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

[doubtingt]

So if a female has a glass of wine she can have consensual (even affirmatively consensual) sex and it miraculously mutates into non-consensual sex if she decides to press charges for whatever reason

No, it doesn't; what makes you think such a crazy thing? Nobody has said anything remotely like this. You made it up and it's stupid.

Damn, our nice agreeable exchange in the religious politics thread is about to be offset.

Your own arguments and the contents of the law make him think that. The law defines any act where the women is "intoxicated" as rape, no matter how otherwise affirmative the consent seemed at the time. The law fails to specify or require a level of "intoxication", thus any level above .00 bac would qualify, and a single glass of wine is more than enough to register .02-.08 for most women, and even make them DWI under the harsher forms of existing DWI laws.
You claimed that "If she had something to drink and had no objections then it is functionally not-rape ". This contradicts the law which says that it is a criminal act of rape no matter her seeming consent. If she decides at any point (even years later) to accuse him of rape, her intoxication automatically makes it a case of rape, so what you called "functionally not-rape", you (and the law) would also need to call "rape" the moment she chooses to make the accusation.

Your comments illustrate why such a law is so problematic. You want to define the exact same act as a crime or not a crime, solely based upon whether it is reported as a crime. An act is either a crime or not, and whether it is reported has no bearing on that fact. But since you realize that the actual law would make so many consensual acts criminal rape in principle, even if not reported, you want to skirt this fact by pretending that the act only becomes a crime after its reported, but that is not how the law or any sensible theory of it works.

As weird as it sounds to type it, Derec is correct.

 

[maxparrish]

So your premise is that someone who in fact genuinely consents to sex but did so in an implicit rather than explicit manner will wake up the next morning and take advantage of this law to file charges against the other party?

It's certainly a possibility. False rape claims have been happening, especially in the college kangaroo court context where the ability of the accused to defend himself is severely restricted and the false accuser is hardly scrutinized.

Indeed, anyone who has paid minimal attention to the demented hysteria over the fictional college rape culture should be well aware of the prosecution of innocent men under the aegis of femi-nazi cowered administrations. Remember the farcical persecution and destruction of more than a dozen young men at Duke? Or take a more ordinary example, that of North Dakota Student Caleb Warner. He gets a text message from a female student he met at a party saying that she wants to have intercourse with him. Several days after they had sex, she accuses him of rape. North Dakota State holds it's kangaroo court, he is found guilty and banned for three years.

He is eventually represented by a liberty and rights organization they ask for a rehearing. Why? Because:

http://www.thefire.org/fire-letter-to-und-president-robert-o-kelley-may-11-2011/

[Accuser] first met Caleb at a fraternity party. [Accuser] gave an account of events at the party that were contradicted by several witnesses.
[Accuser] sent Caleb a text message days after the party that indicated that she wanted to have intercourse with him.
[Accuser] states that on the night of the reported assault that she laid in bed staring at the “Little Caesar’s” sign th[at] she could see through Caleb’s window. The sign cannot be seen through the window.
One of Caleb’s roommates stated that he saw [accuser] the next morning and joked with her. [Accuser] denied that happened as well.
[Accuser] has given different accounts about events to witnesses including that she had been given a glass of water and that she couldn’t remember anything from that evening after drinking it.

The police then filed an arrest warrant for the accuser for filing a false police report. HOWEVER the university STILL denied a rehearing because it said it considered all these facts at the hearing and, in their opinion, 50.01 percent or more of the evidence still suggested Wilson was guilty. (You don't need clear and convincing evidence to be found guilty of sexual assualt at America's colleges).

After several more threats of lawsuits and some unwanted national attention, North Dakota relented and ended its ban 1 1/2 years after it was initiated. The former student was driving a truck to make a living during this time.

Ya it happens.

 

[doubtingt]

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.

In the course of 20 years of interviewing these undetected rapists, in both research and forensic settings, it has been possible for me to distill some of the common characteristics of the modus operandi of these sex offenders. These undetected rapists:
• are extremely adept at identifying “likely” victims, and testing prospective victims’ boundaries;
• plan and premeditate their attacks, using sophisticated strategies to groom their victims for attack, and to isolate them physically;
• use “instrumental” not gratuitous violence; they exhibit strong impulse control and use only as much violence as is needed to terrify and coerce their victims into submission;
• use psychological weapons – power, control, manipulation, and threats – backed up by physical force, and almost never resort to weapons such as knives or guns;
• use alcohol deliberately to render victims more vulnerable to attack, or completely unconscious.

http://www.middlebury.edu/media/view/240951/original/

bolding mine

In a study of 1,882 university men conducted in the Boston area, 120 rapists were identified. These 120 undetected rapists were responsible for 483 rapes. Of the 120 rapists, 44 had committed a single rape, while 76 (63% of them) were serial rapists who accounted for 439 of the 483 rapes.

The implications of the research on undetected rapists – research that has largely focused on men in college environments – point to the similarity of these offenders to incarcerated rapists. They share the same motivational matrix of hostility, anger, dominance, hyper-masculinity, impulsiveness and antisocial attitudes. They have many of the same developmental antecedents. They tend to be serial offenders, and most of them commit a variety of different interpersonal offenses. They are accurately and appropriately labeled as predators.

This picture conflicts sharply with the widely-held view that rapes committed on university campuses are typically the result of a basically “decent” young man who, were it not for too much alcohol and too little communication, would never do such a thing. While some campus rapes do fit this more benign view, the evidence points to a far less benign reality, in which the vast majority of
rapes are committed by serial, violent predators.

This is what you all are arguing against. It is your assumption that most college rapists are "basically “decent” young man who, were it not for too much alcohol and too little communication, would never do such a thing."

Although, most of that "research" employs the softest and least reliable of social science methods, I am not arguing with any of the asserted data from that research, because none of it in any way supports the claim that if you define sex with any intoxicated person as "rape" (as the new law does), then most rapists [most people who have sex with someone with a BAC > .00] deliberately plan to use alcohol as a method to undermine their intended victims ability to resists forced sexual intercourse.
Either one must reject the idea that intoxication is a defining feature of whether an act is rape (as reasonable people do), or one must reject your and cited authors assertion that "most alcohol-facilitated rapes are planned, that predators specifically use alcohol to facilitate rapes because it is hard to prosecute."
That latter assertion is only supported by the data you cite, if one rejects the definition of "rape" as including sex while intoxicated in an otherwise apparent consensual act.

You (and your sources) continue to assert the logical fallacy that if most predator rapist use alcohol, then most people who have sex where the person is "intoxicated" are predatory rapists.

 

[Loren Pechtel]

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.)

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

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

Two sides of the same coin.

It's no more reasonable to expect him to prove she said yes as to expect her to prove she said no.

 

[Loren Pechtel]

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?

Simple test: Positive or negative reaction to what you do.

 

[Loren Pechtel]

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.

Then someone is misreporting this badly.

 

[maxparrish]

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.

Then someone is misreporting this badly.

I think its meaning is obvious; the affirmative consent standard is not met merely because of past sexual relations and cant be assumed to provide consent. In other words, it is irrelevant.

What is misreported about that?

 

[fromderinside]

Simple test: Positive or negative reaction to what you do.

Seems to me touching another person could be considered assault. I think one should stick with recorded, verified, and time stamped, affirmative consent.

 

[Jolly_Penguin]

You need a sworn and notarized pledge of confirmation of consent from her before you can smile at her. Thems the rules boys!

 

[Loren Pechtel]

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.

That's the whole point of this--they aren't guilty of rape, no court would convict them but the government wants to punish them anyway. Thus expulsion--which is a major harm to the student.

Some of us have a problem with abandoning innocent until proven guilty and replacing it with a system of "you're guilty."

 

[fromderinside]

You need a sworn and notarized pledge of confirmation of consent from her before you can smile at her. Thems the rules boys!

That shouldn't be unless the USSC has ruled something to the effect that money is speech or corporations are people. Oh shit!

 

[Loren Pechtel]

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.

The problem here is you are operating under a the-woman-is-always-right approach. That's not reality.

 

[Loren Pechtel]

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?

It doesn't take a lawyer.

A presumption of innocence requires that if you don't know you decide for the accused. Preponderance of the evidence doesn't permit this.

 

[Loren Pechtel]

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.

The issue is heading over to the Dean's office when the relationship fails and they want to hurt their ex.

 

[RavenSky]

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.

The problem here is you are operating under a the-woman-is-always-right approach. That's not reality.

no I'm not

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.

The issue is heading over to the Dean's office when the relationship fails and they want to hurt their ex.

horseshit

 

[RavenSky]

No, it doesn't; what makes you think such a crazy thing? Nobody has said anything remotely like this. You made it up and it's stupid.

Damn, our nice agreeable exchange in the religious politics thread is about to be offset.

Your own arguments and the contents of the law make him think that. The law defines any act where the women is "intoxicated" as rape, no matter how otherwise affirmative the consent seemed at the time.

No "the law" does not and neither did Rhea Did you even read the actual text of the law? If so, I want you to quote verbatim with a link any part of it that says anything like

if a female has a glass of wine she can have consensual (even affirmatively consensual) sex and it miraculously mutates into non-consensual sex if she decides to press charges for whatever reason

or

any act where the women is "intoxicated" as rape, no matter how otherwise affirmative the consent seemed at the time

 

[Loren Pechtel]

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".

Does the word "lie" mean anything to you?

Women aren't George Washington.

 

[Loren Pechtel]

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?

He's accurately describing the position you have communicated on here. Your position only makes sense if the woman never lies.

 

[Arctish]

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.

Exactly.

You can get kicked out of college for cheating. You can get kicked out for not bathing. You can get kicked out for using school equipment inappropriately. You can get kicked out for having screaming fights with your roommate. And you can get kicked out for sexual activity with someone who cannot or did not consent to it. These are violations of Codes of Conduct. They are disciplinary matters, and the disciplinary procedures that address them are not criminal trials.

 

[RavenSky]

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".

Does the word "lie" mean anything to you?

Women aren't George Washington.

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?

He's accurately describing the position you have communicated on here. Your position only makes sense if the woman never lies.

So have you jumped on the Derec band-wagon that says women always lie, because that is essentially what his argument boils down to. Does your wife lie about consenting to sex with you?

He is not even remotely describing any position I have taken here or anywhere, and if this is how piss poor your conversational skills are, you aren't worth any further response either.