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

[Metaphor]

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

I don't think I could have made it clearer that I specifically did not want to build a straw man, which is why I asked what 'affirmative consent' meant.

Of course, now that I've read the words of the legislation, I'm no more enlightened. I still have no idea what 'affirmative' consent means because the definition is circular and, where it is not circular, is indistinguishable from my understanding of consent (without a qualifier).

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"

Either consent was mutual or it wasn't; it's completely irrelevant whether it was 'implied', 'verbal', or 'affirmative' (whatever the last one means). If consent was given, it's not rape, whether it was given implicitly or in any other fashion.

&/or the claim that the victim did not actively decline, then consent was assumed.

The mere act of not actively declining does not prove consent, but nor does it prove not-consent.

By requiring affirmative consent, those rape defenses go away.

I realise that, but why is that desirable? Requiring 'affirmative consent' (which is a term I'm still baffled by, since it does not necessarily mean verbal consent but no-one can tell me what it does mean) means that rape is no longer about consent, but about affirmative consent. Well, what is affirmative consent? How on earth could someone prove they'd obtained it, if you won't define it?

Let's pretend we know what 'affirmative consent' is when we see it. Let's say it would be sufficient for a woman to say 'I want to have penis in vagina sex with you right now' to establish affirmative consent.

So now what? It is surely the case that any accused rapist will say 'yes, she said those words, or words to that effect' and it will surely be the case that the putative victim will say she did not say those words. If there are no other witnesses, what, precisely, has been established by this 'affirmative consent'? If it's one word against another, whose word should win?

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.

It will do one thing inevitably: it will define certain acts to be 'rape', when they are not, in fact, rape.

If, in a rape trial, the actual sex is not disputed, I can see only three possibilities

i) The sex was not consensual.
ii) The sex was consensual but 'affirmative consent' was not obtained.
iii) The sex was consensual and 'affirmative consent' was obtained.

i) is rape. ii) is not rape. iii) is not rape.

Yet, if 'affirmative consent' is the only kind of consent that can exonerate the accused, then the accused is bound to be found falsely guilty in scenario ii), and will almost certainly be found guilty in scenario iii), unless he can somehow furnish evidence of the 'affirmative consent' (which he probably can't, because no-one can tell you what affirmative consent is and outside of secretly recording conversations and/or eyewitnesses, there will be no possible evidence).

 

[RavenSky]

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.

The proposed law that is under discussion does not in any way address criminal prosecution where the standard is innocent until proven guilty.

It is restricted to state-funded college/university campuses where this type of "assumed consent" rape is so prevalent, and it is meant to provide a standard to guide these colleges/universities in their disciplinary actions.

 

[RavenSky]

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.

I wonder how many people in a stable ongoing relationship suddenly wake up one morning and decide to head over to the Dean's office to file a rape complaint against their lover/spouse?

Although we know that actual spousal rape does exist, I don't think we need to worry about an epidemic of cases being filed because he was spooning her in their bed.

 

[RavenSky]

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...).

Even "in theory" someone has to file a complaint. The law doesn't install video cameras in every student's bedroom to catch them both in the act of mutually agreeable implied consent sex.

 

[NobleSavage]

My GF and I like to get drunk (not sloppy drunk) and fuck each other. So is that illegal in California? I haven't read the law.

 

[RavenSky]

My GF and I like to get drunk (not sloppy drunk) and fuck each other. So is that illegal in California? I haven't read the law.

No.

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Here is a good article on the topic: http://thinkprogress.org/health/2014/06/25/3453041/affirmative-consent-really-means/

 

[Derec]

Here is a good article on the topic: http://thinkprogress.org/health/2014/06/25/3453041/affirmative-consent-really-means/

Thinkprogress is a far left site and thus biased.
The fact is that since the disastrous Obama administration policy change many innocent men have been expelled from universities even when they had exculpatory evidence of their innocence (such as text messages). This law will make it much much worse.

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Even "in theory" someone has to file a complaint. The law doesn't install video cameras in every student's bedroom to catch them both in the act of mutually agreeable implied consent sex.

But if someone (i.e. a woman) accused a male student of "rape" it is very difficult for the male student to defend himself. In effect the accusation itself is assumed to be sufficient evidence to expel which is ridiculous and gives an inordinate amount of power to female students to get rid of any male student they want to get rid of for whatever reason be it personal or academic. He doesn't really even have to have sex with her because how is he going to prove he didn't? Especially since allegations can be filed a year after the supposed fact (as happened at Vassar).

 

[Stu]

Even "in theory" someone has to file a complaint. The law doesn't install video cameras in every student's bedroom to catch them both in the act of mutually agreeable implied consent sex.

I don't know about you, but I'm not terribly comfortable with making something that most people do and harms no-one technically-illegal-but-just-don't-get-caught. It's just screaming for abuse by selective enforcement.

 

[Derec]

The proposed law that is under discussion does not in any way address criminal prosecution where the standard is innocent until proven guilty.

It is restricted to state-funded college/university campuses where this type of "assumed consent" rape is so prevalent, and it is meant to provide a standard to guide these colleges/universities in their disciplinary actions.

That's of course bad enough. Consequences for male students for being unjustly expelled for "sexual assault" are disastrous yet it is very easy (and becoming easier) to expel students for "sexual assault" with weak evidence and while curtailing the ability of male students to defend themselves (no access to the accuser or the supposed witnesses, no access to legal counsel, exculpatory evidence ignored etc.) Kangaroo courts and biased, ideological inquisitions should not be accepted just because it is not a criminal trial.

 

[NobleSavage]

The problem is we won't really know what this law means until there is case law to go by. What about people in BSDM relationships?

 

[Derec]

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.

Your words are very clear. You said you do not think the female accuser should have to prove she was raped/sexually assaulted. I.e. you think guilt of the male students should be presumed.

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.

Which is ridiculous restriction trying to redefine consensual sex as non-consensual simply by making acceptable consent more circumscribed. Same goes with the requirement consent be "sober". I.e. if a female had any amount of alcohol the male student gets expelled (like in the UGA case where the female was definitely not too drunk to consent but anonymous witnesses seeing her drinking earlier that evening was enough for the university to declare her as such). But of course if he'd been drinking she doesn't get expelled - she is simply thought to be a victim of a drunk assailant. Double standards is something feminism excels at.

 

[RavenSky]

I don't think I could have made it clearer that I specifically did not want to build a straw man, which is why I asked what 'affirmative consent' meant.

Of course, now that I've read the words of the legislation, I'm no more enlightened. I still have no idea what 'affirmative' consent means because the definition is circular and, where it is not circular, is indistinguishable from my understanding of consent (without a qualifier).

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"

Either consent was mutual or it wasn't; it's completely irrelevant whether it was 'implied', 'verbal', or 'affirmative' (whatever the last one means). If consent was given, it's not rape, whether it was given implicitly or in any other fashion.

&/or the claim that the victim did not actively decline, then consent was assumed.

The mere act of not actively declining does not prove consent, but nor does it prove not-consent.

By requiring affirmative consent, those rape defenses go away.

I realise that, but why is that desirable? Requiring 'affirmative consent' (which is a term I'm still baffled by, since it does not necessarily mean verbal consent but no-one can tell me what it does mean) means that rape is no longer about consent, but about affirmative consent. Well, what is affirmative consent? How on earth could someone prove they'd obtained it, if you won't define it?

Let's pretend we know what 'affirmative consent' is when we see it. Let's say it would be sufficient for a woman to say 'I want to have penis in vagina sex with you right now' to establish affirmative consent.

So now what? It is surely the case that any accused rapist will say 'yes, she said those words, or words to that effect' and it will surely be the case that the putative victim will say she did not say those words. If there are no other witnesses, what, precisely, has been established by this 'affirmative consent'? If it's one word against another, whose word should win?

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.

It will do one thing inevitably: it will define certain acts to be 'rape', when they are not, in fact, rape.

If, in a rape trial, the actual sex is not disputed, I can see only three possibilities

i) The sex was not consensual.
ii) The sex was consensual but 'affirmative consent' was not obtained.
iii) The sex was consensual and 'affirmative consent' was obtained.

i) is rape. ii) is not rape. iii) is not rape.

Yet, if 'affirmative consent' is the only kind of consent that can exonerate the accused, then the accused is bound to be found falsely guilty in scenario ii), and will almost certainly be found guilty in scenario iii), unless he can somehow furnish evidence of the 'affirmative consent' (which he probably can't, because no-one can tell you what affirmative consent is and outside of secretly recording conversations and/or eyewitnesses, there will be no possible evidence).

Forget about sex for a minute and think about junk mail. There are laws in some states that require your "affirmative consent" (that is the actual phrase used) before someone can mail you certain things - specifically stuff that is going to cost you money.

There used to be a scam wherein a company would mail you some item you never ordered/requested, then bill you for it. They basically forced you to purchase some stuff you never wanted in the first place. They then moved to the "opt-out" model wherein you had to prove you said "no" in order to get out of paying for the unwanted, unasked for item. So then states passed laws which require "affirmative consent" from you before the company can bill you for an item they've sent you.

As I see it, the California law is simply attempting to codify a similar "affirmative consent" position for college campuses. Everyone (I hope) agrees that just forcibly raping someone (or forcibly making them pay for junk they didnt oreder) is wrong. But the old "opt-out" -"she didn't say no" model isn't enough anymore either. People need to have actual affirmative consent before they do stuff with consequences to other people.

"Affirmative consent" is not some made-up phrase just for college sex. It is a legal concept that is also used in other situations like junk mail.

 

[RavenSky]

Even "in theory" someone has to file a complaint. The law doesn't install video cameras in every student's bedroom to catch them both in the act of mutually agreeable implied consent sex.

I don't know about you, but I'm not terribly comfortable with making something that most people do and harms no-one technically-illegal-but-just-don't-get-caught. It's just screaming for abuse by selective enforcement.

To the contrary. If you have affirmative consent by all parties involved in the sexual encounter, there will be no complaint filed. It has nothing to do with "don't get caught".

 

[Stu]

To the contrary. If you have affirmative consent by all parties involved in the sexual encounter, there will be no complaint filed. It has nothing to do with "don't get caught".

Assuming that every single complaint is valid and needs no further investigation. Expel the man, no questions asked.

That is why this is such a dangerous proposition.

 

[Stu]

Note also that someone claiming they were sexually assaulted because consent was implied in their relationship would not even be making an invalid complaint. It's exactly what the law states, and the two parties are technically raping each other but only protected by the mutual assumption that they won't report each other.

 

[RavenSky]

Here is the definition of "affirmative consent" as it is being applied to unsolicited pornography via email:

15 USCS § 7702 (1), [Title 15. Commerce and Trade; Chapter 103. Controlling the Assault of Non-Solicited Pornography and Marketing] the term affirmative consent, when used with respect to a commercial electronic mail message, means that--

“(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative; and

(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient's electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.”

As I said, the term applies to far more than just college campus sex, and frankly is the way we conduct almost all of our daily interactions with others.

Would anyone here think it was acceptable practice for a hairstylist to just walk up to someone and start cutting their hair without that person's affirmative consent? Why would we think that ambiguous "implied consent" or worse, no consent, is acceptable in sexual encounters?

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To the contrary. If you have affirmative consent by all parties involved in the sexual encounter, there will be no complaint filed. It has nothing to do with "don't get caught".

Assuming that every single complaint is valid and needs no further investigation. Expel the man, no questions asked.

That is why this is such a dangerous proposition.

Except that is not at all what the law says, so you can go join Derec in the "being ignored for your ridiculous posts" corner now.

 

[RavenSky]

The problem is we won't really know what this law means until there is case law to go by. What about people in BSDM relationships?

Genuine BSDM relationships are some of the most affirmatively consensual relationships around. "Shades of Grey" fictional bullshit aside, people in a BDSM typically communicate their desires and their limits to a degree that the rest of us could learn at lot from.

 

[Stu]

Except that is not at all what the law says, so you can go join Derec in the "being ignored for your ridiculous posts" corner now.

You explicitly stated that if affirmative consent exists, a complaint will not be made. That is not ambiguous in the slightest.

There is indeed a ridiculous post, but it is the one that directly implies that the existence of a complaint implies guilt.

 

[RavenSky]

Your words are very clear. You said you do not think the female accuser should have to prove she was raped/sexually assaulted. I.e. you think guilt of the male students should be presumed.

That is not at all what I said, and if you keep repeating your false claims about my words, thoughts or positions, you will be reported for harassment and goading. I will NOT passively accept any more of your misrepresentations of me, my words, or my positions on any topic in any post.

Are we very clear on that?

 

[Derec]

"Affirmative consent" is not some made-up phrase just for college sex. It is a legal concept that is also used in other situations like junk mail.

And by pushing sex into legal waters otherwise reserved for commerce they are making approved campus sexual interactions look very much like commercial sex (i.e. prostitution) as I explained in my earlier posts in this thread.