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

[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.)

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.

It's a cultural issue.

 

[Bronzeage]

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.

In what crime is the word of the victim not considered vital evidence? Is there any crime where the victim's testimony is dismissed because such a person might lie? If you see me steal a wad of money off your kitchen table, and call the police to report a crime, what evidence is there that I am a thief?

I claim I gave you the money. The police say you shouldn't have left the money in plain sight. It was an invitation for someone to take it without consent. Is your word dismissed because your accusation could cause me a lot of trouble and there's no proof you are telling the truth?

 

[Metaphor]

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.

Failure to say "no" is not evidence of consent, but neither is it evidence of not-consent. There are too many other variables to consider. But lack of a (verbalised?) 'yes' also does not mean automatic lack of consent.

So the idea of "affirmative consent" is a lesson to help people understand what "consent" actually is. She needs to actually affirm "YES"

But again, I don't know what this means. What does it mean to 'affirm' a yes? Does it mean to verbalise it? What, specifically?

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

The "with consent" part was ambiguous, apparently.

What percentage of ordinary (that is, consented) sexual interaction do you think has 'affirmative consent'? I'm not going to hazard a guess myself because I still don't know what affirmative consent is.

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.

If he knew or should have known ("reasonable person" test) that she was not consenting, then he is culpable.

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.

But the key here is that there was no consent, not that there was no 'affirmative' consent.

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.

But it's too crude an instrument and it redefines rape. Sex with consent (regardless of whether there was 'affirmative' consent) is consensual sex.

And frankly, someone who is so mentally deranged that they think a woman wearing a tight skirt is consenting to sex to every comer isn't going to stop raping, nor (depending on how this law turns out) do I even think it will help in convicting more actual rapists. But it has the potential to falsely convict more innocent people.

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.

"She didn't say no", without any further evidence, is not sufficient on its own to establish consent or not-consent. But as part of a total set of circumstances it could be. It's hard to discuss without a specific case or hypothetical.

 

[Loren Pechtel]

No, the danger of the law is that it will penalize consensual sex by restricting what kinds of consent it finds acceptable. A female had anything to drink? It's "rape". Consent wasn't expressed 100% unambiguously and explicitly? It's "rape". And so on.

Only if she presses charges. If she had something to drink and had no objections then it is functionally not-rape because it never goes to court.

But she gets to change her mind later.

 

[RavenSky]

It's a cultural issue.

Only if she presses charges. If she had something to drink and had no objections then it is functionally not-rape because it never goes to court.

But she gets to change her mind later.

It's a "cultural" issue alright

That’s likely not enough to pacify the critics who are concerned about women abusing the system and lying about rape in order to ruin men’s lives. But that’s a bigger problem. The supposed threat of false rape claims continues to be trotted out to undermine efforts to enact sexual assault reform, often by so-called “men’s rights activists” who are worried that feminists are primarily interested in victimizing them. In reality, false rape allegations are very rare

http://thinkprogress.org/health/2014/06/25/3453041/affirmative-consent-really-means/

 

[Loren Pechtel]

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."

Some probably are. If these young men learn to ask, to get affirmative consent, then they won't be accidental rapists.

More importantly, the predators who are actually reasonable for the vast majority of rapes on college campuses won't be mistaken for "basically “decent” young" men.

And it makes the assumption that what they did was actually rape.

 

[Loren Pechtel]

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.

Of course it's stupid--but that's what the rules amount to.

 

[RavenSky]

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."

Some probably are. If these young men learn to ask, to get affirmative consent, then they won't be accidental rapists.

More importantly, the predators who are actually reasonable for the vast majority of rapes on college campuses won't be mistaken for "basically “decent” young" men.

And it makes the assumption that what they did was actually rape.

You obviously didn't read the source because these are the elements distilled from ADMITTED RAPISTS!!!!! Not "assumptions" - ADMISSIONS!!! This is why you will never be taken seriously in these types of discussions, Loren.

 

[Metaphor]

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.

But it resolves precisely nothing, especially if it is up to the accused to prove he got affirmative consent. How could you possibly prove it, even if you actually got it? How can you possibly prove it, when nobody will define it in advance?

And what of the burden this places on the 99% of consensual sexual interactions where consent exists but is not 'affirmative' (whatever that means)?

- - - Updated - - -

No, the danger of the law is that it will penalize consensual sex by restricting what kinds of consent it finds acceptable. A female had anything to drink? It's "rape". Consent wasn't expressed 100% unambiguously and explicitly? It's "rape". And so on.

Only if she presses charges. If she had something to drink and had no objections then it is functionally not-rape because it never goes to court.

All this time I though I'd been having consensual sex, but it turns out I'd been having functionally not rape.

 

[Loren Pechtel]

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

no I'm not

Your position has no place for dealing with the woman lying.

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

An example of you assuming the woman is always telling the truth.

 

[RavenSky]

But it resolves precisely nothing, especially if it is up to the accused to prove he got affirmative consent. How could you possibly prove it, even if you actually got it? How can you possibly prove it, when nobody will define it in advance?

And what of the burden this places on the 99% of consensual sexual interactions where consent exists but is not 'affirmative' (whatever that means)?

If someone is going to claim "consent" as a defense to a rape accusation, you don't think they should actually have to be able to show said "consent"?

 

[Loren Pechtel]

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.

But you can also get kicked out for sex with someone who changed their mind--and that's something I have a big problem with.

- - - Updated - - -

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.

Whoh! I never said or implied women always lie. I'm saying they sometimes do and thus a position based on them being George Washington doesn't make for a workable system.

 

[Loren Pechtel]

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

In what crime is the word of the victim not considered vital evidence? Is there any crime where the victim's testimony is dismissed because such a person might lie? If you see me steal a wad of money off your kitchen table, and call the police to report a crime, what evidence is there that I am a thief?

I claim I gave you the money. The police say you shouldn't have left the money in plain sight. It was an invitation for someone to take it without consent. Is your word dismissed because your accusation could cause me a lot of trouble and there's no proof you are telling the truth?

The issue is whether someone's word should be the *ONLY* evidence needed, especially when the woman stands to gain from what she says. (Revenge against someone she's mad at.)

 

[Cheerful Charlie]

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?

It is illegal in most states to rape a spouse. No does mean no. Google for spousal rape for more. Why the concept of making spousal rape on college campuses forbidden makes some get a bad case of drama queen anger is beyond me.

 

[Metaphor]

But it resolves precisely nothing, especially if it is up to the accused to prove he got affirmative consent. How could you possibly prove it, even if you actually got it? How can you possibly prove it, when nobody will define it in advance?

And what of the burden this places on the 99% of consensual sexual interactions where consent exists but is not 'affirmative' (whatever that means)?

If someone is going to claim "consent" as a defense to a rape accusation, you don't think they should actually have to be able to show said "consent"?

Think about the last consensual sexual encounter you had. Did your partner give affirmative consent? If you were asked to prove he did, how would you do so?

 

[Cheerful Charlie]

In what crime is the word of the victim not considered vital evidence? Is there any crime where the victim's testimony is dismissed because such a person might lie? If you see me steal a wad of money off your kitchen table, and call the police to report a crime, what evidence is there that I am a thief?

I claim I gave you the money. The police say you shouldn't have left the money in plain sight. It was an invitation for someone to take it without consent. Is your word dismissed because your accusation could cause me a lot of trouble and there's no proof you are telling the truth?

The issue is whether someone's word should be the *ONLY* evidence needed, especially when the woman stands to gain from what she says. (Revenge against someone she's mad at.)

The problem is, men lie too. "No, I didn't date rape her". And, "She's lying".

 

[RavenSky]

If someone is going to claim "consent" as a defense to a rape accusation, you don't think they should actually have to be able to show said "consent"?

Think about the last consensual sexual encounter you had. Did your partner give affirmative consent? If you were asked to prove he did, how would you do so?

Who is going to ask me to "prove it"? I don't sleep with strangers nor people I don't know well. I don't get guys drunk to take advantage of them. I do make certain I have affirmative consent.

So who is going to accuse me of rape, thereby forcing me to mount a defense of consent? Are you suggesting that men are typically liars?

 

[Bronzeage]

In what crime is the word of the victim not considered vital evidence? Is there any crime where the victim's testimony is dismissed because such a person might lie? If you see me steal a wad of money off your kitchen table, and call the police to report a crime, what evidence is there that I am a thief?

I claim I gave you the money. The police say you shouldn't have left the money in plain sight. It was an invitation for someone to take it without consent. Is your word dismissed because your accusation could cause me a lot of trouble and there's no proof you are telling the truth?

The issue is whether someone's word should be the *ONLY* evidence needed, especially when the woman stands to gain from what she says. (Revenge against someone she's mad at.)

So, I can keep your money and there's nothing you can do about it. Too bad you have something to gain from what you say,(Your money back) so your testimony is discounted. Sucks to be powerless, doesn't it?

I always wonder what happened to men who are so convinced the women of the world are a bunch of revenge seeking vigilantes, the men of the world need special protection from them. What is even stranger is why some men want to raise the level of anguish all rape victims must endure in order to weed out the liars who just want revenge.

 

[Metaphor]

Think about the last consensual sexual encounter you had. Did your partner give affirmative consent? If you were asked to prove he did, how would you do so?

Who is going to ask me to "prove it"? I don't sleep with strangers nor people I don't know well. I don't get guys drunk to take advantage of them. I do make certain I have affirmative consent.

So who is going to accuse me of rape, thereby forcing me to mount a defense of consent? Are you suggesting that men are typically liars?

Of course, you don't actually have to have fucked someone before you're falsely accused of rape; there are of course examples of false accusations where the sex itself is in dispute (rather than the consent).

But, I'm very unhappy with a judicial system that asks the accused to prove her innocence (rather than for the prosecution to prove guilt). I'm especially unhappy if the only way to prove your innocence is with evidence that does not and could not exist (unless you're in the habit of video and audiotaping all your sexual encounters, and/or you have sex with several reliable eyewitnesses watching). I'm very unhappy with any system that says you must obtain affirmative consent, without bothering to define it, so that, after the fact, you still wouldn't know if you'd gotten it, even if you'd gotten it.

And finally, I'm very unhappy with a system that criminalises ordinary consensual behaviour. I imagine 99% of consensual sex in the world is without 'affirmative consent'. I can't be certain of that, of course, because nobody will define affirmative consent for me.

EDIT: Your post comes across as victim-blaming and slut-shaming those falsely accused of rape. Of course, you'd never be falsely accused, because you don't sleep with strangers.

 

[RavenSky]

Who is going to ask me to "prove it"? I don't sleep with strangers nor people I don't know well. I don't get guys drunk to take advantage of them. I do make certain I have affirmative consent.

So who is going to accuse me of rape, thereby forcing me to mount a defense of consent? Are you suggesting that men are typically liars?

Of course, you don't actually have to have fucked someone before you're falsely accused of rape; there are of course examples of false accusations where the sex itself is in dispute (rather than the consent).

But, I'm very unhappy with a judicial system that asks the accused to prove her innocence (rather than for the prosecution to prove guilt).

I will repeat again that the California law has nothing to do with criminal prosecution, but since Canada's law does I will address your objection.

No one is expecting the accused to "prove her innocence (rather than for the prosecution to prove guilt)". But IF the accused raises a particular defense, they have to meet a certain standard to successfully use said defense.