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

[Stu]

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 But a waiver is problematic because consent can be withdrawn at any time before or during sex, so it's either not a full defence or can be used as a defence when consent has been withdrawn.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.

This doesn't actually answer the question. These cases are crimes, and the presumption of innocence applies - the first line of defence against such claims is the knowledge that the accuser/prosecution would have to prove their claims beyond reasonable doubt. Any of these mitigating factors only need to reach the level of reasonable doubt, not a preponderance of evidence. And if you took any of them to your university instead, you'd get laughed in your face and directed to the courts/police.

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?

Universities are not currently allowed to use the standard you want. This is a problem, is it not? It's also not that affirmative consent "won't keep bad people from filing false rape charges", it's that affirmative consent, in combination with the removal of the presumption of innocence and prohibition of recording consent, makes it virtually impossible to defend yourself against such a claim. The rather weak suggestions offered so far seem to confirm that. "Get a new set of friends", "become a better lover", accept you'll be found guilty but hope for leniency, don't get accused of rape.

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.

I'd like to see any examples of that. Nothing I've seen so far seems to be "arguing on behalf of sexual predators" or calling those who report rapes "liars". There are people defending the accused, and the presumption that the accused are "sexual predators" is precisely why they need defending. It is not punishing the innocent to expect rape claims to have to be proven. It's the "preponderance of evidence" standard that requires you to find that a rape did or didn't happen. Higher standards give you the option of saying there's not enough evidence to support the claim without suggesting it is false.

 

[Arctish]

Dear Colleague Letter, pages 10-12:

"Schools should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting. For example, a school should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime. Any agreement or Memorandum of Understanding (MOU) with a local police department must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably. Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation.25 Moreover, nothing in an MOU or the criminal investigation itself should prevent a school from notifying complainants of their Title IX rights and the school’s grievance procedures, or from taking interim steps to ensure the safety and well-being of the complainant and the school community while the law enforcement agency’s fact-gathering is in progress. OCR also recommends that a school’s MOU include clear policies on when a school will refer a matter to local law enforcement.

As noted above, the Title IX regulation requires schools to provide equitable grievance procedures. As part of these procedures, schools generally conduct investigations and hearings to determine whether sexual harassment or violence occurred. In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints. The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Like Title IX,

Title VII prohibits discrimination on the basis of sex.26 OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX.27 OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings.28 Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing.29 For example, a school should not conduct a pre-hearing meeting during which only the alleged perpetrator is present and given an opportunity to present his or her side of the story, unless a similar meeting takes place with the complainant; a hearing officer or disciplinary board should not allow only the alleged perpetrator to present character witnesses at a hearing; and a school should not allow the alleged perpetrator to review the complainant’s statement without also allowing the complainant to review the alleged perpetrator’s statement.

While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties. Additionally, any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings should apply equally. OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties. Schools must maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings.

All persons involved in implementing a recipient’s grievance procedures (e.g., Title IX coordinators, investigators, and adjudicators) must have training or experience in handling complaints of sexual harassment and sexual violence, and in the recipient’s grievance procedures. The training also should include applicable confidentiality requirements. In sexual violence cases, the fact-finder and decision-maker also should have adequate training or knowledge regarding sexual violence.30 Additionally, a school’s investigation and hearing processes cannot be equitable unless they are impartial. Therefore, any real or perceived conflicts of interest between the fact-finder or decision-maker and the parties should be disclosed.

Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant."

Sounds like they've given this some thought.

 

[Derec]

Oh, really? I suppose you have a source for this utterly preposterous claim.

These cases have been discussed on here numerous times, with various sources. If you don't recall the cases a couple of minutes on google should reveal them.

Is it the same MRA site where you found that list of misattributions and misquotes?

What "misattributions and misquotes"? And I guess to you only radical feminist sites are acceptable as sources.

If so, I suggest you fact check the nonsense they post. They appear to be very unreliable.

Do you have any specific sites you think are unreliable or are you painting everyone who doesn't drink the radical feminist koolaid with a very broad brush.

The false negative means a rapist is still on campus mingling with the other students.

As are those accused of but not convicted of serious crimes (including rapes and crimes worse that it such as murder) in the criminal justice system and yet pour society has held for a long time that it is far better to let a guilty person go than to punish an innocent person.

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.

Same applies to rape as treated in the criminal justice system and of course to other crimes as well. That doesn't mean we should do away with presumption of innocence and placing the burden of proof on the prosecution. Note also that the cases we are discussing here didn't even have enough evidence to lead to a criminal indictment, much less a conviction. In one case the false accuser was charged yet the accused was still expelled. These cases have very little evidence and the male students are still getting expelled. That is not good for the individual students, the campus community or for the society at large.

That is detrimental to both the student body and the school itself, not to mention the effect on the person who was raped.

And being falsely expelled, with minimal evidence, is detrimental to the student body and the school itself as well. Not to mention the disastrous consequences for the falsely expelled student who is wrongfully branded as a "rapist" and whose future is derailed.

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.

But not at the cost of also expelling many innocent male students because the burden of proof is so low and the accused student is not allowed to properly defend himself.

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

The first sentence "A person who is intoxicated cannot legally give consent" is patently false. There are degrees of intoxication.
The second one (" If you're too drunk to make decisions and communicate with your partner, you're too drunk to consent.") makes sense but note that this wasn't established in the UGA no rape case. Instead her having been observed (by anonymous witnesses no less) drinking some time prior to the sex was used as "evidence" that she was "too drunk to consent". Never mind that she was able to walk to and from the dorm room and also compose coherent text messages (i.e. she was able to "communicate with [her] partner"), having consumed any alcohol was sufficient, but only for females.
Note that this is another case where police investigated but found no evidence that a rape actually took place. No evidence means that the male student should not have been expelled.

It is also notable that while women also have sex with drunk men (most of the times drunkenness is mutual) only male students ever get expelled for it. If you are going to expel male students for having sex with drunk females, you should be expelling female students for having sex with drunk males.

 

[Derec]

Sounds like they've given this some thought.

How to make it easier to expel male students with little to no evidence while curtailing their ability to defend themselves, you mean?

 

[Derec]

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?

No, that's not sufficient as the female can regret the sex the following day (or year) and accuse you of rape even if she consented at the time. Also these cases usually do not involve people in a drunken stupor, but rather far lesser states of intoxication where people still function. Also the male has usually been drinking as well but the female is not expelled for it.

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 a person wants to be fucked at a time but later on regrets her decision and falsely accuses the male student of rape there is nothing he can do about it. Stop blaming the victims!

 

[Derec]

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.

Some surely are liars. For example we know for sure that Mary Claire Walker (of the Vassar case) is a liar because she either lied when she texted the accused that she "had a great time" or she lied a year later when she accused him of rape. My money is on the latter.

The fact that some accusers are liars is why the university should (be allowed to) require solid evidence before punishing a student for "rape". They also should consider all exculpatory evidence (such as communications between accuser and accused) and not arbitrarily and capriciously dismiss it because it doesn't fit the "expel him!" agenda.

 

[Derec]

"Get a new set of friends", "become a better lover", accept you'll be found guilty but hope for leniency, don't get accused of rape.

The "become a better lover" is not only disgusting victim blaming but was also literally impossible in the Vassar case since the accused was a virgin when Walker (the accuser) had sex with him.

 

[Sabine Grant]

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.

Some surely are liars. For example we know for sure that Mary Claire Walker (of the Vassar case) is a liar because she either lied when she texted the accused that she "had a great time" or she lied a year later when she accused him of rape. My money is on the latter.

The fact that some accusers are liars is why the university should (be allowed to) require solid evidence before punishing a student for "rape". They also should consider all exculpatory evidence (such as communications between accuser and accused) and not arbitrarily and capriciously dismiss it because it doesn't fit the "expel him!" agenda.

Plenty of opportunities were given to Winston (FSU Seminoles quarterback and rising star within College football) last year to respond to an inquiry initiated by FSU regarding an allegation of rape brought against him by a female FSU student. Winston persistently refused to appear. Which of course left the FSU student community scratching their head as to why he would evade the opportunities to speak for himself and defend himself. The story was pretty much "swept under the carpet" until a few days ago when, due to the same community of students questioning why Winston could evade that inquiry process, FSU launched an official investigation. At this point, Winston will have to respond escorted by his lawyer.

Mind you that the initial case was investigated by the Tallahassee PD. However, the New York Times had got hold of the details regarding that investigation while pointing to a series of procedural failures on the part of the assigned detective. Such as his neglecting to get the footage of the surveillance camera in the bar where the female student was consuming alcohol and according to several witnesses in high quantity. The claim being that she was approached (while already intoxicated) by 2 members of the football team who then invited her to a party at Winston's home. After that, she would have allegedly been sexually assaulted by Winston while being too intoxicated to defend herself. What greatly plays against the alleged victim is that she did not report it right away. She waited one year to make an official report to the local law enforcement authorities. Some have assumed that the trigger for her to report it was Winston benefiting of such positive attention in the media due to his achievement as an athlete and she felt it was wrong that the public would be in such awe of an individual who would have raped her.

And Derec, the student community who has been placing pressure on FSU is not a group of "radical feminists" as I expect you would be tempted to argue. Keep in mind that I have direct insights in the FSU student community you do not have.

Edited to add : Actually Winston had refused to answer questions from the SA and police. The recent interview by FSU of the alleged victim was for the first time.

http://espn.go.com/college-football...lows-title-ix-investigation-qb-jameis-winston

 

[Loren Pechtel]

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.

Being expelled from school is far worse than being fired.

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.

The problem is that it's a decision about punishment.

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.

And rarely will the civil suit succeed if the criminal one is lost.

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.

A conviction for sexual assault, or a plea bargain to lesser charges.

 

[Loren Pechtel]

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.

It's used in civil court because in civil matters it's normally considered that failing to pay a rightful claimant is just as bad as paying a wrongful. You minimize the total error in such a situation by going with preponderance of the evidence.

We do not consider this to apply to punitive situations, however. (Even in civil matters--it's a much higher burden to get punitive damages than to get compensation.) Consider Blackstone's formulation.

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!

In the real world mistakes will be made, any sane system must take this into account.

You consider the implications of the mistakes and set the thresholds accordingly. Sometimes you want to err towards the side of false positives. (For example, screening donated blood.) Sometimes you want to err on the side of false negatives (For example, criminal matters.)

When you set up a system that doesn't consider this the decisions are garbage.

 

[Loren Pechtel]

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.

I've heard of multiple people having no-anesthesia colonoscopies. It removes the cost & risk of the anesthesia.

(And note that that authorization involves a lot more than the removal of polyps. Perforations sometimes happen--if so you're going to wake up in the hospital after they stitch you up and clean you out.)

 

[Sabine Grant]

By Loren :A conviction for sexual assault, or a plea bargain to lesser charges.

Loren, the problem here is that there always is an extended length of time between the starting point of criminal charges being brought up by a DA or SA, a trial date to be set, trial to proceed and concluding with a verdict, either non guilty or guilty. A guilty verdict would be a "conviction for....". Of course if we assume innocence, it makes sense that the charged student not be meeting any sanctions/penalties from the University itself until the entire above process be completed. However, we then also assume that the alleged victim is to somehow cope with the presence of a potential rapist in the same environment.

Which coping mechanisms do you think the University would have to counsel the alleged victim to rely on while awaiting for that entire process above to be completed?

 

[Loren Pechtel]

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.

How would we know? There's no innocence project for civil cases.

I will say that in the civil cases that I have been close enough to to make a reasonable judgment as to right or wrong that justice never prevailed.

 

[Loren Pechtel]

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?

This is in California, a two-party state. He can't tape her consent. Thus he can't prove he had the consent.

It's obvious you are the one that burned down my former employer's plant. Prove that you didn't. (Good luck proving it, it was only well into the cleanup that we realized it wasn't an accident.)

 

[Sabine Grant]

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.

I've heard of multiple people having no-anesthesia colonoscopies. It removes the cost & risk of the anesthesia.

What you have "heard of" is patients who will decline being "put under" , meaning full sedation. However patients who decline full sedation will be administered Valium or equivalent to Valium in order to keep them relaxed and prevent any anxiety factor. Similarly, I decline sedation for my bone marrow biopsies however administered 2 tablets of hydrocodone one hour prior to the procedure as it keeps me in a semi "lalaland" state though I remain conscious of my environment and communications in between attending physician and nurse and with me. But I can tell you that my level of mental cognition and usual ability to process thoughts is off. However, if I were to tell the attending medical personnel to stop, they still would have to.

(And note that that authorization involves a lot more than the removal of polyps. Perforations sometimes happen--if so you're going to wake up in the hospital after they stitch you up and clean you out.)

This continuous and persistent need to draw an analogy between medical procedures with prior consent and sexual activities with prior consent have left this out : Patients are afforded a Bill of Rights ( The Patient's Bill of Rights) that individuals engaging in sexual activities do not have.

 

[Loren Pechtel]

Plenty of opportunities were given to Winston (FSU Seminoles quarterback and rising star within College football) last year to respond to an inquiry initiated by FSU regarding an allegation of rape brought against him by a female FSU student. Winston persistently refused to appear. Which of course left the FSU student community scratching their head as to why he would evade the opportunities to speak for himself and defend himself. The story was pretty much "swept under the carpet" until a few days ago when, due to the same community of students questioning why Winston could evade that inquiry process, FSU launched an official investigation. At this point, Winston will have to respond escorted by his lawyer.

In your obsession to prove rape you overlooked the fact that your article says she refused to cooperate for a long time despite giving three interviews to the police.

This sounds to me like the cops didn't believe her so she waited until there would be no repercussions if the university didn't, either.

 

[bigfield]

Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.

This part is funny, because in some of the cases Derec has reported, the accused male students were not given due process, and several FRDB/TF posters have argued that the universities are not required to provide due process.

 

[Sabine Grant]

Plenty of opportunities were given to Winston (FSU Seminoles quarterback and rising star within College football) last year to respond to an inquiry initiated by FSU regarding an allegation of rape brought against him by a female FSU student. Winston persistently refused to appear. Which of course left the FSU student community scratching their head as to why he would evade the opportunities to speak for himself and defend himself. The story was pretty much "swept under the carpet" until a few days ago when, due to the same community of students questioning why Winston could evade that inquiry process, FSU launched an official investigation. At this point, Winston will have to respond escorted by his lawyer.

In your obsession to prove rape you overlooked the fact that your article says she refused to cooperate for a long time despite giving three interviews to the police.

My "obsession to prove rape"?????? Are you kidding me? How could you conclude from what I communicated that I am "obsessed with proving rape"? You have absolutely no opinion on my part regarding whether I think a rape occurred or did not occur. Keep your mind reading based inflammatory crap out of this discussion, Loren.

This sounds to me like the cops didn't believe her so she waited until there would be no repercussions if the university didn't, either.

Actually, charges were not pressed against Winston by the SA because of lack of evidence supporting her claim. Which is still the current position of the State Attorney for Leon County. FSU has no choice but proceed with Article 9 and that despite of no criminal charges having been filed against Winston. However, FSU could still conclude from their investigation that Winston violated the Code of Conduct established by FSU. FSU having heavily cracked down on drunk hook ups of any suspicious nature. Their cracking down had started with the expulsion of a large fraternity due to the repeated occurrence of passed out drunk female students during the parties held at the said fraternity. They saw it coming as the disastrous formula for unconscious females to be sexually exploited.

Mind you that such issue is far from being under control on and around the FSU campus.

 

[Sabine Grant]

Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.

This part is funny, because in some of the cases Derec has reported, the accused male students were not given due process, and several FRDB/TF posters have argued that the universities are not required to provide due process.

I do not recall "several FRDB/TF posters" who "have argued that the Universities are not required to provide due process". What I do recall though is that there was some confusion among some posters as to the difference between Code of Conduct violations and resulting penalties and the actual process addressing Article 9 where even if the accused student is deemed innocent for an accusation of sexual assault or rape, the said student may still incur penalties related to the University Code of Conduct. That I definitely recall.

I am predicting that the investigation launched by FSU on Jamie Winston will not lead to any other conclusion than Winston did not rape that female student. However, due to Winston's very high profile and being the current "face" of FSU during this now started football season, he will be placed on a very tight leash by the athletic depart. regarding his choice of "social" activities. The messenger of the tight leash being none other than Coach Jumbo Fisher.

 

[RavenSky]

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

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

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

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

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

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

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

This yet again goes back to the point that, regardless of the details of your specific encounter, if neither party involved viewed it as "rape" then you aren't going to have to worry what instructions a judge has "his hands tied by." but if the person you had sex with as per the details you have provided reported it as a rape because you admittedly did not have consent, I'm sorry but it was rape. You were fortunate that you met someone with a complimentary kink who, despite non-consent, didn't report it as a rape.

But I cant imagine that you are suggesting everyone operate by your own personal sexual preferences? Do you actually believe that it would be perfectly fine for someone to have sexual intercourse with me without my consent, and then simply claim he likes it better that way so it wasn't a rape?