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

[Derec]

I think it is an unreasonable burden to insist the victim of a rape have to prove s/he said "no"

So in effect you want men to be presumed guilty and have to prove their innocence. You agree with Jessica Valenti and Swedish feminists that "presumption of innocence" should be abolished for rape.

We are not discussing the infinitely minuscule number of people who *change their mind*.

I think the number is far bigger than you think. Hell, the student in the Vassar case was expelled because his sex partner changed her mind a full year later!

We are discussing the much greater number of people who are raped. And if the hypothetical woman is too shy to ask for sex, oh well.

The thing is that if you can't prove the rape happened nobody should be punished for it. You can't just presume the woman is telling the truth and require the man to prove his innocence, although I am sure feminists would love it.

 

[Stu]

I think it is an unreasonable burden to insist the victim of a rape have to prove s/he said "no"

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.

Unfortunately not under the guidelines which the White House has directed universities to apply. If they don't apply a "preponderance of evidence" standard, they lose funding.

Which is what makes this affirmative consent change much, much more dangerous. Anyone who finds themselves on the receiving end of an accusation is screwed - they need to prove they had "affirmative" consent, but can't because recording isn't allowed and they aren't given any of the protections that a criminal defendant would receive. The kangaroo courts are there to rubber stamp the expulsions.

 

[Stu]

So in effect you want men to be presumed guilty and have to prove their innocence. You agree with Jessica Valenti and Swedish feminists that "presumption of innocence" should be abolished for rape.

It's worse than that. It's a presumption that all sex is rape until proven otherwise. The presumption of innocence is a fundamental pillar of a fair justice system, it's not an "unreasonable burden" because it's too hard to convict people without presuming them guilty.

 

[Arctish]

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.

They got lucky. The sleeping man might have felt the same way Charlie did upon waking up to find an uninvited party using his "morning wood" for their sexual pleasure.

No prior consent = taking a risk.

Contrary to Arctish's position, however, one cannot presume consent on the basis of an existing relationship.

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'.

If this bill doesn't allow for the reasonable expectation of consent between people in a stable relationship then it is deeply flawed. There is a big difference in what can be presumed and implied between married, engaged, and living-together partners, and people who don't have an established relationship.

It appears to be preventing the defence of "she/he didn't resist, therefore she/he consented."

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.

You can really and truly consent to something without it being 'affirmative' consent, but this bill says you can't know that you have consent unless its of the 'affirmative' type. IOW, your partner has to give you a yea or nay, otherwise you are taking a chance the sex act you're about to perform might not be consensual.

 

[Stu]

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.

Yet this is not affirmative consent, I presume? This is the issue - if you and your husband are/were university students in California, you wouldn't be trusted to reach "presumed" consent by yourselves. Anything short of affirmative consent could in theory get one or the other of you expelled (in practice, that's a different matter...).

 

[Metaphor]

They got lucky. The sleeping man might have felt the same way Charlie did upon waking up to find an uninvited party using his "morning wood" for their sexual pleasure.

No prior consent = taking a risk.

Contrary to Arctish's position, however, one cannot presume consent on the basis of an existing relationship.

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'.

If this bill doesn't allow for the reasonable expectation of consent between people in a stable relationship then it is deeply flawed. There is a big difference in what can be presumed and implied between married, engaged, and living-together partners, and people who don't have an established relationship.

It appears to be preventing the defence of "she/he didn't resist, therefore she/he consented."

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.

You can really and truly consent to something without it being 'affirmative' consent, but this bill says you can't know that you have consent unless its 'affirmative'. IOW, your partner has to give you a yea or nay, otherwise you are taking a chance the sex act you're about to perform might not be consensual.

But since it doesn't define 'affirmative' consent, except in the most useless and circular way (it includes the word affirmative in its own definition!!), then you can't even know if you've got affirmative consent!

I've had sex before, every single time with consent (I hope and believe), but I can't say at all if I have had 'affirmative consent' every single time (since I don't know what affirmative consent is).

 

[Arctish]

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.

Yet this is not affirmative consent, I presume? This is the issue - if you and your husband are/were university students in California, you wouldn't be trusted to reach "presumed" consent by yourselves. Anything short of affirmative consent could in theory get one or the other of you expelled (in practice, that's a different matter...).

If that is what this law will do, that's an obvious flaw. There is a reasonable expectation of consent between couples in an established relationship, and it should be respected. However, that doesn't mean marital rape is impossible. It can happen. Even people in long term relationships have to be careful about matters of consent.

This bill is aimed at providing a line of demarcation between consensual and non-consensual sex acts for people who don't have prior agreements already in place (if they have a prior agreement or established way of interacting with each other, they have an affirmative type of consent). The line it draws it based on the affirmation of mutual consent between parties. IMO that's a sensible point of reference. If your partner hasn't given you a yea or nay, how can you know if what you're about to do is okay with him/her?

 

[Arctish]

They got lucky. The sleeping man might have felt the same way Charlie did upon waking up to find an uninvited party using his "morning wood" for their sexual pleasure.

No prior consent = taking a risk.

Contrary to Arctish's position, however, one cannot presume consent on the basis of an existing relationship.

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'.

If this bill doesn't allow for the reasonable expectation of consent between people in a stable relationship then it is deeply flawed. There is a big difference in what can be presumed and implied between married, engaged, and living-together partners, and people who don't have an established relationship.

It appears to be preventing the defence of "she/he didn't resist, therefore she/he consented."

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.

You can really and truly consent to something without it being 'affirmative' consent, but this bill says you can't know that you have consent unless its 'affirmative'. IOW, your partner has to give you a yea or nay, otherwise you are taking a chance the sex act you're about to perform might not be consensual.

But since it doesn't define 'affirmative' consent, except in the most useless and circular way (it includes the word affirmative in its own definition!!), then you can't even know if you've got affirmative consent!

I've had sex before, every single time with consent (I hope and believe), but I can't say at all if I have had 'affirmative consent' every single time (since I don't know what affirmative consent is).

I've never had sex where I didn't say "yes" or "oh, yeeessssss!" or "Oh my God, yes!"

 

[Derec]

I've never had sex where I didn't say "yes" or "oh, yeeessssss!" or "Oh my God, yes!"

But does that qualify as "affirmative consent" any more than as "affirmative expression of faith"?

 

[bigfield]

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.

It states that consent must be ongoing. So if one partner consents beforehand but does not give conscious consent during the act, then it would be rape (but only if they are students and someome reported it to the university board).

Contrary to Arctish's position, however, one cannot presume consent on the basis of an existing relationship.

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'.

My mistake. I took it to mean "I've let him do it in the past, therefore he has implicit permission to do it in the future."

It appears to be preventing the defence of "she/he didn't resist, therefore she/he consented."

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.

Fair points. The purpose of this law evades me.

 

[Arctish]

I've never had sex where I didn't say "yes" or "oh, yeeessssss!" or "Oh my God, yes!"

But does that qualify as "affirmative consent" any more than as "affirmative expression of faith"?

Yes, it does. And I've never had sex with anyone who didn't also express consent of the affirmative type. No messing with passive non-verbal "starfish" for me. Either he expressed his interest or I didn't think he was interested and I left him alone.

 

[Stu]

If that is what this law will do, that's an obvious flaw. There is a reasonable expectation of consent between couples in an established relationship, and it should be respected. However, that doesn't mean marital rape is impossible. It can happen. Even people in long term relationships have to be careful about matters of consent.

This bill is aimed at providing a line of demarcation between consensual and non-consensual sex acts for people who don't have prior agreements already in place (if they have a prior agreement or established way of interacting with each other, they have an affirmative type of consent). The line it draws it based on the affirmation of mutual consent between parties. IMO that's a sensible point of reference. If your partner hasn't given you a yea or nay, how can you know if what you're about to do is okay with him/her?

It seems that is the case that there is no exemption for an existing relationship:

In addition to consenting up front, the bill requires affirmative consent to be “ongoing throughout the sexual activity,” meaning that sexual partners must agree to each step of a sexual encounter as it progresses and consent can be revoked at any time. The standard would apply to all sexual encounters regardless of whether the parties are having a one-night stand or are in a long-term relationship.

http://www.washingtonpost.com/news/...-bill-defines-what-it-means-to-say-yes-to-sex

So what you were previously describing was clearly not consensual under the new California law. "Implied consent" was not broken, it could be interpreted on a case-by-case basis. A pre-existing relationship would change the context, without suggesting that marital rape was okay. Now a married couple with a deep, unspoken understanding of each other's consent are now on the same level as a frat boy raping a passed-out freshman and at risk of being expelled for a "consensual, but not consensual enough" act.

 

[Arctish]

It seems that is the case that there is no exemption for an existing relationship:

In addition to consenting up front, the bill requires affirmative consent to be “ongoing throughout the sexual activity,” meaning that sexual partners must agree to each step of a sexual encounter as it progresses and consent can be revoked at any time. The standard would apply to all sexual encounters regardless of whether the parties are having a one-night stand or are in a long-term relationship.

http://www.washingtonpost.com/news/...-bill-defines-what-it-means-to-say-yes-to-sex

So what you were previously describing was clearly not consensual under the new California law. "Implied consent" was not broken, it could be interpreted on a case-by-case basis. A pre-existing relationship would change the context, without suggesting that marital rape was okay. Now a married couple with a deep, unspoken understanding of each other's consent are now on the same level as a frat boy raping a passed-out freshman and at risk of being expelled for a "consensual, but not consensual enough" act.

I think we might be reading too much into this. The actual bill says:

"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."

It doesn't rule out prior sexual relations as evidence of on-going affirmative consent. It says the people investigating a complaint of non-consensual sexual contact should never assume that prior sexual relations by itself indicates consent.

 

[Stu]

I think we might be reading too much into this. The actual bill says:

"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."

It doesn't rule out prior sexual relations as evidence of on-going affirmative consent. It says the people investigating a complaint of non-consensual sexual contact should never assume that prior sexual relations indicates consent.

But this has to be looked at in the context of the White House directive to abandon the presumption of innocence in college rape tribunals. This isn't a fanciful hypothetical, it's not a case of someone who has had non-consensual sex reaching using a pre-existing relationship or previous sexual contact as a defense. Guilt is now presumed, so if someone is accused, previous consent is irrelevant. This should be the case, but only if it is the case that a lack of consent has to be established first as is the case with a presumption of innocence. The legislation, White House policy, and current university policies are pretty clear - if you decide to accuse your husband of sexual assault for groping you (as is now your right, under law it would not be a false accusation), he would be expelled.

While there are hundreds of cases of men being expelled for similar situations, one in California is particularly indicative of how things are likely to play out:

http://www.thefire.org/sexual-assault-injustice-at-occidental-college-railroads-accused-student/

A first-year student was lucky enough to have unambiguous, rock-solid evidence of consent including text messages to friends that "I’mgoingtohave sex now" and to the accused asking if he had a condom. There was also clear planning via text messages of the meetup and a friendly relationship after the encounter. This was enough for both the DA and university investigator to establish that she consented and understood what she was consenting to.

This was until a professor of the accuser told her that he "fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family" and convinced her that she had been raped. The university agreed, and a kangaroo court expelled him on the grounds that she'd had a few drinks, despite the fact that he was just as drunk as she was.

So we have the absurd situation that two consenting adults are raping each other, and if the relationship sours, the first to accuse the other gets them expelled (on the enormous assumption that this will be applied equitably), unless they can prove themselves innocent which they can't do because they can't defend themselves, can't use anything before the act as evidence, and can't use anything during the act as evidence because it's illegal to gather such evidence. It's utterly insane.

Edit: It looks like the university is one mentioned in the legislation as one who has failed to punish students previously, an accusation also made at a federal level. So this looks like what happens when you say to universities "drop the presumption of innocence and find more people guilty of rape or we cut your funding".

 

[Arctish]

I think we might be reading too much into this. The actual bill says:

"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."

It doesn't rule out prior sexual relations as evidence of on-going affirmative consent. It says the people investigating a complaint of non-consensual sexual contact should never assume that prior sexual relations indicates consent.

But this has to be looked at in the context of the White House directive to abandon the presumption of innocence in college rape tribunals.

Can you link to the specific recommendation of the White House Task Force to Protect Students From Sexual Assault that you believe directs colleges to abandon the presumption of innocence in their disciplinary processes? I keep hearing about it but every time I try to find the evidence all I see are a bunch of bloggers and George Will complaining that colleges are expelling students who have not been found guilty of rape in a court of law, and never mind the fact they were found to have violated Codes of Conduct at their schools.

This isn't a fanciful hypothetical, it's not a case of someone who has had non-consensual sex reaching using a pre-existing relationship or previous sexual contact as a defense. Guilt is now presumed, so if someone is accused, previous consent is irrelevant. This should be the case, but only if it is the case that a lack of consent has to be established first as is the case with a presumption of innocence. The legislation, White House policy, and current university policies are pretty clear - if you decide to accuse your husband of sexual assault for groping you (as is now your right, under law it would not be a false accusation), he would be expelled.

While there are hundreds of cases of men being expelled for similar situations, one in California is particularly indicative of how things are likely to play out:

http://www.thefire.org/sexual-assault-injustice-at-occidental-college-railroads-accused-student/

A first-year student was lucky enough to have unambiguous, rock-solid evidence of consent including text messages to friends that "I’mgoingtohave sex now" and to the accused asking if he had a condom. There was also clear planning via text messages of the meetup and a friendly relationship after the encounter. This was enough for both the DA and university investigator to establish that she consented and understood what she was consenting to.

This was until a professor of the accuser told her that he "fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family" and convinced her that she had been raped. The university agreed, and a kangaroo court expelled him on the grounds that she'd had a few drinks, despite the fact that he was just as drunk as she was.

So we have the absurd situation that two consenting adults are raping each other, and if the relationship sours, the first to accuse the other gets them expelled (on the enormous assumption that this will be applied equitably), unless they can prove themselves innocent which they can't do because they can't defend themselves, can't use anything before the act as evidence, and can't use anything during the act as evidence because it's illegal to gather such evidence. It's utterly insane.

Edit: It looks like the university is one mentioned in the legislation as one who has failed to punish students previously, an accusation also made at a federal level. So this looks like what happens when you say to universities "drop the presumption of innocence and find more people guilty of rape or we cut your funding".

I don't think guilt is being presumed. I think consent is being more clearly defined and rules about non-consensual sexual activity are being more stringently enforced. I think some people are uncomfortable with the new approach because it requires unambiguous communication of intent from both parties, and rules out the "s/he didn't say no" defense.

 

[RavenSky]

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).

no I didn't. I told you that the strawman you were building is nonsensical.

It appears no-one is willing to give me a clear answer.

you have been very clearly answered by at least two board members so far

Is a case of sex with consent, but not affirmative consent, rape?

You are again asking a nonsensical question because the issue here is not genuine consensual sex, but what the person being accused of rape claims. It is because too many accused rapists (& their apologists) use the claim of "implied consent" &/or the claim that the victim did not actively decline, then consent was assumed. By requiring affirmative consent, those rape defenses go away.

Rape prosecutions will still not be easy and they will still be horrific for the victim. Predators will still lie, and it will still most often be a "he said, she said" situation with little to no evidence either way. But hopefully it will help change the culture of blaming the victim.

 

[Stu]

But this has to be looked at in the context of the White House directive to abandon the presumption of innocence in college rape tribunals.

Can you link to the specific recommendation of the White House Task Force to Protect Students From Sexual Assault that you believe directs colleges to abandon the presumption of innocence in their disciplinary processes? I keep hearing about it but every time I try to find the evidence all I see are a bunch of bloggers and George Will complaining that colleges are expelling students who have not been found guilty of rape in a court of law, and never mind the fact they were found to have violated Codes of Conduct at their schools.

The DoE "Dear Colleague" letter is the clearest example of this directive:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104_pg11.html

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.

Note that this is not only not a "beyond reasonable doubt" standard, it is much less than the "clear and convincing evidence" standard. The "preponderance of evidence" does not allow for the presumption of innocence by definition.

I don't think guilt is being presumed. I think consent is being more clearly defined and rules about non-consensual sexual activity are being more stringently enforced. I think some people are uncomfortable with the new approach because it requires unambiguous communication of intent from both parties, and rules out the "s/he didn't say no" defense.

We have universities being told that they are not allowed to presume innocence. They are also told that not enough men are being punished and if they don't lift their game they'll have funding cut. There is undeniable evidence that men are being punished despite being able to prove consent. In many cases they are not allowed to defend themselves and are told not to seek legal advice. There is a torrent of similar lawsuits where men have been presumed guilty and expelled, and in several cases the untrained adjudicators are given the instruction that "98% of the time the accuser is telling the truth". In theory, and in practice, there's a clear presumption of guilt. The good news is that the changes are so obviously flawed they'll be struck down eventually, but that won't happen for a while, unfortunately.

 

[RavenSky]

It was already true that failing to resist does not imply consent.

Among rational people, perhaps, but that is exactly the *defense* we usually see. "S/he didn't say 'no'" is simply not the same as "S/he said 'yes'", and I think this legislation is attempting to codify what you and I clearly believe to be already true.

 

[laughing dog]

Would a lawyer around here please provide an explanation why the preponderance of evidence standard does not allow for the presumption of innocence on the part of the accused?

 

[RavenSky]

So in effect you want men to be presumed guilty and have to prove their innocence. You agree with Jessica Valenti and Swedish feminists that "presumption of innocence" should be abolished for rape.

We are not discussing the infinitely minuscule number of people who *change their mind*.

I think the number is far bigger than you think. Hell, the student in the Vassar case was expelled because his sex partner changed her mind a full year later!

We are discussing the much greater number of people who are raped. And if the hypothetical woman is too shy to ask for sex, oh well.

The thing is that if you can't prove the rape happened nobody should be punished for it. You can't just presume the woman is telling the truth and require the man to prove his innocence, although I am sure feminists would love it.

You do not have my affirmative consent to attribute words/thoughts I have never expressed to me or my position. If you have a question, ASK me. Do not ASSUME you know.

It is the ASSUMPTION that the OP law attempts to address, too. You do not get to ASSUME you have consent to sex either. If you have failed to get her affirmative consent, you simply are not innocent.