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

[Metaphor]

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.

From your description, it's clear to me you were sexually assaulted. But I still don't think different consent laws would have changed your assaulter's behaviour, he obviously did not care about consent, affirmative or otherwise.

 

[Rhea]

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.

From your description, it's clear to me you were sexually assaulted. But I still don't think different consent laws would have changed your assaulter's behaviour, he obviously did not care about consent, affirmative or otherwise.

it would have changed the outcome of the trial, and THAT would have change both his behavior in the future as well as possibly the behavior of anyone who read about it. And if lots of trials went more like that, then the "norming" of just taking what you feel like taking would be seriously damped. And if there were laws prior to his attack that had charged and convicted other people of sexual assault for something like this, he may have decided the risks were not worth it and not tried. But definitely it would have changed THAT court case, to at least have included the question to me, "did you want this?" instead of "did you know him?"

 

[Loren Pechtel]

The preponderance of evidence standard isn't new. It's the standard in civil, non-criminal proceedings. It was inconsistently applied at colleges and universities, with some of them using it and others using the standard for criminal trials. All the White House memo did was spell out that use of the preponderance of evidence standard is consistent with Title IX provisions and therefore it is the appropriate standard to use at all schools.

Look at my thread that shows how ridiculous a result you can get from applying this standard.

It should have no basis in any attempt to determine guilt. We only accept it in civil trials because erring in either direction is bad.

I think a lot of the confusion in this thread is due to the overlap between criminal investigations of rape allegations and the investigations colleges and universities do. Colleges and universities investigate possible violations of Codes of Conduct, not crimes per se. So even though the specific incident they are looking into might also be the subject of a criminal investigation, the process and the outcome can be very different.

No, it's because we don't feel that pretending this is a civil matter justifies using preponderance of the evidence in what amounts to a punishment situation.

 

[Loren Pechtel]

There's not any confusion about that, it's just not seen as a legitimate rationale for using a poor standard to determine if someone should be punished. If you're going to kick someone out of university for something he's accused of doing, you should be pretty damn sure that he actually did it - not simply slightly more sure than not.

Yeah, but that "slightly more sure than not" is a bit of a strawman. No one is saying weak evidence absolutely requires the most extreme action. An investigation can conclude with the determination that there is no good evidence to be had, and that any punitive action is therefore unjustifiable. Or it can conclude with the determination that the rules were broken and that punishment is justified, but there's not enough evidence to justify the most severe punishment.

There's more than one way to punish students who violate a Code of Conduct.

From the cases we see showing up they are using the most extreme punishment in very marginal cases. While more sensible behavior is possible that's not what we are seeing and the government is insisting that they behave this way.

 

[Loren Pechtel]

Okay, just to be sure I understand you, are you saying the preponderance of evidence standard should never be used in weighing a non-criminal complaint, or are you saying it should never be used when the complaint is about non-consensual sex in a college or university environment?

The jury charged with hearing the faulty ignition switch lawsuit against GM is going to use the preponderance of evidence standard in reaching their verdict. This is a case in which people died due to the alleged negligence of the company. Do you think the standard should be innocent until proven guilty beyond a reasonable doubt, or are you okay with how such cases are currently decided?

We are saying that treating this as a civil matter does not change the basic fact that it's a decision to punish--and we very rightly have decided that a decision to punish requires a high degree of certainty that the person is guilty.

This is an attempt to do an end-run around the constitution, an unfortunate hallmark of how government has been operating these days.

 

[Loren Pechtel]

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?

What did you get, a prosecutor who was drunk on the job?

Or was he somehow connected?

Besides, one miscarriage of justice does not warrant another.

 

[Arctish]

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".

It's not perfectly consensual if there's any doubt that it was voluntary, sober, and affirmative consent. Remember Ben and the psychotic ex-girlfriend who broke into his house and demanded he sexually satisfy her? Would you say the sex they had was perfectly consensual?

 

[Arctish]

Okay, just to be sure I understand you, are you saying the preponderance of evidence standard should never be used in weighing a non-criminal complaint, or are you saying it should never be used when the complaint is about non-consensual sex in a college or university environment?

The jury charged with hearing the faulty ignition switch lawsuit against GM is going to use the preponderance of evidence standard in reaching their verdict. This is a case in which people died due to the alleged negligence of the company. Do you think the standard should be innocent until proven guilty beyond a reasonable doubt, or are you okay with how such cases are currently decided?

We are saying that treating this as a civil matter does not change the basic fact that it's a decision to punish--and we very rightly have decided that a decision to punish requires a high degree of certainty that the person is guilty.

This is an attempt to do an end-run around the constitution, an unfortunate hallmark of how government has been operating these days.

An end run around the Constitution? Are you serious?

Colleges and universities do not prosecute crimes. They enforce Codes of Conduct at their institutions.

Yesterday I said I thought a lot of the confusion in this thread is due to the overlap between criminal investigations of rape allegations and the investigations colleges and universities do. Two posters immediately assured me there was no confusion, and yet you are the third poster today to once again conflate the two. If there is no confusion, why are you arguing for allegations of rule-breaking to be treated as crimes? Is the idea a person must seek actual, genuine, not-to-be-confused-with-drunken-stupor affirmative consent before they engage in sexual activities with their maybe, perhaps, not-quite-sure-if-willing-but available partner is so very onerous? Would you rather see colleges and universities forced to lawyer up with prosecutors, public defenders, and an impartial judiciary before they can investigate a violation of the Code of Conduct? Does this apply to all violations of the Code of Conduct or is it just for when men have sex with drunk women?

 

[Metaphor]

We are saying that treating this as a civil matter does not change the basic fact that it's a decision to punish--and we very rightly have decided that a decision to punish requires a high degree of certainty that the person is guilty.

This is an attempt to do an end-run around the constitution, an unfortunate hallmark of how government has been operating these days.

An end run around the Constitution? Are you serious?

Colleges and universities do not prosecute crimes. They enforce Codes of Conduct at their institutions.

Yesterday I said I thought a lot of the confusion in this thread is due to the overlap between criminal investigations of rape allegations and the investigations colleges and universities do. Two posters immediately assured me there was no confusion, and yet you are the third poster today to once again conflate the two. If there is no confusion, why are you arguing for allegations of rule-breaking to be treated as crimes?

But nobody is arguing that, and nobody is conflating the two.

They're saying

i) Being expelled from University has serious, negative, life-long consequences. Whether you call it a punishment or not does not alter this fact. Whether it's done by the State or not does not alter that fact (but in fact the State is indirectly involved by imposing its rules).

ii) If you are going to impose serious, negative, life-long consequences on somebody, you should be very sure they deserve it.

iii) A 'beyond reasonable doubt' standard probably exceeds the 'very sure' standard, but a 'preponderance of evidence' standard falls short of it.

iv) Therefore, a 'preponderance of evidence' standard is an inappropriate standard for allegations that can lead to expulsion.

 

[Arctish]

An end run around the Constitution? Are you serious?

Colleges and universities do not prosecute crimes. They enforce Codes of Conduct at their institutions.

Yesterday I said I thought a lot of the confusion in this thread is due to the overlap between criminal investigations of rape allegations and the investigations colleges and universities do. Two posters immediately assured me there was no confusion, and yet you are the third poster today to once again conflate the two. If there is no confusion, why are you arguing for allegations of rule-breaking to be treated as crimes?

But nobody is arguing that, and nobody is conflating the two.

Except for the ones talking about trials, rules of evidence, affirmative defenses for criminal acts, and "pretending this is a civil matter".

They're saying

i) Being expelled from University has serious, negative, life-long consequences. Whether you call it a punishment or not does not alter this fact. Whether it's done by the State or not does not alter that fact (but in fact the State is indirectly involved by imposing its rules).

I agree.

ii) If you are going to impose serious, negative, life-long consequences on somebody, you should be very sure they deserve it.

I agree.

iii) A 'beyond reasonable doubt' standard probably exceeds the 'very sure' standard, but a 'preponderance of evidence' standard falls short of it.

I agree.

iv) Therefore, a 'preponderance of evidence' standard is an inappropriate standard for allegations that can lead to expulsion.

I disagree.

Whether it's the appropriate standard has nothing to do with the punishment or it's long-term consequences. It has to do with whether it is a criminal or civil matter being judged. Code of Conduct violations are civil matters.

Colleges and universities should make damn sure they have solid grounds for expelling students before they do it. But given that colleges and universities have options in how they choose to punish offenders, what reason do we have to believe that they will dish out the most extreme punishments without damn good reason? Fear-mongering aside, what reason do we have to believe that probation, formal warnings, limitations on activities, suspensions, students being required to find off-campus housing, etc. won't be used when the preponderance of evidence is present but marginal?

And getting back to the essential question, how does setting the bar at "affirmative consent" not clarify matters in favor of students who actually give a shit whether their sex partners are willing?

 

[Metaphor]

Whether it's the appropriate standard has nothing to do with the punishment or it's long-term consequences. It has to do with whether it is a criminal or civil matter being judged.

There are two different standards for civil and criminal matters, but 'civil' and 'criminal' both refer to State-run courts with defined standards of evidence and procedure.

In some respects, University-run investigations are more like criminal trials, and in other respects, they're more like civil trials, and in some respects they're not really like either.

Colleges and universities should make damn sure they have solid grounds for expelling students. But given that colleges and universities have options in how they choose to punish offenders, what reason do we have to believe that they will dish out the most extreme punishments without it? Fear-mongering aside, what reason do we have to believe that probation, formal warnings, limitations on activities, suspensions, students being required to find off-campus housing, etc. won't be used when the preponderance of evidence is present but marginal?

That indeed would be a more sensible outcome. I think people would find it much less objectionable if Universities imposed minimal-type sentences for 'marginally proved' cases, and reserved the more extreme sentences only when the evidence exceeded a certain standard (I would say 'beyond reasonable doubt' but I've also heard of 'clear and convincing proof'.)

However, there are still other criticisms that have been made beyond the standard of evidence criticisms. For example, evidence that is seemingly arbitrarily disallowed or discounted.

 

[Stu]

That indeed would be a more sensible outcome. I think people would find it much less objectionable if Universities imposed minimal-type sentences for 'marginally proved' cases, and reserved the more extreme sentences only when the evidence exceeded a certain standard (I would say 'beyond reasonable doubt' but I've also heard of 'clear and convincing proof'.)

However, there are still other criticisms that have been made beyond the standard of evidence criticisms. For example, evidence that is seemingly arbitrarily disallowed or discounted.

More significantly, if this is what the white house wanted, it would have been explicitly stated in the same letter that said universities had to use a preponderance of evidence standard. In fact since the "clear and convincing" standard is mentioned as something not to be used, universities would be right to steer clear of codifying any protection against expulsion based on a higher standard. And it's also clear that, right now, men are being expelled on the lower standard since this is the basis for dozens of lawsuits at the moment.

It's not a defence of the preponderance of evidence standards to say that they might not be expelled on weak evidence if they demonstrably are and there are no protections against it.

 

[Arctish]

That indeed would be a more sensible outcome. I think people would find it much less objectionable if Universities imposed minimal-type sentences for 'marginally proved' cases, and reserved the more extreme sentences only when the evidence exceeded a certain standard (I would say 'beyond reasonable doubt' but I've also heard of 'clear and convincing proof'.)

However, there are still other criticisms that have been made beyond the standard of evidence criticisms. For example, evidence that is seemingly arbitrarily disallowed or discounted.

More significantly, if this is what the white house wanted, it would have been explicitly stated in the same letter that said universities had to use a preponderance of evidence standard. In fact since the "clear and convincing" standard is mentioned as something not to be used, universities would be right to steer clear of codifying any protection against expulsion based on a higher standard. And it's also clear that, right now, men are being expelled on the lower standard since this is the basis for dozens of lawsuits at the moment.

It's not a defence of the preponderance of evidence standards to say that they might not be expelled on weak evidence if they demonstrably are and there are no protections against it.

Are you arguing against preponderance of evidence in all Code of Conduct cases, or just the ones that involve sex?

If there is a preponderance of evidence that a student plagiarized a term paper, is that not enough to expel him/her?

If there is a preponderance of evidence a student drove his/her car across the football field and ruined the turf, is that not enough to warrant punishment?

If there is a preponderance of evidence a student did not attempt to get consent before putting his/her thingamajiggy on somebody's thingamabob, would it be wrong for a college to enforce their rules about doing that sort of thing - rules the student knew about when he/she signed the Student Code of Conduct agreement as part of the admissions process?

 

[Stu]

More significantly, if this is what the white house wanted, it would have been explicitly stated in the same letter that said universities had to use a preponderance of evidence standard. In fact since the "clear and convincing" standard is mentioned as something not to be used, universities would be right to steer clear of codifying any protection against expulsion based on a higher standard. And it's also clear that, right now, men are being expelled on the lower standard since this is the basis for dozens of lawsuits at the moment.

It's not a defence of the preponderance of evidence standards to say that they might not be expelled on weak evidence if they demonstrably are and there are no protections against it.

Are you arguing against preponderance of evidence in all Code of Conduct cases, or just the ones that involve sex?

If there is a preponderance of evidence that a student plagiarized a term paper, is that not enough to expel him/her?

If there is a preponderance of evidence a student drove his/her car across the football field and ruined the turf, is that not enough to warrant punishment?

Yes, in all those cases I'd prefer a higher standard. Rephrase all of those as "if there's unclear or ambiguous evidence and no-one can say with any confidence what happened, but it's slightly more likely the student is guilty..." and it might be more clear why. If you're going to the trouble of punishing someone, you should be damn sure they actually did what you're accusing them of.

If there is a preponderance of evidence a student did not attempt to get consent before putting his/her thingamajiggy on somebody's thingamabob, would it be wrong for a college to enforce their rules about doing that sort of thing - rules the student knew about when he/she signed the Student Code of Conduct agreement as part of the admissions process?

Yes, it would be wrong for the above reasons.

 

[Arctish]

I think we all agree we don't want colleges and universities punishing the wrong students, or imposing excessively harsh punishments on the right ones.

Which brings us back to affirmative consent. If you want to stay on the right side of the Code of Conduct, it helps to know where the lines are drawn. The proposed bill marks the line between consensual and non-consensual sex at the place where both participants indicate their willingness knowingly, soberly, and without coercion. That doesn't make misunderstandings impossible. It won't stop lying liars who lie. But it clarifies things by establishing a fixed point in a fluid situation. Either both indicate their willingness to proceed or the sex they have might be considered non-consensual, and non-consensual sex acts have serious consequences under the Code of Conduct. That's good to know, yes?

 

[RavenSky]

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

And frankly, most rational non-rapey people also use "affirmative consent" and "consent" interchangeably because if your consent isn't actual indicating "yes" it isn't really consent.

Unfortunately, too many bad people have victimized other people and avoided consequence by twisting the concept of "consent" to NOT include "informed" and/or "affirmative" - hence the necessity of modifiers you and I and most other rational non-rapey people think are redundant.

 

[RavenSky]

That indeed would be a more sensible outcome. I think people would find it much less objectionable if Universities imposed minimal-type sentences for 'marginally proved' cases, and reserved the more extreme sentences only when the evidence exceeded a certain standard (I would say 'beyond reasonable doubt' but I've also heard of 'clear and convincing proof'.)

However, there are still other criticisms that have been made beyond the standard of evidence criticisms. For example, evidence that is seemingly arbitrarily disallowed or discounted.

More significantly, if this is what the white house wanted, it would have been explicitly stated in the same letter that said universities had to use a preponderance of evidence standard. In fact since the "clear and convincing" standard is mentioned as something not to be used, universities would be right to steer clear of codifying any protection against expulsion based on a higher standard. And it's also clear that, right now, men are being expelled on the lower standard since this is the basis for dozens of lawsuits at the moment.

It's not a defence of the preponderance of evidence standards to say that they might not be expelled on weak evidence if they demonstrably are and there are no protections against it.

I think the problem with trying to use the "clear and convincing" standard is that there is seemingly no such standard. Every source I've read so far has a different explanation. One source claims it is somewhere between the 51% of "preponderance" and the almost 100% of "beyond a reasonable doubt" but acknowledges that there is no real definition by which to clearly establish when such a "standard" has been met.

Then there is this definition:

clear and convincing evidence n. evidence that proves a matter by the "preponderance of evidence" required in civil cases and beyond the "reasonable doubt" needed to convict in a criminal case.

http://legal-dictionary.thefreedictionary.com/clear+and+convincing+evidence

This definition says "clear and convincing evidence" is actually part of the requirements for the other two, not a separate standard on its own.

I'm not suggesting that this one is the correct one. I don't know. My point is that apparently no one else does either. That doesn't seem to be a usable standard then.

 

[Jarhyn]

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

And frankly, most rational non-rapey people also use "affirmative consent" and "consent" interchangeably because if your consent isn't actual indicating "yes" it isn't really consent.

Unfortunately, too many bad people have victimized other people and avoided consequence by twisting the concept of "consent" to NOT include "informed" and/or "affirmative" - hence the necessity of modifiers you and I and most other rational non-rapey people think are redundant.

Sometimes the 'informed consent' is to get drunk, and what happens, happens. It's a reality for many of us that the decisions we make when we are blitzed derive from the consent to get blitzed in the first place. Drunk sex has been central to at least two of the best three nights of my life. If you want to make all decisions informed ones, then retain the ability to process information!

 

[Rhea]

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.

Well, society thinks we can't drive after a few drinks. And they're willing to put us in jail over that one - hardly a pedestal!
But in seriousness, I don't think any of these are intended to be "a few drinks"

 

[Rhea]

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.

I don't see anything wrong with having these kinds of desires between consenting people.
But if your desires require that you not be absolutely certain of their consent in order to feel the thrill, you are at a HIGH RISK of being someone who has forced sex on an unwilling partner.

Are you okay with seeing yourself as someone who has "oops! accidentally!" forced sex on a person who does not want it? And then going out and doing that again to another person?