Adventures in Sexual Implicature

“Hasn’t anyone ever enjoyed an old movie in which this happens?”

You mean like the ‘seduction’ deployed in basically all the old James Bond movies?

I worry affirmative consent standards will generate serious problems

Yeah, no. Sorry.

Well, it seemed like it would be a lot ruder to just say, “Yeah, no” and not give a link, so I gave a link. In any case, the Klein piece is not really convincing me that there will be “Serious problems. Ugly cases. Backlash. Controversy.” Wait and see, I guess?

http://studentconduct.osu.edu/page.asp?id=41

It’s drafted terribly (why nest identical adjectives in the definition of something that was written with adjectives? whyyyyy?), but you must have “clear, knowing and voluntary consent” where consent is defined as “knowingly and affirmatively agreeing to engage in a sexual activity.”

Elaboration is found at the next link below, which clarifies that consent must never be implied even in the context of a relationship, adds that consent must be “explicit,” and states that consent must be “asked every step of the way,” from kissing on, inclusive. Might as well read the whole thing, it’s short.

http://swc.osu.edu/sexual-violence/sexual-violence-education/consent/

Taken seriously, if you’ve ever kissed your partner on the assumption that past experience shows that they welcome your kisses, you’re in violation. You should have ensured that you had “clear” and “knowing” consent to the specific contact before your lips touched. Note that it doesn’t matter if he or she actually WAS ok with it (consent is defined as a communication and not a state of mind), and you can’t obtain your consent by seeing how they react to the kiss as it’s happening because at that point the non consensual contact already occurred.

But actual human beings mediate sexual relationships by learning each other’s boundaries over time, and by establishing a course of dealing as to what is acceptable or unacceptable within their relationship. On a day to day basis they do not obtain
“clear consent” for each individual sexual act- they operate based on what they understand of their partners comfort zone.

For example, my wife is generally ok with me squeezing her butt. I don’t have to clear consent each time. Even surprise squeezes are ok! I know this because of past relationship history and prior sexual history. It’s not ok with OSU, of course, they seem to think that I am a deviant, but it’s ok with her and her opinion is what matters. If I were to squeeze her butt and she were to object, I would stop, apologize, and we’d talk about what I got wrong in my understanding of her comfort zone. Normal human relationships and healthy communication between partners FTW!

Even the most fervent advocate of affirmative consent probably runs their relationship in this fashion. Ever snuggled up to your sleeping partner, secure in the knowledge that relationship history and past sexual conduct shows that they are ok with it? Is your snuggling an “intentional sexual touching, with any body part or object”? I bet it is! Is it as intimate as a kiss? If you insist it’s not sexual touching, would you do it to someone who WASN’T your partner? I thought so. Welcome to Team Deviant.

But realistically there won’t be serious problems because the rule won’t/can’t be enforced unless someone complains.

This is the same reason college rules on alcohol and sex don’t cause as many problems as they could. People get hammered and screw around all the time, and as long as no one complains we just pretend that they weren’t “substantially impaired.” And if my fellow OSU alumni want to tell me that OSU students don’t spend a lot of time getting “substantially impaired” and fooling around, I’ll happily call them a liar to their face. I mean, by text, in a comment thread, on a blog. Which they’ll read with their face. So kind of the same.

Couples who are perfectly happy with one another will continue to have technically illicit sexual contact but no one will contact the authorities and it won’t matter.

Limbaugh doesn’t want to oppose such policies for reasonable reasons, although reasonable reasons for opposing them exist. He wants to oppose such policies for the reason he gives: namely, it takes the fun out of being on the lookout for cases in which ‘no’ means yes if guys aren’t allowed to act on it.

Maybe. Another possibility, or another reason for him saying what he does (there might be many) is that he’s baiting people on the left to hate on him and to side with the AC policies out of tribal reflex. Those policies look to be a disaster both PR-wise, civil rights-wise and in terms of achieving their stated goals, so the left doubling down on them would be great for Limbaugh.

If so, you almost passed that test.

I don’t really see what extra problems the law would create (or really, hire much practical difference it will make at all); if anyone thinks that the difficulty and ambiguity in he-said-she-said acquaintance rape cases is just there because the definition of consent is too inclusive they really haven’t been concentrating.

Yes that “two college seniors” example was what first triggered my bullshit detector. Assuming this came to court, you would not have two people saying “well we were very much in love and it just naturally progressed from cuddling to intercourse”. You would have a man saying ” oh she definitely consented, enthusiastically ” and a woman saying “no I didn’t, it was rape” and the jury would then have the unenviable task of deciding whether this was a story of love and cuddles or a criminal case of rape.

Seriously, to get to a case where someone we want to find innocent gets going guilty on the letter of the law, we have to postulate a plaintiff going all the way to court saying something like “oh yes it was all nice and cuddly and there was no coercion involved, but he really didn’t get all the boxes ticked and I am a stickler for proper procedure”. That’s the sort of thing you’d expect to see in the regrettable ” satiric” episodes of Judge Dress, in between his proper adventures, not something that could realistically happen even a dozen times in a century.

“…something like “oh yes it was all nice and cuddly and there was no coercion involved, but he really didn’t get all the boxes ticked and I am a stickler for proper procedure””

What about the Assange story; isn’t it based on something similar?

Actually, the problematic cases may become an issue not because one of the parties brings a complaint, but because the University becomes aware of the conduct in some other way (e.g., Bowers v. Hardwick) and then brings charges against one or both of the parties involved. It’s probably an unlikely scenario, but then again, Bowers was also the result of an unlikely scenario. I suspect the most likely triggering event would be some kind of sex tape that goes viral.

“But realistically there won’t be serious problems because the rule won’t/can’t be enforced unless someone complains.”

Which is to say, there WILL be serious problems, because the system does not require that the complaints be prompt. That is to say, you could violate the policy at one point, correctly understanding that your partner would not object, or would even welcome the ‘violation’. And some time later, they can change their mind, and hit you with the charge.

No rule that allows an act which was voluntary at the time it took place to be retroactively redefined as a violation is legitimate. You can’t have voluntary sex today, and a month from now make it have been rape because you broke up. But that’s what his being set up here. It’s as though you could be charged with trespassing for entering a house last week, when you were shacked up, because she kicked you out this week.

“But they’re both equally guilty, so who’s going to file the complaint?”

That’s a joke, right? Somehow, when two students, both drunk beyond the capacity for legal consent, have sex, the school finds a way to identify which was the rapist. Usually on the basis of which had a Y chromosome.

“Another possibility, or another reason for him saying what he does (there might be many) is that he’s baiting people on the left to hate on him and to side with the AC policies out of tribal reflex. Those policies look to be a disaster both PR-wise, civil rights-wise and in terms of achieving their stated goals, so the left doubling down on them would be great for Limbaugh.”

Bingo. This is a large part of his shtick. He’ll say something he knows will be outrageously misconstrued by the left, to demonstrate to his audience that they are clueless/humorless. Or better, he will quote something said by somebody on the left, without identifying the statement as a quote, to demonstrate their double standard when they attack him based on something they accepted from somebody else.

It’s a regular part of his routine, and the left falls into this trap pretty much every time. The audience is in on the joke, too, he’s actually explained it on occasion.

Full disclosure – I hate the chatter of Vox. I find most of Ezra Klein’s discussions to be simplistic and bombastic. I have no idea how “yes means yes” will lead to problems in the courtroom for loving couples in long-term committed relationships. But Ezra says so, so it must be so…

I have had a number of students in my classes who’ve dealt with this issue – in particular, a young man accused of rape and a young woman who had been raped (two different cases.) Sexual assault is a serious issue – and universities have handled it very poorly. It’s a problem at the high school level as well – witness the Steubenville rape case. The convicted teen rapist is now back on the football team.

I don’t know if “yes means yes” laws will take all the fun out of sex – especially for those couples in committed relationships, as Ezra Klein claims will happen. Somehow, I doubt it. But really, there needs to be a conversation with young people about consent, about alcohol consumption, about the difference between team sex (when did sex become a team sport?!) and making love.

Is Rush alone in thinking this: “How many of you guys, in your own experience with women, have learned that ‘no’ means ‘yes’ if you know how to spot it?” Somehow, I doubt it… And that thinking does need to change.

John Holbo: “But I am predicting a few cases will actually come up in which something we will want to regard as quite innocent behavior is, by the letter of the law, classified as guilty. And then there will, predictably, be outrage.”

We have cases now that come up where sexual assault is determined to be innocent behavior. Have you not seen this on your university? Why is that student dragging her mattress around the Columbia campus? The list of universities that are dealing with allegations they’ve improperly handled sexual assault issues is alarmingly broad – Amherst, Columbia are just two of them. Are there cases where men are falsely accused? Yes. Are there cases where women are truly raped and the rapist gets off? Yes. It’s an issue that needs to be addressed. IS “yes means yes” the answer? I don’t know – but what we’re doing now is not working.

How will two couples in a loving relationship find themselves in a court battling over a sexual assault issue? Please explain. I’m not seeing this scenario as anything but Kleinish overstatement.

How will two couples in a loving relationship find themselves in a court battling over a sexual assault issue? Please explain.

I don’t expect that will be a problem.

What is far more likely is a stupid media circus over one outlandish case, or maybe two are three.

Like, a rape case. A man and woman have a relationship. Then the woman breaks it off. The man is upset, he asks her to take him back, maybe she gets a restraining order because he is too insistent. Later she lets him into her home to talk, and she says he raped her. He says it was entirely consensual. She has a video which shows her being passive and not offering any particular resistance and no affirmation. She says she was too scared to resist.

So — media circus. If it wasn’t entrapment, how come she had a video? Well, but the law is clear, she did not give any obvious consent. Maybe she’d been just as passive all the other times they had consensual sex? Some people insist he did nothing wrong. Others point out that he broke the law. Around and around and around. Just like already happens, but with the new law that objectors can strenuously object to.

So they find themselves in a court.

A special court, that doesn’t mind taking on pointless no-hope cases?

Why do you think so, dsquared? In California, they both broke the law. And in other states, as I understand it, other universities have enacted explicit consent rules on campus, so they could find themselves before a disciplinary tribunal.

In California, they both broke the law

The court, however, doesn’t get access to your carefully crafted specification of the case (in particular, they certainly can’t assume that any witness has the exact specific and rather improbable degree of honesty that you have stipulated), and do it sees this as Yet Another he said/she said case with no hope of proof beyond reasonable doubt and no point in pursuing it.

#38 dsquared

“So they find themselves in a court.”

A special court, that doesn’t mind taking on pointless no-hope cases?

No matter now many times it fails to get to court, it only has to get to court once to generate just about as much media coverage as it would if it got to court 100 times a month.

Or is this is a dogwhistle about “regret sex” and women worried about their reputations when men start making and distributing revenge porn? Because that scenario (assuming in advance of all evidence that the female victim is lying to protect herself) is already depressingly common.

Is nobody else staggered by the idea of drafting terrible law because “something must be done!” becoming a liberal position now?

Because here’s the thing; videoing your sexual couplings is more likely, not less with ill thought out laws like this. Because if there’s a chance you’ll have your entire life destroyed on the basis of a malicious accusation of rape, you’ll want the evidence to be able to prove it wasn’t. Which means video evidence you can show to a third party.

Because people aren’t going to stop having sex with strangers they don’t know if they can trust.
People aren’t going to stop having sex with people they might even hate, but find damned sexy all the same.
They aren’t going to stop having sex whilst drunk on a campus; indeed that’s a large part of what the appeal of campus actually is, and Universities know this damn well.
And people, male and female, aren’t going to stop being screwed up monsters who really shouldn’t be trusted with intimacy but will be getting it anyway, so…

… it makes more sense to have a record of what actually happened, than less with this.

Oh, there will be a double standard for women of course; there’s still social stigma to them sleeping around, so proving that via video isn’t likely to be taken up by them as much as men would do it. And of course men in general like visual stimulus such as porn more than women… although cultural norms driven by technology are changing both of these rapidly; in my experience the younger generation of both sexes are much more comfortable with porn, and selfies, and sexting than mine. Whether laws like this will actually accelerate that trend is going to be an interesting question…

… except for the fact that it deliberately ignores incredibly screwed up individuals again, and is quite willing for a few “interesting” cases to be generated to make a wider point. And this is outrageous scapegoating individuals in order to push an ideology, and one I thought we as liberals were far above doing.

Let me declare an interest here; I’ve never been formally accused of rape, although when a friend of mine was raped and I drove her to the court case, because I looked “weird” and her attacker was one of the bronzed sex god Greek students, Victims Support asked if I was the accused instead, whilst about 30 girls came to support him and threw bottles of water at her outside the building. I remember just standing there shocked at the complete disconnect with the facts and people’s assumptions, and finally saying “Would I be with the victim if I were?” And the lady at the VS window said “Well, um… sometimes the victim is back with her attacker by the time the case arises, and er… the state has to prosecute instead.”

What does that have to do with this proposed law; well a few months before, another individual had dared me to try and assault her out of maliciousness. We’d been to the coast together, she’d suddenly cut all communication ties (and kept a lot of my things), so I went to speak to her to try and work out what had happened. Whilst at her flat (alone, stupid mistake but who thinks of these things until afterwards?) she’d said “Come stand by me”, so I did. “Now look in the mirror.” And I did. “Now can you honestly imagine anyone ever wanting to be with that? I’m a woman, and I’ve got my sexual needs, and you can’t fulfil them. Now… turn around”. Stunned again, I did. And she proceeded to get undressed behind me. I still remember the silken sound of her knickers sliding downwards. She took her sweet time changing into something sexier still. I didn’t turn around. Looking back I also didn’t turn around because she was between me and the door. So I stayed frozen solid. When she finally finished, she said “Now I’m off to another block to fuck an actual man. Drive me there.” And do you know, the stupid thing was, I did. Wasn’t thinking straight.

Now some of you more “feminist” posters will be itching to say “What do you want, a medal for not raping her?! Cheers for being a ‘Nice Guy’ to your friend?!” No, I’ve had years of trying to balance the sense of doing the right thing and still being made to feel like shit behind me now, thank you: My point is congratulations, you’ve no awareness of just how screwed up some women are too. They are real people too after all, not perfect little Tinkerbelles from planet Twee. All she had to have done was add to that an accusation that I had tried to grab her and I’d personally have been the “Interesting” case this shoddy law would have been used against today. What proof would I have had against it too? I got lucky. Despite the campaign of harassment she launched afterwards she never tried what would have been so easy to claim; in fact she actually started telling everyone I was a pushover and to also try and steal from me, as one mutual “friend” admitted later. She could have gone the other way though.

It’s easy to talk in the abstract about odds when you can think it’s unlikely to be you that gets the short straw. So. I find it rather hard to be sympathetic to culture warriors who think sacrificing a few individuals might be for the greater good. Because post events like that, I know that individual could very well have been me. Not hypothetically. I just got lucky it wasn’t me.

Especially when no thought at all has been given to what the practical consequences of those attempts will be. Rush Limbaugh you would expect if from; ultimately he doesn’t really care, he just likes the power and money that comes with a megaphone… but informed liberals like here?

What will actually happen is the very first test case will trigger a huge wave of panic across campuses that they HAVE to record every hook up. And of course, the current gender hypocrisy being what it is, take up will be more on the male side than it is on the female; they have every positive reason to do so (“Dude, I banged that! Check it out!”) and every negative reason too (“Your Honor, I didn’t touch that, check it out”) … and that’s not even touching upon consensual non-consent (BDSM etc) or even the simpler fact that women still feel/are made to feel guilty about showing too much desire in general; None of my actual partners have ever given any verbal clues; one was a BDSM submissive, one from a strict Muslim family and had suffered FGM, so you can imagine how easy it was to get her to state how much she wanted me to touch her where she physically wasn’t there any more…

And into all of these we should wade with bad law because we think some things are worth breaking butterflies on a wheel for? This is why increasingly most people I know who aren’t complete policy wonks or online community drama addicts are turning away from “Fourth Wave Feminism”. It does fantastically well at getting white, middle class, media friendly people published on the basis of controversial click bait nonsense, but when it comes to creating informed, just laws, or even expressing what it’s like to actually exist in the modern world as it is, it’s now more concerned with ideological purity than actual harm reduction or objective reality. Indeed it’ll even positively support the destruction of individuals if need be.

And that’s terrifying.

But not quite as terrifying as the idea that even liberals now are deliberately embracing the rationale of generalised terror as a policy positive. Sure, the law’s bad, but feel the fear…

I’m currently teaching a class on ‘love sex and friendship’; students are mainly 20-22 year olds, 7 male, 14 female. I like them! Anyway, we had a segment on consent, and after reading various philosophical pieces I assigned the Antioch policy (the mother of all affirmative consent policies) thinking (stupidly, I now realise) that it would provoke very controversial discussion. Now, they had already revealed themselves (on average) to be extremely (and I think rather admirably, though not necessarily correctly) non-judgmental about sexual practices, and open to the idea that a wide range of activities including lots of promiscuous casual sex revealed what people really want and was good for them.
But they were, mostly, completely on board with affirmative consent policies, which I have associated with a certain kind of prudishness (partly because *I* think they are pretty sensible, which tells you what I think about myself). Not only that — they had very good reasons. The two big take aways for me were these:

i) Affirmative consent policies are not saying there is anything wrong with sex that does not involve affirmative consent. They simple alert you to the fact that (because they are in place) when you proceed without affirmative consent you are taking a serious risk. Which, as they say, you are; even someone who does affirmatively consent sometimes does not really want to have sex with you, so anybody who doesn’t affirmatively consent may also not want to have sex with you. (And, as one of them said to me privately “Who wants to have sex with someone who doesn’t want to have sex with them?”.

ii) For someone like Rush, affirmative consent policies, once internalised, remove a certain kind of fun (at least, something that he presumably thinks is fun) — the fun of figuring out when ‘no’ really means ‘yes’. But, for them the policy, once internalised, introduces a different kind of fun — the fun of figuring our when to ask, how often to ask, how to ask (and finding different ways of asking), and an established presumption that when you have sex with someone you have been explicitly affirmed a number of times which, as one of them said, is a turn on.

I share Daniel’s puzzlement at the thought that these kinds of rules will introduce more problems than we already have.

On false accusations. They rarely go to court. There is a big problem though: nowadays police reports of arrests immediately go on the web, but don’t come off the web when the charges are dropped. One kid I know had an entire semester screwed up by a false accusation and his name and picture still come up on a google search (Without asking him I asked several news sites to remove their reports, and most complied, but not all. Mercifully, since that happened, someone with his name has become a minor celebrity, so it is harder to find the accusations than it was).

Core liberal beliefs that the punishment must fit the crime, that the law is a terrible instrument and will be abused, that sometimes the guilty must go free to protect the innocent, are not supposed to be thrown out because of how terrible the crime is.

I don’t see how this law helps prosecute rape cases: in cases of rape that is rape under the old laws in CA, they could still be prosecuted. I see how it makes the job of colleges easier by letting them prove less. That’s never a good thing. Why are colleges in the place of investigating serious felonies? Isn’t that what the courts are for?

“What world do you live in that is at all likely?”

I’m not terrifically concerned about what is “likely”, because the fact that I think this won’t happen 90% of the time doesn’t make the fact that the law enables this non-problematic. Abuse doesn’t have to be the norm to be abuse. This is a law which will enable that sort of abuse.

I’ll go further: I suspect this law is INTENDED to enable that sort of abuse. There’s a line of thought that procedural safeguards have no place in rape cases.

Personally I think we would be better off trying to change the culture of universities and police departments in ways that make it easier for women to speak out when they have been assaulted. Unless women believe they will be taken seriously when they lodge a complaint then the new law isn’t going to change the basic problem.

I think anon @57 has it just about correct.

Fear or its absence is the key here. Adults of sound mind are perfectly capable of expressing what they want, either verbally or not, so long as they are not fearful. (Which by the way is another reason for worrying about inequality.)

Although there may be cases of mental capacity (e.g. drunkenness) so that neither “yes” nor “no” is actually possible. But perhaps the latter cases should have been treated separately.

Ronan(rf) 11.12.14 at 3:57 pm
“I have to say I have some sympathy with Bristol R’s comment. There *is* a mode of discourse and activism that has developed (particularly on the internet) that is “more concerned with ideological purity than actual harm reduction or objective reality”, where personal experience or speculation is given equal footing to evidence backed argument. ”

In this thread such a thing is called ‘MRA’. Bristol and others have been asserting it.

while of course 9,999 out of 10,000 times nothing will happen because of this new law, in the screwy 10,000th case something unfortunate might happen

What percentage of laws already on the books—i.e. all laws—could reasonably be expected to lead to “something unfortunate” happening in “the screwy 10,000th case”? I mean, this strikes me as describing any given law, but I am not a lawyer, so I’m happy to be corrected by those more knowledgeable.

I thought Harald K’s comment @37 very clever in that if you read it carefully both parties could be of either gender. Perhaps it would help us think about these sort of things better if we built our mental examples this way more often.

“why should universities facilitate a culture of substance abuse, promiscuity and juvenile behaviour bordering on the sociopathic? I really wouldn’t want to spoil anyone’s fun in their formative years, but I do wonder why universities allow this stuff on campus and in some cases even seem to encourage it through their traditions (fraternities) PR (“party university”)”

Well one could always attend Bob Jones University orBrigham Young I guess.
http://en.wikipedia.org/wiki/Bob_Jones_University
http://en.wikipedia.org/wiki/Brigham_Young_University_Honor_Code

More seriously I don’t see anything wrong with having sex and partying while one is young and at school. There is too little pleasure in the world and I hope the young adults have a fantastic time. My interest is in making sure that they are being safe and consensual while they have fun.

When I try to imagine the implications, of a law like this, it’s hard.

One of the problems beforehand is he-said/she-said. The stories don’t match up so the court has to decide who’s lying, and the process is so awful for the rapee that she doesn’t want to go through it etc.

So with the new law, he swears she said yes every step of the way and she says she didn’t. What’s changed?

Well, but the technology is getting cheaper. What if women start putting webcams in each room? Say from 4 direction. Store it compressed and when nothing’s moving doesn’t take much space. It wouldn’t have to be connected to the net at all, to discourage voyeurs. You could still have “He raped me and trashed the disk” “No I didn’t” but that’s taking it to another level.

Maybe if that gets cheap enough, college women might find the safest place to be alone with a guy they’re just getting to know is their own rooms. If something does go to court, the court has something more than her own word to go by. And if they require explicit agreement, it’s somewhat easier for them to rule in her favor. We might get a tradition that she doesn’t have to spend much time on the stand. “The video speaks for itself.”

I’m not sure whether the culture will change enough for that technology to get used much that way. I can imagine it. It makes a kind of sense.

“What I don’t understand is why this social movement is focused on college students. ”

Because the left controls most college campuses, college campuses are the laboratories where they try out what they want to impose on the nation, to see if they’ve got a shot at getting away with it. And, of course, to condition the upcoming elite to expect it.

The idea that there isn’t a push on to exempt rape from the usual procedural safeguards that apply to other crimes is a joke. Of course there is. The presumption of innocence, the confrontation clause, they are both under attack.

Anyone who doesn’t think today’s seemingly consensual encounter cannot turn into tomorrow (or next month’s) accusation of rape has lived a blessed life free from the experience of observing or being part of messy break-ups.

Feeling hurt and regret is a very normal post break-up experience.
Feeling anger and vindictive is a very normal post break-up experience.

Having a lawyer standing by to put words in your mouth that maybe that one night, where we tried something different and “no” was never said, but “yes” was never specifically said either – or at least not as recalled, or at least not on tape….that’s where despite the rule – you’re 100% back to he-said she-said.

Whether the rule re-stacks the deck to be more even between alleged victim and alleged perpetrator -remains to be seen. As JH suggests, there will be a more than ample sample size to test the rules because lawyers now have an entirely new vector on which to extract both criminal and civil penalty (i.e. using threat of a criminal allegation to extract civil compensation).

The reversion to he-said/she-said in the absence of a mini-panopticon isn’t really complete: the testimony that “s/he said yes” is automatically suspect because who the hell does that in the first place?

Thanks, Harry, I didn’t know the policy didn’t have legal force. But imagine that’s still the aim of many campaigners? Also seems a little odd to me not to read university regulations as implying there is anything wrong with the behaviour they prohibit.

Yeah, I don’t know what the aims of campaigners are specifically with respect to changing the law on sexual assault. The focus here has been, as someone said, very much on college campuses.

I was mainly reporting (but tentatively endorsing) what my students were saying. The idea was that this is some sort of strict liability rule; and as long as you know the rule, you know not to violate it, or that if you do violate it you are taking the risk that you are doing something wrong. The view that was expressed was “Of course, in most cases of sex in which there is no verbalized consent nothing wrong is being done; but sometimes something very wrong is being done; and the cost in terms of pleasure/fulfillment of having to check in verbally, regularly, as things proceed is utterly trivial at most; and checking in regularly has various beneficial erotic side-effects”. Note, there was no gender-based split about this in the class (which is only 20 students of course, but its not like they are all polite Midwesterners, we do have some coasties); and the experience of the class has been that people say what they think and are happy to disagree with me and one another.

So they want to interpret the code as saying “Look, here’s the way we recommend doing sex, and if you don’t do it that way normally there is no wrong and no risk, but if you don’t do it that way and someone complains, you’re liable; and the way we are recommending is, in fact, pretty good”. I wish, actually, that I had grown up in an environment in which we were encouraged by grown ups to verbalize about these things.

They are all very clearly aware of the risks and costs of sexual assault in a way that Limbaugh doesn’t seem to be.

“Anyone who doesn’t think today’s seemingly consensual encounter cannot turn into tomorrow (or next month’s) accusation of rape has lived a blessed life free from the experience of observing or being part of messy break-ups.

Feeling hurt and regret is a very normal post break-up experience.
Feeling anger and vindictive is a very normal post break-up experience.”

The justice system is based around this fear of false rape accusations: the accused is very well protected. So well protected that the vast majority of rapes are never reported.

But to go along with you for a minute, if false rape accusations are so common because of how bitter people are after breaking up, does it follow that beating and rape are also common? You know, because of how bitter people are after breaking up?

This is just fear-mongering. Most men and women who are bitter about their exes do nothing to harm them. They’re just sad, angry, bitter until they get over it.

How on earth would this supposed prevalence of false rape accusations fit with the statistics I cited above about how very few rapes get reported, and how very few of those get prosecuted?

For the record- in protest against how unbelievably insane this is, I just went into the next room and kissed my sleeping wife on the lips. She partially awoke and murmured in response, I said “I love you,” she said “I love you too,” and we kissed again.

Kissing is sexual contact per OSU interpretation of their rules. My wife was unaware of the sexual contact until it was in progress because she was asleep. She was therefore incapable of affirmative consent.

I am now an offender of the most vile sort, deserving of being ejected from my alma mater, safe only because my wife hasn’t recognized my perfidy and turned me in to the authorities. I am an outlaw, living on the edge. Civil disobedience has never been so sweet.

Maybe later I’ll do something really crazy like walk up behind her and nibble her ear while she is typing.

Trader Joe, what I was getting at was the extreme reluctance of rape victims even to report the crime, much less to press charges. It seems the justice system, in practice, would rather let 995 or so guilty men go free rather than imprison one innocent. Or, more accurately, would rather disbelieve 997 women than four men. For heaven’s sake, only 6 out of 1000 reported assaults go to trial! Three are convicted! Overwhelmingly, women shy from reporting this crime and when they do report it, they rarely get a conviction, and when they do get a conviction it is at great personal cost because the justice system will put them through hell.

Ianal but believe strict liability only obtains for less serious offences (speeding, etc)whereas understand consequences of flouting this to be serious. I don’t think costs of complying are trivial, for many consenting couples it requires living their intimate lives according to someone else’s script. Could compare this to a rule mandating condom use, which I assume most people would view as illiberal even though it would prevent much harm.

See also

I think a lot of people are totally missing the point here. It is not about legal outcomes, it is about how this new definition of consent maps on to one’s own sexual behavior.

The problem with ‘affirmative consent’, in the minds of many, is not that there is an expectation of a rush of cases where innocents are carted off to jail. There will likely be only a handful of ‘problem’ cases where this law muddies the waters – and these will be of the sort noted above (reinterpretation of memory and personal feuds) which are the main categories of ‘false accusation’ cases we have already under current rules anyways. As was the situation prior to this change, these tough cases will be tough because there is little solid evidence, not because of the change in brightline. The worry is not with the legal outcomes, at least not among reasonable people who understand that judges themselves can be reasonable.

The problem, or hang-up, for many comes with the discourse around affirmative consent which casts it not just as a change in school policies, but as an active attempt at redefining what consent means. According to this model: Consent is active, verbal, affirmation – and it requires that this affirmation be repeated at each stage of the encounter. Therefore, not having this affirmation at each stage represents a violation of consent, full stop. The proponents of this law/policy are fairly explicit about their desire to make this the new model for consent generally.

Now, because many do not proceed with their sexual encounters in this fashion, for various reasons, many bristle at this notion of affirmative consent because of the implication contained therein that they may have recently, and even serially, committed sexual assault. You would expect some pushback when you call someone a rapist; what we have here is pushback against a new standard that implies that many people are sexual predators. Most people reacting negatively are not worried that they will be taken to court. But when they apply this standard to the only sexual experiences they really understand – their own – and find that this standard confuses rather than clarifies that experience, they have a hard time understanding how this standard will not confuse things when applied generally.

And this is part of Rush’s problem with it as well. Yes, he is more likely to also be worried about the ‘men’s rights’ aspect of things, given who he is. But even with Rush the primary driver of his hostility is that this definition of consent is radically at odds with the understanding of consent he was taught/raised on. Watch an old James Bond movie – complete with wrist grabbing and verbal badgering – with this understanding of consent in mind and you have just watched the model of male sexuality for nearly an entire generation of American men commit a series of rapes and sexual assaults. This produces a lot of cognitive dissonance, and hostile reactions are to be expected.

None of this touches upon the desirability of these new standards, which, in my opinion, is impossible to discern before the evidence starts to roll in.

Also I would like to note that many of the problems that advocates of ‘Yes means Yes’ are claiming this will address are in actuality only tangentially related to the brightline standard used. Instead, many of these issues – like the hesitance to bring a potential incident to the attention of relevant authorities, or the patterns of suppressing well-vocalized complaints – are rooted in the inadequate preparations taken by colleges and universities to combat these problems.

Many colleges have incentives to downplay the amount of sexual assault reported on campus, which has a trickle down effect on victims who want to come forward but need a bit of encouragement. There are reasons intrinsic to our current model for the American university that cause the institutional environment to be hostile to victims of sexual violence. I can think of a few: concerns over brand and reputation; the fact that disciplinary boards have woefully underdeveloped standards of evidence and trial; and the potential for students expelled on charges of sexual assault by the college to sue that college for lost earning potential, in cases where the college found guilt but the criminal courts did/would not (sounds outlandish, but I know of cases 2nd hand).

In so far as this law signals that colleges are taking this sort of thing more seriously, it is probably a good thing.

which I think we are all in agreement does not meet this new standard’s criteria.

No, I don’t think we are in agreement on that. Think of it this way: the men
you’re envisioning resisting affirmative consent laws because of the implication that the sex they have had in the past would count as assault under that standard — how do you imagine them responding to the question “What do you think is the possibility that you’ve ever had sex with a partner who did not internally consent to that sex, leaving aside the question of whether or how they communicated that state of mind to you?” For those men who aren’t intentionally rapists, I feel safe saying that the vast majority of them would find that possibility both horrifying and very unlikely — that they were really very certain on every occasion on which they had sex that the other person was consenting. And we’re not talking about psychics, they got to that certainty through a combination of verbal and non-verbal communication that they considered clear enough, in the context of everything they knew about the situation, to act on.

If clear communication that was at least partially non-verbal were so difficult, people would be accidentally raping each other constantly, and this does not, ordinarily, happen. The combination of verbal and non-verbal communication people generally use now works pretty well, precisely because it is not terribly hard, when engaged in sexual activity, to figure out if your partner wants to continue with what the two of you are doing.

“What do you think is the possibility that you’ve ever had sex with a partner who did not internally consent to that sex, leaving aside the question of whether or how they communicated that state of mind to you?”

As I understand it, this way of framing the issue is directly antithetical to the new standard under discussion.

Lizardbreath- If this were all that was at issue, we wouldn’t even be having this discussion. Recklessness as to consent is already a valid mens rea for rape. In some states, even just negligence is.

Recklessness as to consent is already a valid mens rea for rape. In some states, even just negligence is.

What on earth are you talking about? I can’t say I’m certain of the details of sexual assault law in all fifty states — I don’t do criminal law in the one state in which I’m admitted to the bar — but this is not my understanding of the facts. Can you narrow down what states you’re talking about?

LizardBreath – you keep coming back to notions of what is ordinarily understood as consent, whereas my point is that this standard actively upends those ordinary understandings. This is why I am having trouble seeing how your points are responsive to what I am saying above.

I am trying to get across to you that you are describing ordinary understandings of consent poorly, which is why you think this is such a significant change. (1) In ordinary sexual encounters, both parties are convinced that the other party wants to be participating. Depending on the precise nature of the relevant law, a sexual encounter where one party was going forward without being so convinced might or might not be criminal, but it would certainly be a very strange thing to do. (2) In an ordinary sexual encounter, each person arrives at their conviction that the other person wants to participate because the other person communicates that fact through their words and actions. (3) Communicating that one wishes to participate in sexual activity through words and/or actions is affirmative consent to that activity. That’s a description of ordinary, everyday sex as engaged in by people who aren’t worrying about legal standards, and it meets the affirmative consent standard easily.

The difference between an affirmative consent standard and a standard that required non-consent to be clearly communicated only comes into play in situations that are already, whether or not they are going to be regarded as criminal, clearly at least somewhat unusual and disturbing — where one person is going ahead with sex despite not having any clear indication from their partner that they’re willing. If that’s not what’s going on, an affirmative consent standard isn’t going to criminalize what you’re doing.

LizardBreath, I believe that we are very much talking past each other at this point. I am not saying that people should be worried that their past practices will be criminalized, I am explicating why, at first blush, this new standard lead to many, such as Ezra Klein referenced above, having a mixed reaction to this change.

If you’re not claiming that people are reasonably concerned that their past practices would have been viewed as criminal under this standard, then you’re right, you are talking past me.

I have clearly stated that I am not talking about the legal realm

Yes, but in other comments you talk about the legal realm, so given that I don’t get what you’re talking about, actually spelling it out would be nice. What standard is upended when John and Jane consort?

There seems to be a semi consensus here (perhaps semi consensus isnt right, but some who support the position above are arguing ..) that this change won’t be particularly effective , even if it’s correct and justifiable.
So what set of laws/procedures would people implement to tackle the problem (realistic changes, though not neccesarily completly politically feasible at this moment)? Would people emphasise trying to ‘change the culture’ or primarily on trying to prosecute offenders ?How could you make the system more amenable to victims without trampling over expectations of due process etc ?

Also, from js’ link at 90 above: (the Katha Pollit article)

“The reason 90 percent of campus rapes are committed by repeat offenders, and why members of fraternities are three times as likely to be perpetrators, is not that frat boys are particularly liable to misunderstand women. It’s that they feel more entitled to sex and more protected from punishment. Moving to an affirmative consent standard won’t stop these exploitative men; instead of arguing that the victim didn’t say no, they’ll claim she said yes, she moaned with pleasure, she moved against them in a sexual way… It will still be “he said, she said.”

This would lead me to think that the problem is quite specific to a select, relatively small group of men, and so prosecution (rather than culture change) might be the more effective way of tackling it?

@112 – I have no interest in picking a fight over this, and I think that my comments throughout the thread are plenty clear, especially with statements such as “It is not about legal outcomes” and “The worry is not with the legal outcomes”.

The comment where I did talk about the law was wholly tangential to the conversation about standards of consent. In this comment, I noted that a lot of the problems we see regarding sexual assault on campus are driven by the pressures and limitations inherent in the University being the principle agent task with resolving these disputes. The problem is that the University has other considerations such as reputation and legal culpability which cloud its judgement and cause things like the recent revelation that Yale was suppressing student concerns over sexual assault and not dealing with offenders in order to maintain its image.

Again, this comment was wholly tangential to the discussion on standards of consent, and if anything represents my belief that sexual assault on campus should be handled by an independent agency not subject to the same incentives as the University, but not entirely subsumed within the traditional justice system either.

At this point it sounds like you are engaged in willful mis-readings of what I have been saying, and I have no interest in continuing this conversation further.

Okay gianni, but given that I can’t understand what problem you have with the standard, how should I understand that you’re going off on a tangent?

@118 – maybe when I stop talking about that standard and start talking about something else? Maybe you can’t figure what problem I have with this because I really don’t have a problem with it, and your desire to see such is a product of your inclination to locate a monster to subsequently do battle with?

Active consent would make necrophilia a lot harder.

I’m not actually trying to attack you gianni, I’m just trying to figure out what it is you’re saying. I’m happy to acknowledge that I can be cranky and stupid, but in this case I’m just baffled.

Abolish age of consent laws: let courts and juries determine what degree of coercion is involved, based on evidence. I live in CA, where 18 is the age of consent and all sexual contact between consenting teenagers is illegal. At a minimum reduce it to 16, like it is in England. Is the law in CA really protecting teenagers, by subjecting them to legal sanction?

I’m not worried that there isn’t a bright line test. I am worried that behavior that is common and morally unobjectionable is being subject to sanction, that institutions are being roped into being enforcers for the state via the use of civil rights laws. All of this for a problem that can be addressed by enforcing laws on the books against a small minority of hardened criminals and repeat offenders.

I’m just trying to come up with a sympathetic group of people who might be hurt by the new standard.

Men who think women who don’t resist sexual advances are sluts and who take anything less than a slap as “consent”?

#126 John Holbo

There isn’t really a perfect legal fix for these sorts of problems. Affirmative consent has, potentially, similar issues. But, since I don’t think statutory rape laws are a bad thing, it doesn’t follow that affirmative consent laws are a bad thing.

I don’t see that it does much good or much harm in the courtroom. Possibly it might do some harm depending on how it gets intepreted in practice. I doubt there’s a way to interpret it that will do much good.

My concern is more for the politics. I think the media would make it look like a bad liberal law. It’s likely to cause uproar beyond any possible benefit.

But maybe I’m wrong and it will do a lot of good. And maybe I’m wrong and it won’t cause a big uproar. I’d be happy to be double wrong.

Basing the question if a law is ok on if some group that might be hurt by it is smypathetic, gold standard. People dont have to be nice to deserve protection. And dont pretend theres a culture war between the womens liberation movement and conservatives against such regulations. Rather a weird alliance between (parts) of those two linked through puritanism encourages large scale bureaucratic regulation.
I dont know enough about this specific law, but there definitly are some horrible ones that just end up putting lower socio economic class males into jail for things that are completly innocent by my (and most other non US westerners) ethnical standards.
In the back and force about possible negative impacts of this specific one, no one has come up with a convincing argument about any positive effects.

That is would impede “men who think women who don’t resist sexual advances are sluts and who take anything less than a slap as ‘consent'” strikes me as a positive effect.

I think Harry B and LizardBreath have the right of this.

It’s not really about the standard to be used in an adjudication. It’s about expectations, a commonly agreed standard of conduct. “No means no” is a nice, clear line, but it’s utterly inadequate when one partner is at a disadvantage. The reality is that courts have historically sanctioned rape on the basis of the victim’s behavior. “Yes means yes” invalidates any form of that argument.

The California regulation doesn’t change the criminal code nor does it affect due process. The message it sends is that sex is something both parties are supposed to enjoy.

My concern about the affirmative consent law is that it may provide protection for serious assault. If, as I suspect, the law is roundly ignored and that most encounters will result in both parties being guilty of assault, then it makes it gives a weapon to those guilty of naked coercion.

“Press charges and you’ll go to jail too.”

On the other hand, while experimenting with people’s lives is bad, we *know* the current system has terrible problems. If we want to change things for the better, this sort of experiment is the only method we have to see what works.

Isn’t this rather limited experiment the best chance we have of seeing if I’m wrong and this actually does change people’s behaviour for the better?

Seriously?

To be honest, most of the times my eventual sexual partners suggested coitus I went into shock, so I’m certainly an outlier in this respect, but it’s my understanding that the usual expectation is mutual pleasure. That’s not to say I didn’t re-enact parts of “Last Tango in Paris”, but in doing so I had to pay attention to the other person, because otherwise it doesn’t work.

I’ve got an eye exam in the morning. An old joke: “I’m never going out with an optometrist again. All night it was ‘better this way, or that way?'”

” The reality is that courts have historically sanctioned rape on the basis of the victim’s behavior. ”

The reality is that, sometimes they’ve done that, but that most of the time they had to base a decision of whether it was rape on SOMETHING, and the supposed victim’s behavior is evidence of whether there was consent.

I have to say that for some hypothetical alien species, this might be a reasonable rule, but it seems a poor fit to the mating practices of the species we happen to be. At least in my experience. But it does seem very well designed if it’s intended to modify the definition of ‘rape’ to make feminist exaggerations seem like they are true by sweeping in most consensual sex.

Harry B @ 61

I don’t know the status of the SOPP, but Antioch College is back from the dead. I was a student there when the policy was introduced. It was a PR nightmare, but it mostly worked. A lot of the things people worry about with these policies just didn’t happen. Like the drunk/high clause; at least half the sex people had at Antioch was while intoxicated, but somehow, that whole “buyer’s remorse” false accusation thing didn’t happen.

John Holbo” “That is, Muse mistakes a prudential concern to avoid worst-case scenarios for an irrational belief that most cases are worst-case scenarios.”

John Holbo’s original post: “I confess: I worry affirmative consent standards will generate serious problems, even while I acknowledge the real problems they are meant to address.”

You are talking out of both sides of your mouth. I am not the one claiming irrational beliefs about the worst-case scenarios brought about by this law.

I don’t know what it’s like where you live, but we see a lot of worst-case scenarios now – young women who are raped and vilified for bringing action against the rapist. Have you read about the Steubenville case? Here’s an update – a convicted rapist is back on the HS football team… http://nydn.us/1pV26S5

Have you read about the college president who thinks women claim rape when sex isn’t as they’d planned? http://bit.ly/1v6nLJ4

Have you heard about the Vanderbilt rape case? http://usat.ly/1qFqJNv

Go back and read Ezra – he’s clearly not talking about couples who move from “love to not-love” – in his words: “two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.” HOW? Who knows. But Ezra said so, so it must be true.

Rape is a terrible, violent crime. I’m not saying “yes means yes” is a great law. I’m questioning the theory that “yes means yes” will bring us loving couples heading to court to deal with rape charges. That’s a stupid way to argue against a poorly designed law. But what’s on the books now isn’t working. And both men and women pay the price.

“Rape is a terrible, violent crime.”

Yes, it is, and we do not solve this terrible violent crime by widening the defintion to include things which aren’t terrible or violent. And that is essentially the concern here, that the definition of rape being proposed is wildly over-inclusive.

Are happily married couples suddenly going to drag each other into court after a night of nookie? No, of course not. But we could see a fair number of cases where, post-breakup, couples end up in court over consentual pre-breakup acts which technically amount to rape, conveniently enough for somebody looking for payback.

Ze Kraggish, people have sex for all sorts of reasons. Sometimes its for pleasure. Sometimes its to make their partner happy. Sometimes its to express feelings of love. Sometimes it’s from duty: their partner wants sex more than they do, or their partner is in town for the only time in months, so if they pass they won’t get to see them for a long time. Not all reasons to want something are reasons of enjoyment.

Lizardbreath, I don’t think we agree about the meaning of the policy. I think that affirmative consent will mean that the person being accused will have to point to specific, unambiguous behavior indicating consent. Many of the proponents have argued consent to making out or cuddling isn’t consent to sex. True, except that in relationships that may change, and the mandated policy takes no account of this fact, in fact specifically bans it from consideration. I wish it meant what you think it means, but I don’t think it does.

Jim Fett, I assure you teenagers have sex in California despite the law. That doesn’t mean that they aren’t harmed by their actions being illegal. Likewise, sodomy laws, even if unenforced, are a harm to those who want to practice sodomy. Massachusetts assault laws, and English assault laws, also reduce the ability of the individual to engage in certain sex acts. There still is a “scene” in MA and England, but it has to be structured differently from IL because of the illegality of the activities involved, even if prosecution is a virtual impossibility.

bad Jim: Read the California definition of rape and sexual assault and notice that they include the case of incapacitation by alcohol. Steubenville was rape under the existing standard; yes means yes is irrelevent.

“Ze Kraggish, people have sex for all sorts of reasons. … Not all reasons to want something are reasons of enjoyment.”

My point exactly, tell it to bad Jim. Sometimes we are enthusiastic about it, and sometimes reluctant. We might be disgusted and yet consent, for various reasons. We are social animals.

But affirmative consent must be “explicit” and must cover each individual activity. There is no plausible argument that Man had “explicit” consent to touching inside clothes beneath the waist.

Are you, and the other people seeing problems here, assuming that such a policy will be applied by people requiring not only explicit, but absolutely and perfectly unambiguous communication at all times during sex? Because there’s no such thing as absolutely and perfectly unambiguous communication, explicit or implicit, verbal or non, and anyone applying rules like this knows it. What you describe is a momentary misunderstanding, and sure, anyone punishing that as a sexual assault would be behaving badly, but I don’t see anything in the word ‘explicit’ that requires that quickly corrected errors about what had been consented to must be considered assault.

If your reading of ‘affirmative’ or ‘explicit’ is ‘absolutely unambiguous’, then sure, I could see a problem here. But I don’t think it’s a necessary or a plausible reading, given that it would make giving even verbal consent to any sexual activity incredibly difficult.

#156

If your reading of ‘affirmative’ or ‘explicit’ is ‘absolutely unambiguous’, then sure, I could see a problem here. But I don’t think it’s a necessary or a plausible reading, given that it would make giving even verbal consent to any sexual activity incredibly difficult.

I knew a woman who said yes every 3 seconds with various intensities and shadings of meaning. Kind of like a game of Warmer/Colder. In theory I should not have found it annoying, but I did.

John H is correct, there will be some horrible misuses of this law, but that does not make it a bad law.

What horrible misuses? In any crime where the event occurs in private, in ambiguous circumstances, and ultimately relies on a judge and jury believing the testimony of one party more than another, there is a tendency for the case to go to the side with the most social status. In most date-rape scenarios that get prosecuted, the biggest social difference is gender, so we see the current situation where decades of sexism and rape apology lead to a huge skew toward men who ignore their partners refusal of consent getting away with it. So the risk that a man who was in a perfectly consensual relationship that turns sour will be successfully prosecuted by a vindictive ex partner is low.

The horrible case will arrive when other differences in social status come to dominate. So when the wealthy white society girl gets mad because her African-American boyfriend was cheating on her, and charges him with violating affirmative consent. And because she has the lawyers and the connections and the money to push this, and he doesn’t, and the whole racist black-man-as-marauding-sexual-predators thing comes out of the woodwork, etc. It will become a horrible situation for all sides. But as alluded to above, that happens now, and this one law will not change it.

The most important impact of the law is that it will give a lot of men pause to be a little more careful with crossing boundaries (it really doesn’t have to ruin the mood much to say “is this OK?” as you go), and it will give women a little more support to believe that they were not at fault when they end up with the guys that don’t learn from it. And they will have more confidence to bring forth charges, and in a few cases these will end in successful prosecution. Because it will make a few cases easier to prosecute, it will give more victims the sense that it is worth reporting the crime.

No, this will not solve the problems of the difficulty of he-said-she-said prosecution, and there will be some abuses, but for the most part it will help push the needle back in balance, when it is now skewed so wildly to the side of perpetrators and against victims of sexual assault.

More seriously, I would like to see answers to Patrick’s #84 and #153. I’m envisioning enterprising lawyers coming up with a legal pack for couples that wish to opt out, kind of a pre-nuptial agreement for making out. Also, will there be cases where one party alleges making out lacked affirmative consent and the other party counters with the same claim and both end up going to jail?

Okay, but how does it effect the bit I quoted from RAINN above:

“In the last few years, there has been an unfortunate trend towards blaming “rape culture” for the extensive problem of sexual violence on campuses. While it is helpful to point out the systemic barriers to addressing the problem, it is important to not lose sight of a simple fact: Rape is caused not by cultural factors but by the conscious decisions, of a small percentage of the community, to commit a violent crime.” (cont above)

Yes, it might be (I think is) a good idea to shift the emphasis in sex that might be messy and ambigous, and generally culturally, to one of affirmed consent, but if the majority of cases are:

“Research supports the view that to focus solely on certain social groups or “types” of
students in the effort to end campus sexual violence is a mistake. Dr. David Lisak estimates that three percent of college men are responsible for more than 90% of rapes.iii Other studies suggest that between 3-7% of college men have committed an act of sexual violence or would consider doing so. It is this relatively small percentage of the population, which which has proven itself immune to years of prevention messages, that we must address in other ways.”

Then we are talking about a small, though significant, set of sexual predators, who are more than likely going to be indifferent to this new norm.

It might also be worth noting that as Katha Pollitt–in a piece I linked to above (find it)—notes, affirmative consent laws are already on the books in several places. The result: they haven’t helped that much, but also crucially for this discussion, as one of Pollitt’s correspondents points out, “the sky has not fallen.” All these fantastical horror cases people are imagining here: not happening. Which only goes to support LizardBreath’s contention that this isn’t some sort of super radical change: it just shifts the onus in an entirely desirable way.

The justification for the law is that it puts the onus where it should be. And as far as this thread goes, I’ve mostly been countering feverish fantasies of innocent dudes about to be thrown in jail.

I’m not asking about a legal standard. You wrote One final twist on this: a lot of sexual assault – sexually predatory behavior – proceeds under cover of forms of behavior that can, indeed, be innocent.

I took this to mean you thought there were specific forms of behavior, which might be innocent, under which sexual predatory behavior proceeds. I am asking what forms of behavior those are. I understand you may not be able to describe a legal standard that would capture them, but can you at least give me an example of an such innocent form. Or are you saying, “There are forms of innocent behavior under which sexual predaory behavior proceeds, but I don’t know what they are.”

And it seems it is quite a challenge to shiftsocial norms away from the sorts of (often innocent) behavior that is, often, cover for sexual assault if you don’t know what sorts of behavior that is.

The cases I have in mind are those in which consent is implicit rather than explicit.

That doesn’t seem to make any sense. If the “forms of behavior” you are talking is “behavior in which consent is implicit,” then your statement becomes a lot of sexual assault proceeds under cover of implicit consent. If there’s implicit consent, there is no sexual assault. It may be that affirmative consent makes it harder for rapists to lie about whether an act was consensual, but I don’t think your point is to shift social norms about whether lying about consent is acceptable.

Implicit consent isn’t a behavior, and your point was the danger of certain behaviors. That there are innocent forms of behavior that often provide cover for sexual assault seems to me to be a very strong claim to make, and I don’t know how one could make it without having some idea of what those forms of behavior are.

To make the argument in the least sexy way possible, which is to say to describe it in engineering terms: we need to recognize that there is a certain amount of pro-male hysteresis in the way things are, which can only be corrected by aiming for a state which is a little more extreme than the result we intend. In this case, it would mean mandating an explicit request for every action.

That isn’t the case with “Yes means yes”, which is the desired state. Isn’t it? Perhaps the norm for long married couples is more like “Beige. I’ll paint the ceiling beige” than “I understand why you don’t think we’re suitable for your church. We can’t go back to the Safeway, either”, and a Quiverfull refugee described coupling as rabbit sex, “This won’t take long, did it?” but both partners ought to enjoy the exercise.

The girl’s dress was too short, so of course they guy couldn’t control himself.

She went to his room, so anything that happened after that was her fault.

She didn’t offer violent resistance, so how was he to know she didn’t want it?

There has to be a standard, and the point is actually to make it so clear that even kids taking their first sex education class can understand it. Sex isn’t bad, dirty, disgusting, or degrading, it’s something two people can enjoy together, carefully and affectionately.

If implicit consent is permissible, then sexual predators enjoy plausible deniability for bad behavior. The existence of this category of permissions gives them cover to do stuff that isn’t supposed to be permitted, under this standard, namely, non-consensual stuff. They just say they took non-consensual stuff (or stuff they weren’t sure was consensual) to be implicit consent. By insisting on explicit consent, you shut down a grey area in which sexual predators benefit from reasonable doubts about what is implicit and what isn’t. The trouble is that some stuff in this grey area is, in fact, innocent.

Isn’t the same thing true about consent generally? If rapists are lying about consent, it seems like the explicit consent standard only changes which particular lies they tell.

Can you say whether Patrick’s scenario at 153 is an example of the implicit consent at issue here?

John Holbo at 176 wrote: “Nor am I. But the logic of the law has to be that there are such cases. ”

I’m pretty sure that the intended cases are ones like these:

1. M and W are making out. M attempts to escalate from making out to sex. W says no or pushes him away. M stops, but they continue to make out. A few moments later M attempts to escalate again. W decides that it is easier to have sex with him than deal with the relationship consequences of refusing, so she ceases objecting and participates in sex.

2. M and W are making out. M attempts to escalate from making out to sex. W doesn’t want to have sex with him, but would rather have sex than deal with the relationship consequences of refusing. So she doesn’t object and participates in sex. (This is scenario 1 but with no prior “no.”).

3. M and W are making out. M attempts to escalate from making out to sex. W says no or pushes him away. M stops, and they continue to make out again. But a few moments later M attempts to escalate again. W resists again. Perhaps this repeats. Eventually M’s repeated efforts make W afraid for her safety should she continue to refuse, and she ceases objecting and participates in sex.

4. M and W are making out. M attempts to escalate from making out to sex. W has an internal freak-out, wants M to stop, but freezes up and does not express her opinion in either word or action. M proceeds since he wasn’t asked not to.

Scenario 1 is probably not rape under standard law as no coercion is present, and both parties agreed to the sex. Under affirmative consent this is rape per the OSU commentary, which states that once someone says no, they are literally incapable of consenting no matter what they say later. Further, the participation was unenthusiastic.

Scenario 2 is an example of someone giving what would normally be considered consent, but under affirmative consent rules might be deemed rape if the consent given was not sufficiently enthusiastic, etc. See OSU commentary, see also numerous articles by affirmative consent proponents (AmpToons, etc).

Scenario 3 is rape under standard rape law in many (most?) jurisdictions. It’s definitely rape if M intended W to become afraid, and it’s probably rape if he didn’t at first but continued after figuring out what was going on, or even if he never figured it out but should have known his behavior would have that effect. Affirmative consent laws change this from almost certainly rape to definitely rape.

Scenario 4 is an old law school hypothetical based on an actual case that I have not heard affirmative consent advocates use. But I’m citing it because 1) it is very similar to the issues at hand, and 2) those who argued that this was rape a decade ago when I was in law school seem to be the same people supporting affirmative consent standards today. It is an example of “lack of resistance” versus affirmative consent.

Those are the sorts of cases that are probably intended to become illicit.

Realistically, a great many more cases are made illicit by these rules. Which is probably intentional. As proponents are wont to mention, this isn’t an actual law- it’s a university code of conduct. It’s overbreadth makes a lot more sense when you consider that it is more of a general statement of intent and Official Notice that exists to prevent expelled students from suing. See employee codes of conduct, convention codes of conduct, etc. Standard practice in these contexts is to cast a really wide net, then enforce based on a case by case basis.

Let’s say I’m having sex with someone. At some point, they say “No.” I take this to mean, “No – please don’t stop!” and redouble my efforts!

Well, how was I supposed to know they meant “no, stop” and not “no, don’t stop”—they didn’t make explicit what they meant by “No”! Think about all the innocent people about to be thrown in jail because of the ambiguities of “No”!

Patrick @ 195

I’m not sure why you’re not seeing my example as immediately relevant, since non-dating situations, as I understand it, make up a pretty large segment of campus rapes. Together with first-date situations where there’s no existing sexual relationship, but a desire not to harm the “relationship” in the sense of group social ties, that seems to be a pretty good chunk of what’s being discussed. To expand on what you call “my hypothetical”: suppose M enters W’s room to return a notebook to W’s roommate and things progress from groping to chasing across the room. At what point does it become the case that W is resisting an attempted rape? When she screams? When he pins her down? When he gets up and follows her across the room?

I do understand some of the discomfort. Consider, say, two high school students: M is 16 and W is 14. Maybe there’s been some previous flirtation. M throws W down, they wrestle, resist, giggle, make out for a while, and then get up. Maybe a different time there’s the situation LizardBreath described above, but he stops, no big deal. The following year they’re dating. There’s discomfort with calling that rape, I understand. But say, instead, they’re in a college dorm, M is 21 and W is 18, maybe there wasn’t much flirting, but a general sense that sex was possible (whatever that means), and after a minute of making out, M escalates. W isn’t sure whether this is wrestling, like in high school, or coercion, and doesn’t know whether M intends to agree to stop whenever she refuses to go on. The resistance that worked in high school doesn’t work with him. By the time she extricates herself physically, but still in the room, she’s partially undressed. She doesn’t know many of the people who might come if she called out. This situation makes me more uncomfortable.

#193 Patrick

1. M and W are making out. M attempts to escalate from making out to sex. W says no or pushes him away. M stops, but they continue to make out. A few moments later M attempts to escalate again. W decides that it is easier to have sex with him than deal with the relationship consequences of refusing, so she ceases objecting and participates in sex.

I like your four examples. They are clear and explicit and give a good sense of the sort of thing we should be talking about.

In each of them, suppose that W comes out and says “I like what we’re doing now and I’d like to continue, but I don’t feel comfortable going farther than this now, today. If I change my mind I’ll tell you.” And smiles.

Then M has a choice. He can sulk and say if that’s all she’ll do then he’ll go away and call somebody else.

Or he can keep pushing her limits which tells her that he doesn’t intend to respect them, and she needs to get out of the situation one way or another. (“Excuse me I need to go pee” is likely to work particularly if the restroom is down the hall. Even if not there’s a good chance he won’t be waiting outside the door, and she’ll have a better chance at the exterior door. Go find some friends and come back with them.)

Or he can do as she wants, and if he gets bored then try to think of an interesting topic of conversation or something. Or maybe just enjoy the moment.

If that’s acceptable, why not — particularly the first time making out — establish before it’s gone *anywhere* that she has the right to set limits and that she may (or may not) extend them some later? Say she starts out with just holding hands. And after he accepts that, then she says she’s ready to go farther, and he can find out just how much farther by when she wants to stop next. If that’s the game she wants to play and he refuses, then they have an incompatibility problem. Better to find out sooner than later.

I don’t want to say it’s women’s responsibility to find ways to fix the problem, but could this approach perhaps help for women who use it?

Make it clear by example, by precedent, that she has the right to say no and the right to say “stop here, no farther until I say so”. Make it clear that “Stop here” does not mean “I don’t like you” or “Go away and never come back” or “I’m never going to go farther”.

If he accepts that at the beginning, then there probably won’t be relationship consequences when she doesn’t get bullied into sex-right-now. And if he’s the sort of guy that there will be those relationship consequences with, she can cut her losses early.

This entire discussion strikes me as bizarrely backwards, some kind of weird funhouse reflection. Look, if affirmative consent laws were basically bad laws—“Terrible!!!” as Ezra Klein would have it—that may have some indirect positive social effects, there would be every reason in the world to oppose them. Defending a law on such grounds is actually risible.

Except that the reason to support these laws (unless you’re Brett Bellmore) is that they’re in principle good laws—tho ones that may or may not have positive practical effects, at least in the short term. And they’re in principle better because they manifest a better conception of what consent involves than, e.g., the current standard, according to which lying silently and biting your lip the whole time counts as consent. To put the same point another way: the affirmative consent standard puts the onus in the right place—on the person initiating/escalating to ensure that their partner is (or partners are, say) into whatever it is they’re initiating. Rather than the putting the onus on the other party to resist.

As for all the arguments about the confusion—the confusion!!! I tell you—I have yet to see a single compelling argument that the affirmative consent standard is in this regard any worse than the current “‘No’ means no” standard. Any argument, that is, that goes beyond tortured and obtuse reflections on the meanings of “explicit” and “implicit”. (I suppose I should note that I happen to think it is not generally difficult to tell whether or not one’s sexual partner is positively into whatever is going on, and in those inevitable instances where this is not quite clear, it is not difficult to ask.)

js- you wrote, “(I suppose I should note that I happen to think it is not generally difficult to tell whether or not one’s sexual partner is positively into whatever is going on, and in those inevitable instances where this is not quite clear, it is not difficult to ask.)”

But that’s not the issue. If you are having sex, notice that your partner might not be positively into whatever is going on, and ask, you are already an affirmative consent rapist. The whole point of the rule is to impose an affirmative duty on you to figure out whether someone affirmatively consents before you do whatever it is that is at issue, with every step of a sexual encounter being evaluated separately.

Look, lets put it in blunt terms. When you’ve got your hand inside someone’s shirt, it generally isn’t too hard to know if they want it there. But it isn’t that crazy to imagine someone who believes that such contact is welcome based on their partner’s enthusiastic participation in the sexual encounter so far, only to put his or her hand inside their shirt and then realize that he or she made a mistake. The only question is whether this person should

1) Stop and apologize, or
2) Be expelled and vilified as a sexual predator.

Or more properly for (2), be at legal risk of being expelled and vilified as a sexual predator, but probably not be because we don’t respect our own rule enough to anticipate even the alleged victims taking it seriously and reporting this sort of incident.

@Patrick:

Here’s the relevant bit from California’s SB-967

“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. 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.

This doesn’t suggest to me anything like what you’re saying (@202 and passim). At which point, it sounds like your objection is just to the specific drafting of the OSU regulation. I’ll grant you that could be better drafted.

But it isn’t that crazy to imagine someone who believes that such contact is welcome based on their partner’s enthusiastic participation in the sexual encounter so far, only to put his or her hand inside their shirt and then realize that he or she made a mistake.

Isn’t this sexual assault under existing law though ( = non-consensual contact). Their partner didn’t want their hand in there. They thought, reasonably enough, that s/he did but they were wrong. They corrected the mistake as soon as they could but it was still a mistake. Maybe I’m confused…

I’m probably just going to reveal my confusion about law but I thought assault was unwanted (or non-consensual touching). So if I hug someone and s/he didn’t want me to I’ve committed an assault. So if I didn’t want to end up on the wrong side of the it would be prudent to seek verbal or non-verbal communication of their preference from them before I hugged them. Even then I could end up in the wrong if I misinterpreted the communication, however reasonable my inference was.

I thought the move to affirmative consent meant stipulating that hugging someone in the absence of this communication was assault, even if they were happy to have been hugged. Very happy to be corrected and apologies if I’m rehashing misunderstandings that have addressed above.

Under the current standard, it is up to her/him to say ‘No’, resist or some such, and if in the absence of positive indications of resistance I go on, I haven’t committed sexual assault. … Similar points would apply to initiating sex.

I’m pretty sure that as things stand consent does not equate to not saying ‘no’ or resisting, and someone can commit assault in the absence of positive resistance. (If that wasn’t so, it’s hard to see how some assaults which happen before the victim has the opportunity to resist could ever be prosecuted.) Perhaps things are a little difference in the context of an ongoing encounter but I’m not sure why they should be.

I thought that as things stood consent meant voluntary agreement. I thought ‘affirmative’ here meant either of two things: (1) positively wanting, as opposed to not objecting or (2) explicit as opposed to a tacit agreement. In both cases, it seems to me to rule out activities that are perfectly normal.

It doesn’t define the word ‘affirmative’. I believe all of the following were law ex ante in England:

Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. 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.

When she gets uncomfortable she should let him know.

JT.

You know how lots of people here think that you’ve got a mild autism-spectrum condition? People are OK with making allowances for that ’cause you seem like an OK and well-meaning guy otherwise, but it does have impacts: occasionally you write stuff like the above that’s, just… beh. Blind to the social context and shit. Could cause serious fights if people took it “seriously”.

This, plus… you mentioned about a week or so ago that you had a daughter who was having trouble at school?

Autism-spectrum conditions are strongly genetic.

If I’m right — and I may well be wrong, 60% confidence tops — then it’s pretty likely that she’s doing what you’re doing here, writing stuff like the above. But… here, well, there are well-educated and pretty tolerant adults, and you or I can walk away if it gets too much. Your daughter, though… is stuck at school. With teenagers.

[and there’s been some changes to education practices — less streaming, lower dropout rates, more group-work, less rote memorisation — that probably makes it worse since you went through.]

On the up side! Autism-spectrum treatments are actually pretty effective and are largely drug-free.

[I suggest, “speak to someone at school and tell them, ‘some people on the internet think I might have aspergers-type problems and they’ve mentioned that this can be genetic: what do you think?”]

I don’t intend to mention this again unless you ask me to. If you want, you can contact me at google mail’s commissioner.teadrinker account, the throwaway spamtrap one I use, and I’ll get back to you with my real one and details; I assure you I will read anything you send me, even if it’s the most vile imprecations.

I really, genuinely wish for the best for you and your family, and I hope that I have helped rather than hindered you all in that.

Does he have to? The text is dong to be interpreted by a jury/adjudication panel. The fact people are arguing about what it means is… a problem for those who think it will be interpreted narrowly.

#215 Collin Street

I am going to respond as if you have good will and are not making an ad hominem attack plus privileging your own cultural assumptions above mine when they are in no way better, only more common.

Thank you for your concern. While I would not claim to be neurotypical, I don’t fit autism-spectrum well at all, it’s just that there’s nothing defined I fit better.

My daughter who is having trouble in school is more suffering depression. She is far more emotionally mature than her classmates and has no interest in their discussions, she doesn’t like to do the large amounts of make-work she gets assigned, and her response has been to ignore it all as much as possible while doing her own outside reading and internet searches. I’ve worked at persuading her that she must comply enough to get by. She hasn’t really gotten the idea that mnemonics is actually useful for tracking schoolwork and not just a parlor trick, because she hasn’t gotten the idea that she can actually plan out a way to excel at the tedium she’d rather ignore.

A younger daughter fits the autism-spectrum thing much better. She spends much of her time drawing pictures and improving her ability to draw, she believes in things strongly and has a clear sense of truth — she gets upset at teachers who don’t make sense, etc. Whenever I put the older one in a double-bind situation she negotiates just like I reward her for. “Daddy, you said this, but then you said this other thing, and put those together and you haven’t given me any way to win!” The younger one just starts screaming and refuses to talk. Both of them are hard to interrupt when they’re busy, but the older one ignores people because she wants to, and the younger focuses so tightly on her own interests that she just does not notice stuff. But she does notice faint smoke or chlorox smells, and she usually hears the cat’s subtle signal to be let in before I do. Anyway, the younger is doing fine in school. She carefully judges how much work she must do to completely satisfy the teacher, does that much, and stops.

occasionally you write stuff like the above that’s, just… beh. Blind to the social context and shit.

Yes, the social context is shit but I’m not exactly blind to it.

Let’s review the bidding about rape. Most of us agree that most rape is done by a small fraction of the male population, maybe 3%. I have some ideas about those men based on data that has unknown biases. It leads to some suggestions that might help and are unlikely to cause harm apart from the social squeamishness of people who do not want to think about what’s going on.

The rest of our rape problems are about men who very occasionally rape, plus women who get into situations where they don’t know whether someone is a rapist or not, plus sheer miscommunication.

Look at Patrick’s examples, and Bianca’s. Women who don’t want to, and are afraid of “what it will do to the relationship” to say no? Do you see some kind of sanity in that situation? I sure don’t.

And what will a new law do about it? She’s too afraid of what it will do to the relationship to say no, but later she’ll press charges?

She’s in a relationship where it isn’t OK for her to say what she wants and doesn’t want, and there isn’t something already desperately wrong with that? You know the phrase “an accident waiting to happen”? This relationship is a rape waiting to happen.

…. W isn’t sure whether this is wrestling, like in high school, or coercion, and doesn’t know whether M intends to agree to stop whenever she refuses to go on. The resistance that worked in high school doesn’t work with him. By the time she extricates herself physically, but still in the room, she’s partially undressed. She doesn’t know many of the people who might come if she called out. This situation makes me more uncomfortable.

It’s an uncomfortable situation. Maybe under the right circumstances she’d want him, but he’s rushing her and not giving her a choice. She has every right to say no and good reason to. If he doesn’t honor that it’s appropriate for her to scream. Possibly the people who come will all want to take their turns with her, but outside a fraternity or biker’s gang etc that’s unlikely. It only takes one who’s willing to call the police and the others will grumble that he doesn’t get they were joking and disperse.

We’re talking about new laws to resolve ambiguous situations. I don’t expect any big harm from that except “conservatives” getting political capital from it. But teach women not to leave rape situations ambiguous when they can resolve the uncertainty! If you don’t know whether he’ll quit if you say no, then say no! Then once you’ve found out he will, you can think it over and say yes if you mean yes. He won’t really mind. Or if you find out he really does intend to rape you, then you can use that knowledge in ways you couldn’t when you were afraid to find out.

If you’re afraid to find out whether he’ll stop, you will indeed know later after it’s over, after he didn’t stop.

Saying no when you mean no doesn’t solve everything, of course. Even in the best case there are still those 3%. But when you’re dating don’t you want a degree of control? If he goes past your limits then get away and don’t give him another date. Test him on temporary limits where the stakes aren’t high first. How could this be controversial?

Well, people get emotional and act out their emotions when anything reminds them of stuff that they’re upset about. It’s an emotional topic. The safest approach is to say nothing, or make the sort of soothing noises that have not caused trouble before. That does nothing useful, but it does feel safe.

Js. I think maybe the difference between us possibly comes down to how we interpret this:

It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.

I thought it meant that that one has get some (verbal or non-verbal) expression of consent from your partner at each stage of the interaction, or else one is in violation- even if s/he does in fact consent. I thought this was what Holbo was assuming (although I can’t be arsed to go back and read the thread again).

“Let’s say I’m having sex with someone. At some point, they say “No.” I take this to mean, “No – please don’t stop!” and redouble my efforts!”

This hasn’t been the most amusing thread, but whenever I think about this (and I just did, again, while drinking my morning coffee) I laugh. Thanks, js.

J. Thomas:
“A woman who is not willing to say no when she needs to say no, because of some sort of social reasons, has got a lot more problems than one single rapist.”

Yes, she does. Since you have two daughters, it would be good if you could imagine what those problems might be.

“But teach women not to leave rape situations ambiguous when they can resolve the uncertainty! If you don’t know whether he’ll quit if you say no, then say no! Then once you’ve found out he will, you can think it over and say yes if you mean yes. He won’t really mind. Or if you find out he really does intend to rape you, then you can use that knowledge in ways you couldn’t when you were afraid to find out.”

Times a woman might not want to say she doesn’t want sex, or that something hurts her, or scares her: when she suspects the man knows already, and he likes it.

(That, ah, likely would have been a better joke—likely still not a good one—had I not omitted the closing period. Mea maxima culpa.)

#224 Lynne

Times a woman might not want to say she doesn’t want sex, or that something hurts her, or scares her: when she suspects the man knows already, and he likes it.

It is important to get out of that situation. IMO.

If she does want to get out of the situation, she should notice what can get her out of it. So if not admitting that she doesn’t want to have sex, will help her escape — that’s part of the plan. I’m fine with that. I’m fine with anything she chooses to do in a difficult circumstance.

But if she’s plagued by uncertainty — when she only suspects she has a problem, and doesn’t know — then I say it’s a good idea to find out. That makes it easier to take action.

Why be like Little Red Riding Hood in the extended story, where she starts out not knowing and very gradually becomes more certain until it’s too late?

I don’t have any interest at all in blaming women who find themselves involuntary players in rape games and then lose. I have some interest in noticing tactics that can win.

But if she’s plagued by uncertainty — when she only suspects she has a problem, and doesn’t know — then I say it’s a good idea to find out. That makes it easier to take action.

That’s wonderfully easy advice to give, and it sounds so reasonable! Here’s another dose of reality for you.

Lynne, thanks! The comment came more from frustration than amusement, but I’m glad it’s provided some of the latter :)

Possibly inspired by this thread?

http://thismodernworld.com/SPARKYSLIST/TMW2014-11-19colorLARGE.jpg

I keep thinking that I have missed something. We’re not talking about a law, are we? We’re talking about a campus conduct code. Which is, indeed, aimed at shaping expectations/intentions/behaviour. That’s what colleges are for, to educate you. If you don’t want to be educated, don’t go.

John Holbo: “Because I was making a Rush Limbaugh joke post, and I included a throw-away bit of opinionation at the end, and this entire thread has been about that. And I really hadn’t intended to weigh in so weightily concerning something I know too little about.”

I virtuously avoided getting on your case about it this time since people were taking it seriously anyway, but if the comments had all been “ha ha Rush Limbaugh stupid Repubs” then that really would have been worse.

“I virtuously avoided getting on your case about it this time since people were taking it seriously anyway, but if the comments had all been “ha ha Rush Limbaugh stupid Repubs” then that really would have been worse.”

100% wrong, 0%right Rich. I would WAY rather have read that thread then the one we ended up with.

We’re not talking about a law, are we? We’re talking about a campus conduct code.

Well, at least in one case we’re talking about a law–California’s SB-967. Admittedly, a law that governs campus administration but still a law. More importantly, people who support the affirmative consent standard would also like to also see it adopted as the legal standard, and sometimes agitate for this. So if the standard is somehow unfit to serve as such—not the drafting of a particular measure but the standard itself—then that’s a problem. (Again, I think it’s very much not unfit.) And what engels said @240 also strikes me as true. So discussing it as a potential legal standard seems fair.

“I was totally up for having some fun,” Fuller said. “But then, all of a sudden, she starts talking about how ‘incredibly special this night is’ and how she’s ‘ready to open myself up to you.’ I totally wasn’t prepared.

I suppose that part of the problem is the result of the increased sexual freedoms over the last century or so. I don’t want to turn the clock back, but what we have is confusion about the rules, some of it wilful and self-serving. It should be quite simple: the default position is no consent unless explicitly stated otherwise. Just as, in a shop, the assumption is that you are not allowed to take the goods or empty the till.

“The defendant is accused of taking a bottle of whisky without paying for it”

or

etc etc.

I also dislike the term sexual relationship being used to describe what’s really at issue here. Existence of a relationship of any kind should normally imply that you’ve known each other long enough to preclude a misunderstanding about consent.

Using someone for sexual gratification without the existence of a relationship is merely aided masturbation. If two – or more – adults choose to use each other in this way it is nobody else’s business. However, what is really at issue is that some people, alas usually men, feel that they have an entitlement to use some kind of coercion to get what they want. They don’t. Simples!

Whatever caused the update to the original post is wrong.

The single biggest problem in this debate is the confusion between how good men and women should behave, morally, and how they can behave as a matter of free will. The basic problem is that our view on the first point influences our belief (or the belief we are willing to defend) on the second point.

The result is infinitely boring: a debate about a species and a culture, neither of which exist.

The thing is, John, what else is there to do? Rape is illegal and rape is a taboo and yet rape is rampant and rape is tolerated and enabled by a culture that condemns the theoretical concept of rape while simultaneously narrowing and tightening its legal and dictionary definition in such a way that nearly no victim of it is credible, no real rapist actually exists. There are always mitigating circumstances that relieve the rapist of responsibility while shifting that responsibility towards their victim, who is either a liar or, even worse, a naive risk-taker who should have spoken up (in the face of widely disseminated odds that discourage one from speaking because speaking up increases the likelihood of A Very Bad and Possibly Lethal Outcome). And, meanwhile, it is the opinion of the drafters of SB-967 that the best chance of cutting out or cutting back some of the cover afforded to rapists, repeat or otherwise, is to change the culture by changing the language by which we (in a blanket and utterly meaningless statement) condemn rape: the clarion call or protest song shifts its emphasis from an active “no” to an active “yes.”

But really what will shape public opinion is the interaction between legal spin and the cases that follow. Probably, because the world is large, there will be a small handful of ugly cases in the wake of the change.

I really wish you’d speak plainly here. You’ve repeated the “ugly cases” line three times now. If you’re referring to “grey” lines or false accusations, I wish you’d say so. Grey lines exist in all acts of criminal and illegal behavior, ditto to false accusations. This is to be expected. This is not unpredictable. This is the case in every instance of crime; there are dubious circumstances, exceptions which by their very existence prove the proof, lies which otherwise uphold the rule while damning the liar to an undesirable fate.

We are all aware that when it comes to rape, the “dialogue” between warriors o’ culture from either side has been tainted with right-wing obsessions about lying bitches and victimized men and their brutal “sexuality.” There’s no need to mince words here. The party line will not change, in any real sense, anyway.

The vaguely stringent language of explicitness will get over-applied in some case by some overzealous administrator.

Again, that is to be expected. The “stringentness” is debatable. The policy actually acknowledges levels and forms of explicitness, accepts and outlines in detail as tenable indications of consent non-verbal cues. It is, at its best, a signal or a message to would-be rapists that it is no longer enough to merely assert without circumstantial evidence that the self-proclaimed victim didn’t say “no.” It can function, if there is a will to do so, as a signal that the powers who be will be examining the plausibility of the accused rapist when they assert such a defense and that they will be consider the actions and testimony of the victim beyond their (unrelated) “sexual history.” You’ve said as much yourself.

Earlier, I disagreed with your predication that a university administrator will successfully bring about a disciplinary action or punishment against students who engage in sexual activity that they later assert to be mutually consensual. I still think that’s highly unlikely. I think a good, proper, public and outrageous spectacle — in which the students’ feelings and desires are given adequate exposure, in which such an administrator is wholly unsuccessful in proving their case — will be beneficial to the policy, and will demonstrate, at the very least, its inherent nuances, its explicit acknowledgement that negotiating, giving, and receiving ongoing consent can be expressed in forms that don’t, actually, resemble the dreaded PC script, but instead reflect reality.

Given the odds against successfully prosecuting an accused rapist when physical evidence actually exists, when the prosecution has secured the testimony, availability, and cooperation of the victim, I find such a scenario (the overzealous and well-meaning university administrator punishing the poly kids for a good, healthy romp, thereby consigning them to offenders’ lists for the remainder of their miserable lives) implausible in the extreme.

There will be born unto the world a poster child male victim, picture perfect for right-wing outrage.

There already are. Every time this happens, the accused male rapist is labelled a martyr, a victim of blue sky, PC thinking. Who, truly, gives a shit what willfully and irresponsibly ignorant and mean-spirited professional misogynists think or do? Why is it any different than pre SB-967? The apologia will be the same: scorned, lying liar is out to protect her silly reputation (in a world that unabashedly and gleefully assigns women to the slut category if they profess to enjoy sex or have engaged in it willingly with multiple partners) or to punish A Good Man (who cannot be expected to overcome his Biological Caveman Urges Because Evolution an’ Yoga Pants).

If and when problem cases arises, it is marginally better to have predicted their emergence than to have pooh-poohed the very notion.

In what practical sense? What good will that do to the people who matter and whom are actively affected by it?

It’s painful, sometimes, to be the ball kicked back and forth between warring men. Surely you understand this?

You don’t want the law to say that, technically, all loving couples are somehow in violation – or even might be in violation – of the law.

That’s just an utter exaggeration, Vulcan reasoning at its finest. Let’s put it this way: these loving couples, they could readily seek and provide the kind of consent the policy suggests, and would be none the better or worse for it, yes? So, there’s no practical difference there.

We’re talking about rapists relying on a hackneyed and sexist narrative about heterosexual female sexuality: they mean yes when they say no, they don’t know what they want except to be dominated and bullied, they should accept that “causing” a boner means they’re responsible for satisfying it, they could use a good fuck, teasing is a crime, etc.

I don’t see how you can say that thinking the law will be abused if it can be abused, and shouldn’t interfere with private lives is right wing fantasy. Isn’t the cornerstone of moderate liberalism in the 20th century ala Berlin and Arendt objection to a state capable of regulating every corner of life? The idea of codification of the law is an attempt to restrain state power.

Proponents of this law need to say what it prohibits, that should be prohibited, that isn’t already prohibited. We don’t put bad people in jail: we put people in jail for committing specific acts. And we already put people in jail for getting sex with threats, or violence, or blackmail, or ignoring their partner’s wishes. I’m not convinced these laws aren’t criminalizing unobjectionable behavior, and neither is Ezra Klein. That should be enough for liberals to be against them, just as we’re against the hysteria over terrorism or drug dealing and the consequences of those policies.

If the current rape law was as easy to abuse as this new one, I would be against it. But that’s not my argument. Rather, it’s that as Ezra Klein points out, this law includes within its definition of sexual assault conduct that is rather common within relationships, that isn’t what we think of when we think of assault. Furthermore, the key term of “affirmative” isn’t one I can easily put a meaning to, and the idea that sex within a relationship follows the same rules as sex outside when inferring consent, is, as Ezra Klein notes, rather unrealistic.

It’s not that criminalization of rape is illiberal. It’s that proponents of this law want rape to mean something different from what I want rape to mean, and I think what they want rape to mean includes actions that I don’t think are morally objectionable. I also, separately, object to unclear laws: I think the current CA rape statute is very clear on what it prohibits, and I think what it prohibits is behavior that should be prohibited, and this proposed change isn’t clear.

There is nothing subtle about continuing sex when someone has indicated they don’t want it. There’s nothing subtle about using threats, or drugs, or force. Do juries need to sort through ambiguous facts? Sure: they do for murder, which has an extremely clear definition. Should we prosecute rape more aggressively? Of course. But that doesn’t mean we need laws to make the prosecutor’s job easier.

Can a prosecutor abuse even the clearest law? Only by lying about the facts. With this law the fact pattern that leads to a violation is common and unobjectionable: a well-known come hither look from one’s longtime spouse, followed by the desired action. Good luck standing before a judge and saying “Sir, she looked at me as though she wanted it” when that is precisely what the proponents of this law want to prohibit. I think this behavior should not be made illegal. That doesn’t mean I think threatening someone and then having sex with them should be legal.

But the fact that not just consent, but “affirmative” consent is required, means that consensual sex is criminalized by this law. If this wasn’t the case, we could remove the word from the statute. Courts will make that word mean something, and I can’t look at the statute and tell you what it will mean. That’s a problem.

The likelihood of a sodomy prosecution in Texas post 1970 was extremely low. That doesn’t make that law any better, even if it did enable prosecutors to put rapists in jail they couldn’t otherwise. California isn’t going around throwing teenagers who have sex with each other in jail, but that doesn’t mean the law doesn’t need to be changed.

If you support this law, then you need to either bite the bullet and say that you are willing to criminalize harmless behavior because it has good effects, or argue Ezra Klein is wrong about its effects.

Having read through John Holbo’s responses to Saurs (through @258), I don’t quite see why exactly the arguments JH is making couldn’t have been made when marital rape was recognized as in fact rape.

Do you mean: why couldn’t I have predicted that the right-wing would go sort of nuts over that case?

I mean that rightwingers today aren’t agitating against marital rape laws, and if you found an article equivalent to Klein’s about marital rape law–it’s terrible!!! I tell you—it would look frankly ridiculous.

I hope this is not taken the wrong way like my blunder mentioning men’s issues articles.

There used to be a great problem with transferring land titles. It was considered since gentlemen and gentlewomen own land they were fit to exchange titles amongst themselves.

This caused many issues. A widow would be happy in the knowledge she owned the house she inherited from her family, and then a fellow would turn up and say her nogoodnik deceased husband had mortgaged the house, and it would go to court and she might lose her house. Someone would claim another person sold them their title – but the seller would claim this was untrue and they never sold their title at all , and two title would be produced at court. Or someone might be drunk and wake up to find his friend telling him he gambled his title away, but he could not remember it. etc etc.

Judges would have a great trouble knowing who to believe.

Of course lots of people transferred their titles without much ado and honestly.

Nevertheless, due to all the court cases about titles, the government introduced strict regulations about how transfers of titles are meant to take place.

Unlike the story about hoe FX trading happens by accosting people on the streets and giving the ten pence to do a spot of impromptu trading for you – now transferring titles must go through all sorts of regulatory rigours and registrations and so forth.*

These campus regulations about consent are not as strict as regulations about transferring titles.

This regulatory laxity has pluses and minuses.

Probably nobody would like a system of regulations for consent as strict as land title transfer regulations?

But because it is not so strict there remains the possibility of problems where it is one person’s word against another’s.

* I did read an article in Harpers about how the before the mortgage crisis the banks did not follow all the land title transfer regulations. Because the paper title tied with a ribbon was meant to be transferred with each transfer of title, but the banks and traders did this digitally in bundles and did not transfer the paper titles as per the regulations. However the judges were loath to make the mortgages null and void even though this was not in keeping with title transfer regulations.

Holbo’s bizarrely fine attunement to the use of scare quotes seems to have deserted him @273.

I’ve counted at least half a dozen instances in this thread in which opponents of the bill express concern that its adoption and implementation will result in the arrest, prosecution, and imprisonment of innocent people, that it risks criminalizing behavior that is inarguably not abusive or coercive.

Please take the four minutes necessary and read the contents of the bill, which is about adding text to California’s education code regarding a public university or college’s obligations to protect its students.

Amongst other things, the bill requires that disciplinary and governing boards tasked with investigating complaints of sexual violence, harassment, and stalking (1) actually do so in every instance and keep a written record of that investigation, (2) change their standard of evidence in evaluating “excuses” or explanations offered by the accused as a defense to conform to the definition of consent we’ve been discussing, (3) formalize and codify this standard and the protocol for handling investigations, (4) protect the safety and confidentiality of victims and witnesses while not pursuing retaliatory disciplinary action for their participation, (5) and develop “strategies” for better education and prevention while offering more victim services (this last one is the most woolly).

You’ll note there’s nothing there about criminal charges because such hearing committees don’t have the power arrest students, to impose legal sanctions on them, and never have. There’s no court of law. No one is being thrown headlong into a black maria to be hauled off to feminazi castrating prison because they Kissed Their Sleeping Wife, for fuck’s sake.

I’m with Holbo in that nothing much will change if the bill is successful and does what it’s meant to do. It’s meant to encourage universities to stop protecting even the most egregious predators under the guise of helplessness and hyperskepticism (“we can’t legislate away healthy hetero male sexuality!” “we can’t know what happened behind closed doors!”). This is, quite literally, no different than a convention getting off its ass and formalizing an explicit zero-tolerance anti-harassment policy and training its staff to implement it; such a policy won’t necessarily prevent the harassment, but it signals to potential victims that their complaints will be heard by a comparatively receptive and impartial board and investigated by people specifically tasked and trained to do so, who are willing and able to be thorough, and who will not be swayed by garden-variety victim-blaming rhetoric about how confusing women are, about all those carefully blurred lines. It will reinforce something that should already be obvious (cosplay is not an invitation to be touched, for example, and you have to ask and receive permission before doing so).

And, just as with convention-goers, students who are keen to sexually assault people are free to not attend if they don’t want to abide by some very basic rules. When their four to eight years are up, when the convention’s done and dusted, they can go back to the real world where sexual assault and harassment are already illegal.

If that’s too illiberal for you — imagine! an institution that wants to protect itself by threatening to discipline or exclude its inhabitants if they are violent! — token anti-harassment workplace training must feel like a gulag. Diddums, boys.

To ask is to seek to persuade.

No. To ask, in the context of consensual sexual activity, is to confirm something you suspect (enthusiasm, interest, desire) from less-than-explicit cues, but want to be responsible enough to get an explicit affirmation.

To suggest sex, to offer sex, those aren’t questions whose answers are almost a given. Offering sex while risking rejection is, yes, uncomfortable and nerve-wracking. I understand why people hesitate to do it. But you can’t legislate away someone’s bodily autonomy because friendzoning hurts, man.

Finally, and most importantly: the bill does not, DOES NOT, say that kissing your wife without permission is automatically assault, rape, an offense, do not collect yer $200 on your way to prison. What it says is that in the course of investigating a complaint the investigating body cannot accept or argue on the accused’s behalf that your marriage can “by itself be assumed to be an indicator of consent.” The bill is legislating the behavior of school officials, not students.

Yes, but if the investigating body is law-bound to find evidence that what I did to my wife was more ok than me doing that same thing to a complete stranger, and I am not allowed to cite the fact that she is my wife, and we have prior understanding about this stuff, I’m stuck for positive evidence she affirmatively consented because, in fact, she didn’t – not by the standards of the law. I can’t prove a falsehood.

That’s the same dilemma that already exists in civil cases, that evidence — beyond the first-hand testimony of the two primary parties — is scarce. This bill changes nothing, except requiring that universities, in their disciplinary hearings, abide by the same threshold of evidence as in The Real World. And I thoroughly disagree that it is binding universities to a particular decision about guilt. Nor it is barring students from making that defense (it won’t help or hurt them), or forcing them to prove a negative. The burden rests on the victim, still.

Disciplinary boards that review accusations of violence by students already must evaluate the credibility of witnesses, not accept their word as truth. The differences are: they are now obligated to ask the accused students if and how they elicited consent; and victims are now on equal footing with the accused (their sexual history is irrelevant and does not render them unrape-able).

“Your hypothetical — your wife going to the university to complain that you kissed her without her permission — remains utterly unhelpful here. It’s not realistic, it’s farcical”

The stolen kiss example is not a likely real world example, especially since js was criticised for his Ezra Klein impression. It would however make an amusing screwball courtroom comedy with Katherine Hepburn.

NY Times has an op-ed by a Yale professor of criminal law on the issues with this law (and how universities in general are dealing poorly with the issue of rape on campus) – it’s a better read than Ezra’s article. Here’s a link: http://nyti.ms/11f5o6H

@251 what I am saying is that your original post was clear and correct and did not requiring updating.

I am not fatalistic on the subject. I was very involved in sexual assualt awareness week my junior and senior years at college, hosting a panel discussion that asserted my alma mater had a culture of violence. Later, as a public defender, I was exposed to more information about how people behave.

My point is not nonsense. It is simply this: discussions about sexual behavior have a difficult time staying based in the world as it is. This does not mean “boys will be boys”. It means that it is difficult to tell the truth about what both boys and girls will be. It becomes impossible to deceive situations where everyone is a good person and the end result is suffering.

I’ve followed this thread so far with increasing dismay. If I understand his premise correctly, John is saying that we need to do something, a position I agree with completely. He’s also saying that he isn’t sure that this something is what, in fact, we need to do.

Fair enough as far as it goes. Common sense, at least as most men seem to understand it, has clearly failed us, as has the law, which has apparently followed along insensate in the path of these unreconstructed men. But now what? Is this new legal struggle going to wind up like the one over pornography, i.e., none of us can define it very satisfactorily in legal terms, but some of us claim to know it when we see it?

Something clearly is happening here, but at this point, like Mr. Jones, I’m far from clear what it is….

Well, Saurs is doing a much better job of this than me.

Not all liberty interests are identical. Liberty interests involving sexual activity are more compelling and more central than those implicated by having to pass a test before you venture out onto the public roads. I can’t say why I feel that way, but I’m sure lots of other people do as well. Liberty interests are attacked by the existence of a law, regardless of enforcement: sodomy laws don’t need to be enforced to affect people’s right to gay sex.

Furthermore, the behavior the state wants to regulate with driving unlicensed is exactly that behavior that the state prohibits. Here however, the married couple faces sanction not because of anything they do, but other behavior. That doesn’t seem right to me.

bianca steele: Seems to me forcible rape is not only criminal under existing law, but criminal going all the way back to common law. Maybe we should have the police enforce the law, and as Main Street Muse’s article suggests, get colleges to stop doing something they are bad at doing.

Like William Timberman I too have been watching this thread with increasing dismay, Maria’s current thread too. In all fields of the law, there are occasionally miscarriages of justice because people lie. That is no reason not to have the law. What we also have is people coming up with straw man misunderstandings to justify not giving people protection.

Liberalism is not valueless: it only works if people treat each other with respect, and if it is de-rigeur that all citizens have the right to have their autonomy respected, and the right to make their own lawful choices without coercion. Limbaugh and his type are not liberals: their political and social values are not based on respect, but upon blaming the victim, denying wrong doing, and attempting to usurp victimhood themselves. Some men might like the enjoy the thought of coercion followed by “you wanted it anyway” They are confusing squalid fantasy with a valid attitude to life.

A couple of years ago, a lot of females I know were raving about Fifty Shades Of Grey. They were not inviting their husbands or boyfriends to treat them like Mr Grey: still less random men they might meet. Movies and even soaps have vastly more violence and abuse than daily life for most people. Well-adjusted people can distinguish between real life and fiction! Even people who enjoy role playing fantasies, (for example the Sealed Knot Society ;) ) do so within an agreed structure and in general have more sense than to attempt to live their daily lives within their fantasy.

To reiterate: liberalism requires mutual respect and consent for social transactions. Perhaps we need to educate people better about mutual respect in a modern society. Part of respect between adults is that coercion is wrong. No means no, and to assume consent despite this is assault or rape. If living according to such a simple rule means that some jocks fail to get the gratification they fell they are entitled to that’s their tough faeces – Diddums!

That should have been to Watson Ladd @ 298.

And all the possible rules being discussed say “rape rape” is a bad thing. Rape is a felony. Maybe colleges should have the police and the courts put rapists in jail, instead of trying to have a disciplinary proceeding deal with it.

If we want to ask about rules governing behavior why should colleges frown on two students in a long-term relationship looking at each other and having sex without verbally confirming they wanted to have sex with each other? Furthermore, the US government is forcing them to adopt these rules through Title IX actions.

@js: Notice the lack of the word affirmative from the Canadian statute. Of course, in CA the law is different, as is the policy. Laws are different in different places.

I am coming back to this thread after my frustrated exit to find Main Street Muse @286 linking to an interesting piece which could potentially salvage the thread.

Sparing you all any faux-humility, I would note that that op-ed is making similar arguments to, and is motivated by some of the exact same disputes as, my comments @94 and @116. Comments I was surprised to find basically ignored in lieu of what appeared to me to be much more petty subject matter.

So I am wondering now – what the hell have people been talking about all this time? And furthermore, why was it that when I tried to steer the conversation in this direction, that people were instead more focused on endlessly parsing out the nuances of silly hypotheticals or attributing positions to people who do not hold them?

As I understood the OP, it was an exercise in considering how this new standard of consent would generate backlash, given that it a) stands at odds with the dominant model for sexual experience among a certain group/generation of American men, and b) leads one to some non-intuitive conclusions that require some thinking through before one is comfortable endorsing the change in statue. I was under the mistaken impression that I could raise these concerns, pertinent to the original focus of the OP, without said concerns entailing any specific conclusion about the new standard itself.

I am only skimming through the recent comments here, but I honestly cannot tell what the present conversation here is about. Given that my own comments above were so radically misunderstood, the onus for all this misunderstanding could rest mostly on my shoulders (but not entirely – I still maintain that the phrase “It is not about legal outcomes” is eminently clear).

But it strikes me that in this long thread on exploring the challenges with standards of consent, there has been very discussion about the institution(s) tasked with the responsibility of upholding and enforcing those standards. This is especially striking given the number of prominent colleges which have been criticized by their own students for failing to preserve a safe learning/living environment in this regard. If anything, this conversation on this thread has revealed its blindness to the institutional angel by very often conflating the law with university-specific codes of conduct.

One would think that the CT commentariat would be more interested in institutional culture and its relation to outcomes, especially as it relates to one of the institutions we are, collectively, most acquainted with. Again, quite surprising.

I would add that Watson Ladd and harry b both deserve commendation for trying to raise these same sorts of questions and divert this conversation in a more productive direction. I am interested in hearing more from them on this topic, or others’ reactions to their points made throughout, although I am not sure that the present thread is actually salvageable. Which is a shame, because it is not like we are talking about a set of issues relevant only to pendants and cantankerous social warriors. But I digress…

Really, Colin? Then please give an example of a rape under the normal legal definition (non-consensual intercourse) that shouldn’t be a crime.

“… why should colleges frown on two students in a long-term relationship looking at each other and having sex without verbally confirming they wanted to have sex with each other?”

Very disingenuous: unless they’re religious institutions, they wouldn’t care, for the simple reason that such genuinely consensual sex wouldn’t result in any complaint from the parties involved. Normal people don’t complain unless there’s something to complain about.

Also note that under most criminal (and maybe disciplinary) systems it’s not only the injured party who can bring a complaint.

Third-party reporting outside of university happens all the time, of course, and is sometimes mandatory, anyway.

There’s nothing to suggest, in this bill or in the official policy prior to enacting this bill, that receipt of a third-party or anonymous report regarding sexual violence will successfully launch a formal investigation, much less lead to disciplinary action. In fact, the University of California policy says explicitly the opposite:

Locations shall respond to the greatest extent possible to reports of sexual harassment and sexual violence brought anonymously or brought by third parties not directly involved in the asserted offenses. However, the response to such reports may be limited if information contained in the report cannot be verified by independent facts.

If interviews with alleged victims and the accused student(s) provides no corroboration to an anonymous report, no further investigation will proceed.

Further, the university encourages Early Resolution in such cases

Early Resolution may be appropriate for responding to anonymous reports and/or third party reports

where Early Resolution

includes options such as mediating an agreement between the parties, separating the parties, referring the parties to counseling programs, negotiating an agreement for disciplinary action, conducting targeted preventive educational and training programs, or providing remedies for the individual harmed by the offense. Early Resolution also includes options such as discussions with the parties, making recommendations for resolution, and conducting a follow-up review after a period of time to assure that the resolution has been implemented effectively.

I still fail to see the relevance of Holbo’s wife being kissed (but she doesn’t care, and makes no complaint), of a third party tattling on students having consensual sex. The system already has protocol in place to handle such unlikely events, and the protocol does not involve intimidating would-be victims into agreeing (despite their own feelings on the subject) that they’ve been victimized. More red herrings.

Locations shall respond to the greatest extent possible to reports of sexual harassment and sexual violence brought anonymously … However, … [i]f interviews with alleged victims and the accused student(s) provides no corroboration to an anonymous report, no further investigation will proceed.

So GF grabs BF’s butt without asking. Concerned anonymous citizen runs to the Dean who (as per college policy) ‘respond[s] to the greatest extent possible.’ Investigations stall when BF proves unwilling to give evidence that will terminate GF’s career (she is referred to counselling). Sounds fine- I can’t think why anyone was worried…

(I understand this is a farcical example which will never happen: all I want to understand is why it can never happen.)

Fwiw from googling I didn’t Js. was right about Canadian Criminal Code (it doesn’t define consent as ‘afffirmative consent’) but I didn’t read the PDF Js. linked.

all the fighting

acrimonious in a silly way

getting terribly indignant and outraged

Meaningless vulcanning and ascribing undignified FWEELINGS to interlocutors is not an argument; it’s an inept sleight-of-hand and a failed attempt at mind-reading. What difference does it make if people are heated here?

I think some folks have gotten to the point where they wouldn’t agree with me, in this thread, if I said the sky is blue.

Poor you. Incidentally, this is you trying to inject some calm, rational thinking into the discussion?

We aren’t, for the moment, investigating indictment/disciplinary procedures. We are investigating the scope of ‘consent’. The law constructs a notion of consent.

This is disingenuous. The bill is about an educational code, about proscribing certain behavior from university staff employed to investigate complaints about sexual assault, requiring that they establish chains of evidence in certain ways, including investigating if and how consent (as the bill defines it) was established. In critically examining the bill, you cannot exclude how a disciplinary procedure (not an indictment) and the preceding formal investigation, the preceding gathering of data, and the preceding processing of a complaint function according to written policy. I understand why you want to, because it allows you to explore these ludicrous hypotheticals. But you already know that the policy requires officials to follow certain guidelines, in a certain order, specifically to weed out such ridiculous complaints.

The relevance is this: we are testing to see whether there are clearly innocent cases that could, plausibly, be argued to be guilty under the law.

Innocent people are already found guilty in criminal courts because the law is not infallible. It is up to you to prove (1) why this bill must do what no other law can, and (2) how it can do that. Prove your case. The burden of doing so is on you.

If absence of “no” means consent

It doesn’t under the existing rule, unless I am seriously mistaken. Currently, if a woman doesn’t explicitly consent to sex she can later bring charges for rape (and rightly so). The defendant will be found guilty if the court finds she did not in fact consent.

(As I understand, there is an advantage in the change here but it is indirect: if seeking explicit consent becomes the norm then in the above example the lack of explicit consent would strongly support the woman’s claim. But I agree the law has some good consequences, I’m just not sure these make the negative consequences acceptable.)

IANAL – the above account is defective because it doesn’t address the defendant’s reasonable belief in consent, or lack of it, but I think my point stands: absence of a ‘no’ is certainly not consent.

I’ll try to make this brief. To start a very brief recap:

1. In an odd bit of “literal-mindedness”, Holbo argues that “affirmative consent” means strictly prior consent (see @265ff.). It’s odd because plausible or not, the reading doesn’t seem literal-minded—“affirmative” doesn’t literally mean “strictly prior”, obviously.

2. When pushed, Holbo clarifies (@278; and if you’re not Holbo, read that whole comment—if nothing else, to make sure I’m not misrepresenting):

If it isn’t prior, then it risks being too late. … Something was done. The other person wasn’t happy. The thing done was, therefore, a violation. Technically. Ergo, strictly prior consent is the only way.

Now, the Canada law requires obtaining consent for “every sexual activity,” and it defines consent as “voluntary agreement.” Let’s suppose that the statute would consider kissing to be a case of sexual activity—nothing hangs on this, obviously. And let’s say that Holbo simply walks up to his wife and kisses her—or far worse, kisses her while she is asleep. If I were being literal-minded about this, it would seem pretty obvious to me that Holbo has not obtained consent, and that if the other person were not happy, the thing done was, in fact, a violation. After all, as per the Canada statute, if you engage in any sexual activity without obtaining consent, you are in violation. (And as a side note, I might mention that the CA statute also lays stresses precisely on the fact that affirmative consent can be revoked at any time.)

Finally, no I don’t think that Canada is about to be a hit by a society-destroying sexborne toxic event, because I think that this family of laws—in which I would include both the Canada one and the CA one—are perfectly sane (if not terribly effective).

@324 Not that anyone cares, or that many of the people in this thread really are interested in the high-level legal stuff, but I’d say the law constructs a notion of consent, not only by means of declarative, definitional statements, but through setting up administrative procedures and so on. But for that matter, I am somewhat surprised by the idea that laws construct notions in that way. I’d say the law does not construct a notion of consent, but interacts with existing notions of consent in order to have behavioral effects (some of which may be effects involving people’s notions of consent).

Even public debate helps construct consent. For example, every time a hypothetical in which “W gives M a cold, fixed polite smile, then immediately stands and walks briskly away,” is read away and replaced with, “women do have an issue with saying no, because they get upset and freeze up and are afraid to make waves,” notions of consent among those who read this are potentially impacted.

Existing law: if partner did not consent, it is sexual assault
New rule: if partner did not ‘affirmatively’ consent it is sexual assault

Hence, under the new rule, (*) consensual touching is sexual assault if it is not ‘affirmatively’ consented to.

As I understand, this is not the case in Canada.

From past discussions (and the OSU guidance I linked above) I thought ‘affirmative’ implied explicit (or even positive, enthusiastic, etc). No-one has clarified what it does mean but unless it is pleonastic (*) must mean that some acts of consensual touching will constitute sexual assault.

I am also going to make like Holbo and jump ship at this point as I have stuff to do (unless anyone says anything egregiously defamatory). Thanks for the discussion.

I agree with gianni @306 that Main Street Muse’s link @286 is a much better set of policies for dealing with rape on campuses (afaik)

This thread is seriously making me smoke more than I otherwise would!

Ambiguity is the queen of argument. Sadly, it won’t get you tenure, let alone the right to kiss anyone on a sudden impulse. ;-)

Men seem to fear that the formality associated with affirmative consent rules will somehow put a new and unwelcome hitch in their gitalong, Given the statistics on sexual assault, though, and the abundance of anecdotal evidence, women surely have a right to argue that it’s high time someone did.

What’s at issue is how we conduct the process of consciousness-raising, no? Changes in laws and rules, however awkward they may seem to some of us at first, are a legitimate part of that process. And by all means do ask yourself why women should be expected to bear all the risk, especially since it ought to be clear enough that they’re the ones bearing it now, and have done for a very long time.

It’s just that heated arguments about subjects that, by rights, shouldn’t generate such heat, tend not to generate light.

That’s quite a tidy little platitude, doing a lot of very heavy lifting and evading. You’ve got:

— concern for the emotional well-being of your interlocutors (not your business);
— concern that they’re getting angry over the wrong subject (not your call);
— concern that their feelings are interfering with their clarity (assuming facts not in evidence).

As I say, your comments below thread stink of bad faith and an entirely unwarranted air of detached superiority. Then again, this handwringing is all academic for you, isn’t it? The stakes aren’t so much low as they never existed to begin with.

Rakesh 11.17.14 at 2:46 am @ 343:
‘Please are people really criticizing the new code because it could make criminals of ….’

If my understanding of what I have read in this discussion is correct, the law does not actually criminalize anybody for anything. For all the nits that have been picked, the nit that an academic code and proceedings thereunder are not the equivalent of a criminal court and the laws which it enforces seems unpicked.

Saurs – autocorrect changed your name to spurs in my analysis – sorry! (It changed so many I couldn’t keep up). And I for one wasn’t upset about you having ‘feelings’ about this topic! Don’t we all :)

When I was young, one of my friends was raped in one these date rape scenarios. Long time ago, but still similar to a lot of what I hear about now.

347 “…but perhaps a fear that they may at times have stepped over the boundaries of “affirmative consent”?”

I don’t think I’ve ever received – or given – “affirmative consent” in my life. I wasn’t aware of this particular boundary: where I’m from (in space/time), the social convention goes: “one thing led to another”. I wouldn’t characterize this as ‘fear’, more like an amusement. But who knows, perhaps the push for “affirmative consent” is, indeed, going to reshape the culture (if only the middle-class culture, realistically); time will tell.

Nor am I a lawyer, although I am absolutely surrounded by them in my family (Anacissie @348 I thought criminal was probably the wrong term, but I was so busy being right about everything else I couldn’t be bothered getting that right) and have even watched a nasty statutory sexual assault case (nasty because the defence barrister said things that weren’t horrible exactly, but painful to listen to, and the guy got off). But I think we talk about it as a social phenomenon.

I guess you are saying the law is important but it may face opposition on this and that ground, and conservatives may make wild claims, etc etc.. But it is possible to look at the notion of affirmative consent as an exciting step forward socially.

Val: “Within this male group there are three main subsections: Men who appear to be bitter about women and feminism and suggest women make accusations out of bad motives ”

Excuse me, but are you suggesting that women never do this? Ever?

Bwah ha ha. Really. No, women are not from Venus, they are human beings, with everything that implies, for good AND bad.

Look, the reason there’s this sexual bifurcation in the response, is that everybody here understands that enforcement will not be gender neutral. Women don’t have to worry about this law, they’re not going to be the target of it.

When two people get drunk and have sex, does the woman get charged with raping the man? Nope, doesn’t happen.

Similarly, if two people’s eyes meet, and a moment later there are clothes all over the floor without a word spoken, is it the female student who’s risking having their life altering investment in higher education go down the drain? Nope. It’s the guy.

“The contrast between the acceptance of a clearly gendered problem (female students being assaulted by male students)”

It isn’t a gendered problem. It’s a non-gendered problem, with a gendered response. Men rape women, AND women rape men, and the law and societal institutions mostly try to pretend the latter doesn’t happen, and certainly don’t go out of their way to deal with it.

@362
Yep, I’m sure that on the planet where you live, the likelihood of female students raping male students is completely equal to the likelihood of male students raping female students. Always interesting to hear these dispatches from another planet.

Just to reiterate, the bill targets rapists, not men. Objecting to laws that seek to better define and forbid sexual assault because our culture does not readily accept the notion of a female offender or a male victim will hurt vulnerable men and boys — future victims and survivors — in the long run. And there’s nothing I’d personally like more or advocate for than greater awareness of, and protection and counseling for male victims, because they are often erased in these discussions and because there is a special and distinct kind of abuse and shaming that male victims receive (abuse that is definitely gendered, misogynistic, homophobic, and certainly racist — even when the rapist is female). Further, all working definitions of sexual assault and rape need to excise gendered and cissexist language and include all possible forms of assault (not exclude, for example, victims who are “made to penetrate”). The most serious charges — like rape — should not be reserved exclusively for cis female victims. Hopefully, we’re in agreement here.

That being said, I disagree that women are somehow favored by the current system — saddled with people who lack the will, understanding, training, and empathy to adequately cope with victims and investigate complaints honestly and objectively, who cannot reasonably be expected to be immune to a culture that is steeped in misogyny — which I think fails victims in almost every way. I disagree that a woman has only to make a complaint for a man to be found guilty, or that it is the man’s reputation and career that is ruined when an accusation goes public. I don’t think that’s an honest reflection of reality. I think it’s a series of well-worn, exaggerated, and unsupported MRA talking points designed not to help men, but to silence women.

Well, does it target rapists and not men ? I would say more clearly it ‘targets’ men and women (as it tries to reimagine sexual relationships more generally) This seems to be pretty much built into the conversation here, that the small percentage of men who are consistent, purposeful sexual predators will just ignore it (I havent read the entire thread, but Holbo replied above that this then -hypothetically – leaves open a space to better identify and prosecute sexual predators. Perhaps,though I doubt it)
That’s not to say I think it’s a bad idea. I would say probably good on the whole, although Im a little ambivalent on that. But as per MainStreet Muse’s link above, and my quotes from RAINN further up, does it really do anything to deal with the systemic problems faced by victims of rape ? Id say no,not at all. (Muse’s article, iirc, seems to imply that it would be better to focus on ‘affirmative consent’ as a cultural change, a matter for education, rather than build it into any disciplinary procedures. Maybe that’s what’s happening here – there seems to be some disagreement on this thread and I dont know who’s right)

“Can you, Brett Bellmore, demonstrate how the bill, in changing the definition of consent, somehow targets men more than the pre-existing ones?”

I’m saying the reason men, and not women, are concerned about this bill, is because it will be enforced against men, and not women. The bill, facially, does not discriminate. The institutions, in practice, absolutely will. And so women need not worry about how this could be abused, because they know they, and not men, will be held harmless.

I refuse to indulge the pretense that this facially neutral law will be neutrally enforced. All experience with this sort of law says that it will not be, is not intended to be.

One more comment as a psychologist who in my regular general practice sees patients who are +%50 male and female victims of rape and sexual assault, I no longer recommend that people report it. I’m not an MD, but I still believe do no harm. Early in my career I thought “at least we’re saving the next potential victim” as I saw my patients bludgeoned by the legal process, but no, that doesn’t happen. No next victims are saved.

I may have an extrasensitive nose because of my experience, and xx chromosome, but the dismissive “of course the current system doesn’t work” followed by a panicky “but what about the menz,” just – stinks.

“but only with a reform of the justice system that more consistently punishes them for their predation”

You want a cultural change that woule actually be effective, and which I suspect is coming? People just flat out recording every moment of their lives. So that nobody would anymore go into a crime thinking they won’t be caught, that it will be “he says vs she says”.

THAT would be effective. And is coming.

Lifeblogging

“By the way, just as a question of epistemology, how could you doubt it, when you don’t know what you were doubting”

Fair enough. Though now that I know what lifeblogging is, Im sticking with my initial reaction.
But anyway, Im not going to worry about dystopic predictions of the future. Perhaps it’ll happen, perhaps not. I would guess the take up for lifeblogging will be a relatively niche one. I mean why would you bother documenting your entire life on video ? To catch the odd pickpocket ? (id assume as well, altgough dont know, that it’s illegal to video yourself having sex with someone without their consent ?So what’s the relavance to the question at hand? )

Even if they’re drunk!

I think of Sasha as male – diminutive of Alexander – and it appears that globally I’m more right that not, but in the USA, not so:

From Wikipedia:

Sasha is a unisex given name. It originated in countries of Eastern and Southern Europe as a diminutive of Aleksander and Aleksandra. It is also found as a surname, although this is very rare. Alternative spellings include: Сáша (Russian, Serbian), Сашо (Bulgarian), Саше (Macedonian), Saša (Slovenian, Serbian, Croatian, Czech, Slovak, Lithuanian), Saşa (Romanian), Sasza (Polish), Сашко (Ukrainian), Sascha (German), Sasja (Dutch and Swedish), and Sacha (French).

This name is especially common in Europe where it is used primarily by males as a diminutive of Alexander, although females may also use it as a diminutive of Alexandra. Despite its popularity in informal usage, the name is rarely recorded on birth certificates in countries such as Russia, Ukraine, the Czech Republic, and Slovakia, as it is considered a diminutive and not a formal name. Exceptions are Serbia and Croatia.

In Germany, the civil registry offices allow the inscription of Sascha in birth certificates as a formal name but only for boys.[citation needed]

In French-speaking regions (France, Québec, Belgium…), it is given predominantly to males (Sacha). In other countries, it is given predominantly to females.[citation needed] In the United States the name is almost exclusively used for girls, at number 369 in the ranking of U.S. baby names, although it didn’t gain popularity until the 1970s.

In the early period of Zionism, the name was common among Jewish males in Ottoman- and British-ruled Palestine, reflecting the East European origin of many pioneers. It became less common in 1950s and 1960s Israel, but revived with the new waves of Russian immigration to Israel in the 1970s and the larger wave of the 1990s.[citation needed]

“I mean why would you bother documenting your entire life on video ?”

Why would you pay to have a live mike connected to the internet in your living room? But I expect plenty of people will buy Amazon’s “Echo”.

Presumably recording your entire life will become popular once the record is tied to an AI assistant who answers questions and reminds you about things.

ISTM the standard as described could allow universities to punish Greek-system hazing that included acts of sexual assault, which are generally already against university rules, as sexual assault.

“I think someone suggested above the couple would just lie to the authorities, but I didn’t think that was satisfactory.”

People break the law every single day and don’t get charged and no one worries about it. I feel it is highly unlikely that people will use this new law to launch a crusade against men who were having consensual sex but didn’t get explicit permission.

where the participants are both clear they consented but admit they did not do so explicitly.

What exactly do you mean when you say “they did not do so explicitly?” The page I linked above makes it clear that affirmative consent does not have to be verbal (yes, ‘verbal’ is in the language you quoted above, which I assume is from some official guideline, but so’s ‘imaginative’ and clearly no one’s going to give anyone a hard time about having consented in a manner that demonstrates insufficient imagination.)

It is really hard, in my sense of how people generally act when they have sex, to actually consent without explicitly acting in such a manner so as to clearly indicate one’s consent. I mean, you could actually consent, but role-play someone who was unconscious or terrified into motionlessness, I suppose, but when people do that they almost always tell their partner offhand what they’re going to do, wouldn’t you think?

“MPAV, were you rolling your eyes when you said that? I would have been. My eyes are a little dizzy, in fact, from all the rolling they’ve been doing in this thread.”

It just kills me Lynne. It really does.

It is really hard, in my sense of how people generally act when they have sex, to actually consent without explicitly acting in such a manner so as to clearly indicate one’s consent. I mean, you could actually consent, but role-play someone who was unconscious or terrified into motionlessness, I suppose, but when people do that they almost always tell their partner offhand what they’re going to do, wouldn’t you think?

If this is obvious to everyone, I’m not sure why the law would need to change. ‘My sense of how people generally act when they have sex’ is the same, I think, but since it is not based on numerically vast experience I would be wary of legislating it. I don’t really want to add to the candidates for Bad Sex Writing Awards above but I certainly think it’s easy to give examples of sexual play falling short of intercourse where one partner does not react verbally or non-verbally in any way at all for a certain time but is still a willing participant.

Apart from this there seem to be plenty of examples, and not just in sex work, where one partner might show negligible outward (or inward) enthusiasm but still participate voluntarily. I’m not saying this is a good thing, and they might all be examples of unethical domination which should be outlawed for that reason, but it seems to me they are still consensual.

Anyway, as said above, I haven’t spent a lot of time worrying about this, I don’t know much about the legal issues (the information about de minimis assault was especially helpful, as I said) and happy to learn from those who have thought more. I do find the number of cheer-leading / Mandy Rice Davies type comments a little wearing at this point, but I did say I’d leave this earlier anyway so should probably do that now.

@394

Oops I used a (mild) swear word, so gone into moderation. So trying again.

I presume you mean ‘he would say that, wouldn’t he?’ type comments?

You know what – in spite of my apparent cheerleaderishness, I actually find it very frustrating that I go to all the trouble of analysing these comments to point out some important gender patterns, without getting any apparent acknowledgement from the person who asked for the evidence.

And your choice of gendered put-downs – cheer leaders and Mandy Rice Davies – was that deliberate or just what came into your head?

Val, apologies for not acknowledging your reply. I agree that in a discussion about gender politics (or class, race, etc) the gender (class, race, etc) of participants is relevant, and I’m male as you guessed (and as my handle suggests). I don’t think this should replace debate about the substantive points of disagreement. I didn’t agree with all you guesses as to the gender of other commenters, your characterisations of their views, or your division of them in to three categories based on your evaluation of those views.

I didn’t think you had provided textual evidence for your psychological hypothesis that John Holbo and others oppose the change in law because they think that ‘women while not being ‘sex objects’, remain somewhat mysterious beings who have their own, different, agenda – if you offend a woman (again because of the somewhat mysterious nature of women, it may be difficult to avoid doing this), she may later claim that she didn’t actually want to have sex with you – under this law you could then be in trouble’ in part because as I pointed out I understand this is a (entirely legitimate) possibility under the current system.

Whoo! I read all the way to #397 knowing what I wanted to say, and John Holbo mostly beat me to it.

Say a law is badly written. They can say “Trust us! We will do the right thing. You have nothing to worry about unless you are guilty.” That’s what happened with the Patriot Act. Basicly the government could take away all your rights as a citizen if they thought you were a terrorist, but of course you really only needed to worry if you were actually a terrorist. I worried, but I’m still here — the government did not mistakenly think I was a terrorist and it all turned out OK.

It’s much better to have a well-written law than a badly-written law. So any men here who think the new rule is badly written, should look for ways to do it better. Get the same hoped-for good results with a well-written law, and nobody is worse off.

John Holbo suggests the canadian law. It has worked in Canada for some time. Could it also work in the USA, a rather different and unfortunately more intemperate place?

There may be some men here who prefer to use the old rules because they think the old rules provide a better power balance between men and women. I’m not sure there are any of those, everybody who thinks that please identify yourself so you can be despised and vituperated.

But the ones who think there’s the germ of a good idea here that’s badly expressed — this is a good chance to express it better.

There are plenty of real violations that no administrator will have to prove her or his commitment to women’s safety by sacrificing a guy who had some innocent misunderstanding about necking. But a real violation of course could be committed by a guy so aggressively sucking on a woman’s neck that she is scared to antagonize him, and is able to satisfy him through her silence that she is able to escape without being forcibly penetrated. An administrator should look into this; and once the guy says that he may have overlooked evidence that she had become disinterested and fearful because he was drunk, and intent on filling his frat’s quota of beddings, the administrator clear grounds, under this law, to punish him. As that administrator should.

If you prove to be a creep doing A and your partner has become actively disengaged and perhaps fearful, you don’t have license to move on to B. Your being drunk and your having a mandate from your frat are no excuses to overlook evidence of someone pulling away or your having become displeasing and threatening to someone else or someone else being incapacitated.

I’m not going to press you to start describing sex acts in detail, but I think your reluctance to is masking the fact that any concrete example wouldn’t do what you want it to. You’re trying to come up with an obvious injustice, right? That could be attributed to literal application of the affirmative consent rules. I don’t think there’s a concrete example that wouldn’t be either self-evidently silly (” I said you could verb my left noun, but I never consented to your verbing my right noun!”), or wouldn’t sound like something that was plausibly a real sexual assault: where one person did something significant to another in the absence of consent.

You don’t need to type it out in the comment box, but can you really in your own mind come up with a set of concrete facts that to you seems both obviously something that shouldn’t be punished and yet also not absurd as an occasion for punishment under this rule?

Since you believe that innocent sex positive men will offered as sacrifices by dysfunctional bureaucrats to this law, don’t you have to make a case that this is a tolerable price to pay for whatever protections you think this law may provide? But I can’t find where you have made such a case.

Left the thread for a while. Came back. Searched my name to see if I owed anyone a response. Found Val’s comment. Honestly I’m surprised it took that long for someone to pull that particular maneuver- crooked timber’s comments are definitely a step above the usual.

John Holbo has suggested the Canada law as an improvement. Is there anything the California wording does that’s valuable, that the Canada version does not do?

nothing about the passage of this code signifies their willingness to do so.

Just to be clear, by this I mean as a reminder that the bill has been imposed on California’s public colleges and universities. These are not policies they’ve developed internally or adopted willingly, and there is nothing to suggest, yet, that they’ll do a bang-up job enforcing SB-967, which is already treated with a great deal of contempt and suspicion (the cable news media-generating sort) by a very loud political minority.

Anyway, eliding the difference and distinction between patriarchy (which we’ve inherited, is ubiquitous and ever-present, and from which no person is immune) and an intentional conspiracy (the renegade committee member with no thought for their own career willing to sacrifice an innocent student to a bloodthirsty rabble of feminists braying for manmeat, etc. etc.) makes your hypothetical go down a lot smoother, but they’re not really equivalent. One serves the status quo quite easily and without personal injury by being silent and malleable and towing the line and doing what’s always been done. It’s not an equivalent act, deciding to discipline a student as An Example in a climate that is already decidedly hostile to the idea of punishing students for sexual “misadventure,” as all but the most egregious assaults are framed.

I can’t comment on your “de minimis violation” because I’ve no idea what that might be, the kind of non-consensual act that all eminently reasonable gentleman know is not a violation at all. It’d be nice, as others have said, if you could provide a concrete example, perhaps folded into a rational hypothetical that would explain why the eminently unreasonable young lady who received the violation is behaving so unreasonably (I gather she made a complaint of some kind, or otherwise why are university staff murmuring over it in the first place?).

I will try to restate some of the arguments. Anybody who thinks I have parodied their position can say it better.

1. Rape is a big unsolved problem, and this new law is a tiny step in the right direction. It won’t accomplish much in practice but it’s at least a little recognition of the problem and it’s a tiny big of progress so anybody who opposes it is a bad person.

2. No, the new law might oppress men.

I’m not going to go farther with #2 because it goes nowhere good. A lot of women get raped and the system does nothing. Arguing that we should do nothing because a very few men might get hurt, or because a lot of men might get scared that they could get hurt and scared that they are supposed to change their behavior to something they don’t understand, will not have any traction with women. Arguing along these lines will only get people angry. I think fewer men have really argued this than it appears. It’s easy to read it into arguments that say something else. But then, it could be unconsciously in the background of other arguments. But arguing that men can be hurt, or arguing that men can’t be hurt, or arguing that it’s disgusting to care that a few men could be hurt, none of those will get us anywhere we want to go. Unless you enjoy getting angry.

3. The new law is unclear. It needs to be clearer.

I think this is a valid point and I have seen no real discussion about it. People who think it needs to be clearer should look for ways to make it clearer. Instead they have mostly tried to prove it’s too unclear, and women assume that those arguments are arguments against doing anything. It’s hard to provide examples of it failing that the old law wouldn’t fail even worse. Plus people don’t want to actually describe what they’re talking about, so they’re badly unclear about why it’s unclear.

Ideally we would have at least three new proposals, and we could discuss which are better even while we support all of them. It could be that each of them is an improvement over the old way, and whichever of them has a fighting chance to get adopted somewhere should get support, and still some are better than others.

The new law may be unclear, but arguing that it is unclear without arguing for specific improvements will look like you’re against it. Prove you want to fix the problems by trying to fix them.

4. The concept behind the new law is itself unclear. What does explicit consent really mean?

I think this is correct. It really is unclear. Should both partners ask, and get a verbal yes before they do anything new? Anything at all? Every time? Maybe. It sounds clumsy.

Legality aside, the purpose isn’t so unclear. People communicate, a lot of it is with body language, and in theory that communication should be clear. If a woman says no and gets ignored, that’s rape. If she is afraid to say no and the rapist ignores her body language, it’s still rape. If she’s afraid to provide clear body language and the rapist goes ahead, she still feels raped. We don’t want women to feel raped.

The fundamental idea is clear. Everybody is responsible for making sure that communication happens, that there is no sex without consent. What’s less clear is how to make sure that happens.

5. Has there been a significant fifth argument?

@418
Patrick I’m sorry that you apparently find me to be someone who lowers the tone of Crooked Timber, but please bear with me – what are you trying to say? What is the “particular manoeuvre” that you are talking about, and what is it that’s so wrong with it?

Val: “Btw – the BB group do think – well not that women are “mysterious”, more that women are just deceitful, nasty and vengeful, I guess. Mysteriously nasty deceitful and vengeful, perhaps.”

What I think is that women are human beings. That the wonderful diversity of human-kind does not, for women, have some kind of magical cutoff that precludes SOME women being deceitful, nasty, and vengeful. That any argument based on “women wouldn’t do that” is DOA, because, yeah, some women would do “that”, regardless of what “that” might happen to be.

I also think the gendered nature of the response to this law is largely a result of the reasonably anticipated gendered nature of the law’s enforcement. Women are free to be unconcerned about the possibility this law might be abused, because if it is, they won’t be the ones it’s abused against.

Call it a hangover from the fading patriarchy, a lingering privilege, what you will, the law, the institutions, do not admit that women have committed rape, unless the circumstances, usually age of the victim, utterly preclude any other conclusion.

If two people get drunk at a party, beyond any capacity for genuine consent, and proceed to have sex, it isn’t the woman who’s going to be accused of rape. That’s just a brute fact of our society. And, thus, only men have to worry about a law that makes it easier to accuse somebody of rape. Not because only men rape, because only men are acknowledged to rape.

Yes, we have real “gendered” problems in our society. For instance, the majority of suicides in this country are men who just got divorced, and if you reversed the gender on THAT statistic, there’d be a national crusade to do something about it, colored ribbons all over the place. Men live shorter lives than women, and, strangely, most of the gendered medical crusades are aimed at increasing this difference.

But sometimes what looks like a gendered problem, is, instead, a gendered refusal to see the problem. Gendered enforcement, not gendered commission. And I would say, that is the case here, to a large extent, and that is why women are not concerned about a law like this being abused.

Because they’d be the ones abusing it, so why should they worry?

@428
Brett you cannot win this argument by acknowledging patriarchy (even “fading”, after 5000 years or so) and then trying to suggest that men and women are equally guilty as individuals.

Try to imagine this in the context of racism – the USA was a country in which black people were enslaved, and there are huge lingering problems from that. No doubt individual black people, like individual white people, can be racist, and some people are more racist than others, but racism, as such, is not a problem of individuals. It is a structural problem, with an historical basis. So is sexism. That is why I keep saying to men, look at your privilege, examine how patriarchy may have influenced you, and then discuss the issues.

If you are commenting on a thread, and all the women on that thread disagree with you, it is possible that that is because you do not fully understand the issue.

@431
As I’ve pointed out, most female commenters don’t actually seem to be concerned about that. Please have some regard for reality. It may be convenient to disregard what women are saying, but it isn’t ok.

@432 “As I’ve pointed out, most female commenters don’t actually seem to be concerned about that.”

I didn’t say they were concerned. I said they recognize that criminalization of unobjectionable behavior is not a good thing.

@ 433, your 2 says “the new law might oppress men”. A law that criminalizes unobjectionable (and common) behavior will be abused, most definitely. But also, this kind of law creates the impression that the Law (in general) is a joke.

Ze Kraggash,

“I didn’t say they were concerned. I said they recognize that criminalization of unobjectionable behavior is not a good thing.”

1. I think people have pointed out this is not a criminal law.

2.Even if it was, lots of unobjectionable behaviour has to conform to meet legal regulations.

I gave the example of transferring title – now people have to conform to regulations when they transfer titles — beforehand some people transferred title in unobjectionable ways, and some in objectionable ways, but now regulations apply to everyone.

In Australia it is illegal to ride a bicycle without a helmet, but riding along without a helmet is not all that objectionable although if you get in an accident it is dangerous. One day I was in a rush and was;t going more than a few blocks and didn’t put my helmet on, and then I heard a police siren behind me and wondered what criminal they were pursuing and it was unfortunately me.

@436 It was discussed for a while as if it was a criminal law. It’d be much more interesting to discuss it as a hypothetical criminal law.

And I don’t think that would be anything like title transfer regulations, or traffic regulation on public roads.

I think it’d be more like laws against the private drug use (use, specifically, without distribution). One wants to, say, grow some plant in his kitchen, strictly for personal use, and then smoke it. Shouldn’t be anyone’s problem, right? But since drugs are considered a public menace, and because allowing it for the personal use would make it so much more difficult to prosecute, it becomes illegal.

“I think it’d be more like laws against the private drug use (use, specifically, without distribution). One wants to, say, grow some plant in his kitchen, strictly for personal use, and then smoke it. Shouldn’t be anyone’s problem, right? ”

No it is not the same as private drug use at all.

This topic , rape, is about something involving two people, not just one person. The problem is rape where one person does something to another person without the other person’s consent.

I think everyone is in agreement that rape is wrong and should be criminalised and also strongly discouraged (except perhaps you with this new rape is like drug taking analogy – but I am willing to consider you didn’t think it through )..

But some male commenters seem to think that these regulations that specify seeking and giving consent are overly demanding. This is likely because they live with little danger of being raped (Brett Bellmore seems to think that men are raped as often as women, but I doubt this is the case anywhere except maybe in the military where it is a big problem for men and women).

It is hard to see that this seeking and giving consent regulation is overly demanding, and anyway people are very creative so even people who aren’t good with words can make up some symbolic actions to convey asking and giving consent like dropping handkerchiefs (although probably not that exactly because what if someone accidentally dropped a handkerchief).

#439 MPAV

“If she’s afraid to provide clear body language and the rapist goes ahead, she still feels raped. We don’t want women to feel raped.”

“Feel raped” is a really fucking horrible way to phrase that J.

It is the problem.

Like, sometimes a woman may wind up in a confusing situation where she doesn’t know what to think, and later she comes to realize it was rape. Some people think that means there’s nothing wrong except inside her head, that you can’t have retrospective nonconsent. But it’s real.

One of the things that “active consent” could do is to allow prosecution for this. If someone is confused and doesn’t know what to think, that is not real consent.

But to me it’s more important that it not happen, than to prosecute a tiny fraction of the people who make it happen. I’m not opposing the new law, but I also want something better.

Just to clarify, with the last sentence I intended to imply whatever that mysterious situation is that is always mentioned where no wrongdoing has occurred but it technically does not comply with the consent regulations. I did not mean rape.

ZM, rape is illegal. Do the new laws make it illegalier? “Oh, I’m going to rape this person, but thanks to the new law, what I’m doing is still illegal so I won’t do it” has been said by no one, ever.

I’m not convinced by the helmet analogy. Helmets directly prevent brain damage: the law immediately saves lives. But we already have a law banning rape: a law banning things that are not-rape along with rape doesn’t seem to make rape more illegal. It’s probably worse as it makes people take what the law calls rape less seriously.

ZM 11.18.14 at 3:03 pm @ 443:
‘… Similarly, while some male commenters complain it is too onerous that they have to ask and be given consent or vice-versa, it is hard to see that this is considered overly onerous given it is meant to prevent rape. …’

It is not only possibly onerous for males. The regulation or law also requires at least het women who desire sex to make their desires overtly, unambiguously explicit. This requirement runs counter to a considerable cultural history in which males were supposed to take the active, pursuing role, and females a more passive role, both parties possibly playing with representations of desire, consent, and rejection. Although it is a cultural artifice, it is of long standing, and is deep enough to have worked its way into both popular and high art. Some people are going to find the new requirement difficult to meet.

““Feel raped” is a really fucking horrible way to phrase that J.

It is the problem.

Like, sometimes a woman may wind up in a confusing situation where she doesn’t know what to think, and later she comes to realize it was rape. Some people think that means there’s nothing wrong except inside her head, that you can’t have retrospective nonconsent. But it’s real.”

“““Feel raped” is a really fucking horrible way to phrase that J.”

No, it’s an accurate way to describe it, unless you’re going to take the position that anything a woman, even in retrospect, decides was rape, was rape.”

Okay, it doesn’t happen often to me, but J Thomas and BB have rendered me speechless.

Passing laws that a significant portion of the current population has no intention of obeying is always a fraught enterprise. In the U.S., Prohibition was one notable case, the Civil Rights legislation of the 60s another. One didn’t take, but for the most part the other did. Are there lessons here about 1) the arc of the moral universe, 2) the intersection of politics and the law, 3) the wisdom of our appointed social arbiters, and 4) the obscure workings of the Zeitgeist? I think that the answer is yes, but what I think is at best a marginal contribution to an argument which appears to be governed by its own obscure laws.

As an individual, though, I can find no compelling social interest in defending Brett Bellmore’s right to be an asshole. He’ll have to fend for himself, which, being as he appears to consider himself a libertarian, should be well within his zone of comfort.

For the libertarians: under what conditions do we say that people may have acted under duress? Is agency or, what is not the same thing, consent possible under conditions of duress? Under what conditions do we say people were coerced even if they willingly made a choice–to take an example from Kaushik Basu, to choose to take a walk for pleasure in a dicey neighborhood only to then choose to give up to a mugger an expensive watch rather than take a blow to the head or a knife to the stomach.
There are probably multiple reasons why this thread has generated so much comment; perhaps one minor reason is the threat libertarians sense in this debate to their sense of freedom in the marketplace. Coercion does not mean the victim did not make choices, or was denied agency; and if that is clear, then perhaps some of what we have to consider voluntary will have to be rethought. And too much thinking makes put strains on Rand Paul’s candidacy.

Val @ 426

I’m pretty sure the maneuver is: You used facts and made an empirical argument. That you’re female, and further a feminist, obviously, is just icing on the cake. This is a philosophical discussion. We discuss principles. Facts cannot change principles. Now, I love philosophy but this is absurd.

There’s a general whiff of 4chan rhetoric that’s triggering my PTSD like symptoms, anyway, so I’m done here.

I appreciate your effort to create an informed summary of the thread. All the objections so far, I notice, fail to make specific objections to your facts or offer an argument of their own. There are well-established methods for objecting to an empirical argument (on empirical grounds–or for that matter otherwise, which are also not here, incidentally), are there not? Therefore, I’m taking their objections as non-serious, even half-hearted attempts to make a show of refusing to concede defeat.

or for that matter otherwise: OK, Brett attempts this, in a sort of abstract, not really grappling with the empirical, way.

Sasha Clarkson 11.18.14 at 5:30 pm
‘… My dad was born in 1919, but his advice to me was that if a woman was interested, she’d find a way to let you know fairly unambiguously. …’

That sort of thing will no longer suffice. She has no choice (in theory) but to flatly and explicitly declare her interest, running the same risks of rejection, derision, and disrepute that males do. All those corny Latin dances where the woman draws her partner in and then pushes him away, builds him up and then humiliates him — those clichéed exercises will become mysterious and incomprehensible except to the learned.

I’m not arguing that that is a bad thing; I’m just noting that it’s a serious change in the culture, and it is within the framework of culture that we signal one another. Laws tend to trample around in cast-iron boots, but there are sometimes worse things. And regardless of laws, it’s probably going to happen anyway.

#450 Lynn

““Feel raped” is a really fucking horrible way to phrase that J.”

“No, it’s an accurate way to describe it, unless you’re going to take the position that anything a woman, even in retrospect, decides was rape, was rape.”

Okay, it doesn’t happen often to me, but J Thomas and BB have rendered me speechless.

I want to point out that BB is not agreeing with me.

Imagine the following all-too-real situation. A woman has been raped, and she is still traumatized about it. A man tries to seduce her and she’s too scared to drive him off. He asks her if she wants to and she says yes because she’s too scared to say no. She tries to convince him she’s enjoying it because she’s having flashbacks, she imagines he’ll kill her if she isn’t persuasive enough.

Let’s say the clueless man has not really done anything wrong. He listened to her lie to him, and he believed her fake body language. But it’s just as much rape as the previous rape. It feels like rape to her. It would be wrong to arrest this guy for it. And arresting him wouldn’t help her at all. But her experience is still another rape.

I don’t want this to happen. In reality, the difference between a woman getting forced at knifepoint to pretend she’s consenting, versus a woman scared by memories into pretending she’s consenting, is not that big. It feels the same. One is as bad as the other. I don’t want either one.

Brett Bellmore has some interest in deciding what’s rape and what isn’t rape, because he doesn’t want innocent men to get punished for things that aren’t rape by the definition. But apart from the question of punishment I don’t want women to feel raped. If a woman feels like she’s been raped then something has gone wrong.

If she feels afterward like she was raped but she didn’t have it clear at the time what was going on, something has gone wrong. Some men will argue that it can’t be rape if she only decides later that it was. I don’t care about the definition. I want it not to happen.

We haven’t had great success stopping rape by trying to decide who’s guilty and punishing them. Probably we should try some other approaches too. What’s worth stopping is people feeling like they’re being raped, and people feeling like they’ve been raped. If somebody says that a woman can feel like that and it isn’t really rape, then rape is not quite the issue. The issue is whatever it is that leaves her feeling like that.

J Thomas, I appreciate that your heart is in the right place, but what LizardBreath said.

Building upon what LizardBreath said: in the extremely unlikely circumstance of a tragic misunderstanding resulting from the male not thinking to articulate something like “Are you sure that this is what you want?”, then, if not rape (and I’m not convinced by the casuistry), then, at the minimum, a charge of criminal negligence would be appropriate.

Or, rather, “nerdy guys”, doing their nerdy-guy thing, of giving not a fuck about anyone else’s concerns.

Oh dear Geo, at least in my mind, you’ve raised another can of worms. How should kids be taught how enjoy alcohol without it ruling them? Maybe that should be a topic for another thread! ;)

I’m a male Brett – a real man has manners and asks rather than taking! ;)

@434 Ze Kraggash
In general it seems female commenters did not think that a law based on the notion of “affirmative consent” would (in John Holbo’s words in the OP) “generate serious problems”. Some thought broader measures were needed (eg cultural) to make any real change, and some thought ( as I do) that affirmative consent is a positive concept that could encourage better and more enjoyable sexual relationships (It hasn’t really been discussed but I would think the principle applies in both same sex or hetero relations).

As Bianca Steele said (thanks Bianca!), I did introduce some empiricism into the argument about who said what in this thread (and am still doing it). It may come as a surprise, as it did to Ronanf, for people to find their views classified in this way , but I think there are some important patterns in this thread, and I think that quite a few men here seem reluctant to acknowledge that.

It’s just depressing – actually it’s outrageous – that even in a debate about rape, some men seem reluctant to listen to or acknowledge what women are saying.

” It may come as a surprise, as it did to Ronanf, for people to find their views classified in this way”

Val – I don’t personally think broad categorisations are generally useful, except as a first step simplification or to make a general point. I agree that it has broken down (or appears to have done) on gender grounds on this thread. That does speak to something (partly male privilege), but I also dont think the comment section of this thread is representative of broader society (ie there’s a lot of slection bias here, ideological, level of academic attainment, age, class etc) so I dont know what broader conclusions can really be drawn, outside of this very small self selecting group of people.
Again though. My preferences (as stated above) are for policy rather than cultural changes. As a policy I dont think this will be effective. I dont think the negatives associated with it will be substantial. That’s largely my position at this point.

“Did you have a particular topic to raise on how to change the culture that supports people in committing rape?”

J may or may not but I do. Make our culture much more sex positive. If women feel comfortable and unjudged in their sexual choices they will be more likely to be clear with their partners about what they want and more likely to come forward when they are mistreated. Additionally a truly sex positive culture will be more likely to believe a woman and less likely to judge her personal sexual choices.

#475 Collin Street

“A man who doesn’t mind scaring a woman into not saying no, will have no qualms about scaring her into saying yes or scaring her into pretending she’s feeling hot for the camera.”

This is an empirical question, you know. Your rootless — ha! — cognition loses to personal experience.

You’re right that I lack personal experience about this. Are you telling us that you do have personal experience? You personally don’t mind scaring a woman into not saying no, but you are not willing to scare her into saying yes?

Val – just to add, I know the way I listed my ‘preferences’ in 476 is a little disingenous. I really dont know what I think as a whole, but that’s what Ive settled on at the moment, for whatever reason. Obviously my perspective is skewed by a lot of things, being male one of them (of course,i dont deny it ) but .. and I dont mean this snarkily .. there really is only so much self reflection I can engage in on a blog comment section. Eventually a clash develops between examining my prejudices and being honest. Anything Ive written above is an honest reflection of what I thought at that given moment. I have tried to take on board others persepectives, some were convining (to my eyes) some not, and hopefully account for any inbuilt male privilege, but it’s a freeflowing back and forth where positions arent clearly thought out or even ones a person would settle on in the clear light of day, so Im not sure what can be done about it.

“As I said, the big question is why was it apparently only men who focused on the so-called ‘serious problems’ it would cause?”

Well the reverse is also true, why didnt more women express concern with the potential consequences ? I think the answer is perhaps obvious, and unfortunately expressed most clearly by Brett Bellmore, because (on this thread) men see themselves as being targetted by this change, and women see themselves as beneficiaries. I dont think it’s surprising that a thread on this topic would disproportionately attract men who had concerns (for whatever reason)about what the change would mean for them, or people ‘like’them. I dont think there’s anything untoward there. People have different perspectives, if theyre arguing in good faith then hopefully theyll broaden them by arguing the topic out.

#481 Val

Why does it seem that men are more likely to take the ‘well it may (or may not) have some slight usefulness, but let’s talk about the serious problems it will cause’ approach?

I’m not particularly one of them, but I can guess just like you can.

First there’s the personal possibility. They can imagine men being hurt by it, so they want to examine that possibility. I don’t see any great value in accusing people of being biased by their own personal situations. Like, when men turn the argument around and say that no women have considered any possibility of problems, because they know it won’t affect them personally…. This sort of accusation about either gender mostly makes it harder for us to communicate honestly. If we go back and forth playing Gotcha! what is the prize when we win?

Second, there’s the possibility that John Holbro has repeated many times. If the law is unclear, that’s bad. It’s a bad thing for any law. Better that the law be clear. Of course there’s an alternative. “It’s only good people who will be applying the law, so you can trust them to be reasonable. If the law gives them the official right to do bad things and keep it secret, well — trust them. Don’t worry your pretty little head about it.”

I think this is a reasonable concern. But it has gotten hardly any traction. People who are honestly concerned about it ought to be looking for ways to make a similar law which is clearer, and there has been hardly any effort at that. John Holbro finally recommended a Canadian law that did similar things but was stated different. I haven’t seen that anybody at all on any side has looked into it since to decide which version is better. It just has not gotten attention.

Lynne – I agree that concentrating on ‘false accusations’ considering what the evidence shows about how the system is weighted makes little sense. (I said the same above) I still think there’s room though – on this specific policy – to argue whether the hypothetical costs are worth the hypothetical benefits. (there can still be questions of whether a policy is a good one) I havent read all the thread though so I dont know how far it’s drifted from that sort of discussion.

Sorry about the formatting on that blockquote. Didn’t this place used to have a preview button?

Or, what LizardBreath said better.

We have to assume good faith on the part of the people who enforce the laws, or all bets are off.

That solves the problems with the CA and OSU laws/codes, then!

There has been lots of speculation in this thread about what’s going to happen once affirmative consent laws/regulations get implemented (in case anyone’s missed this). Oddly, there has been no mention of the fact that affirmative consent regulations have already been widely implemented across US colleges and universities.

IHE:

Earlier this month, the State University of New York system adopted that same uniform definition at all of its 64 campuses. The California State University System adopted its new definition months ago. Every Ivy League institution except Harvard University has adopted some form of affirmative consent. According to the National Center for Higher Education Risk Management, more than 800 colleges and universities now use some type of affirmative consent definition in their sexual assault policies.

Think Progress:

More broadly, it’s perhaps important to remember that California’s proposed law isn’t that groundbreaking on the collegiate level. The National Center For Higher Education Risk Management, which advises higher education institutions about how to craft effective sexual assault policies, has been recommending this type of consent standard for more than a decade. It’s already in place at colleges in the University of California system, as well as at most Ivy League schools. In the midst of increased attention to issues of rape on campus, some universities are in the process of refining their definitions of consent even further to make sure students are on the same page.

“The shift in this country away from defining sexual violence as force-based conduct has been championed by many colleges, and is now the law in a majority of states,” the National Center For Higher Education Risk Management noted in a 2001 guide for campuses. “Many state criminal codes are antiquated, at best. Colleges are on the cutting edge with so many issues, ideas, and research. Sexual misconduct should be no different, and is an area in which colleges really can and do lead the way.”

So: if one wanted to, one could, instead about speculating about what’s going to happen, simply look at what has happened.

…And I fully expect to be inundated by stories of unfairly accused and disciplined men that became right-wing cause célèbres any… minute… now.

(N.B.: There area lot of links in the quoted paragraphs which I’ve not preserved—worth checking those out obviously.)

@487
[me] “But what about the position that affirmative consent is a Good Thing?”

[Ze Kraggash] “Just as a personal opinion, it doesn’t sound to me like a pleasant cultural innovation. We are human beings, not robots, we don’t need a communication protocol in our private lives.”

That’s how you respond to this idea – a communication protocol, something that interferes with your private life. That’s not how everyone understands it. I don’t. Can you see that there are different perspectives here?

Those who say ‘men are worried about the possible consequences of the law, because they are the ones most likely to be charged with rape’ – that’s kind of confirming my thesis, but it’s not answering my question.

Ze Kraggash went on to say that perhaps what is needed is “more awareness, more respect, better social skills”. I think that is exactly what affirmative consent is meant to encourage. So what is wrong with it?

js @ 496 – thanks for that information. It would be good to hear some appraisal of how it has worked and whether it has made a difference (hopefully not just shock horror stories about how it has been used to persecute innocent men by vindictive harpies!)

Just as a personal opinion, it doesn’t sound to me like a pleasant cultural innovation. We are human beings, not robots, we don’t need a communication protocol in our private lives.”

That’s how you respond to this idea – a communication protocol, something that interferes with your private life. That’s not how everyone understands it. I don’t. Can you see that there are different perspectives here?

The words ‘just as a personal opinion,’ might possibly be a clue that he can…

“To reduce the number of women who feel raped, we need to know something about rapists. ”

And, again. Reducing the number of women who “feel” raped is, I suppose, a good goal, as is reducing the number of women who ARE raped. And they are different goals, we should not ignore that. But, again: Why are we only concerned with women who get raped? Why are we pretending that only women are raped, that only men rape?

This question goes to the heart of why the men and women in this comment thread have reacted differently to this law.

#502 BB

Why are we only concerned with women who get raped? Why are we pretending that only women are raped, that only men rape?

As a first approximation, there are around 10 times as many heterosexual men as homosexual men. So if other things are equal, there are likely to be around 10 times as many women getting raped as men getting raped.

There’s a good chance that if we find methods to reduce the number of female victims, they will also reduce the number of male victims.

If you want to start talking about male rape victims and their special needs, go ahead.

Just on Js. latest, can I say that I am in favour of ‘The shift in this country away from defining sexual violence as force-based conduct’ (ThinkProgress) and I can’t see problems myself with the Canada statute (altough I’m not clear which part of it is supposed to qualify as ‘affirmative consent’). If anyone is going to comment on this I’d be interested to know where UK law fits in (which I’m also fine with fwiw).

(And for the record, not that I particularly care whether I make the list of double-plus-ungood comrades or not, I haven’t ‘opposed’ affirmative consent or ‘suggest[ed] it will inevitably lead to problems of criminalisation’, I have been attempting to understand to understand it properly, and why proponents don’t think these problems will come about. I’m still very sceptical of the claim that it doesn’t depart from the ordinary legal concept of consent in any significant way.)

“We have to assume good faith on the part of the people who enforce the laws, or all bets are off.”

I see we have sidestepped from male privilege to white privilege. Another way to take down non-white people who end up in college? First big case will be a white guy. But disproportionately it will take out non-white guys. Why? Because that is how nearly all laws with lots of prosecutorial discretion work.

The UK statute: http://www.legislation.gov.uk/ukpga/2003/42/section/1

I think in normal contractual matters, the consenting party (-ies) must be informed, uncoerced, in their right mind, not defrauded, and the expression of consent must be overt and explicit, although it can be implied (by the consenting party having voluntarily gone along with whatever was going on).

I don’t think this is right. ‘Informed’ is definitely wrong (I think) and consent can be implied (ie. it doesn’t have to be explicit). IMHOIANAL but anyway what I meant was that I’m sceptical that it isn’t a significant change to the standard of consent in rape, sexual assault, etc (sorry if I wasn’t clear).

I meant to say the problems I have with it IN LAW

Lizardbreath’s point – which I have conceded – is that tacit allowance for de minimis leeway is what will keep the law from being potentially radical in its implications.

You’ve said this a couple of times, and I don’t recognize it as a version of what I’ve meant to say. Allowance for de minimis leeway is what prevents the particular parade of horribles you seem to be concerned with: on a silly level, prosecution for kissing your wife on the cheek; on a more serious level, prosecution for something more serious that you have been too modest to specify, that would both be an obvious injustice to prosecute but also a clear (and significant, not cheek-kissing or ‘I only consented that you touch my elbow, moving your hand to my upper arm was assault’) violation of a rule prohibiting sexual conduct without affirmative consent (obviously, I’m being sarcastic here, but I really don’t believe that there is a plausible example that would both be non-controversially an injustice to prosecute and also non-controversially a violation of affirmative consent.)

But I do think that codes mandating affirmative consent may have a significant good effect (radical? I’m not sure what you think counts as radical) from the point of view of a truthful complainant who did not forcefully object to or resist sexual assault. If the complainant believes that the standard that will be applied to their complaint is that they will have to establish that they sufficiently communicated non-consent to their assailant, they may believe that their truthful account of the assault will not be sufficient to establish that (or they may find out that it isn’t after an unpleasant process of having their behavior questioned, and having their assailant say that there was no way for the assailant to have known that the complainant didn’t consent). If they know that they can truthfully say “I did not consent to sex, and I did not affirmatively communicate consent to sex, but the assailant nonetheless proceeded to assault me,” and if they are believed, that is sufficient to establish that they were assaulted, that’s a big difference. It turns the questioning onto the assailant’s behavior: instead of asking the victim “What did you do to resist/object to being assaulted”, one asks the assailant “What was your justification for believing that the complainant consented to your actions?” Obviously, either or both can still lie, but the affirmative consent standard seems to me to clearly make life importantly better for a significant class of truthful complainants.

I’m not sure what do you mean by calling consent or non-consent the ‘default position’. That it doesn’t have to be proved? Is that true? (2. wasn’t directed at you – sorry.)

Insofar as the onus is on the claimant/accuser/victim to show that she or he resisted/showed signs of non-consent, the default, not needing to be proved position would indeed seem to be one of consent, no?

Less frivolously: sure, guys get raped, too, and sometimes they’re falsely accused.

In perspective, it’s not much of a problem. People have bad reactions to vaccinations and antibiotics. Nevertheless, they save far more lives than they take. We’ve got active imaginations; anyone who can’t conjure up a dystopic nightmare from any policy recommendation is brain-dead.

Still, we have to weigh the victims on the scales of justice, and for this question we seem to be balancing conjecture against evidence. On one side, women who were victims of rape, on the other, men falsely accused. It’s easy to see where the thumb ought to go.

Repeated again in 521, the idea that, if this was a criminal law, most cases would still develop into a he-said-she-said standoff – I don’t find it convincing.

When the defendant is asked: ‘before unzipping his jeans, did you get affirmative confirmation?’, she could answer: ‘no, but he didn’t seem to mind’, which would be an admission of guilt. Or, she could answer: ‘yes, indeed, I asked him: may I unzip your jeans? And he replied: yes, you may’. In the latter case, if I’m on that jury, I know the defendant is lying, because such communication is ridiculously unlikely (IMO only, but hey, I could be called for jury duty that day). So, it’s not he-said-she-said anymore, it’s either he-said-she-confessed, or he-said-she-lied. Easier to convict. And if the conviction rate is what you’re after, then this is definitely a way to do it.

Anarchissie: “Consent is first, a mental state, and second, an expression of that mental state — in other words, a feeling.”

So’s guilt. If I trip on the sidewalk and fall into you, you can feel “assaulted” all you like, and you still haven’t been assaulted. Crimes aren’t all in the ‘victim’s’ head, they have an objective component, too.

And that, Anarchissie, is why the problem of women “feeling raped”, and women being raped, are different problems. Because what’s inside the putative victim’s head isn’t the only thing that’s relevant.

Bad Jim: “In perspective, it’s not much of a problem.”

I would say, rather, “Looks like not much of a problem, because the law won’t admit it has happened unless utterly compelled to do so. Which is why most cases of women committing rape you may hear of are pedophile rape; It’s the only sort where the authorities have no way out, can’t find a way to avoid admitting a woman has raped someone. Then, as soon as the male kids get old enough you could claim they were willing without being totally subject to ridicule women magically stop committing rape.

But I wasn’t making a positive assertion about relative frequencies of rape, of which there is not much good data for that very reason. Rather, I was explaining why there’s this concern with the law that is only being expressed by men.

Because it’s a concern that will only effect men.

J Thomas: “Oh, incidentally — if the study Saurs referenced is approximately correct, we might be able to cut the number of rapes by more than half by forbidding men and women to drink together.”

Let me suggest a way to cut rape drastically, without vast social change and a hilariously unlikely way to revive Prohibition: Prison reform. Oh, wait, not going to happen, prison rape is funny, and it’s almost all male victims, so it’s not a priority. Just like half of all suicides being men who were just divorced not being a national horror, because they’re men.

@ Bianca: “There’s a general whiff of 4chan rhetoric that’s triggering my PTSD like symptoms, anyway, so I’m done here.”

Ugh, I’m sorry about that. I don’t have anything else to say, just didn’t want this to seem to pass unheard.

“Changing the behavior of the innocent” is an interesting phrase, because it’s equivocal between “changing the behavior of people having completely unobjectionable, fully consensual sex” and “changing the behavior of people doing something something frightening and disturbing that nonetheless would have been impossible to prosecute under different rules.”

Sebastian H’s hypothetical is a perfect illustration, I think. (Let’s assume that everyone is truthful and agrees precisely about the facts as they were apparent at the time — if we start worrying about who’s lying, it’s pointless, people can lie under any standard.) Couple in bed, man requests sex, woman says no, man keeps pushing, woman ‘gives in’, but without saying or doing anything that affirmatively indicates that she actually consents to the sex rather than that she has just given up resisting. If she indicates by word or unambiguous deed that she has changed her mind and actually does consent now, then she’s given affirmative consent and we’re out of the hypo — discipline wouldn’t have been a possibility. Are we really going to discipline him for that, when it could perfectly well be ordinary relationship sex, not the most fun she’s ever had but just a boring night rather than a trauma?

(Resisting ALLCAPS) Why the hell wouldn’t we discipline him? It’s right that it’s possible that a story like that could be fairly ordinary and not a trauma at all, just dull sex. It’s also very possible that a story like that could be traumatically abusive — she doesn’t have anyplace else immediate to go, he won’t let her sleep, she’s afraid, whether rightly or wrongly, that he’ll escalate if she refuses insistently. We can’t tell from that story. You know who else can’t tell? (Continuing to resist ALLCAPS) He can’t, while he’s fucking her. He’s in bed with a woman who said she didn’t want to fuck him, and he’s going ahead and fucking her despite a complete lack of any clear indication that she’s changed her mind and actually wants to fuck him now. He might think that she’s fine with it, but he is patently being reckless as to to her state of mind, and is callously indifferent to the risk that he is actually raping her. If he wanted to protect himself from discipline, he would have had to communicate with her somehow in a way that established that she consented to the sex, and he chose not to do that.

That guy has to change his behavior under an affirmative consent standard if he wants to be safe from discipline. If that’s what you’re thinking of as “changing the behavior of the innocent”, fair enough, under those facts he couldn’t have been found guilty of rape under any criminal law I’m aware of in the US. But it doesn’t look to me like changing the behavior of people having Ezra Klein-style happy-affectionate-cuddly non-verbal sex at all, it looks like changing the behavior of people having frightening borderline-abusive reckless-about-the-potential-for-really-hurting-people sex. And that I’m good with.

‘the definition of consent’

#531 Collin Street

Seems to me that it’s rape and sexual assault we’re special-casing here, and affirmative consent just eliminates that.

That sounds clear and sensible to me.

I can’t think of a good reason it should be a special case.

Here’s a bad reason for it to be a special case — a lot of us are living in a culture full of lies and hypocrisy, where sometimes things that are intended to look like rape are consensual, and people can be intimidated into giving false consent by violence, threats of violence, implicit threats of violence, subliminal threats of violence, and also threats of loss of social status etc.

That looks to me like a solid reason — but not a justification or excuse.

So it looks to me like the big deal is to get past the hypocrisy, which a lot of people strenuously resist.

If I walk up to someone and say, “I would like to take your wallet”, and then rummaged through their pockets, I very much doubt that a defence of “they didn’t say ‘no’” would get very far.

I don’t don’t think that’s a good analogy on several levels. In one respect it trivialises sexual assault to compare it to a property crime; on another, comparing consensual sex to handing over your wallet is severely sex-negative frame. (On sunstance, no-one [except possibly the crazies I don’t read] is arguing that kind of defence is legitimate- see numerous comments above.)

As Sebastien’s isn’t really what I had in mind, to answer Lizardbreath’s request for examples I’d sketch the following , which also aren’t intended to be read as autobiographical vignettes, and which may fall apart under analysis:

1) Couple in a ‘normal’ r/s plays a ‘game’ where one does something (possibly oral) to please the other which the other pretends to ignore for a certain time (eg. by reading newspaper) Consent is clear to both because of the familiarity of the ‘game’. (I think this comes from an Ian McEwan novel.)

2) More fetishistic activities where a couple consensually roleplays coercive discipline or even rape (I think Lena Dunham’s character does this at one point in ‘Girls’) They might have a prior verbal agreement which includes agreed-on signals for retraction.

3) Sex work which a woman consents to perform purely from a financial motive, without any enthusiasm what she’s doing- this shows itself through her outward behaviour

I’m not implying that (2) or (3) are good things and perhaps they should be banned anyway but I think they are both consensual in the ordinary meaning of the word, as is (1). It’s not clear to me they meet the criteria for ‘affirmative consent’.

Bearing in mind that we are now talking, counterfactually, about a reading of the CA law that you have now convinced me is probably wrong.

Just saw this, and no we’re not (that is, you may have become so convinced, but if so it’s through my lack of clarity rather than through your actually understanding what I meant). The whole de minimis thing comes down to whether you can kiss your sleeping wife on the cheek, or touch a sex partner’s left hip when they’ve only clearly consented to the right hip, or whatever — the silly cases. And yes, a hyperliteral reading of an affirmative consent standard would say that that sort of overstepping of the boundaries of consent, no matter how minor or momentary, would be an assault, which I agree would be absurd. So people applying the code need to have some sense about the minor cases.

But Sebastian’s hypothetical isn’t that kind of minor case, where one partner puts their hand someplace unwelcome and quickly removes it when the unwelcomeness becomes apparent, but oh noes, the unconsented-to-touch already happened. It’s one person having sex with another while being at least reckless as to whether they consent to the sex at all. That’s not the minor, de minimis case I was trying to wall off earlier in the thread, that seems to me to be something that it is an actively good thing to reduce the incidence of — something that should not happen at all, and something that an affirmative consent standard properly prohibits.

#537 Saurs

it’s safe to say that a majority of victims know their attacker, and there is evidence to suggest that repeat rapists intentionally select psychologically and emotionally vulnerable people and systematically groom them. Doing so gives them cover in these instances, because they can always argue after the fact that they and the victim have a long-standing relationship, that the victim consented to XYZ acts in the past, that the victim failed to indicate a specific “no,” and that it’s all a big mistake, there is no culpability, could happen to anyone, an entirely unpredictable outcome for which there is no solution or protection, like a random act of nature, everybody’s a loser, there are no winners, there is no real victim, either.

What you describe sounds to me like a spectrum.

On the one hand, we have couples where at least one member has decided to settle. She doesn’t particularly like her partner, she doesn’t particularly enjoy sex with him, but she’d rather not be alone and he seems like the best she can get.

That gradually grades into being part of a couple where she’d somewhat prefer to leave but it would be a giant bother, easier to just stay with it and be depressed.

Which grades into one where she’d prefer to leave but she’s kind of afraid what he’d do. She would feel bad if he committed suicide (Hi, Brett!), he might hurt her, their friends would be upset and would have to decide which one to stay friends with, she thinks about leaving but just doesn’t.

Somewhere in there she feels raped. They should separate.

Did he choose her for an extended relationship because he wanted to have cover when he raped her? Maybe. There are some very strange people. But from the story, not unlikely he just decided to settle for somebody who’d settle for him. Maybe the sex isn’t that good for him either, but he’s settling for it.

Acquaintance rape is hard for me to understand. I have reason to think that most men could have sex with 20% to 30% of their unattached female acquaintances, if they ask in safe public places. Why have passive sex with somebody who doesn’t want to? It just does not make sense. But a lot of women feel raped by acquaintances they are not having long-term bad relationships with. There’s something going on that needs understanding.

I can’t see what would be a good reason to believe that the other party consents to what you’re doing, that wouldn’t also be words or actions sufficient to constitute affirmative consent

Could you comment on the examples I gave in #544? (As I said, perhaps they don’t work but they were intended to be aimed at your minimalist interpretaion of ‘affirmative consent’ but unlike Sebastian’s not to be things which ordinary people might judge as being on the borderline of sexual assault.)

“What I love about you Brett is you never argue with real world leftists. You only argue with the ones living in your head. I dare you to find ONE regular commenter here who does not support prison reform or who has spoken approvingly of prison rape. If you want to make that complaint that no one cares about those issues go post at Red State or something.”

And, yet, this law is actually before us, and prison is not reformed. Curious, that.

“And, yet, this law is actually before us, and prison is not reformed. Curious, that.”

Wait are you actually arguing that we are not allowed to discuss ANYTHING else except prison reform? Because you yourself have broken that standard hundreds of times on this very site. Perhaps you should start your own blog focused on that, and only that, issue.

/Better and smarter opponents please.

#546 LizardBreath

But Sebastian’s hypothetical isn’t that kind of minor case, where one partner puts their hand someplace unwelcome and quickly removes it when the unwelcomeness becomes apparent, but oh noes, the unconsented-to-touch already happened. It’s one person having sex with another while being at least reckless as to whether they consent to the sex at all.

It occurs to me that this started in a college environment where some people have not had much sexual experience.

It’s fine for a woman to say “I’m ready to go this far with you but likely not any farther today.” A guy who doesn’t want to accept that can go away. That’s fine too.

Maybe she’ll want to have sex with him next month, or next week, or tomorrow. Maybe she’ll want to later tonight. She might not know now how she’ll feel later. That’s all OK. If she’s taken her shirt off and let him touch her breasts, that does not imply consent for anything else.

When I was in high school there was an elaborate social convention about all that. Kids could probably all make the same ordered list, touching her back but not touching the bra strap was earlier on the list than touching the bra strap. And a guy who was “fast” didn’t go through the steps fast, he skipped steps. A big complicated tradition that got passed along almost entirely orally. A guy who offended a girl about that stuff would not get another date from her, at least for awhile. He might get a bad reputation.

I think the affirmative consent thing fits perfectly into that tradition. He needs overt consent at each step, because she might quite reasonably say no at each step. In college, if she does that the guy has the right to leave, and to tell all his friends that she’s a tease, that she led him on and stopped him, etc etc etc. If he wants to be stupid that way.

As a law*, overt consent provides a sort of taxonomic key to catalog what to do when things have gone wrong and gotten reported to the authorities.

I. A man has done something a woman didn’t want him to.
A. Did she tell him no, and he continued? If so, guilty.
B. If she did not say no, did he notice from her body language that she meant no before he actually did enough to get reported? Not so, it got reported.
C. Did he notice from her body language that she meant no, and he continued? If so, guilty.
D. Did he fail to notice she didn’t want to, and continued? If so, guilty.
E. Did he specifically ask her, and she said yes, before he continued? Not so, it got reported.

Since it is known that he did something she did not want him to, he is guilty.

I think she has some ethical obligations in that.
Of course she shouldn’t lie.
And if she regrets her choice afterward, she shouldn’t claim retrospective rape.
And if she was enthusiastic at the time but later regrets it, she shouldn’t change her memories to forget the consent.

These are ethical obligations which cannot be enforced.

(*I say law because no one has said it’s a good rule for colleges but not a good law for states, so it will be coming up as a general law. The distinction between this as a college rule versus a state law is irrelevant.)

#552 BB

And, yet, this law is actually before us, and prison is not reformed. Curious, that.

You have a point. The society is hypocritical about this. We say there should be no cruel or unusual punishment, yet it certainly *ought* to be unusual to throw convicted criminals into a cage full of rapists. There are various hypocritical arguments why it’s OK, like that it’s criminals doing it to each other and not the government sanctioning it. But female prisoners get raped (and give dreadfully coerced consent) by male guards, and we haven’t done much about that either.

In theory this should be fairly easy to fix, but in practice prison guards have their own agreements with each other and it’s extremely hard for outsiders to reform them.

You pointed out this topic in response to my claim that a specific action could reduce the rape rate considerably. You did not say that we should look at your point first, and not look at anything else until we had handled that one. So this particular criticism by MPAV is misguided though often she criticizes you effectively.

Js. I think not because explicit consent has to be ongoing.

Yes. I somehow knew you would say this, but again, I’ll direct you to your own words (emph. added):

a prior verbal agreement which includes agreed-on signals for retraction

“Wait are you actually arguing that we are not allowed to discuss ANYTHING else except prison reform?”

No, I’m arguing that the ‘gendered’ response to this law is a consequence of the ‘gendered’ nature of concern about rape. And pointing out the continued prevalance of prision rape, despite the prison environment being one where maximal efforts to prevent rape would be unproblematic, as evidence of that ‘gendered’ concern.

Though I would say that if someone is concerned about rape, rather than only being concerned about women being raped, this does not seem to me to be the low hanging fruit.

#544 engels

1) Couple in a ‘normal’ r/s plays a ‘game’ where one does something (possibly oral) to please the other which the other pretends to ignore for a certain time (eg. by reading newspaper) Consent is clear to both because of the familiarity of the ‘game’. (I think this comes from an Ian McEwan novel.)

Prior consent at beginning of game. She will probably not start playing the Distraction game while he is trying to calculate his income taxes on a deadline. Also, he is not moving on to something they think of as new. If they think of “oral” as all one thing, she has consent for that. If she brings out the fine-grain sandpaper and the clothes pins, that’s something new unless he’s agreed ahead of time to whatever she wants to try.

2) More fetishistic activities where a couple consensually roleplays coercive discipline or even rape (I think Lena Dunham’s character does this at one point in ‘Girls’) They might have a prior verbal agreement which includes agreed-on signals for retraction.

That is opposed to the letter of overt consent, but it could fit the spirit. He’s supposed to either ask before starting anything new, or ask periodically at short intervals, or she can tell him at short intervals whether he asks or not. If she has to tell him no before he knows to stop, that’s wrong. (I read a wikipedia article about that stuff. People often use the safeword “Red”. Somebody suggested using the safeword “Lawsuit”.) If he doesn’t have to stop until she gives him an overt signal to stop, the rule is broken.

3) Sex work which a woman consents to perform purely from a financial motive, without any enthusiasm what she’s doing- this shows itself through her outward behaviour

Presumably if she stopped before delivering the services she promised, she would owe a rebate. I’ve read that customers for that sort of thing sometimes have some weird attitudes, for example that prostitutes should not be allowed to choose their customers etc. I see potential big problems for overt consent here. There are people who believe that prostitutes cannot be raped, which is silly. I guess if they figure that they don’t get to choose customers, then if somebody doesn’t pay up that means she’s out her fee but otherwise it’s no worse than usual. Some sort of twisted logic.

The whole topic of consent to prostitution is fraught with problems.

One question is, what is the school’s policy regarding student sex? I mean, does the school believe it is helpful or in the student’s (or in society’s) interest to have sex? Or is the school opposed? or indifferent? I think the school in question has an obligation to be clear about this.

I firmly agree with you that secret trials and torture chambers for people accused of rape are a bad idea, and join you in opposing their introduction.

Whoops, wrong discussion, but not totally unrelated. Sorry.

Brett Bellmore,

“No, I’m arguing that the ‘gendered’ response to this law is a consequence of the ‘gendered’ nature of concern about rape. And pointing out the continued prevalance of prision rape, despite the prison environment being one where maximal efforts to prevent rape would be unproblematic, as evidence of that ‘gendered’ concern.”

In 2003 prison rape was in the US countered with The Prison Rape Ellimination Act. I am not sure if it has seen improvements in lowering/eliminating the number of rapes in prison.

I am not sure you are right the prison environment is one where maximal efforts would be unproblematic, because you hear a lot about violence and threats occurring in prison, and some guards abuse prisoners too. So prison seems more dangerous than outside prison.

In the Australian immigration detention centres for asylum seekers there has lately been revelations of sexual assault.

There is this organisation you could join:

http://www.justdetention.org

“Just Detention International is a health and human rights organization that seeks to end sexual abuse in all forms of detention. The rape of detainees, whether committed by corrections staff or by inmates, is a crime and is recognized under international law as a form of torture. In the U.S., sexual assault in detention has reached epidemic levels, with more than 200,000 people subjected to this form of violence every year. “

Patrick,

The regulations are student regulation as I understand it? As I am not American I do not know what sort of courses this university runs. Perhaps they have medical or nursing courses where students get training through working with elderly people in nursing homes?

Since elderly people are unlikely to be students of the university it is not preventing them from anything, it is just preventing the university’s students. You might make up a Harold and Maude scenario like the other commenter suggested , which is fairly unlikely, but I guess if this did happen they would just have to wait until the student graduated and the OSU regulations no longer applied, or else the student could transfer to another institution.

In fairness, engels, multiple people have noted that they don’t think affirmative consent has the drastic consequences that you seem to think it does, and they have explained why they think this. If you don’t agree, then you don’t agree; if you just don’t get it, you don’t get it (and it would seem pointless to any sane person to explain it again at this point). But it’s a bit odd, at least, to feign shock close to 600 comments in.

Yikes! I said what that was so bad exactly?

While I’m less concerned with who’s “in the clear” rather than who’s comparatively safe from being assaulted, I’d hesitate, unfortunately, to classify the kink communities as wholly “in the clear” from this discussion, if only because the greater number of outsiders attracted to them and the higher their profile the greater the chance of a Jian Ghomeshi-type sadist shithead openly (and erroneously) adopting the guise of a “kinkster” in order to provide cover for his habit of beating people about the head while his teddy films it. As some of his victims have revealed, the beatings were sometimes preceded with discussion (without agreement) of consensual violence and of his interest in BDSM in general.

By the by, Rolling Stone published an account yesterday (trigger warning on that) which demonstrates, amply I think, why universities should not be in the business of investigating, doling out punishments for, or concealing from police the existence of violent crimes in the first place.

> It creates an upside-down moral universe in which the nervous, tongue-tied ones are presumed guilty and the swinging rope-tied ones are all innocent.

Maybe it’s my comp-sci background, but it looks to me more like you’re designing some sort of handshake protocol. And you want those to default to “safe”, which is usually “no action”. As it were.

Yes, it’s a handshake protocol, that much is clear. There are two problems with this:

1. Humans already have a handshake protocol, and it’s firmware.

2. The new protocol will only be enforced against the devices with male connectors.

Aside from that, it’s a great handshake protocol, if we were designing a new species I’d highly recommend it be implemented.

“Maybe it’s morally better to be an uptight conservative about sex, unwilling just to say what you want, maybe conflicted about what you want, so forth. But being those things just does make it more likely that you will – perhaps out of confusion and misunderstanding – find yourself engaged in non-consensual sex. The conservative way may be morally pure (I will grant the premise just to show I can, without changing the argument) but all the same it’s just plain risky. If you live dangerously like that you might get burned”

I feel like you’ve struck a rhetorically golden argument here – as the conservatives keep telling us , over and over, left to their own devices they are unable to know when they have been given consent and when they have not – and this is not just non-conservatives taking a dim view of conservatives but the conservatives themselves tell us when they keep objecting to these regulations specifically on these grounds – so this is why the law is so important and needed : to help these conservatives who without helpful benevolent regulations can’t determine if they have been given consent

Look, the problem isn’t an inadequate handshaking protocol. It’s that some of the devices are running malware, that violates any protocol. Rape isn’t a mistake that can be fixed by better information. It’s a violation.

It could be of some value for date-rape.

An identified man. No question at all who did it.

If you ask him whether he’s a rapist, he says no. He probably believes he isn’t. Like if he pets her until her body responds, he thinks that’s consent. If she lets him get her drunk enough to have sex with, he figures she wouldn’t do that unless she really meant to. She wasn’t *really* naive enough to get really drunk with him and not think she’d have sex, right? She says she’s a good girl who wouldn’t do that, so she wants some deniability. She has to say no some, to prove she’s a good girl, but she doesn’t really mean it.

This could be a legitimate cultural stand in some cultures. Or it could be egregious self-deception. Like, if he holds her down some of the time, but he doesn’t hold her down all the time, then she has the chance to get away sometimes. If she just lies there, maybe that means she doesn’t really want to get away. Maybe she’s scared that if she tries to escape he’ll hurt her like he hasn’t hurt her yet. Maybe she isn’t thinking, she’s so shocked at the thought she’s about to be raped that she doesn’t take her chances to escape. But he chooses to take it as consent.

I remember Philip Roth writing about dating (but I don’t have a link right now). He talked about begging, pleading, petting, and the girl would just lay there passively, acting mostly bored. And then when he started to take her panties off and she lifted her hips — because it was extremely awkward to do it without that — the tremendous sense of worth he got because that was her signal of consent. Nothing up to that point. (Except that she’d agreed to be alone with him, and she was lying there not moving instead of wandering off.)

If we could get that ambiguity cleared away, then it would be harder to maintain the self-deception. Women who wanted to have sex but who thought it was wrong to say so, would be stuck. They could either admit they were bad girls and say what they want, or else do without. And men could not pretend they saw tiny subtle signals of consent that weren’t there. Without active consent, they could admit they were rapists or do without that particular sex act.

If a man fully admits to himself that he’s a rapist, then if it actually gets reported then of course he will lie. “She came right out and said she wanted me. She tore off all her clothes and she jumped on me and started french-kissing me. She started tearing off my clothes. What was I supposed to think?”

“What about the neighbors who heard her screaming ‘NO’?”

“That was when I was trying to escape.”

But just like women would have to admit they wanted to, if they did want to, men who raped would have to fully admit to themselves that they were rapists. And they would be depending on the women they raped not to turn them in. Surely before the fourth rape claim a student would wind up in mandatory counseling at the very least.

Getting nervous, Ronan?

Might be …

Jesus, you step away for two seconds to peel a potato and find yourself down 5 k.
Fair enough though, David, a deals a deal. Just send on your bank a/c details and a western union money order for $500 (to release the funds) and we’ll get working on setting you up in a brand new beachside property in Alicante.

[Waives airily]

Kinksters have the safest sex, consent-wise.

Yeah, citation definitely needed.

I don’t mean to tell you that you’re describing your own life badly, but I think there’s a good chance you are — that is, that there’s a step that looks like affirmative consent to me that you are eliding, but is actually part of your practice.

this is really not done via affirmative consent at all

Seriously? How do you know who you can start doing kinky things with (and rely on them to call a halt if they’re unhappy)? If you’re not identifying partners through some explicit communication that they want to do the same kinds of things you’re interested in, and that they want to do them with you, how do you avoid having surprised strangers call the cops when you start [doing whatever it is you’re interested in doing to them]. There really has to be some affirmative communication that lets you start, or things would get very difficult, very fast.

I can see a level of communication that goes something like “Do absolutely anything you like to me, and I’ll tell you to stop (or use some agreed-upon-code) if I want you to,” (or the equivalent, but phrased less clinically) which would be pretty different from the way affirmative consent is envisioned working among diffident, non-kinky college students. But I have a hard time believing that you’re doing kinky things with partners without their affirmative buy-in up front, without immediately running into serious difficulties.

J Thomas: You really had to bring in Philip Roth? For a different view, see his more recent book Indignation.

#606 Salem

“Kinksters have the safest sex, consent-wise.”

Yeah, citation definitely needed.

From some reading, it’s clear that as a somewhat-organized group they definitely know how to have extremely safe sex.

http://www.spankingclassics.com/discus/messages/111/91837.html?1170087148

There’s a temptation to choose not to. To agree ahead of time to proceed with no safeword. I don’t know how often that happens. Since it appears to get social disapproval from other kinksters, they might do it more than they admit to.

It’s interesting the way the topic has turned but does the fact that we don’t want to outlaw BDSM (as I’m assuming many don’t here) mean universities should never take steps to put limits on BDSM in isolated areas where the oldest person involved is never going to be older than 21 or 22 have much more experience than the youngest?

Most of the kinks of which I’m aware are not very dangerous. But maybe you’d have to ask an authority like Dan Savage for statistics.

I worked for a professional dominatrix as a web site designer and programmer for several years, and got to observe the practitioners and customers at fairly close range, even if all I was doing was playing the piano downstairs. I even got to go to some of the parties. There was no one there who didn’t strongly wish to be there, which made it different from a lot of other social environments (‘scenes’) I can think of.

It’s true, a dominatrix could have a guy die of a heart attack and be charged with murder. I saw it on “L.A. Law” once.

#620 I think it’s a case of caveat flagellator ….

For some reason I’m, probably unfairly, picturing MPAVictoria as Col. Jessup.

“I don’t mean to tell you that you’re describing your own life badly, but I think there’s a good chance you are — that is, that there’s a step that looks like affirmative consent to me that you are eliding, but is actually part of your practice.”

I believe this is more a misunderstanding than anything else. Of course, one looks for detailed affirmative consent in enjoyable encounters. How could it really be otherwise? And, as Anarcissie says, kink events are characterised by people having a hugely fun time, and wanting to do lots of stuff. My point is that this isn’t what makes it “safe”, its what makes it fun. And these are related (need safe to have fun, don’t need fun to be safe) things, but not identical things.

(Also, affirmative consent, as some people tell it, is an ongoing act of positive consent through body language etc. That simply isn’t the way that kink stuff works in terms of safety. It might. But equally, one might want to audibly object the whole time – this is what safewords are really for. I am happy to accept that I have misunderstood the concept.)

Eg. I play with novices every now and again and they simply have no idea how to negotiate in what I would consider a good way. They want to do stuff, but really have little clue about how to ask for things, how to set boundaries etc. It is the ability to say no (usually my ability to say no) that makes things safe. Plus an environment that strongly respects/requires people to object if they are not happy with the way things are going.

The Code Red did happen in the bedroom.

In short, Engels, in making what you regard as a mild reductio ad absurdum – kinksters the only ones in the clear? – you have, instead, described a likely correct result.

I thought the point of making ongoing consent a requirement was that one partner (usually female) may change her mind after initially consenting to sex but feel too pressured or frightened or be unable for other reasons to express this verbally. It seems to me this can happen in the BDSM scenario LB said was okay.

In short, I don’t agree that ‘[k]inksters have the safest sex, consent-wise’. Also, although admittedly somewhat ignorant about it, I feel no need to defend BDSM to the death; from my limited knowledge large parts of it are highly reactionary from a radical (or even mildly) feminist or egalitarian point of view (which isn’t to say I’d like to see them made illegal). Imo project of supporting radical(ish) feminism and BDSM with the same keyboard constancy is a peculiarly American liberal circle to want to square.

Js. nothing personal but you responded to a detailed reply I had written to someone else with entirely content-free abuse.

Sasha, my world is empty: how will I ever cope [/] heavy sarcasm

To be clear, I’m calling BDSM a pretty definite subculture. I’m not talking about people who just get off on hitting other people in the face. I’m not talking about people who date assholes because they have masochistic tendencies. I’m not talking about certain dating or mating rituals that the people involved might call “traditional,” that include a certain amount of verbal and physical violence and some coercion. I’m not suggesting mandatory divorce for women who don’t leave what I would call abusive husbands, or even suggesting criticizing them so strongly for staying as to imply there’s something wrong with them. (I’m not even, seriously, including the Marines and their traditions.) But I’m also not suggesting we dignify simple abuse as BDSM, either.

But this has nothing to do with the OP, unless we think we can’t let “kinksters” have their fun, and can’t leave prostitutes unabused, unless we also permit rape without punishment.

“But this has nothing to do with the OP, unless we think we can’t let “kinksters” have their fun, and can’t leave prostitutes unabused, unless we also permit rape without punishment.”

I agree it has nothing to do with the OP.

For the record, its not that I think we have to make sure that sexual outliers like kinksters deserve protection (although as a general principle, that is the case), its that I think that kinksters do this stuff better on the whole.

BTW, Story of O/Secretary is clearly abuse. But its fairy tale abuse, that is about emphasising the aspects of sexuality where things “just happen”. People like these fantasies, but they aren’t any way to conduct oneself in a real situation. FWIW.

I have much agreement with J Thomas at 637.

You suck Ronan!

I have a half eaten Mars bar here, and last weeks Sunday World ?

The Mars bar’s no longer available.

“It needs to be clear your culture is blue, and not red.”

Well, that was remarkably gratuitous, which is not to say surprising.

#647 ZM

i do not know if in America you had anything similar ?

“The main bar of the typical Australian pub, usually the largest, was the so-called “Public Bar”. However, this title was an ironic misnomer, since until the 1970s, only men were permitted to drink in Public Bars.

Most pubs included a “Ladies’ Lounge”, furnished with chairs and tables, where women and men could drink together, but in many pubs women were usually only admitted to the Lounge Bar when accompanied by a male. It was also common for women not to be allowed to buy drinks for themselves.

I don’t remember reading about anything like that. There were and are of course bars that women almost entirely stay out of, because they are dirty and unsafe. Not safe for men, either. Not even safe for the regulars.

And there are probably lesbian bars where men are not allowed. I’ve never been to one. A girlfriend took me to a couple of bars where I was the only man and people seemed kind of awkward around me but nobody told me to go away. I had the vague impression she might have wanted me to be embarrassed. When I was polite people relaxed and ignored me. The same thing happened at a couple of tea parlors where I was the only guy, and one sandwich shop, all places that woman took me.

Your Ladies’ Lounges are kind of the opposite of my idea. Instead of a place for men to buy women drinks, I want men to have very little access to drunk women. It leads to the majority of rapes.

It would probably be OK if women are allowed into men’s bars, provided they don’t drink. Possibly allow women to drink in men’s bars, with the clear explicit understanding that if they drink there and get raped nobody will have a lot of sympathy for them.

As it is, if a woman goes unconscious in a bar and a man who says he’s her boyfriend says she’s had a little too much and he better take her home to sleep it off, a lot of times nobody even questions him. She could wake up remembering just goin into the bar, with her remaining clothes in a pool of vomit, and she’s covered with dried vomit and semen, and her day may not get ay better for some time. The most obvious way to stop that is for women not to drink where men can get to them.

If she goes unconscious in a restaurant, they won’t just assume a man should carry her away. The obvious choice is to call 911.

We make it illegal for drunks to drive, because we know their judgement is bad and they have accidents.

Why should it be legal for women to drink with men, when they wind up unable to give valid consent? It leads to rape.

> I want men to have very little access to drunk women. It leads to the majority of rapes.

Sigh.

No, JT.

[I could explain why I’m disappointed but you _really_ need to be able to work it out for yourself, here, so that you can recognise the pattern of thought [i]unprompted[/i] and stop yourself next time. If you want help here, ask, but at some point you’re going to have to be able to work it out for yourself… so why not try it now and see how you go?]

J. that is incredibly sexist. INCREDIBLY!