written, however, I think it increases the risk of B because it places an increased liability on the student who failed to get complete consent at every step.

As an additional parting discussion, the policy is written in gender-neutral terms, so theoretically should apply equally to men and women. In reality, however, this is not the case. Our culture has embedded gender roles when it comes to sexual interactions, and they're roles that are incredibly difficult to deviate from. We've been trying for over 50 years, and have barely shifted the gauge. Men are expected to be the initiators of contact - they are expected to pursue women and to make the first move. Women are expected to be more passive and to encourage pursuit in more subtle ways, but not to be the pursuer. As a result, even though it's not stated as such, the actual effect of this policy is that men specifically are expected to acquire consent for every step of the sexual interaction, not women.

Personally, I've never had a lot of use for those sorts of gender roles, or for any gender roles really. But they do exist and are quite unshakable. It's not something that should be dismissed out of hand by rational and honest people. It shouldn't, in my opinion, be discounted based on the source of the complaint.

 

[Jokodo]

There's a concept in law called a 'strict liability offence', which maybe a useful one to include here. For a normal criminal offence you need to prove both that the person acted in breach of the law (Actus Rea) and that they intended to act in that way (Mens Rea). There are, however, a limited number of offences for which you don't need intent (Mens Rea). Speeding is the classic example. It doesn't matter if you intended to drive fast or not, you're guilty if your car moved too fast while you were driving it.

What seems to be being argued for here is moving rape and sexual assault towards a strict liability offence, such that it doesn't matter whether you intended to have sex with someone without consent, merely that consent was not in fact obtained. This would certainly improve the conviction rate, but if existing offences are any guide, it also greatly increases the accidental conviction rate - whereby people are convicted of technical offences they had no idea they were committing. This is why, in law, strict liability offences are largely limited to very minor offences, such as parking tickets, and not used for more serious crimes where the consequences of a miscarriage of justice are more serious.

As far as I'm concerned there should be no strict liability offenses.

Note that things like speeding aren't really strict liability, but rather it doesn't matter if you knew you were speeding or simply weren't paying attention to the fact you were speeding--you should have known. If you truly had no reason to know you were speeding (for example, the sign lowering the speed limit was hidden) that's a defense.

If, on the other hand, your defense is that you couldn't possibly see the sign because it was out on the side and you only cleared the ice from the part of the windscreen directly in front of the driver's position, you're going laughed out of the courtroom (and possibly get additional charges for reckless driving).

That's the position you're arguing though - you're standing up against a rule that says it is your onus to make sure you don't oversee or misinterpret any signs.