No one is answering this because it is nonsensical. Arctish already explained the concept to you.
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Only in California - Sexual Activity First Needs "Affirmative Consent" From Sober Parties
- Thread starter maxparrish
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No one is answering this because it is nonsensical. Arctish already explained the concept to you.
I would say that the concept of consent already requires 'conscious' and 'voluntary' agreement.
So, the only difference I can see is the addition of the word 'affirmative', which appears to me to add nothing at all. One might as well say you need vorkrunk consent.
So, affirmative consent is consent, and consent is affirmative consent. If one has obtained affirmative consent, one has obtained consent. If one has obtained consent, one has obtained affirmative consent.
In that case, I'm completely baffled as to why the word 'consent' needed to be made more clumsy by adding the meaningless adjective 'affirmative' in front of it, since 'affirmative consent'='consent'.
fast
Contributor
All cases of affirmative consent is a case of consent, but not all cases of consent are cases of affirmative consent.
RavenSky just finished telling me that the idea you could have consent, but not affirmative consent, was 'nonsensical'. (post #41).
It appears no-one is willing to give me a clear answer.
Is a case of sex with consent, but not affirmative consent, rape?
Arctish
Centimillionaire
One type of consent, yes.
No. Affirmative consent it a subset of a broader category called consent.
Affirmed confidentiality is different from implied confidentiality, and both are different from presumed confidentiality. If I haven't promised to keep your information confidential, tell me your secrets at your own risk.
An affirmed job offer is different from an implied job offer, and both are different from a presumed job offer. If I haven't told you you're hired, don't quit your day job.
Affirmative consent is different from implied consent, and both are different from presumed consent. If I haven't told you your sexual advances are welcome, grope me at your peril.
If the answer is 'yes, it's rape', that is madness. Surely it is consent that matters, and if you have consent, it's not rape.
If the answer is 'no, it's not rape', then what is this legislation about? It appears to be defining rape as no longer about consent (which is now irrelevant) but about affirmative consent?
If the answer is 'the question does not make sense, consent and affirmative consent are the same thing', then what is this legislation about, except a pointless and ludicrous re-defining of 'consent' to define what it already meant but now with the pointless and confusing 'affirmative' saddled in front of it.
fast
Contributor
I would say no. Sex with consent that hasn't been made in the affirmative isn't rape.
Derec
Contributor
It seems to me that while radical feminists hate prostitution, they are working hard to make all sexual interactions (starting with those between college students) very much like prostitution.
After all, with prostitution the parties agree to sex very explicitly and affirmatively and there is a clear understanding of terms and acts that will be performed. None of the pesky things like non-verbal communication and spontaneity that make any hookup into a rape in their view.
After all, with prostitution the parties agree to sex very explicitly and affirmatively and there is a clear understanding of terms and acts that will be performed. None of the pesky things like non-verbal communication and spontaneity that make any hookup into a rape in their view.
Groping someone without their express or implied consent is sexual assault.
Does this legislation now say that groping someone with their implied consent, but not their 'affirmative' consent, is sexual assault?
or, does it say that consent is what matters, but we will only accept proof of affirmative consent as proof that consent happened?
Arctish
Centimillionaire
My husband has presumed consent to grope me. I have always encouraged it and never turned it down. I don't tell him each and every time that it's okay. But you don't have presumed consent to grope me. There is nothing between us that would justify such a presumption. So if you start taking liberties I only allow my husband to take, I'll kick your ass.
Now, if we had spent some time together and I seemed to be attracted to you, you might think you have implied consent to grope me. The guy who thought we were going to have sex the night I came over to watch a movie made the same mistake. But if I implied consent in any way it was totally unintended. We had a failure to communicate, which is why it would have been so much better for the both of us if he had sought affirmative consent before he tried to unzip my blue jeans.
It says
"(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent."
Derec
Contributor
Since the no-groping thing applies to me just as well as to Metaphor (if not more) I will hazard a reply.My husband has presumed consent to grope me. I have always encouraged it and never turned it down. I don't tell him each and every time that it's okay. But you don't have presumed consent to grope me. There is nothing between us that would justify such a presumption. So if you start taking liberties I only allow my husband to take, I'll kick your ass.
Let's say we have two individuals, A and B, who do not have an implied groping consent. In fact they just met at a party. But they hit it off. A starts lightly touching B at an innocuous place, like a shoulder or arm, B responds by doing likewise. Things progress and eventually reach the stage where it can be called "groping" and "making out". No affirmative consent was given to any of it, but the whole thing was fully consensual. Except as far as the
But let's say that instead of rebuffing his advances you responded to them favorably yet non-verbally. Is the consent thus given any less valid just because it wasn't explicitly negotiated beforehand but developed spontaneously and organically from a situation? California says yes, which is ridiculous. It makes prostitution (where sexual acts are explicitly negotiated and communicated beforehand) as a model for sexual interactions. Nothing against prostitution of course, but it's ridiculous to require all sexual interactions follow that model.
In any case, this legislation will have the chilling effect of more innocent male students (let's not kid ourselves, no way a female student will ever be expelled under this legislation!) getting expelled. UGA, Vassar and others were just a foreplay for what is going to go down in California.
fast
Contributor
Don't confuse rape with 'rape'.
First, words are defined, not what they refer to, well, except for those cases where words refer to other words, but that isn't important here. My first point is simply to convey the fact that it's the word, "rape" that is something that can be defined ... not the act.
Secondly, the lexical meaning of the word, "rape" is a function of how the term is collectively used by fluent speakers of a language, and the definition of the word can be found in dictionaries.
Third. However, words can be used in alternative ways--and mean something not exactly as they are ordinarily used in our lexicon. The meaning of such usages isn't lexical but instead stipulative. Most words given a legal definition, for example, are stipulative, not lexical.
Forth, there is something called the use/mention distinction. In the sentence, "do not rape people," the word, "rape" is used, but in the sentence, "the word rape has four letters," the word, "rape" is said to have been mentioned.
Fifth, it's a commonly accepted practice to place words that are mentioned (as opposed to used) in double quotes, and it's customary to not place them in quotes at all (unless they're being, well, quoted) when being used; however, it's also somewhat customary to use single quotes when using words in an alternative or peculiar manner--unfortunately, this practice is not always adhered to. Oh, and they're usually italicizes when used for emphases. There are more usages, but (and the point) is that there are three things we need to distinguish: (which might be better understood with an example)
1) I took my cat for a walk.
2) Don't 'cat' around with my sister.
3) The word, "cat" never purrs.
First, I used the word as ordinarily used in our lexicon.
Then, I used the word in an unusual or peculiar manner.
Finally, I mentioned the word.
Notice the progression of no quote, single quote, and double quote.
Now, let's review your question in light of this.
If the answer is 'no, it's not rape', then what is this legislation about? It appears to be defining rape as no longer about consent (which is now irrelevant) but about affirmative consent?
It's not defining rape. Recall, rape isn't defined. Words are. Okay, you might say, it's defining the word, "rape" then, right? Nope, not exactly. What they are doing is using the word in a manner not precisely as used in our lexicon. In fact, they are stipulating a usage; moreover, they're 'precising' it. They are adding a necessary condition.
Think about kidnapping, for instance. We all grew up with a pretty good sense of what that is, but the legal definition of its corresponding word is so convoluted that no middle school student with a good grasp of what that word truly means in our lexicon would ever guess the extent to which it's stipulated legal definition has diverged from its lexical meaning.
So, we must keep our eye on the ball and not confuse rape with 'rape'. See, even if consensual sex that isn't affirmed is 'rape', it certainly isn't rape.
So active participation in the sexual activity and gestures of approval qualify as affirmative consent. Explicit verbal consent is not required.
If your partner is doing their best impersonation of a dead starfish, you don't have affirmative consent.
Contrary to Arctish's position, however, one cannot presume consent on the basis of an existing relationship.
It appears to be preventing the defence of "she/he didn't resist, therefore she/he consented."Metaphor said:
My husband has presumed consent to grope me. I have always encouraged it and never turned it down. I don't tell him each and every time that it's okay. But you don't have presumed consent to grope me. There is nothing between us that would justify such a presumption. So if you start taking liberties I only allow my husband to take, I'll kick your ass.
I agree that it is usually the case that there is ongoing, 'background' consent to physical/sexual touching, between long-term intimate partners. So, he has your implied consent to do so.
But according to this legislation, unless he has your 'affirmative' consent (which remains undefined), he is open to the charge of sexual assault. Unless the implied 'background' consent between long-term intimate partners counts as 'affirmative' consent, which we don't know, because it (affirmative consent) is not defined in any useful way.
That definition is about as useful as tits on a bull.
For example, it would seem to rule out the permission you gave to your husband to grope you, since, whilst I'm sure that permission was voluntary when you made the agreement, you have not consciously given it (consent) each time he has groped you (unless 'affirmative consent' means you only had to be 'conscious' at the time you gave the initial 'ongoing' grope permission).
But it seems to me that consent already has to have been 'conscious' and 'voluntary', otherwise it was not consent. The addition of the word 'affirmative' seems to me to add absolutely nothing.
Arctish
Centimillionaire
What if all I was consenting to was the kissing? What if I expected him to stop at that because I expected him to know I don't screw guys on the first date, or I thought he respected me more than to stick his hands where I didn't want them? I was happy with a nice snuggle and horrified at being fingered.
I think pretty much everyone agrees on the stark black-and-white contrast between enthusiastic, consensual sex and a brutal, forcible rape, but it's the gray area in between that's a problem.
I think the bill under consideration is an attempt to mark a fixed point in all the ambiguity of mixed signals and misunderstandings that are so common to human relationships. The bill proposes using the affirmative and unambiguous expression of agreement as the hallmark of consensual sex, and the lack of a clear affirmation as an indicator for non-consensual sex. I don't think that's overly burdensome. It's in line with a lot of other social interactions.
You need a clear expression of permission to enter someone's home before it's okay to walk right in. You need a clear expression of agreement before it's oaky to cut down someone else's tree, or go through their mail, or take their dog for a walk. Why does it seem so out-of-line to say you need a clear expression of consent before it's okay for you to engage in sex acts they might or might not want?
If the movie night guy had bothered to find out how I felt about having sex with him, my answer would have been "not yet, I don't know you well enough, but I think that's where this relationship is heading". Instead, he just plowed ahead and we both got angry when things didn't go the way we each had envisioned them, thus ruining any chance we'd ever be together again.
It would have been better for the both of us if he'd just said something.
Derec
Contributor
I do not doubt that the law is well meant but it opens a can of worms as to how strongly and explicitly the "affirmative" consent must be given now on California's campuses.
Just like it is a good idea to penalize people having sex with partners that could not consent due to extreme inebriation but the rule has been applied to cases where the accuser has been observed drinking earlier in the evening but she was able to both walk to and from her sex partner's dorm doom and was able to compose text messages proving she wasn't "too drunk to consent" even though she had drank alcohol. Doesn't matter - the male student was still expelled in the UGA case.
At the time of the act, or can affirmative consent be given before an (unspecified) act?
I ask because I know couples (well, gay couples, but they almost count as real people, right?) who have initiated sexual activity on a person while that person was asleep, but they had the express consent of their partner while their partner was awake.
I don't think that's what Arctish said; it was more along the lines of 'I have given my husband permission' not 'my husband has permission because he's my husband'.
But that's a problem, because we've all agreed that you can really and truly consent to something without it being 'affirmative' consent. So it defines a new class of rape, based on requiring something more than consent, which should not be classed as rape at all (because there was consent).
It was already true that failing to resist does not imply consent.
That's going to be hard to avoid since our system is based on proving the defendant is guilty not on the defendant having to prove his innocence.
Derec
Contributor
You move his hand away. If he stops and says "sorry" no problem. If he continues than it's sexual assault. If you respond by opening your legs to ease his access and gently moaning (or something) than you have given non-verbal consent to fingering. Explicit, verbal, unambiguous permission like "Mr. xxx you have permission to enter my vagina with one (1) of your digits" before every step of intimacy should not be required.
And I think the line to calling is "sexual assault" or "rape" should be drawn toward the darker shade of gray and not the lighter like has been happening in recent years.
I think it is. Depending how aggressively it is applied (and recent history suggests very aggressively since any consumption of alcohol has been interpreted by college inquisitors as "too drunk to consent" in the recent past) it can draw the line between white and black at "off-white". Anything that is not #FFFFFF is "rape" according to some.
That doesn't lend itself to non-verbal communication or gradual "escalation of intimacy" so I do not think it is a good analogue at all. Neither do your other examples.
Was he supposed to have done this?
Like what? What dialogue do you envision?