No Means Yes If You Know How To Spot It

[Loren Pechtel]

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.

How am I supposed to know that she's going to change her mind tomorrow? Or next year?

 

[Jokodo]

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.

How am I supposed to know that she's going to change her mind tomorrow? Or next year?

If you didn't communicate unambiguously (and you are arguing that unambiguous communication should not be a requirement) and the next day or sometime after that she files a complaint, there's no reason to assume that she "changed her mind". It's much more plausible that you she really didn't want and you didn't catch on.

 

[Bronzeage]

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.

How am I supposed to know that she's going to change her mind tomorrow? Or next year?

What are the reasons a woman would change her mind tomorrow. Just for the sake of argument, let's say you had sex with a sensible sane woman, not a crazy woman. The next morning she changes her mind. What plausible explanation is there for her action?

 

[RavenSky]

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.

yes, actually, "we" do.

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.

Did you forget the "ongoing" &/or "at each stage" part of the policies?

Let's pretend George, believing he was being invited up for coffee, said "yes". Once they were upstairs, if she immediately grabs his cock instead of serving him coffee, she would be guilty of a sexual assault. Whether he chooses to report it or not is up to him, but she did fail to get his consent.

If, instead, she said "You know what I would like more than coffee?" and thus started the next stage of explicit communication that continued until they ultimately had sex, then she would NOT be guilty of a sexual assault regardless whether her first question downstairs was an invitation to have coffee.

I truly do not believe that you or anyone else here is incapable of understanding how this works.

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.

Once again, you do understand that there is a difference between "explicit" (example: "a more clear move") vs "express" (which must be written or verbal).

When people don't know each other very well, imo more express communication is advisable to avoid miscommunication but the policies only require "explicit".

 

[RavenSky]

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.

Are you suggesting that a woman laying there frozen suggests "consent" by her demeanor?

 

[RavenSky]

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...

Don't mean to sound harsh, but that was a whopping Moore-Coulter - and really insulting to those of us who have been having this *discussion* with the same cast of characters for one hell of a lot longer than you have been a member of the board.

You are forgiven for your ignorance of the history, mostly because I am still giggling over your story of your husband's twig and giggle berries.

To be specific, there is not a single person on this board who has ever disagreed that:

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.

whereas we do have certain members of this board who will vehemently disagree that:

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.

 

[RavenSky]

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.

I think the questions you pose are the crux of these discussions, and I agree with most of your analysis but I disagree that gender roles aren't changing. They certainly are. Perhaps not as fast as some of us would like, but most certainly changing.

I also don't have any problem whatsoever with public policies that will help move the bar a bit faster. Someone earlier brought up drunk driving as a great example. When I was in my early 20's, no one thought twice about driving drunk. We didn't have designated drivers nor worry overly much about our actual ability to drive. By my 30's, house parties were mostly dry because most everyone wanted to stay sober to drive. That is a huge shift in 10 years, mostly brought about by public policy.

It is takes university policy to encourage more open, explicit communication to change your #1 and increase #2, I'm all for it.

 

[Loren Pechtel]

How am I supposed to know that she's going to change her mind tomorrow? Or next year?

If you didn't communicate unambiguously (and you are arguing that unambiguous communication should not be a requirement) and the next day or sometime after that she files a complaint, there's no reason to assume that she "changed her mind". It's much more plausible that you she really didn't want and you didn't catch on.

You're missing the point--you're assuming there are no changed-mind cases.

 

[Loren Pechtel]

How am I supposed to know that she's going to change her mind tomorrow? Or next year?

What are the reasons a woman would change her mind tomorrow. Just for the sake of argument, let's say you had sex with a sensible sane woman, not a crazy woman. The next morning she changes her mind. What plausible explanation is there for her action?

1) She fears pregnancy. (Real case, she recanted after he spent years in jail).

2) She fears discovery of her infidelity. (Real case, she cried rape when discovered, her husband shot the "rapist". She went to jail for involuntary manslaughter.)

3) She is mad about a breakup or the like and seeks revenge.

 

[J842P]

Don't mean to sound harsh, but that was a whopping Moore-Coulter - and really insulting to those of us who have been having this *discussion* with the same cast of characters for one hell of a lot longer than you have been a member of the board.

You are forgiven for your ignorance of the history, mostly because I am still giggling over your story of your husband's twig and giggle berries.

To be specific, there is not a single person on this board who has ever disagreed that:

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.

whereas we do have certain members of this board who will vehemently disagree that:

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.

I wouldn't agree that is a fair characterization of the dialogue so far on these boards and the previous ones.

Honestly, it has mostly been people talking past each other.

 

[Bronzeage]

What are the reasons a woman would change her mind tomorrow. Just for the sake of argument, let's say you had sex with a sensible sane woman, not a crazy woman. The next morning she changes her mind. What plausible explanation is there for her action?

1) She fears pregnancy. (Real case, she recanted after he spent years in jail).

2) She fears discovery of her infidelity. (Real case, she cried rape when discovered, her husband shot the "rapist". She went to jail for involuntary manslaughter.)

3) She is mad about a breakup or the like and seeks revenge.

These are your idea of sane sensible women? No wonder you worry about crazy women.

 

[ZiprHead]

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

I agree. I will now bow out to all concerned. My post was inappropriate. I will gladly accepted any punishment I deserve., especially to Derec. I spoke in a manner not allowed. I apologize to Derec and anyone else whom may have been offended by my post.

 

[Jokodo]

If you didn't communicate unambiguously (and you are arguing that unambiguous communication should not be a requirement) and the next day or sometime after that she files a complaint, there's no reason to assume that she "changed her mind". It's much more plausible that you she really didn't want and you didn't catch on.

You're missing the point--you're assuming there are no changed-mind cases.

I'm not assuming any such thing. In any individual case, it is of course possible that she "changed her mind", or that her daddy pressured her to press charged so that he could keep up his illusion of his innocent little girl, or that her memories were altered as the side effect of a neurological experiment. But if you've been having sex with a woman you've only met hours before without unambiguously communicating what both of you want and/or while she was drunk, a more likely explanation for why she is pressing charges is that she does indeed feel genuinely violated. It's a risk you take by such behaviour, and that alone should be a good enough reason to refrain for anyone who cares about the people he has sex with long before we take rape claims (false or otherwise) into account.

 

[Jokodo]

What are the reasons a woman would change her mind tomorrow. Just for the sake of argument, let's say you had sex with a sensible sane woman, not a crazy woman. The next morning she changes her mind. What plausible explanation is there for her action?

1) She fears pregnancy. (Real case, she recanted after he spent years in jail).

And how is this supposed to even make sense? A daddy who is in jail is not going to be having much of an income and thus paying much in the way of child support, is he? Verdict: Crazy.

2) She fears discovery of her infidelity. (Real case, she cried rape when discovered, her husband shot the "rapist". She went to jail for involuntary manslaughter.)

Realistically, how often does that happen? How does this even work? How were they discovered? A friend of the husband saw them flirt and walk to his place - if she's got to lie about what happened there, why not say that they didn't have sex at all, and depending on how the couple define fidelity, it wouldn't undo her infidelity anyway. I'm really at pains to imagine a scenario where that would be a sensible move on her part. Verdict: Crazy.

3) She is mad about a breakup or the like and seeks revenge.

What does this even mean?

 

[Togo]

yes, actually, "we" do.

I don't. Most people I know don't. Men or woman.

Let's pretend George, believing he was being invited up for coffee, said "yes". Once they were upstairs, if she immediately grabs his cock instead of serving him coffee, she would be guilty of a sexual assault. Whether he chooses to report it or not is up to him, but she did fail to get his consent.

Hm... ever watched a Hollywood movie, where the awkward guy and awkward girl lean in for a romantic kiss? Have you noticed that there is no explicit consent there? They don't ask first, they can't hear the background music, and their awkwardness clearly conveys that they are not at all sure about how this action will be received. Are all these movies portraying sexual assault?

If, instead, she said "You know what I would like more than coffee?" and thus started the next stage of explicit communication that continued until they ultimately had sex,

You're saying how everyone can obviously be explicit in an invitation to sex - but you stop short of saying what the initiation would consist of, and only hint at what would be said. Doesn't that rather undermine the point you're making? Based on the idea that you personally are not comfortable with being sexually explicit on a forum, can you not see how some people might not be comfortable with being sexually explicit in intimate circumstances?

When people don't know each other very well, imo more express communication is advisable to avoid miscommunication but the policies only require "explicit".

I don't agree, but lets go with this for the moment. Does the standard you are proposing stop anyone from claiming that a sex with an unwilling partner was not rape "because it was obvious that he/she wanted it"? What is the clear division in this standard between "he/she obviously wanted it", and "he/she unambiguously wanted it"? Either one is a judgement call by a potentially impaired and/or self-interested individual.

A friend and I once got taken to a beach at midnight by a couple of girls who then started taking their clothes off, and asked us to do the same. It's not hard to see how that might be seen as an unambiguous invitation to sex, or at least intimate contact of some kind. It wasn't though.

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?

...

I also don't have any problem whatsoever with public policies that will help move the bar a bit faster. Someone earlier brought up drunk driving as a great example. When I was in my early 20's, no one thought twice about driving drunk. We didn't have designated drivers nor worry overly much about our actual ability to drive. By my 30's, house parties were mostly dry because most everyone wanted to stay sober to drive. That is a huge shift in 10 years, mostly brought about by public policy.

There was also a huge public policy effort to reduce drug use aka 'the war of drugs' That was rather less successful. Campaigns to reduce speeding have also been less successful. What was the difference? In the drunk driving campaign the focus was on a cultural shift. The logical link between lack of control and death was hammered home, the focus was shifted from the degree of impairment of the driver to the fact that alcohol reduces reaction time. The adverts (at least in this country) featured some accidents that weren't the driver's fault, but turned lethal because of reduced awareness, but mainly focused on the social responsibility of other people, who had not been drinking, in not letting someone drive home drunk. The emphasis was on drinking responsibly, not cutting out drink entirely. Action was taken against police forces who did not enforce drunk driving rules.

The success came, not from rules that scared people into submission, but from a cultural shift that portrayed drink driving as an irresponsible risk that your friends should stop you from committing. It didn't come from trying to criminalise normal behaviour, or from arguing that people should simply stop drinking, or stop driving. It came from giving people a clear vision of what responsible drinking looked like. Assuming we're agreed on 'ongoing consent' as our standard, the equivalent rape rule would mean promoting ongoing consent. It would NOT involve coming up with an involved formula to try and leave dedicated rapists with no wriggle room at the expense of criminalising reasonable behaviour.

Speeding kills people, and people still speed. It's not because they don't care whether others live or die, it's because they link speed to 'ability to avoid an accident', with the result that the greater they see their own ability to be, the more they feel they can exceed the speed limit and still only be taking the same risk as anyone else. People used to do the same with drunk driving, deciding that because they could 'hold their drink', they didn't need to worry about driving while impaired. They stopped because it ceased to be a personal risk assessment and turned into an issue of social responsibility. You don't drink and drive because it sets a poor example, not because you think you personally are likely to have an accident.

We need a similar approach in dealing with campus rape. Having sex with someone too drunk to stand needs to be the refuge of the irresponsible and sexually inadequate. People need to be able to discuss issues of consent and behaviour without judgement being passed on them by those who have debated the topic politically for so long that they no linger feel bound to read/listen to what people are actually saying, and without being harassed by those who see the clearest path to reducing rape as shutting down any discussion of the issues with moral pronouncements.

Fortunately, I think we're moving in the right direction. There's much greater awareness of the issues involved, and a greater desire to be responsible, and be seen to be responsible. Feminism as a movement is moving away from un-reconstructed moral absolutism to something that tries to grapple with issues of sex and gender in an engaging and profound way. There will always be a few die-hard old-school feminists or 'men's rights activists' who don't want to solve the problem so much as to gleefully pronounce the other side as wrong, but I think the debate is generally shifting in a very positive way.

 

[Jokodo]

Coming back to Loren's #2, there's actually a superficially very similar scenario which seems more plausible than "the bitch just lied about it":

She's very attracted to you, but she has no intention of cheating on her husband. In other words, her animal drives tell her to fuck you while her rational self and cultural values tell her to resist the temptation. If, with that background, you intentionally get her drunk in order for the part of her that wants to fuck you to take control, you shouldn't be surprised if she says you violated her once she sobers up. I would not call that rape, but it is a clear case of knowingly disrespecting her will.

I've been in a similar situation (without the "intentionally getting her drunk" bit), and we did go further than we would have done sober, but I'm glad we didn't go any further than we did, even if that meant pulling away at points where her body language clearly indicated that she (or the part of her in control) didn't want to let go. Not because I'm scared she would have "cried rape", but because I don't want her to remember me as the guy who ruthlessly exploited her weakness. So again a situation which you can easily avoid by something as simple as showing basic respect towards the people you're trying to have sex with.

Now, to be clear, having sex with people you don't respect is not as such a crime and shouldn't be treated as one (at least not when that's mutually understood, when you're not deceiving her/him). But it is a behaviour associated with all sorts of potential problems and I don't see it counts as an argument against a specific rule in a code of conduct that it makes doing so more difficult.

 

[Derec]

Did you forget the "ongoing" &/or "at each stage" part of the policies?

Since he didn't go up anything else is speculation.

Let's pretend George, believing he was being invited up for coffee, said "yes". Once they were upstairs, if she immediately grabs his cock instead of serving him coffee, she would be guilty of a sexual assault. Whether he chooses to report it or not is up to him, but she did fail to get his consent.

More likely it would be something like leaning in for a kiss or innocuous touching, then escalating if reciprocated, stopping if withdrawn from.
I would think such behavior would run afoul of the OSU draconian policy as it isn't "explicit" and "unambiguous".

If, instead, she said "You know what I would like more than coffee?"

What? Like cake?
There is still ambiguity here. Explicit and unambiguous would be "do you want to come to the bedroom and fuck".

and thus started the next stage of explicit communication that continued until they ultimately had sex, then she would NOT be guilty of a sexual assault regardless whether her first question downstairs was an invitation to have coffee.

Except I think that more implicit communication should be treated as just as valid. If she leaned for a kiss and he reciprocated, and so on, that wouldn't be "explicit" but it would still be consensual.

I truly do not believe that you or anyone else here is incapable of understanding how this works.

I do not think you understand how OSU and similar policies work.

Once again, you do understand that there is a difference between "explicit" (example: "a more clear move") vs "express" (which must be written or verbal).

I do not think you can get "explicit" and "unambiguous" without using words or using gestures that are basically equivalents of words (nodding or shaking head for "yes" or "no").

When people don't know each other very well, imo more express communication is advisable to avoid miscommunication but the policies only require "explicit".

We shall see if they see the difference the way you do. I fear that they will use this policy to expel even more male students accused when they really have no evidence. Just like they are using evidence of any alcohol use to conclude that the girl (but never the guy) was "too drunk to consent".

 

[Derec]

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?

I think you may be confusing investigating with prosecuting. During investigation police collect evidence, question people and build a case. The prosecutors then must decide whether to proceed with prosecution.
Filing a criminal complaint by no means guarantees prosecution, quite apart from rape. If the prosecutor doesn't think they can get a conviction with the case they have they will not proceed.
Take this case: Charges dismissed against teen accused of rape at a Keith Urban show

Bristol County, Massachusetts, prosecutors have dropped charges against an 18-year-old man accused of raping a 17-year-old girl in July at a Keith Urban concert south of Boston.
"Given the state of the evidence, the case was dismissed in the interest of justice," said Gregg Miliote, a spokesman for the Bristol County district attorney.
Sean Murphy was charged with rape after an incident that happened in front of a large crowd on the lawn of the Xfinity Center, an outdoor amphitheater in Mansfield, Massachusetts, on July 26.
Multiple people recorded what happened on their cell phones and provided video to authorities for their investigation.

The accused was initially charged but lack of evidence prompted the prosecutors to drop the case and not pursue prosecution. That is the ethical thing to do. The unethical thing is a prosecutor like Mike Nifong pushing on with the prosecution even as he knows that he has no case. Luckily the state AG took over and stopped that particular case with extreme prejudice.

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.

You do not collect evidence during prosecution. You collect evidence during investigation. During prosecution you present evidence to a judge and juries (grand, petit). The criminal trial is the end-stage of the process. If there is no sufficient evidence to proceed with a prosecution an ethical prosecutor (like the one in the country concert case) will drop it. And if he doesn't, hopefully a judge will dismiss it during pre-trial hearings.

Which is an EXCELLENT situation for rapists.

It is an excellent situation for everybody accused of a crime. You should not have to do through a trial just because you have been accused of a crime. If the police haven't found enough evidence to build a solid case you should not be prosecuted, no matter what kind of crime you have been accused of. Prosecutors not prosecuting (or voluntarily dropping at some point) cases brought to them happen all the time and there is even a fancy Latin term for it: nolle prosequi.
Why do you want a special status for rape with prosecutors being required to bring every case to trial, no matter how weak?

 

[Rhea]

You're missing the point--you're assuming there are no changed-mind cases.

I'm not assuming any such thing. In any individual case, it is of course possible that she "changed her mind", or that her daddy pressured her to press charged so that he could keep up his illusion of his innocent little girl, or that her memories were altered as the side effect of a neurological experiment. But if you've been having sex with a woman you've only met hours before without unambiguously communicating what both of you want and/or while she was drunk, a more likely explanation for why she is pressing charges is that she does indeed feel genuinely violated. It's a risk you take by such behaviour, and that alone should be a good enough reason to refrain for anyone who cares about the people he has sex with long before we take rape claims (false or otherwise) into account.

Yes, it really is this easy. Having hook-up sex with someone you barely know greatly increases your risk of failing to properly understand signals. You are engaging in very risky behavior. It could go terribly wrong the next day when s/he sobers up and you discover that s/he is finally able to articulate extreme displease at what happened when s/he was not able to articulate it.

The policy says, this can be significantly mitigated if the standard is to actually try to be sure. Using these following criteria. And that it is worth mitigating. And that the side effects of actually trying to be sure are not negative.

This is the cultural shift that the regulations drive.

If, instead, she said "You know what I would like more than coffee?" and thus started the next stage of explicit communication that continued until they ultimately had sex,

You're saying how everyone can obviously be explicit in an invitation to sex - but you stop short of saying what the initiation would consist of, and only hint at what would be said. Doesn't that rather undermine the point you're making? Based on the idea that you personally are not comfortable with being sexually explicit on a forum, can you not see how some people might not be comfortable with being sexually explicit in intimate circumstances?

Several people have given examples of "what the initiation would consist of" in this thread and others. This is usually met with, "I don't like that one, so your whole point is invalid," or "Are you really trying to give me sex advice?"

So no, it doesn't undermine her point because it's not true that examples have been withheld. We can give examples that might be intended to answer the question, "what are we supposed to do?" but if people are expecting the answer to be the one magic bullet that solves the case, they're being unrealistic and if they are unwilling think about hearing examples on the internet then they are going to continue to be mystified about how to solve this problem.

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?

...

I also don't have any problem whatsoever with public policies that will help move the bar a bit faster. Someone earlier brought up drunk driving as a great example. When I was in my early 20's, no one thought twice about driving drunk. We didn't have designated drivers nor worry overly much about our actual ability to drive. By my 30's, house parties were mostly dry because most everyone wanted to stay sober to drive. That is a huge shift in 10 years, mostly brought about by public policy.

There was also a huge public policy effort to reduce drug use aka 'the war of drugs' That was rather less successful. Campaigns to reduce speeding have also been less successful. What was the difference? In the drunk driving campaign the focus was on a cultural shift. The logical link between lack of control and death was hammered home, the focus was shifted from the degree of impairment of the driver to the fact that alcohol reduces reaction time.

YES! That is what this is proposing a cultural shift like the drunk driving campaign which came along with broader criteria for violations and increased consequences for being caught at it! Just like this campaign.

The emphasis was on drinking responsibly, not cutting out drink entirely. Action was taken against police forces who did not enforce drunk driving rules.

Yes! The emphasis is on responsible hook-ups, not eliminating hookups altogether! Action is taken against colleges who do not create and enforce rape-mitigation rules. Some of that action is done by the media and the public, some by finaces, some by law enforcement.

The success came, not from rules that scared people into submission, but from a cultural shift that portrayed drink driving as an irresponsible risk that your friends should stop you from committing.

I disagree. The increased consequences were absolutely about scaring people into adopting the new cultural norm. (In scary deep Darth Vader Voice,) "DUI, You Can't Afford It." It was ALSO about the personal responsibility pressure. Like the people who post and support these rules.

It didn't come from trying to criminalise normal behaviour, or from arguing that people should simply stop drinking, or stop driving. It came from giving people a clear vision of what responsible drinking looked like.

And severely punishing those who did not comply. Mandatory jail time, lost license, increased insurance cost, 2nd offense penalty escalation.

Assuming we're agreed on 'ongoing consent' as our standard, the equivalent rape rule would mean promoting ongoing consent. It would NOT involve coming up with an involved formula to try and leave dedicated rapists with no wriggle room at the expense of criminalising reasonable behaviour.

Still not sure why you consider having sex with someone you are not sure consents is "normal behavior?" What part of those posted college rules do you think is abnormal, exactly? I don't think I know your position on this?

People used to do the same with drunk driving, deciding that because they could 'hold their drink', they didn't need to worry about driving while impaired. They stopped because it ceased to be a personal risk assessment and turned into an issue of social responsibility. You don't drink and drive because it sets a poor example, not because you think you personally are likely to have an accident.

I disagree. They stopped because of the increased risk of getting pulled over and arrested whether you have an accident or not.

The corollary here is the increased risk of getting charged with rape when you thought you were doing the equivalent of "holding your liquor," which is you think you have consent, but your idea of consent is outdated and just not consent. Now, unless you have consent that meets a standard you have a better idea of the risk you are taking in getting charged with rape.

We need a similar approach in dealing with campus rape.

Bingo. Clear definitions, immediate and severe enforcement.

Clear definitions.

0.08 BAC may force some people who can drive perfectly well to take a taxi when they don't really "need to" in order to avoid arrest. Not an accident, mind you, but arrest when they were actually probably fine driving. But 0.08 accepts that in the effort to get off the road all of those who cannot drive at that lever and were much more likely to cause an accident. If a person who can handle 0.10 drives just fine at 0.10, they may be relatively certain they won't cause a wreck, but they are still taking a risk upon themselves of getting arrested and charged - and they know it.

 

[Rhea]

I think you may be confusing investigating with prosecuting. During investigation police collect evidence, question people and build a case. The prosecutors then must decide whether to proceed with prosecution.
Filing a criminal complaint by no means guarantees prosecution, quite apart from rape. If the prosecutor doesn't think they can get a conviction with the case they have they will not proceed.

Okay, this makes sense to a point. So I agree with most of it. But not all dropped cases should have been dropped, so there is room for improved oversight there, IMO.