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

[Metaphor]

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.

Did you just compare receiving unsolicited mail to rape?

I know you're not really equating them, just like I did not equate a woman's vagina with an unlocked car in other threads. I know it's an analogy.

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.

Of course, this absolutely makes sense.

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.

"She didn't say no" is not, and should never have been (if it ever was), sufficient to establish consent, nor is it sufficient to establish not-consent.

But I think your analogy as a basis for 'affirmative consent' fails for at least a couple of reasons:

i) Affirmative consent to purchase a product is almost certainly somehow defined. You signed an invoice with your credit card, or you put in you PIN, or you gave a verbal 'yes' over the phone, and the company recorded it. How can we find the analog for sex? I don't know what 'affirmative consent' for sex is, and no one can tell me. Not because they're being malicious, but because I suspect they don't know. The legislation doesn't tell me anything except to define it circularly and I have no idea how 'affirmative consent' differs from 'actual consent'.

ii) "Affirmative consent" requirements were not the only way to stop companies doing what they were doing. There's an even better way, I think. Simply prohibit companies from forcing payment out of people for unsolicited goods. If you can take ownership of any unsolicited goods sent to you without any obligation to pay, I can guarantee you companies will stop sending them.

iii) "Affirmative consent" requirements are not the right response to combating "she didn't say no=consent" equivocators. The correct response to anyone who thinks "she didn't say no=consent" is to point out that "she didn't say no", on its own, is not sufficient to establish consent nor to establish not-consent.

"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 companies can prove my affirmative consent (or fail to prove it if I didn't give it), because they'll have my signature on something, or a voice recording of me saying 'yes, I consent to changing my long distance carrier to company x'. It's clear to me what affirmative consent is in regards to a commercial transaction of that nature.

What's the analog for 'affirmative consent' for sex?

 

[Derec]

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".

I.e. if a female files a complaint the male is ipso facto guilty no matter what else happened. Nice totalitarian world.

 

[Derec]

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?

No we are not clear. You keep saying outrageous things like a woman should not have to prove rape happened or if a man doesn't rape a woman she will not file a complaint (forgetting that false accusations do happen) but then you keep denying meaning what you said once called on it.

 

[Derec]

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.

Except that campus kangaroo courts routinely ignore communication between parties if it indicates the sex was consensual. The accuser (Mary Claire Walker) in the Vassar case texted her victim that she had a "great time" but that was ignored as irrelevant and the male student was expelled anyway. Why do you think BDSM type communication would be treated any differently?

 

[NobleSavage]

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.

Except that campus kangaroo courts routinely ignore communication between parties if it indicates the sex was consensual. The accuser (Mary Claire Walker) in the Vassar case texted her victim that she had a "great time" but that was ignored as irrelevant and the male student was expelled anyway. Why do you think BDSM type communication would be treated any differently?

Right, you can't make a contract for something that is illegal regardless of the communication and consent of the parties. A lot of BSDM people "live the lifestyle" and have a master/servant relationship that would be completely thrown out in court.

 

[Rhea]

(sorry I'm on the first page still)

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

It helps to clarify what actual consent has to include so that people who claim, "it wasn't rape, she never said 'no', so I did nothing wrong" can come to understand that failure to say "no" (due to fear, drunkenness or power imbalance) does not mean yes. It does _not_ mean consent.

So the idea of "affirmative consent" is a lesson to help people understand what "consent" actually is. She needs to actually affirm "YES" and standing or lying stock-still in shock or embarrassment is not and never was "consent" but some people were too sex-driven and self-centered to realize that. Apparently it needed to be written out in crayon for some people.

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

The "with consent" part was ambiguous, apparently. Some people thought that they had consent because the woman was frozen in fear/embrassment and didn't say "no" and yes it was rape, even though he denied it was rape and perhaps even convinced himself that it wasn't. But it was - all along.

Or when he thought he had "consent" because she was wearing a tight skirt, and even though she said "no," she obviously didn't mean it because... tight skirt. But he did not have "affirmative consent" and yes, it was rape.

The difference between consent and affirmative consent is ambuguity. The latter removes it. No one can use the excuse of she didn't say no, or she was wearing a tight skirt any more, because now it is clear.

"She didn't say no" is not, and should never have been (if it ever was), sufficient to establish consent, nor is it sufficient to establish not-consent.

BUT IT WAS. It was used in court, it was used to excuse and even acquit. IT WAS used. And if you don't realize that, then you may never really understand why a change is needed. IT WAS USED as a defense against a rape charge. AND SUCCESSFULLY.

Hence the need for a more clear law. Because some assholes are really that arrogant.

 

[RavenSky]

Did you just compare receiving unsolicited mail to rape?

I know you're not really equating them, just like I did not equate a woman's vagina with an unlocked car in other threads. I know it's an analogy.

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.

Of course, this absolutely makes sense.

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 didn't order) 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.

"She didn't say no" is not, and should never have been (if it ever was), sufficient to establish consent, nor is it sufficient to establish not-consent.

Except that it has been allowed, along with "well, I believed she consented even though she didn't say yes" and "her sexy behavior implied consent"

The point of an affirmative consent standard is to eliminate those types of claims as defenses.

But I think your analogy as a basis for 'affirmative consent' fails for at least a couple of reasons:

i) Affirmative consent to purchase a product is almost certainly somehow defined. You signed an invoice with your credit card, or you put in you PIN, or you gave a verbal 'yes' over the phone, and the company recorded it. How can we find the analog for sex? I don't know what 'affirmative consent' for sex is, and no one can tell me. Not because they're being malicious, but because I suspect they don't know. The legislation doesn't tell me anything except to define it circularly and I have no idea how 'affirmative consent' differs from 'actual consent'.

I agree that it is much easier to show affirmative consent by having a document that says "I hereby affirmatively consent to XYZ" and that such a document is not the norm in most sexual encounters.

ii) "Affirmative consent" requirements were not the only way to stop companies doing what they were doing. There's an even better way, I think. Simply prohibit companies from forcing payment out of people for unsolicited goods. If you can take ownership of any unsolicited goods sent to you without any obligation to pay, I can guarantee you companies will stop sending them.

That was exactly the purpose of "affirmative consent" laws. "Affirmative consent" actually protects honest companies as much as it protects consumers from dishonest companies. Without the "affirmative consent" standard, how does an honest company prevent being screwed over by a consumer who really did order the product, then later claim they didn't?

iii) "Affirmative consent" requirements are not the right response to combating "she didn't say no=consent" equivocators. The correct response to anyone who thinks "she didn't say no=consent" is to point out that "she didn't say no", on its own, is not sufficient to establish consent nor to establish not-consent.

This is exactly what "affirmative consent" says. Consent vs non-consent seems like it should be a very simple demarcation, but when predators are using alleged implied consent and *belief* that she consented as defenses to their raping, a clearer line needs to be drawn.

Even "implied consent" is fine as long as BOTH parties agree that consent was, in fact, given. The problem is when the predator is allowed to escape consequences for his actions by claiming s/he thought s/he had consent. Making the standard "affirmative consent" makes the claim of "I thought I had consent" much more difficult.

"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 companies can prove my affirmative consent (or fail to prove it if I didn't give it), because they'll have my signature on something, or a voice recording of me saying 'yes, I consent to changing my long distance carrier to company x'. It's clear to me what affirmative consent is in regards to a commercial transaction of that nature.

What's the analog for 'affirmative consent' for sex?

I agree that it is much easier to demonstrate the concept in a commercial transaction. That is part of why I used the example - so we all know we are on the same page with regard to the phrase as an established legal standard.

I also agree that such a standard will not be as clear cut in sexual assault cases - just as nothing is clear cut in cases that are, by their very nature, usually "he said, she said". Canada, for instance, still allows the "mistaken belief" defense (how can it reasonably be disallowed?) but their "affirmative consent" laws also require that the accused must show that they took “reasonable steps" to ensure that they had genuine sober consent. For instance, whether we agree or not, most sexual assault defenses rely on the "s/he didn't say no" or "didn't resist/struggle" claim. It is still "he said, she said" with the victim typically claiming s/he said "no" and the accused typically claiming s/he didn't hear that. Under "affirmative consent", in order for the accused to claim "mistaken belief", s/he would have to also claim that they actively asked for consent. It will still come down to "he said, she said" but the bar to that particular defense is set a little higher.

 

[RavenSky]

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?

No we are not clear. You keep saying outrageous things like a woman should not have to prove rape happened or if a man doesn't rape a woman she will not file a complaint (forgetting that false accusations do happen) but then you keep denying meaning what you said once called on it.

You will post, with a link, to any post wherein I explicitly said anything like: "a woman should not have to prove rape happened" or even "[the] guilt of the male students should be presumed"

NOT what you ASSUME or INTERPRET what I actually said. NOT what you have completely fabricated. You will post, with links, what I have EXPLICITLY written, or you will revise your claims and apologise to me. If you do not do so, your next post will be reported for goading and harassment. You have been warned.

 

[Stu]

You will post, with a link, to any post wherein I explicitly said anything like: "a woman should not have to prove rape happened" or even "[the] guilt of the male students should be presumed"

NOT what you ASSUME or INTERPRET what I actually said. NOT what you have completely fabricated. You will post, with links, what I have EXPLICITLY written, or you will revise your claims and apologise to me. If you do not do so, your next post will be reported for goading and harassment. You have been warned.

Perhaps you could clarify this post:

If you have affirmative consent by all parties involved in the sexual encounter, there will be no complaint filed.

By propositional logic this can be stated as follows: "If there is a complaint filed, you do not have affirmative consent by all parties involved in the sexual encounter.". As I understand it, you wish to have a lack of affirmative consent considered a presumption of sexual assault. Hence, you wish for a complaint to be considered a presumption of sexual assault, according to my understanding. If there is a flaw in this reasoning, I would like to see it.

 

[RavenSky]

This paper involved a lot of discussion about gender equality in general, but a few quotes about consent were pertinent to our discussion, in my opinion:

Consent is the legal dividing line between wanted and unwanted sexual contact. As such, it is a critically important legal term of art. Yet despite statutory attempts to delineate its boundaries, its meaning is elusive, complex and inextricably bound up with social attitudes and expectations about sexual and gender relationships. In the absence of consent, voluntarily and freely given, sexual contact is criminal. This is the case regardless of the nature of the relationship between the parties. As the political slogans tells us, “no means no,” and “without consent it’s sexual assault”. Yet as simple and clear as this idea seems to be, its translation into law remains complicated and murky.

As MacKinnon explains, consent “transpires somewhere between what the woman actually wanted, what she was able to express about what she wanted, and what the man comprehended she wanted.”

The mens rea element of sexual assault with regard to “consent” is an objective one. This means that if the accused claims that he had an “honest but mistaken” belief that the complainant consented and communicated her consent to him, and the trier of fact is persuaded of this, then the accused will escape culpability.

However, the defence can not be raised unless the accused can substantiate it with evidence of the “reasonable steps, in the circumstances known to the accused at the time” taken to ascertain consent. Finally, the consent the accused honestly and mistakenly believed to have been communicated to him can not be tainted by any of the statutory factors which vitiate consent.

I think a key element in the above statement is "and communicated her consent to him" - that is "affirmative consent".

Legislative Reform and the Shift to an Affirmative Consent Standard: The Reasonable Steps Requirement

One of the most significant achievements of feminist law reform in the area of sexual assault is the shift to an affirmative consent standard in the Canadian criminal law of sexual assault, and, in particular the establishment of the “reasonable steps” provision. This provision places an onus on an accused who raises a consent defence to a sexual assault charge, to adduce evidence to demonstrate what reasonable steps were taken to ascertain that the complainant was consenting to the conduct which is the subject of the criminal charge.

Without this evidence before the Court, which the trier of fact must find persuasive in order to allow the defence, the accused can not claim that he “honestly but mistakenly” believed that the complainant consented to the sexual touching which is the subject of the charge.

The legislated restrictions on consent defences are found in section 273.2 of the Criminal Code. According to this provision the “belief in consent is not a defence,” where the accused’s belief arose from:
(i) self-induced intoxication,
(ii) recklessness or willful blindness, or
(iii) if the accused did not take reasonable steps, in the circumstances known to the accused at the time to ascertain that the complainant was consenting.

Bolding mine. This passage should make it clear to everyone (other than the willfully ignorant misogynists) that no one is suggesting that anyone accused of sexual assault is "presumed guilty". The Canadian law pertains to a criminal trial, but it is clear that the accused is still presumed innocent, and has every right to raise the "mistaken belief" defense.

Not surprisingly, in many, perhaps most cases of sexual assault which are criminally prosecuted, the essential issue is consent. Typically the defence argument on behalf of the accused is that consent was either given, or that the accused had an ““honest but mistaken” belief that consent was given... Mere assertion will not suffice. Instead, the Court found that any claim of a mistaken belief in consent as a defence must be clearly grounded in evidence put before the court to support defence, to indicate how this mistake might reasonably have arisen. "If his belief is found to be mistaken, then honesty of that belief must be considered … to be honest, the accused's belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated [in the sections of the Criminal Code that appear above]. If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence
from which he could honestly believe consent to have been re-established before he resumed his advances."

http://theequalityeffect.org/pdfs/ConsentPaperCanadaMR.pdf

The 39-page paper is an interesting read, and goes into far more than just the few "affirmative consent" passages I've quoted above. It also, in my opinion, gives some context as to why an "affirmative consent" standard is so necessary in criminal law and on college campuses.

 

[RavenSky]

Perhaps you could clarify this post:

If you have affirmative consent by all parties involved in the sexual encounter, there will be no complaint filed.

By propositional logic this can be stated as follows: "If there is a complaint filed, you do not have affirmative consent by all parties involved in the sexual encounter.". As I understand it, you wish to have a lack of affirmative consent considered a presumption of sexual assault. Hence, you wish for a complaint to be considered a presumption of sexual assault, according to my understanding. If there is a flaw in this reasoning, I would like to see it.

I find it intellectually dishonest for someone to take partial quotes out of context to score bullshit points. I hope that you were not doing that, and simply lost track of the thread of that exchange. Here it is again.

Your original contention was:

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...).

Bolding mine

To which I replied:

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.

It should be crystal clear from context that I am referring to your rather absurd hypothetical that this law could put "you and your husband" at risk of some third party accusation of not having 'affirmative consent'. You said "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."

You replied:

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.

Bolding mine.

It was to that I replied in full - not truncated as you did above:

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".

The "it has nothing to do with "don't get caught" was a very important part of my reply, and once again making it very clear that I am addressing your implication of a third party complainant.

But to clarify, selective enforcement from whom? Again, if there was in fact actual mutual consent between the people engaged in the sexual act such that no one was harmed, exactly who would be filing a complaint?

As I understand it, you wish to have a lack of affirmative consent considered a presumption of sexual assault. Hence, you wish for a complaint to be considered a presumption of sexual assault, according to my understanding. If there is a flaw in this reasoning, I would like to see it.

It is your *understanding* that is flawed.

 

[credoconsolans]

I have to wonder much the same thing every time a thread like this happens. Obviously, the OP article is a bunch of misogynist dreck, but even people I ordinarily respect get really weird on this topic. I just do not understand what is so damned horrible about enthusiastic sober consent before sex - particularly with someone you don't know very well (if at all).

The problem here is that it sets an unreasonable burden.

1) You normally have no way to prove it.

2) Some women are too shy to come out and say it.

It in effect lets a woman declare consensual sex to be rape if she changes her mind. (Or a man, but that's normally not an issue.)

If a woman is too shy to say it, but not shy enough to not want sex, perhaps that should serve as a warning sign for a woman who might regret her actions.

Just don't have sex with this kind of woman, guys.

Tell her to come back when she's not too shy to ask for what she wants.

Easy peasey.

 

[Jolly_Penguin]

This thread got long fast, and I haven't read it all so forgive me if this has been covered.....

Does this law say you need explicit verbal consent to every sex act? What would sex sound like under this law? Past consent doesn't count, so you have to be asking "May I?" and she has to be saying "yes yes yes" ever few seconds or you are raping her? Rather awkward don't you think?

 

[Stu]

I find it intellectually dishonest for someone to take partial quotes out of context to score bullshit points. I hope that you were not doing that, and simply lost track of the thread of that exchange. Here it is again.

Thank you for not making such an accusation. I'm understandably uncomfortable with unfounded allegations of dishonesty, and empathise with your wish to report harassing comments.

Your original contention was:

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...).

Bolding mine

To which I replied:

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.

It should be crystal clear from context that I am referring to your rather absurd hypothetical that this law could put "you and your husband" at risk of some third party accusation of not having 'affirmative consent'. You said "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."

Note that it is not just third-party accusations that are a concern here. However it doesn't matter - the law states that consent must be affirmative. Consent that is implied is contrary to the law. There is no way around this, which is why I wrote:

You replied:

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.

Under an "affirmative consent" standard, implied consent falls short. That is, if consent is only implied, it is considered sexual assault. That is the entire point of requiring affirmative consent.

It was to that I replied in full - not truncated as you did above:

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".

The "it has nothing to do with "don't get caught" was a very important part of my reply, and once again making it very clear that I am addressing your implication of a third party complainant.

My implication was not of a third-party complainant. Perhaps this is the source of confusion?

But to clarify, selective enforcement from whom? Again, if there was in fact actual mutual consent between the people engaged in the sexual act such that no one was harmed, exactly who would be filing a complaint?

One of the two parties involved, for instance. And since implied consent no longer constitutes consent, it would not be a false complaint.

It is your *understanding* that is flawed.

So the error was the assumption that:

If you have affirmative consent by all parties involved in the sexual encounter, there will be no complaint filed.

Can be considered a general premise? If so, thank you for clarifying your position.

 

[doubtingt]

I have a different question for you:

What's affirmative consent? Is it different to consent? In what situation could someone have consent but not affirmative consent?

Consent can be affirmative or implied or presumed. All three have different legal implications.

I can give you permission to take money from my wallet. That is affirmative consent. When I tell my daughter to go get money for lunch, she has implied consent to take it from my wallet, since that's where the money usually is. My husband has presumed consent to take money from my wallet due to it being our jointly held money and my having given him open-ended permission to take cash from my wallet on many previous occasions.

The affirmative consent I gave you should never be mistaken for implied or presumed consent. You have to ask me for permission each time you want to take money from my wallet. My family members don't.

Accept affirmative consent rape laws make no such distinction on who the person is and their relationship. They are equivalent to you being able to have your daughter and your husband convicted of robbery and put in prison for the actions you describe, even years later after a bad divorce with your husband.
And even with a person you just met that night, your examples illustrate the absurdity of such laws. Your wallet is sitting on the counter, you tell a roommate whom you regularly give money to "get money for lunch", so they take some out of your wallet. According to you (and to a theft law analogous to these rape laws), your friend is guilty of criminal theft. The new law is also analogous to you clearly consenting to give your friend money on a regular basis for dinner, then one day after you've had a glass of wine with lunch, you clearly agree to give her money again, and now your friend is guilty of criminal theft. 2 years later, you have a fight with your friend and can now have her put in prison for theft.

 

[Stu]

Anyway, it's getting a bit too late to continue here. I'll finish by saying I don't actually fundamentally disagree with the concept of affirmative consent. It's very good advice to follow the concept at a personal level. But to mandate it in a system without protections against unjust accusations is just asking for those wrongfully accused to suffer irreparably. Criminal complaints should be left to the criminal justice system.

 

[RavenSky]

Even if you believe, as I do, that the predators are not confused and can’t be educated, there are two good reasons to believe that consent education can make the climate better. First, because there are rapists who are not that small percentage of predators. Second, the predators absolutely depend on what I call the Social License to Operate, the climate that explains away or excuses what they do in certain circumstances, calls it not rape, calls it the survivor’s fault, minimizes it and lets him get away with it. Without that, the rapists can’t do it over and over because they’d get caught, excluded from their social circles, disciplined by commanding officers or expelled from campus, and they’d either have to stop or end up in prison.

First, the one-timers. Lisak’s research and McWhorter’s complimentary research both found that there was a population of guys who admitted to acts that met the definition of rape, but only one time. These guys were not the predators who had an average of six victims... basically, the predators are responsible for a lot of the rapes, Lisak believes the overwhelming majority of them and I think that’s probably right, but the known figures leave room for the interpretation that a significant amount of rapes are committed by these other guys...

I’m not exactly overflowing with sympathy for guys who rape “just” once... So is there a population of guys who are some mixture of entitled and confused, but might not commit rape with more education? Um, maybe? Actually, I think probably so, but how big it is remains very unclear. And if those guys can be gotten not to rape, well, fewer rapes is maybe one of the world’s few unalloyed good outcomes...

And it doesn’t matter, because even if educating people about consent doesn’t convince a single rapist not to rape, there is still reason to believe that it will produce an outcome with less rape, by stripping away the social license to operate.

The Social License to Operate is the set of beliefs that make rape seem like a continuation or extension of normal sexuality, instead of an aberration and personal violation. By normalizing rapists and rape, by blurring the lines between rape and sex, we create a culture where instead of responding to the crime like we should, there’s always room to argue for and or excuse or mitigate the rape and the rapist.

We know that most alcohol-facilitated rapes are planned, that predators specifically use alcohol to facilitate rapes because it is hard to prosecute, and yet we excuse the rapists in a way we’d never excuse con artists that similarly prey on people’s vulnerabilities.

http://yesmeansyesblog.wordpress.com/2013/04/01/teach-consent-but-what-good-is-teaching-consent/

 

[Derec]

http://yesmeansyesblog.wordpress.com/2013/04/01/teach-consent-but-what-good-is-teaching-consent/

Just because "alcohol facilitated rapes" sometimes happen does not mean that every time a female has been drinking any amount of alcohol that it was a "rape". Unfortunately college inquisitors are operating under that delusion.

 

[doubtingt]

We know that most alcohol-facilitated rapes are planned, that predators specifically use alcohol to facilitate rapes because it is hard to prosecute, and yet we excuse the rapists in a way we’d never excuse con artists that similarly prey on people’s vulnerabilities.

The bolded part is an unsupported assertion that is likely false, and it wouldn't be supported even if the remainder of the quote is accepted as true, because that would be a logical fallacy.

If rape is defined as any sex act in which one party is drunk, even when the other party is also drunk (which is how this new law defines it), then it is bullshit that most alcohol-facilitated rapes are "planned". It could only be true, if we assume that most sex which occurs while other party has consumed alcohol is a planned effort to coerce a person into sex who you know would not want to when sober, no matter how seemingly consensual or between long-term mates the act is. No remotely rational person believes that is the case.
Every night, millions of adults are having sex with people they have and would consent to having sex with while sober, but while they happen to have alcohol in their system. For every person who plans to rape someone using alcohol as a weapon, there are thousands who don't ever consider alcohol as a method to bypass consent and have no such "plan", but who like most people have sex with a person they have every reason to think their partner has consented but they both happened to consume alcohol as most American adults do multiple times per week.

Note that this is true, even if it is also true that most rapists with a prior plan to rape make a conscious effort to use alcohol to weaken their victims. To go from this assumed fact to the conclusion that "most alcohol-facilitated rapes are planned" requires either that one reject the idea that alcohol nullifies consent and defines rape (which neither you nor the quote author do), or commit the logical fallacy of inferring that since most B do A, that most people who do A are B.

 

[Rhea]

Note that it is not just third-party accusations that are a concern here. However it doesn't matter - the law states that consent must be affirmative. Consent that is implied is contrary to the law. There is no way around this, which is why I wrote:

I'm confused about the married couple scenario, then. Does one of the married people make a complaint about sexual assault? Or how does that fit in with this statement?