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

[Enigma]

For most other crimes, unless I'm forgetting some, you don't have to prove your innocence. The prosecuting party needs to prove your guilt.

. The accused doesn't have to prove his innocence here either. Claiming she consented is a choice of defense, just like him claiming he was never there at all. Once a defense is presented, then the accused needs to present support for that defense.

No. That is not how it works. The defense doesn't need to establish the validity of their defense, the prosecuting party needs to establish that the defenses (and all components thereof) are bullshit. The classical example that comes to mind is that a defense against being accused of armed robbery at gunpoint which consists of claiming that the defendant wasn't there, was there but didn't have a gun, had a gun but didn't threaten the victim, and threatened the victim but didn't rob them. That happens to be a totally legit defense against that charge (though the last part likely is subject to other charges) and unless the prosecutor can establish that all components of that defense are false, the accused should be found not guilty even though their defense is logically impossible to be correct.

The only case where there are exceptions to this is in use of  affirmative defenses where the defendant needs to establish that their action, while it violated the law that they are being charged with, should not be punished due to self-defense, duress, elapsement of the statute of limitations, etc.

All this law says is that the accused doesn't get to claim he had implied consent, he must claim (& show) affirmative consent if he chooses "she consented" as his defense. He ALWAYS had to show support for any claim of "consent". The only difference under this law is arguing that "she didn't say no" isn't good enough. He has to argue that she said "yes" (by clear word or deed)

So in other words sex is a criminal act for which consent is an affirmative defense. Nice to see that Derec and others are completely off-base here.

Whether you specifically mentioned gender or not, my rhetorical question stands. To put it in gender-neutral terms - this discussion always comes down to "what if the partner I picked to have sex with is really a lying vindictive asshole."

Given that you are talking about empowering that person to be able to use the state to ruin someone's life, it's a legitimate concern. Likewise if, in some freakish parallel universe, I'm strongly inclined to give my friends some AK-47s to defend themselves, I should be able to answer the question "What if some of them are prone to be violent when they get pissed off about something?".

 

[Rhea]

I'm saying I don't understand how consent is different to affirmative consent. If it is different, why would you demand affirmative consent when what you should be demanding is consent?

But if they're not different, if affirmative consent is merely an incredibly poor, circular, and totally unhelpful attempt at defining consent, my objection is simply that they should have defined consent instead. Consent, not affirmative consent, is what makes the difference between sex and rape. I can't understand how this point is so hard to accept.

Great point. And yah, we always thought that getting consent was a no-brainer and obvious in how it should be measured. Who needs "affirmative" consent when teaching about consent works? Except - it didn't. It obviously just did not work. Because people showed up in court, in police offices, in principal's offices, in Steubenville, all presenting the claim, "she consented by not clawing my eyes out, so we're all good, right? She's just a slut with regrets and I go home?" AND IT WORKED. Again and again and again and again and again.

So the "just get consent" thing, and yes, obviously it was described and spelled out, was obviously too complicated for the hormone-driven date rapist to internalize enough to inhibit his/her actions.

So now we have this - "okay, let me spell this out for you. Consent means _actual_ consent. Think of it as 'affirmative consent' where to mean consent there has to be a 'yes' in there somewhere. We'll add the word 'affirmative' to help you remember that."

And somehow this is demeaning or scary for people. Unlike the hundreds (thousands?) of cases of non-consentual sex which is apparently not scary for people at all.

Reduce your chances of a rape accusation - get affirmative consent.

Surely you cannot mean this. Surely you don't want to reduce anyone's chances of being correctly accused of rape? Do you mean instead 'reduce your chances of being a rapist?' Or do you mean, 'reduce your chances of being falsely accused of rape'?
Asking men to take mitigation of risk strategies sounds familiar. It sounds like victim blaming.

You are right - the clarification is needed. Yes, what I mean by this is twofold
1. getting affirmative consent will reduce your chances of becoming a rapist. Because you'll think about consent and make sure you are not having sex without it. and
2. getting affirmative consent will simultaneously make your partner think about the fact that they have given consent on purpose and deliberately and make them think twice about changing this opinion later, leading to a false rape charge.

In both cases, getting affirmative consent will reduce your chances of being charged with rape, whether it be justified or not.

I also cannot fathom how you think it could make a difference. If you've been falsely accused of rape, how would having affirmative consent help you?

I submit that if you have gotten consent that was deliberate and obvious, and you present that sequence of events or conversation in your defense, your defense will be stronger for it.

If one has a high incidence of intercourse with vindictive lying bitches - get a new set of friends and a new way of picking up chicks. Oh, and become a better lover. Women who gave actual consent _and_ were extremely satisfied _and_ remember it are unlikely to be vindictive. Just sayin'.

Can you imagine this advice in a woman's magazine? "Is he cheating on you? Become a better lover and he may not stray."

This is humor, right?

Because this is a constant theme of magazines....


http://www.cosmopolitan.com/sex-love/advice/a3537/stop-him-from-cheating/
http://tlcnaptown.com/1905693/exciting-relationship-tips-on-how-to-keep-your-man-faithful/
http://www.amazon.com/How-Keep-Your-Man-Out-ebook/dp/B00HCZG11I

Oy vey.

I agree with the humor, but let me clarify what I mean by the quip. Emphasis on the "actual consent." We're talking about people who are desperately concerned about high probabilities that they will one day be falsely (in their mind) accused of rape.

I'm hoping we can all agree that being certain that you actually have consent is 80% of the prize. And once we are sure it consensual, I hope we can all agree that being certain s/he remembers it will also be key to reducing your chances of having something untoward happen, the other 19%.

And I _hope_ we can all agree that neither of those things is an example of blaming a false victim for something they were otherwise entitled to perform without being victimized. 'Cause... I hope we were in agreement that blackout people and non-consenters weren't something that people are entitled to have sex with and avoid criminal charges. So, not victim blaming, we agree? I hope?

So that leaves us with my quip about how to avoid being in the crosshairs of assholes. Fair enough, I retract it. Go ahead and be as selfish in sex as you want, and yes, you should be able to do that without fear of accusations, so therefore it becomes victim-blaming to connect it with strategies to reduce false rape charges from lying vindictive assholes. You have a good point and I retract the quip as useful advice.

Reduce your chances of being accused of rape: make damn sure that you are not being a rapist and that your partner agrees - by getting affirmative consent.

 

[Rhea]

I'll tell a personal story, of the time I took an assault to court. A young man (18? 20? I don't know) drove to my house at 2am. Why? I have no idea. I think it was because he heard there were parties there and several daughters, he was friends with one of the neighbors and had been partying at their house that night, I think, maybe there was discussion about which houses on the street sometimes had parties. At any rate, he drove there expecting sex. This had never happened before, it's not a neighborhood where sex is available, not even rarely. I have no idea what on earth was going through his head. Yes there had been teenage drinking parties. That doesn't mean anything else.

He arrives, and knocks. I open the door and he grabs me, making it clear that he's here for sex. WTF!?! Who the fuck are you? I fight him off, my two friends hear the struggle and come push him out of the door. He is furious at being thwarted, peels out of the driveway, turns around, comes back, takes a baseball bat out of his car and starts smashing windshields in the driveway. The police are called, they catch him down the road.

It goes to court. He gets off. Why? because they asked me if I knew him. I said, I knew _of_ him, but that was all (he was a friend of my older sister's best friend's brother). Then they turned to the judge and said, "see, she knew him, it was just a spat." And he walked. Because somehow, even just _knowing him_ made it reasonable for him to consider me available to him. And there was nothing wrong in the eyes of the court with that excuse. I was 14 years old.

That was his "consent". And the court agreed he had it. They claimed he did nothing really wrong, except those windshields and the mailbox, he had to pay for those.

Now tell me again how "consent" is already well established and perfectly satisfactory?

 

[Derec]

Great point. And yah, we always thought that getting consent was a no-brainer and obvious in how it should be measured. Who needs "affirmative" consent when teaching about consent works? Except - it didn't. It obviously just did not work. Because people showed up in court, in police offices, in principal's offices, in Steubenville, all presenting the claim, "she consented by not clawing my eyes out, so we're all good, right? She's just a slut with regrets and I go home?" AND IT WORKED. Again and again and again and again and again.

The Steubenville guys were actually convicted. In a real court too, rather than the campus kangaroo courts.

So the "just get consent" thing, and yes, obviously it was described and spelled out, was obviously too complicated for the hormone-driven date rapist to internalize enough to inhibit his/her actions.

"Just getting consent" doesn't work if you are being falsely accused of rape. Hell, you don't even have to have sex with the false accuser to be falsely accused of rape.
And "just getting consent" doesn't work either when any level of intoxication is seen as invalidating consent or when not "just consent" is demanded but increasingly restrictive "affirmative consent" or even "enthusiastic consent" (RavenSky).

So now we have this - "okay, let me spell this out for you. Consent means _actual_ consent. Think of it as 'affirmative consent' where to mean consent there has to be a 'yes' in there somewhere. We'll add the word 'affirmative' to help you remember that."

What if two people consent to sex but neither gets "affirmative consent"? What if they used non-verbal cues to proceed further rather than explicitly asking permission? I say that sex is still fully consensual and if the female files a rape charge it is a false accusation. Furthermore, if he is guilty of anything then she is guilty of the same thing (she didn't bother to get "affirmative" consent from him either) so why only punish the males? Same goes for drinking.

And somehow this is demeaning or scary for people. Unlike the hundreds (thousands?) of cases of non-consentual sex which is apparently not scary for people at all.

Again, getting consent is not going to prevent false rape allegations.

You are right - the clarification is needed. Yes, what I mean by this is twofold
1. getting affirmative consent will reduce your chances of becoming a rapist. Because you'll think about consent and make sure you are not having sex without it. and
2. getting affirmative consent will simultaneously make your partner think about the fact that they have given consent on purpose and deliberately and make them think twice about changing this opinion later, leading to a false rape charge.

If a girl wants to falsely accuse you of rape it doesn't matter if she gave "affirmative" or even "enthusiastic" consent at the time. All that matters are her feeling the next day, or year (Vassar). And again, sex is not even a necessary condition for being falsely accused of rape (the infamous false rape case that shall not be named lest I contribute to the drinking problem of some members).

In both cases, getting affirmative consent will reduce your chances of being charged with rape, whether it be justified or not.

But if you get consent, just not "affirmative consent" you still have not raped anyone but you can be charged and punished. Of course, only if you are male.

I submit that if you have gotten consent that was deliberate and obvious, and you present that sequence of events or conversation in your defense, your defense will be stronger for it.

You can't mount much of a defense on these kangaroo campus trials. You can't question the accuser or any "witnesses" and exculpatory evidence (such as text messages saying that the false accuser "had a great time" are discounted as "irrelevant"). How is getting "affirmative consent" going to help you if a female can change her mind and retroactively withdraw consent up to a year later? Or even lie that any sex ever happened.

Because this is a constant theme of magazines....
http://www.cosmopolitan.com/sex-love/advice/a3537/stop-him-from-cheating/
http://tlcnaptown.com/1905693/exciting-relationship-tips-on-how-to-keep-your-man-faithful/
http://www.amazon.com/How-Keep-Your-Man-Out-ebook/dp/B00HCZG11I

But these women are not getting falsely accused of rape right? Saying "be a better lover and you'll avoid getting falsely accused of rape" is not only victim blaming but most probably not effective at all. I do not think the men getting falsely accused of rape are being falsely accused because they were mediocre lovers.

I agree with the humor, but let me clarify what I mean by the quip. Emphasis on the "actual consent." We're talking about people who are desperately concerned about high probabilities that they will one day be falsely (in their mind) accused of rape.

Not "high probability" but still a real danger.

I'm hoping we can all agree that being certain that you actually have consent is 80% of the prize. And once we are sure it consensual, I hope we can all agree that being certain s/he remembers it will also be key to reducing your chances of having something untoward happen, the other 19%.

Nonsense. If a woman consents to sex and remembers it enough to text you that she had a great time but decides a year later that she was raped you, as a guy, get expelled. No real defense allowed. Of course, the guy, being a virgin at the time, was probably a lousy lover so it's all his fault. Should have been a better lover and he could have avoided all this.

And I _hope_ we can all agree that neither of those things is an example of blaming a false victim for something they were otherwise entitled to perform without being victimized. 'Cause... I hope we were in agreement that blackout people and non-consenters weren't something that people are entitled to have sex with and avoid criminal charges. So, not victim blaming, we agree? I hope?

A person can still consent while being in a black out state.

Reduce your chances of being accused of rape: make damn sure that you are not being a rapist and that your partner agrees - by getting affirmative consent.

What if neither gives affirmative consent (however that is defined) but it was still 100% consensual just not explicitly spelled out with every level of intimacy ("may I touch your left breast? How about your left breast's nipple?") How about if both had something to drink? Why is it ok for the female to turn around and accuse the man of rape and get him expelled when they were both doing exactly the same thing?

 

[Sabine Grant]

I don't know what you should make of it. The Washington Post doesn't say the consent has to be verbal. It says:



Perhaps in the end, affirmative consent will be like pornography: you know it when you see it.

I would say that the concept of consent already requires 'conscious' and 'voluntary' agreement.

It does not. That is why consent given to sign a document with specific terms to agree with can be challenged on the basis of lack of informed consent or consent given under lack of mental capacity to do so. It is never assumed that given consent is automatically "conscious" and "voluntary".

So, the only difference I can see is the addition of the word 'affirmative', which appears to me to add nothing at all. One might as well say you need vorkrunk consent.

I take it that "affirmative consent" implies that the other party has assessed that the consenting party is in fact mentally capable to formulate such consent. Of course if both parties are drunk, such assessment cannot be expected.

 

[Rhea]

And somehow this is demeaning or scary for people. Unlike the hundreds (thousands?) of cases of non-consentual sex which is apparently not scary for people at all.

Again, getting consent is not going to prevent false rape allegations.

So all it will do is reduce actual rapes or increase their prosecution?
You say this like it's a bad thing.

 

[Rhea]

In both cases, getting affirmative consent will reduce your chances of being charged with rape, whether it be justified or not.

But if you get consent, just not "affirmative consent" you still have not raped anyone but you can be charged and punished. Of course, only if you are male.

And I _hope_ we can all agree that neither of those things is an example of blaming a false victim for something they were otherwise entitled to perform without being victimized. 'Cause... I hope we were in agreement that blackout people and non-consenters weren't something that people are entitled to have sex with and avoid criminal charges. So, not victim blaming, we agree? I hope?

A person can still consent while being in a black out state.

Pro-tip: Go on these premises and you will be a rapist with no one but yourself to blame for thinking that people who are so drunk they lose their memory of the events are okay to fuck.

 

[Derec]

So all it will do is reduce actual rapes or increase their prosecution?
You say this like it's a bad thing.

No, it will increase men getting falsely punished for "rape" that never happened because under this law because it classifies some perfectly consensual sex as "rape".

 

[Derec]

Pro-tip: Go on these premises and you will be a rapist with no one but yourself to blame for thinking that people who are so drunk they lose their memory of the events are okay to fuck.

We have discussed the "black out" state in detail and have determined that a person can function perfectly normally (coherent, in control of their gross and fine motor functions etc.) while failing to consolidate memories (black out state). In fact, one person recounted an episode where he was playing billiards (and winning) while not having any memory of the event the next morning. By your logic, he was not able to consent to the game of billiards, but nobody, not even him, was able to know that until the next morning.

- - - Updated - - -

Of course if both parties are drunk, such assessment cannot be expected.

Even if I were to agree with this (which I don't) how does that justify only expelling the male participant while treating the female participant as a "victim"?

 

[Sabine Grant]

By derec :A person can still consent while being in a black out state.

Usually persons in a black out state are recognized as individuals unable to formulate and certainly unable communicate consent to...anything.

Is that comment of yours expected to justify or rationalize sex occurring while one party is in a black out state?

 

[Derec]

By derec :A person can still consent while being in a black out state.

Usually persons in a black out state are recognized as individuals unable to formulate and certainly unable communicate consent to...anything.

Is that comment of yours expected to justify or rationalize sex occurring while one party is in a black out state?

See the post just above yours. I have explained why I think that there.

 

[Sabine Grant]

We have discussed the "black out" state in detail and have determined that a person can function perfectly normally (coherent, in control of their gross and fine motor functions etc.) while failing to consolidate memories (black out state). In fact, one person recounted an episode where he was playing billiards (and winning) while not having any memory of the event the next morning. By your logic, he was not able to consent to the game of billiards, but nobody, not even him, was able to know that until the next morning.

- - - Updated - - -

Of course if both parties are drunk, such assessment cannot be expected.

Even if I were to agree with this (which I don't) how does that justify only expelling the male participant while treating the female participant as a "victim"?

You mean you do not agree that any decent human being should be able to recognize that the drunk person they are about to have sex with is too drunk to have the mental capacity to process consent and formulate it as they would if not mentally impaired by the use of alcohol?

As to your question, did you already forget my position I had stated in other same old topic threads where I did not agree with sanctions affecting one party when both parties are drunk?

 

[Derec]

You mean you do not agree that any decent human being should be able to recognize that the drunk person they are about to have sex with is too drunk to have the mental capacity to process consent and formulate it as they would if not mentally impaired by the use of alcohol?

Many people have sex while in some level of intoxication. It is a mistake to penalize something that is so common, especially among college aged people. And the thing about "black out" state is that the person functions pretty normally except for the memory thing.

As to your question, did you already forget my position I had stated in other same old topic threads where I did not agree with sanctions affecting one party when both parties are drunk?

But that is exactly what is happening in practice and will happen even more when you declare any level of intoxication as invalidating consent as the California law is doing.

 

[ksen]

If I were a woman I think I'd be pretty upset that some in society seem to think I couldn't give consent after a few drinks. They're not china dolls that need to be put up on a pedestal because they're so fragile.

That part of the law just seems rather paternalistic.

 

[Rhea]

t will increase men getting falsely punished for "rape" that never happened because under this law because it classifies some perfectly consensual sex as "rape".

It seems that several posters here think that there are hordes of people out there just _itchin!_ to get a crack at a false rape charge. And that right now, the only thing holding them back is that they didn't say no, so they think they have no case. Or, even more nefarious, they are biding their time waiting for a year to pass so they can sneakify their villainous attack. And that what was "perfectly consensual" will be pursued by this maleficent crowd for other agendas.

And the idea that a definition of rape that says rape includes when you don't have a person signalling "yes" will suddenly permit this lying vindictive horde will pour from the woodwork like so many rapacious parasites.


Seems a little tin-foiley to me.

 

[Metaphor]

It does not. That is why consent given to sign a document with specific terms to agree with can be challenged on the basis of lack of informed consent or consent given under lack of mental capacity to do so. It is never assumed that given consent is automatically "conscious" and "voluntary".

Consent has to be conscious and voluntary; these are necessary (notice I did not say sufficient) conditions.

I use 'informed consent' and 'consent' interchangeably; if your consent is not informed it isn't really consent.

 

[Metaphor]

I'll tell a personal story, of the time I took an assault to court. A young man (18? 20? I don't know) drove to my house at 2am. Why? I have no idea. I think it was because he heard there were parties there and several daughters, he was friends with one of the neighbors and had been partying at their house that night, I think, maybe there was discussion about which houses on the street sometimes had parties. At any rate, he drove there expecting sex. This had never happened before, it's not a neighborhood where sex is available, not even rarely. I have no idea what on earth was going through his head. Yes there had been teenage drinking parties. That doesn't mean anything else.

He arrives, and knocks. I open the door and he grabs me, making it clear that he's here for sex. WTF!?! Who the fuck are you? I fight him off, my two friends hear the struggle and come push him out of the door. He is furious at being thwarted, peels out of the driveway, turns around, comes back, takes a baseball bat out of his car and starts smashing windshields in the driveway. The police are called, they catch him down the road.

It goes to court. He gets off. Why? because they asked me if I knew him. I said, I knew _of_ him, but that was all (he was a friend of my older sister's best friend's brother). Then they turned to the judge and said, "see, she knew him, it was just a spat." And he walked. Because somehow, even just _knowing him_ made it reasonable for him to consider me available to him. And there was nothing wrong in the eyes of the court with that excuse. I was 14 years old.

That was his "consent". And the court agreed he had it. They claimed he did nothing really wrong, except those windshields and the mailbox, he had to pay for those.

Now tell me again how "consent" is already well established and perfectly satisfactory?

Can I ask what charges were brought against him, and which ones stood up and which charges were unsuccessful?

It seems to me clear that he didn't know (or more likely didn't care) what consent was, but I do indeed find it disturbing that the court didn't know.

 

[Jarhyn]

Admittedly, this new law greatly disturbs me. We are not ready for it as a species. It is no better than anti-sodomy laws, in many ways.

I say this because for a significant portion of the population, an explicit 'yes' while sober is entirely anethma to the social exchange that the sex is intended to accomplish. Between the sheer number of people I know who have rape fantasies, the number of people who attend conventions where alcohol fueled sex is the only reason many attend, and the BDSM subcultures, this opens the door to untold volumes of abuse.

Essentially I can't live in California, or even visit, if I want to have any kind of sex that would make my dick hard enoug for it to happen in the first place, or which wouldn't open a giant gaping legal liability for my partner.

 

[Jarhyn]

For some people, that's entirely the way they want certain sexual encounters to go: being too drunk to say no with a person they wouldn't have sex with sober. I'd actually and honestly say no if I was sober. I'm not into them that way. But when I'm drunk enough I am, and such experiences are the whole reason I drink around them, and while they understand this at least on some level, the yes has not nor will it ever be uttered.

I am not the only person like that, and if this law were passed in minnesota, I would be forced to either abandon a job and mortgage or hope of having a fulfilling sex life.

 

[Rhea]

That was his "consent". And the court agreed he had it. They claimed he did nothing really wrong, except those windshields and the mailbox, he had to pay for those.

Now tell me again how "consent" is already well established and perfectly satisfactory?

Can I ask what charges were brought against him, and which ones stood up and which charges were unsuccessful?

It seems to me clear that he didn't know (or more likely didn't care) what consent was, but I do indeed find it disturbing that the court didn't know.

Yes, it is indeed disturbing that the court, knowing a 14yo was grabbed in her own home and forced to endure some strange man's tongue in her mouth and entire body groped before being able to get him off with the help of two friends, would look at this whole thing and go, "wow, you should pay for that mailbox. AND say you're sorry to her mother for damaging it."

I have no idea the technical charges, I was too young to interpret those words as necessary. But it was essentially sexual assault, assault of a minor and destruction of property. Destruction of property stuck. He had to pay for the repairs and apologize to my parents for disturbing them. The assault charges were dropped on the grounds that since I knew him, it couldn't be rape. He was "just a good kid who got drunk and did something stupid."

I am _all_for_ descriptions that make this kind of result impossible to accept.