Adventures in Sexual Implicature

by John Holbo on November 12, 2014

OK, let me see if I got this straight. (Here’s a copy of Limbaugh’s lawyer’s complaining letter to the DCCC, via TPM.)

OSU instituted a strong, positive ‘affirmative consent’ policy for student sexual relations.

‘No’ means no, and only ‘yes’ means yes.

Clear?

Rush Limbaugh mocked this policy, saying: “How many of you guys, in your own experience with women, have learned that ‘no’ means ‘yes’ if you know how to spot it?”

He rounded this out by saying: “Let me tell you something. In this modern world, that is simply not tolerated. People aren’t even gonna try to understand that one. I mean, it used to be said it was a cliche. It used to be part of the advice young boys were given. See, that’s what we gotta change. We have got to reprogram the way we raise men.”

Since Limbaugh’s intent was apparently to damn the OSU policy, not praise it, this was, apparently, irony. If anyone wants to know if Rush Limbaugh actually thinks the youth of today stand in dire need of a heavy dose of PC thought-policing, the answer is ‘no’.

Or so it would seem.

In other words, Limbaugh’s statement seemingly illustrates the truth of the following proposition.

Sometimes ‘Yes, ‘No’ means no, and only ‘yes’ means yes’ actually means: no, sometimes ‘no’ doesn’t mean no, hence not only ‘yes’ means yes.

The DCCC, reading Limbaugh in this straightforward way, quoted his remark in a fundraising letter. Now Limbaugh’s lawyer is saying that, despite the apparent irony of Limbaugh’s mock-advocacy of ‘no’ means no – yes, Limbaugh really does advocate ‘no’ means no.

I take it the lawyer’s notion is that Limbaugh is in the process of being seduced by the allure of political correctness (how indelicate that lawyers are nestling into this intimate space, but that’s modern liberalism for you!) Limbaugh is putting up a pro forma resistance, i.e. is saying ‘yes’, while seemingly meaning no, but only by way of whispering yes YES! at a deeper level. Limbaugh’s heart and OSU’s policy beat as one on this politically correct point. It makes the surrender so much sweeter, I suppose, that it should go so, sotto voce.

In short:

Sometimes ‘Yes, ‘No’ means no, and only ‘yes’ means yes’ seemingly means: no, sometimes ‘no’ doesn’t mean no, hence not only ‘yes’ means yes. But really it may mean that yes, ‘no’ means no, and only ‘yes’ means yes, precisely by way of our recognition that the opposite is, apparently, what is ironically meant.

Apparently, it would be impossible to read Limbaugh any other way.

I confess: I worry affirmative consent standards will generate serious problems, even while I acknowledge the real problems they are meant to address. But it is striking that the likes of Limbaugh, when called out for critiquing these standards, can’t stand their ground. The reason is pretty clear. 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. Where’s the romance in college romance if it isn’t at least sometimes a bit … like that … the guy overwhelming the girl’s initial resistance with the force of his desire? (Hasn’t anyone ever enjoyed an old movie in which this happens?) This is pretty clearly Limbaugh’s attitude, and he’s right that 50 years ago it would have baffled most folks that there was any problem with the view that a certain amount of verbal coercion is a healthy part of courtship. It’s only liberals who have made us frown on such expressions of free speech. This makes this case, in addition to being a case study for Grice scholars, a good illustration of a rather puzzling phenomenon I’ve pointed out before: the Overton straightjacket.

UPDATE: It seems ‘I worry affirmative consent standards will generate serious problems’ has generated an unwanted implicature. I’m actually in favor of such measures. I think the problems the law is intended to solve are more serious and there isn’t any other way of dealing with them that is better. It’s a knotty problem.

{ 781 comments }

1

melanie 11.12.14 at 5:50 am

Maybe I’m being obtuse: what problems are you concerned that affirmative consent will create?

2

gianni 11.12.14 at 6:00 am

“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?

3

John Holbo 11.12.14 at 6:15 am

“what problems are you concerned that affirmative consent will create?”

Just the obvious sort of problem cases you might predict, and that people have predicted. I kind of agree with the spirit of this piece by Ezra Klein:

http://www.vox.com/2014/10/13/6966847/yes-means-yes-is-a-terrible-bill-and-i-completely-support-it

The law is likely to generate some problem cases but is a serious attempt to deal with even more problem cases.

4

John Holbo 11.12.14 at 6:15 am

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

Precisely. All Rush Limbaugh is saying is that he wants romance to be like that, ideally.

5

Brett 11.12.14 at 6:41 am

I think Klein is exaggerating. What it will mostly do (I hope) is eliminate the “she wasn’t struggling hard enough” or “she didn’t act like a victim before” excuses, which have come up in cases before. It’s in opposition to victim-blaming.

6

John Holbo 11.12.14 at 6:45 am

“What it will mostly do (I hope) is eliminate the “she wasn’t struggling hard enough” or “she didn’t act like a victim before” excuses, which have come up in cases before. It’s in opposition to victim-blaming.”

Klein definitely would agree with that. That’s his point. So how is he exaggerating?

7

gianni 11.12.14 at 6:50 am

Just read the Klein piece, and I don’t think he is exaggerating so much as his language reveals his discomfort as he reflects on his own sexual encounters and realizes that according to this stringent standard, many of them fail to pass its test. But maybe I am just projecting here.

8

js. 11.12.14 at 6:52 am

I worry affirmative consent standards will generate serious problems

Yeah, no. Sorry.

9

John Holbo 11.12.14 at 7:01 am

“I worry affirmative consent standards will generate serious problems”

Well I do realize that not everyone agrees that there will be problems (so no need for a link, just to tell me that!)

I guess I could have been clearer. I think ‘affirmative consent’ is the right step to take but I just think it’s going to be a mess. Sometimes that’s how it goes. There are going to be problems. Serious problems. Ugly cases. Backlash. Controversy.

In the context of the post, I was merely noting that it is significant that the likes of Rush Limbaugh actually don’t make reasonable sorts of arguments, like quoting the first few lines from the Ezra Klein post I linked. Instead, they pine for scenes from old James Bond movies, which is a terrible argument against affirmative consent, to say the least. Given how easy it would be to make reasonable arguments against this sort of measure, it’s striking how conservatives make obviously unreasonable arguments then – when called on it – act like they don’t want to argue against it at all.

10

js. 11.12.14 at 7:05 am

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?

11

John Holbo 11.12.14 at 7:25 am

“Wait and see, I guess?”

No alternative, obviously.

12

Patrick 11.12.14 at 8:19 am

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.

13

John Holbo 11.12.14 at 8:38 am

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

I agree with this. This is a distinctly non-ideal situation but better than the alternative.

The reason I foresee problems, in a nutshell, is that there will inevitably be some collision between the fact that, on the one hand, this sort of thing will be governed by social norms, but, on the other hand, the point of the law really is to change social norms to a substantial degree. That, plus the fact that the legal standard really is going to be inevitably a bit murky and, I’m afraid, too expansive on paper (but I don’t see a fix for that) is going to create trouble.

14

Harald K 11.12.14 at 8:48 am

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.

15

John Holbo 11.12.14 at 9:04 am

“Those policies look to be a disaster both PR-wise, civil rights-wise and in terms of achieving their stated goals”

I’ll give you 1-out-of-3 for that one, Harald. I fear it’s probably going to be a PR disaster, because the civil rights benefits will be, at best, solid but quiet, but there will be some ugly cases. Perfect for culture war!

16

dsquared 11.12.14 at 9:05 am

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.

17

John Holbo 11.12.14 at 9:13 am

“I don’t really see what extra problems the law would create (or really, hire much practical difference it will make at all);”

It makes it worse, I think, by potentially making a lot of things that people don’t think are rape at all technically not allowed. Klein’s example: “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.”

I agree entirely that these cases are in fact unlikely to arise in large numbers, but it isn’t a good thing that the law puts things on the wrong side of the line, even if nothing bad comes of it in legal practice.

I think, in fact, the law will make for practical differences in a lot of ways – good ones, mostly. But, inevitably, some bad ones.

18

John Holbo 11.12.14 at 9:16 am

Just to be clear about what I mean by ‘large numbers’: I am not predicting dozens – let along hundreds or thousands – of outrageous cases. 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.

19

clew 11.12.14 at 9:19 am

“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.”

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

20

dsquared 11.12.14 at 9:28 am

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.

21

Z 11.12.14 at 9:46 am

I’m somewhat puzzled now: what is the law as it stands? or how is this new law different? My impression is that any reasonable law will declare that sexual violence is behavior with sexual content towards another person without the explicit consent of that person. Is this not the law as it stands in the US? In other words, I’m fully with Daniel: trials are about establishing consent or lack thereof, this is usually pretty damn hard, so establishing a cultural environment where the bar for what counts as consensual activity is high seems to me an excellent idea.

22

John Holbo 11.12.14 at 9:55 am

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

Whoever initiated sexual ‘escalation’, presumably.

“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.”

This is precisely why it won’t be a major problem, in practice, and why I predict not thousands or hundreds or even dozens – but a few – weird cases. The world is big (California, anyway) and weird stuff happens. And then, like I said, there is going to be outrage and a big cultural war eruption and on and on.

I also would emphasize that it is the point of the law to be kind of a big deal: to shift people’s sense of social norms. That is going to invite pushback, and then the focus will fall on a few weird cases, etc.

I’m just predicting future culture war, not advocating it.

23

clew 11.12.14 at 9:58 am

Whoever initiated sexual ‘escalation’, presumably.

This is only one of them? Through the whole event? I’m an old married lady and that sounds wrong to me. Like, sit up in bed and say Are you OK? wrong.

24

John Holbo 11.12.14 at 10:02 am

“This is only one of them? Through the whole event?”

No. ‘Initiating’ is a somewhat elastic notion, in this context, but it is a thing one associates more with the the start than the climax of the event, if you see what I mean. It seems entirely coherent to imagine an amorous encounter in which, at the start, one of the two interested parties is the more forward of the two.

25

Z 11.12.14 at 10:06 am

“But they’re both equally guilty, so who’s going to file the complaint?”
Whoever initiated sexual ‘escalation’, presumably.

How is that different from the law as it stands (or stood before this new one)? Really, in what potential or actual situation can this new law make a genuine legal difference? Honest question from a puzzled foreigner (and to be clear, as I wrote already, I support initiative raising the bar of consent, so I support this new law, insofar as I understand it).

26

Ze Kraggash 11.12.14 at 10:11 am

“…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?

27

dsquared 11.12.14 at 10:23 am

No not really, it isn’t; that was spin from Assange’s lawyers. The women were saying things like “held me down with his weight”

28

Dave W. 11.12.14 at 10:44 am

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.

29

John Holbo 11.12.14 at 10:48 am

“I suspect the most likely triggering event would be some kind of sex tape that goes viral.”

I agree that’s a likely scenario.

30

Brett Bellmore 11.12.14 at 11:04 am

“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.

31

Saurs 11.12.14 at 11:13 am

“I suspect the most likely triggering event would be some kind of sex tape that goes viral.”

I agree that’s a likely scenario.

Wait, whut?

University staff, trawling for amateur porn on their weekends off, stumble upon a “sex tape” involving two or more students, pore over the video enough times to see whether or not each participant gives unambiguous consent (a nod, wink, or something more verbal), and then come Monday morning alert the powers that be, demand that said students be subject to disciplinary action (the students’ desires be damned), and use the tape as evidence? And this will be the “weird case” that proves the unfitness of the affirmative consent mandate?

Couldn’t the students just agree that consent was given beforehand, that all acts depicted were agreed upon in advance and off tape, and go on their merry way?

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.

32

John Holbo 11.12.14 at 11:25 am

“Couldn’t the students just agree that consent was given beforehand, that all acts depicted were agreed upon in advance and off tape, and go on their merry way?”

Obviously that’s probably what would happen in that situation.

You are missing the point that, 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. Dsquared (and others) have made the reasonable point that, in the absence of solid evidence, a lot of he-said/she-said cases just dissolve. Very true. But we live in an age in which video evidence is often made. It seems likely enough that, in whatever unfortunately, hypothetical cases eventually arise under this law, there is going to be some evidence, and video is a likely enough form for it to take.

I think it is very much more reasonable to focus on the statistic that 1 in 5 college women are sexually assaulted. So, to repeat, I favor the law. But I think it’s likely to lead to problems.

“Or is this is a dogwhistle about “regret sex” and women worried about their reputations when men start making and distributing revenge porn?”

Who are you thinking is dogwhistling whom here?

33

Patrick 11.12.14 at 11:39 am

Z wrote: “I’m somewhat puzzled now: what is the law as it stands? or how is this new law different? My impression is that any reasonable law will declare that sexual violence is behavior with sexual content towards another person without the explicit consent of that person. Is this not the law as it stands in the US? “

The most serious difference, the one that affirmative consent advocates most commonly cite to, is that “standard” US law treats lack of verbal or physical objection where either or both are completely viable options as pretty darn conclusive evidence of consent. So if a guy is making out with a girl and she slips her hand into his pants, the fact that he could have pulled away or asked her to stop but didn’t would be treated as evidence of consent. Further, as long as she had a good faith belief that her behavior was welcome when it was occurring (perhaps because they were making out in other ways and this seemed like a logical next step), and as long as she stopped if or when she learned that her behavior was not welcome, she would lack the requisite mental state to be guilty of sexual assault.

Affirmative consent’s primary goal is to reverse those outcomes. His lack of objection would not be consent. In fact, she would be expected to obtain “explicit” consent prior to doing it rather than just stopping when it turned out her actions were unwelcome. Which means that even if it WAS welcome, its still assault unless she has received appropriately expressed consent.

There’s a reason that critics keep claiming that affirmative consent requires permission slips. It doesn’t, that’s a straw man. But there is an analogy between the two. Merely having permission to do something (ride a train, whatever) is one thing. Permission slips formalize what society will accept as evidence that you have permission, and a permission slip system implicitly informs you that you shouldn’t believe you have permission unless you also have the slip. Affirmative consent laws attempt to swing the proverbial pendulum away from the former, and toward the latter. To use our above example, affirmative consent laws wouldn’t care whether or why she believed she had consent unless the answer was “he affirmatively expressed consent to this specific activity prior to my actions.”

That’s the basics.

The other part of this that gets wacky is that affirmative consent rules have been used as an opportunity by other factions of rape law reformers to slip in rules that they’ve been advocating. Unfortunately these rules aren’t always compatible with affirmative consent.

The most obvious is the rule that existing relationships and past sexual history cannot “alone” indicate consent. This is an EXCELLENT rule when you are operating under regular US rape law, which criminalizes acts of coercion. In fact, this rule has had a lot of success in US courts. If you coerce your partner on Friday, the fact that your partner consented without coercion on Thursday is irrelevant.

But this rule is completely bonkers when applied to all levels of uncoerced sexual contact in an ongoing sexual relationship. Of course relationship history and past sexual history informs us of whether our partner consents to being kissed. Of course it informs us what is or is not ok when making out with our partners. After half a dozen years of marriage you don’t enter into every sexual encounter like tremulous virgins, nervously reaching for each other, hyper-aware of the possibility of rejection, and desperate to determine your partner’s sexual boundaries so as not to scare them away. You have a pretty good idea what the boundaries are, and you confidently act within them.

As has been noted, this rule won’t have major effects on most actual sexual assault complaints. Since the silly thing the rule does is de-legitimize common-place sexual contact that both parties enjoy, and since no one goes to the authorities over common-place sexual contact that both parties enjoy, it won’t affect those cases.

34

Main Street Muse 11.12.14 at 11:48 am

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.

35

dsquared 11.12.14 at 12:32 pm

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.

Quizzical look. Given what we know about the police’s behaviour in really comparatively clear cut cases, the idea that they will be keen as mustard to prosecute decade old HS/SS cases based on a memory of ambiguous compliance with the revised standard … no. Judge Dredd territory.

36

J Thomas 11.12.14 at 12:35 pm

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.

37

Harald K 11.12.14 at 12:41 pm

Patrick: “… since no one goes to the authorities over common-place sexual contact that both parties enjoy,”

MSM: “How will two couples in a loving relationship find themselves in a court battling over a sexual assault issue?”

Here’s a scenario. Alex and Robin are college students, and in a loving relationship. They have sex without explicit consent. But then things happen as they often do, and they have an acrimonious breakup. Now they aren’t willing to outright lie, and both know that despite the lack of explicitness they very much were in on it, but like many people, they have an impressive capacity to reinterpret their past feelings and thoughts to suit their current ones, and their current feelings are that they are amazed they could ever have liked such a loathsome person as the other one.

Alex goes furthest, though: they decide that what Robin did to them was not OK. Although neither of them may technically have realized it at the time, Robin was too pushy. It deserves to be seen as sexual assault, according to Alex. So they find themselves in a court.

Now Robin has a problem. They cannot claim that the consent was explicit, because as I said, neither are willing to lie. At best they can make a counterclaim, that they both escalated at various times but this does not exculpate Robin, it just makes Alex guilty too.

Presumably this would be the kind of case John Holbo concedes are bad PR for the law, but in my opinion, it is also a violation of Robin’s civil rights. People like Alex, willing to be colossal jerks but not lying, have been handed a powerful weapon. And as Fredrik DeBoer argues, this is a weapon that works best against already disadvantaged people. (I question DeBoer’s assumptions about who will be at the worst disadvantaged here, but I agree with the main point).

38

dsquared 11.12.14 at 12:55 pm

So they find themselves in a court.

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

39

engels 11.12.14 at 1:00 pm

I would like to see this standard applied to the social contract.

40

Harald K 11.12.14 at 1:02 pm

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.

41

mdc 11.12.14 at 1:07 pm

I makes no sense to me that the legal standard could be the saying of certain words or the making of certain gestures. Saying “yes” with a gun to your head is not consent, for example. No matter what people say, consent is an act of the will *which can only ever be inferred*- usually quite easily. In a sense, even explicit consent is implicit. (ie, you infer that I consent because I said so, and you thought I meant it.) Sex in the absence of implicit consent is already considered rape, which is to say, the standard is already ‘affirmative.’ This is why I think the new standard, in practice, will just amount to the old one.

42

dsquared 11.12.14 at 1:07 pm

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.

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engels 11.12.14 at 1:08 pm

Couldn’t the students just agree that consent was given beforehand, that all acts depicted were agreed upon in advance and off tape, and go on their merry way?

If they were prepared to commit perjury, yes, they could.

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J Thomas 11.12.14 at 1:13 pm

#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.

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Harald K 11.12.14 at 1:15 pm

dsquared, no. There is no he said she said, because they do not contradict each other – they both agree or concede that there was no explicit consent. Does the court need to consider the possibility that they lie, if they agree?

46

Bristol Resident 11.12.14 at 2:07 pm

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

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Lynne 11.12.14 at 2:09 pm

“You can’t have voluntary sex today, and a month from now make it have been rape because you broke up.”

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

I don’t know how to fix the way the justice system deals with rape. It was never designed to deal with such a crime. The principle of innocent until proven guilty does not serve in cases of he said/she said, because _someone_ is understood to be guilty and the other person is innocent. Witness how such cases are referred to as “the alleged rape”. In a case of auto theft or any other crime it wouldn’t be “the alleged theft” but “the alleged thief”. So right off the bat the woman’s word is questioned. If he is innocent of the crime, she is guilty of lying. That is the presumption.

This has been much on my mind because of the Jian Ghomeshi scandal. Many women are claiming to have been assaulted by him, and none reported it to the police. It is an indictment of our justice system that they made the right decision. According to the YWCA, of 1000 sexual assaults in Canada, 33 are reported, 29 are recorded as a crime, 12 have charges laid, 6 are prosecuted and 3 are convicted. No wonder so few women report being assaulted.

I don’t see how this change will help.

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harry b 11.12.14 at 2:15 pm

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).

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engels 11.12.14 at 2:33 pm

Affirmative consent policies are not saying there is anything wrong with sex that does not involve affirmative consent.

Maybe I’ve misunderstood the whole issue but I thought affirmative consent policies say that sex that does not involve affirmative consent is non-consensual sex, ie. rape.

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John Holbo 11.12.14 at 2:33 pm

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

Many of the rest of us have indeed evidently not suffered a similar degree of staggerment, probably due to our understanding that the question is not whether, IF the law is terrible, it should be law, but whether the law IS terrible. When you, too, come to understand this distinction, Bristol Resident, I predict recovery of your footing.

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John Holbo 11.12.14 at 2:40 pm

Just to be clear: I know you are responding to Ezra Klein’s title, but you have to appreciate that he is just saying the law is the lesser of two evils. It’s ‘terrible’ in that sense. There’s nothing crazy about liberals going for the lesser of two evils, by their lights.

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Watson Ladd 11.12.14 at 2:59 pm

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?

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MPAVictoria 11.12.14 at 3:11 pm

Bristol Resident it sounds like you are in a great deal of emotional pain. I am sorry and I wish I could do more to help. I encourage you to talk to someone about this. I know that seeking professional advice and help really made all the difference for me. I still see a councilor on a regular basis.

/I don’t agree with you about this law or feminism.

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Brett Bellmore 11.12.14 at 3:18 pm

“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.

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John Holbo 11.12.14 at 3:30 pm

Watson, I understand your concerns, but I think you are exaggerating.

But you know what: before I say another word about this, I should go and study harder the facts of the legal case. I’ve only done what, I think, a lot of other folks in this thread have done. Read quite a few online opinion pieces. That doesn’t make me an expert on what the law actually does and doesn’t do. It is my belief that the goal of the law is admirable and that something of the sort should be workable. But it’s obviously dicey actually making it work, without criminalizing stuff that shouldn’t be criminal. More than that, I really don’t know.

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John Holbo 11.12.14 at 3:32 pm

“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.”

But at least we can safely say this much. Brett is wrong. The idea that it’s all an evil plot to generate horrible abuses, for their own sake, is quite silly.

57

Anon 11.12.14 at 3:34 pm

Obviously Bristol Resident’s phrasing there begs the question, but any charitable reading of the post makes it clear that the specific complaint in that part of the post is the tendency to endorse the law *primarily* out of a sense that *something* has to be done, and *arguably* more from fear than from good reasons (even if there may be very good reasons). Compare the run-up to the Iraq war. The left would say: hey, let’s not act out of fear and just start a war that may not do any good and might make things worse. And the right would say: what if the smoking gun is an atom bomb?

For example, BR ends with: “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…” Again, obviously exaggerated, since no one here seems to be reasoning out of “terror”–but certainly fear is a motivator, and I suspect he wanted to draw an analogy with the prioritization of emotional comfort over reason or even practical efficacy that dominated the “war on terror” decade.

I completely agree with the spirit not letter: there is something distinctively conservative about the tenor of the reasoning here. And it’s not, as you’d expect, the implied anti-liberal aspect, the worry that perfectly moral and voluntary activities might be infringed upon. No, it’s conservative not in the sense of anti-liberal, but in the sense of “tough on crime” “bold, decisive action” “three strikes you’re out” “carry a big stick” reasoning of the following sort: 1) there’s a very serious problem, 2) previous policies have failed 3) we must do something, 4) we must do this and only this.

That just seems so reminiscent of the right’s approach to everything in the last decade, especially war and surveillance, but other things like education. And while it’s a human all too human thing to want to do *something, anything* when you feel helpless to fix a terrible situation, I really don’t think it’s characteristic of the left to *explicitly* argue in this way. So like BR, I think it’s a bit surprising to see that’s what appears to be happening here.

None of this is to say the policy is “terrible” as he suggested or that it shouldn’t be defended. It’s just to point out that the *form* the defense is taking seems unusual for the left and reminiscent of common tactics of the right.

As for whether the policy is reasonable, it seems to be a question of utility calculus. And I’m not sure people have, in that regard, said enough about the likelihood of it working, regardless of the possibility of problem cases. Why, specifically, do people think it will be more *effective* in practice than the “no means no” approach? Someone who ignores ‘no’ is also likely to ignore the absence of yes. So is it mainly about protecting victims who out of fear would not have said no? Would such victims have said yes out of fear?

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MPAVictoria 11.12.14 at 3:52 pm

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.

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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. This doesnt generalise to a ‘liberal’ or ‘feminist’ trait, but it certainly exists within factions that hold considerable influence and sway over policy and debate, and that are difficult to argue against because you can quite quickly develop into history’s greatest monster. But I think that is largely a seperate problem (and is basically how all policy is made), as are BR’s personal experiences, to the question of affrimative consent.
I would say, without talking specifically to aff consent, that all evidence points to the fact that ‘the system’ is skewed heavily against the victim of rape , and that although false accusations are real they are a relatively insignificant factor when compared to the problems faced by victims when trying to report a rape. Any correction to that problem (imo) is probably going to make one factor (false accusations) worse to improve the other (widening the definition of sexual assualt, improving the justice systems ability to deal with it, creating norms more favourable towards the victim etc) A policy isn’t negated by the fact that there are costs associated, so long as we’re honest about the costs and try to correct them as far as possible (whether or not this specific policy is a good idea, I dont know)

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reason 11.12.14 at 3:59 pm

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.

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harry b 11.12.14 at 4:16 pm

Engels: well, the actual status of these codes is not entirely clear. They do not have the force of law. As others have said, it is very strange that colleges consider themselves appropriate arbiters of criminal matters; and I don’t understand the legal status of the on campus. If you look at the Antioch policy (obviously, no longer in force, since the college closed!, or ours, which is less stringent but still requires verbal consent), it is clear that you run a risk by violating it, but not that there is anything wrong with violating it.

We have a somewhat ambiguously affirmative consent policy here (which my students approve of), and its propagation has been accompanied by a very energetic campaign to get men to see it as their responsibility to get consent, and also to check the behavior of their friends. (Many serial rapists have friends who know they are thugs, and could comment on and restrain their behavior).

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Barry 11.12.14 at 4:16 pm

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.

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harry b 11.12.14 at 4:18 pm

Is this the wrong place to claim credit for my most significant and, I am sure, enduring, intellectual achievement?: I compiled the index for Studies in the Ways of Words, Grice’s collected works.

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js. 11.12.14 at 4:19 pm

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.

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novakant 11.12.14 at 4:22 pm

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.

I think the culture of universities needs to change in a more comprehensive way if the problem of sexual assault is such a huge problem: 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”) etc.

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reason 11.12.14 at 4:29 pm

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.

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marcel 11.12.14 at 4:31 pm

This “yeah, no” raised another question in my mind.

How does the law deal with double negatives and double positives?

Limbaugh asked “How many of you guys, in your own experience with women, have learned that ‘no’ means ‘yes’ if you know how to spot it?”

How about “no no”? Does that mean “yes”?
And does “yeah yeah” mean no when it comes to a sexual encounter?

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MPAVictoria 11.12.14 at 4:36 pm

“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.

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mud man 11.12.14 at 4:47 pm

What I don’t understand is why this social movement is focused on college students. Because they are supposed to be learning to be verbal? Even excessively, compulsively verbal?

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J Thomas 11.12.14 at 5:00 pm

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.

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Watson Ladd 11.12.14 at 5:02 pm

Saying yes out of fear is already covered by the California statutes on rape. Furthermore, judges aren’t idiots: they know what sarcasm, irony and the like are, and how those are used by people. Many of the cases being brought up in support of these policies are already criminal acts, and I don’t see why a campaign to get bystanders to stop criminal activity requires enlarging the definition of what that activity is.

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Brett Bellmore 11.12.14 at 5:43 pm

“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.

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harry b 11.12.14 at 6:06 pm

It has focused on college students, because:

i) colleges have always regulated the behavior of students, and in some matters have to have rules and codes of conduct; and for reasons I don’t understand claim some sort of authority over criminal matters

ii) residential colleges are the only institutions which bring together large numbers of young men and women, whose lives are not yet settled, so are still vulnerable, into a residential community in which they have very limited contact with anyone who is not their age and similarly unsettled.

Personally, I don’t see why colleges have any authority in making judgments about who is guilty or innocent on matters of criminal law. But I do see why they have a role in trying to influence the conduct and moral character of the students, and a duty to protect the students from harm — which is what this is all about.

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Trader Joe 11.12.14 at 6:46 pm

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).

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Anarcissie 11.12.14 at 6:46 pm

‘I don’t see why a campaign to get bystanders to stop criminal activity requires enlarging the definition of what that activity is.’

One of the problems: ambiguous situations where one or more of the parties to a proposed sexual act may be mentally disabled, as by alcohol or other drugs. The way such a situation is construed according to popular culture will affect the likelihood of intervention by other parties.

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afeman 11.12.14 at 7:00 pm

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?

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christian_h 11.12.14 at 7:04 pm

I do have to agree that many of the comments here supporting the policies make the argument that they will not in fact change anything – cases will still be he said she said etc. But while this is a good argument against the more extreme reactions to such policies (they end constitutional protection as we know them, multitudes of innocent men will be punished and such nonsense) it is not a good argument for putting the policies in place in the first lace.

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engels 11.12.14 at 7:07 pm

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.

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The Temporary Name 11.12.14 at 7:20 pm

I don’t see why newer sticky cases are any stickier than older sticky cases, and the policy seems to unstick more than it sticks. I don’t see that there’s anything worrisome in the policy beyond ordinary worries that rape happens and justice fails.

Somewhat off topic a friend of mine who has an upper-class air to her started dating someone 15 years her junior. She is white, he is black, and when he discovered that she liked to yell “no” at certain important times he freaked out: people have seen him there and he does not want the police called on him.

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harry b 11.12.14 at 7:20 pm

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.

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Mario 11.12.14 at 7:28 pm

With this law, innocent men will end up in jail. This is clear, yet the proponents and supporters of laws like this seem not to care.

This law will cause more problems than it will solve, because it makes it very easy to craft false rape accusations. Until now, a false allegation needed a plausible story on violence, etc. but from now on it will be really easy. The problem with false allegations is not only that it ruins the lives of the men involved (because let’s face it, a year in jail as a rapist will destroy your life) but it will in due time destroy the credibility of women reporting rapes.

And false allegations aren’t as rare as some people would like to think. There is data on this.

The result will be uncertainty and fear surrounding sex, and in the ruined lives of innocent men. I suppose this law is great if you are a puritan.

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Lynne 11.12.14 at 7:35 pm

“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?

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js. 11.12.14 at 7:37 pm

Probably worth noting that in both OSU’s case and California’s case, consent does not have to be verbally expressed. It’s just that a lack of ‘No’ does not translate into consent. Seems, I don’t know, eminently sensible.

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Patrick 11.12.14 at 7:49 pm

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.

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Trader Joe 11.12.14 at 7:51 pm

@81 Lynn
“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.”

I fully agree, that is the case nearly all the time.

When its not, the lawyers now have an exciting new line of charges to pursue – the “didn’t say yes” accusation, the equal and opposite of the well worn ‘didn’t say no’ defense.

If we believed that all allegations were fundamentally true, you’d not need a rule like this. While I certainly believe more allegations are true than are proved to be true, its pure naivete to believe all are true. The U.S. justice system has for decades operated from a perspective that it would sooner let 1 guilty go free than to imprison one innocent.

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Lynne 11.12.14 at 8:31 pm

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.

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Abbe Faria 11.12.14 at 8:54 pm

“Probably worth noting that in both OSU’s case and California’s case, consent does not have to be verbally expressed. It’s just that a lack of ‘No’ does not translate into consent.”

Why do you say that? To me the law seems deliberately vague. You could read affirmative as just assent, in which case it’s pretty much meaningless and adds nothing to consent. Or you could read it as a statement of agreement, in which case it’s a big change. Who knows until people interpret it… It does seem like the wording’s purposeful so it can be narrowly interpreted on the one hand but get broad support on the other.

I also think this law will make a difference. For all the dramatic courtroom scenarios people are imagining, all you’d actually need is someone unaware of their technical guilt to give an honest statement under questioning. How most people ordinarily behave when they encounter authority. Once there’s a confession, you wouldn’t need much else.

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engels 11.12.14 at 9:00 pm

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.

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js. 11.12.14 at 9:15 pm

90

js. 11.12.14 at 9:20 pm

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MPAVictoria 11.12.14 at 9:23 pm

Laws are not going to solve this problem. We already have laws against rape. We need to change the culture so that women can come forward with some feeling of confidence that the authorities will:
1. Take their complaint seriously
2. Protect them from retaliation
3. Not judge them for their sexual choices, their chosen profession (sex workers get raped as well) or the clothes they wear.

That said I am not against this law per se. I just don’t think it will have the effects either its proponents or its opponents are saying it will. It is much more likely that the law won’t change anything much.

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gianni 11.12.14 at 9:27 pm

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.

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LizardBreath 11.12.14 at 9:42 pm

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.

While I think your analysis of why there’s so much resistance to affirmative consent laws makes a lot of sense, you’re adding the word ‘verbal’, and a lot of the objections I’ve seen do the same thing. Without that word, and conceptualizing ‘affirmative consent’ at each stage to include ‘behavior clearly indicating active willingness to proceed with the current level of sexual activity’, I think there are many, many fewer ordinary sexual encounters that look like assault when an affirmative consent standard is retrospectively applied.

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gianni 11.12.14 at 9:42 pm

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.

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gianni 11.12.14 at 9:54 pm

@93
What forms of non-verbal consent do you see being clearly understandable to the law or the disciplinary boards who will be making judgements on this? There is nothing obvious about the meaning of ‘a sexy look’, whereas verbalized assent is clear. I can’t think of any non-verbal ways to communicate consent that do not eventually break down into “trust me, I know that X is evidence of consent because I know this person and we have had sex before where they did that and it was all cool,” which I think we are all in agreement does not meet this new standard’s criteria.

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LizardBreath 11.12.14 at 10:12 pm

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.

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Brett Bellmore 11.12.14 at 10:24 pm

“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. “

Technically, I think you’re talking more, “the entire history of the human race”, rather than merely a single generation of Americans.

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gianni 11.12.14 at 10:24 pm

“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.

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LizardBreath 11.12.14 at 10:37 pm

I get that. I am trying to convey that I believe you to be misunderstanding it.

In most actual sexual encounters, affirmative consent is clearly communicated, whether verbally or nonverbally, not for fear of legal sanctions but because most people would be horrified by the possibility that they might have sex with someone who wasn’t consenting.

All that an affirmative consent standard changes, is that it puts the onus of clarifying any lack of communication on the active party. A story where one party goes ahead with sexual activity in the absence of any indication from the other person that they either did or did not consent, might not qualify as assault if the standard were that non-consent had to be clearly communicated. It’d be really peculiar, to put it mildly, as ordinary sex, but there seem to be a lot of rapists who tell stories like that as a defense, claiming that they had no way of knowing that their victims didn’t consent. Under an affirmative consent standard, a total lack of information about whether or not the person you’re having sex with wants to participate is no longer a defense.

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Patrick 11.12.14 at 10:46 pm

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.

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js. 11.12.14 at 10:50 pm

LizardBreath’s comments strike me as exactly right—this is precisely what affirmative consent is about. I’ve linked 4 pieces so far, you’re welcome to look through them. Why we’re having this “discussion” is the bit that’s still unclear to me.

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LizardBreath 11.12.14 at 10:53 pm

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?

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The Temporary Name 11.12.14 at 11:07 pm

I’m with LizardBreath too. And here’s the law again just for fun: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

I can think of some propositions I’ve had that, acted upon, might fall afoul of this or might not, but no actual encounters, however poorly I might have dealt with them, however disappointing the result for either party. The framework for consent outlined in the text doesn’t seem like a big deal.

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gianni 11.12.14 at 11:11 pm

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.

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The Temporary Name 11.12.14 at 11:14 pm

whereas my point is that this standard actively upends those ordinary understandings.

In what sense? Practical? Legal? Moral? I’m just not seeing it. Can you illustrate?

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LizardBreath 11.12.14 at 11:24 pm

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.

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gianni 11.12.14 at 11:27 pm

@105
I have already clarified this above, stating that the ambiguity is conceptual, arising when one applies this new standard retroactively to past practices. I have clearly stated that I am not talking about the legal realm, and have not at all discussed morality/ethics.

108

gianni 11.12.14 at 11:31 pm

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.

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novakant 11.12.14 at 11:34 pm

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.

I’m not sure today’s hook-up culture is as fun as you imagine it to be and it does have a negative impact on both safety and the ability to communicate and enforce boundaries.

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LizardBreath 11.12.14 at 11:36 pm

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.

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Main Street Muse 11.12.14 at 11:38 pm

Novakant @65: “I think the culture of universities needs to change in a more comprehensive way if the problem of sexual assault is such a huge problem: why should universities facilitate a culture of substance abuse, promiscuity and juvenile behaviour bordering on the sociopathic?”

SOOOO TRUE! I’ve been wondering this myself since I started teaching 3 yrs ago. It’s insane! (And this insanity is not new to today’s students either – my small, liberal arts campus had a gang bang scandal (frat boys and a “townie”) and that was a long time ago. No one was charged; no boy was disciplined; but the administration had everyone chat about it for a day.

But the underage drinking, the drugs, etc. – why is that tolerated? College presidents are coming together in the Amethyst Initiative – to lower the drinking age. Because it’s pretty much impossible to stop illegal drinking from happening on college campuses.

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The Temporary Name 11.12.14 at 11:43 pm

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?

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Main Street Muse 11.12.14 at 11:47 pm

It is interesting that the examples given in this thread of the “loving couple” getting embroiled in rape charges actually don’t involve “loving couples” – but instead, people who hate each other. The narrative of vindictive, scorned woman is quite terrifying to many on this board! And really, would love to know the stats on this kind of rape and the court cases that come of it.

But that’s not really the issue this “yes means yes” legislation seeks to address – which is the alarming incidence of date rape on college campuses. And I still do not understand how “yes means yes” will lead to an increase in these cases of vindictive women seeking to toss the old boyfriend in jail via that nifty little tactic known as the rape charge.

With regard to the “loving couples” who find themselves embroiled in rape charges, Ezra Klein likes to spout nonsense – but I see why – it’s viewed as gospel by the gullible.

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Ronan(rf) 11.12.14 at 11:49 pm

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?

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Watson Ladd 11.12.14 at 11:50 pm

Lizard Breath, do you think Ezra Klein is wrong in his description of the effect of the law?

I think the word affirmative is doing something in the statute, tightening consent somehow. And I think that much behavior that does indicate consent in the context of a relationship doesn’t indicate consent outside of that context, and the statute clearly states that context has to be ignored. I don’t see what the word affirmative is doing in your reading, or how clearly communicated covers a meaningful glance when two lovers are reunited after a long trip. Any halfway decent cross examiner will have a field day with this one.

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gianni 11.12.14 at 11:59 pm

@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.

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Ronan(rf) 11.13.14 at 12:00 am

Just to add, I know prosecuting offenders and changing the culture are closely connected. I was just thinking of this argument from RAINN’s white house briefing a little while back (which stuck with me)

“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.

While that may seem an obvious point, it has tended to get lost in recent debates. This has led to an inclination to focus on particular segments of the student population (e.g.,
athletes), particular aspects of campus culture (e.g., the Greek system), or traits that are
common in many millions of law-abiding Americans (e.g., “masculinity”), rather than on the subpopulation at fault: those who choose to commit rape. This trend has the paradoxical effect of making it harder to stop sexual violence, since it removes the focus from the individual at fault, and seemingly mitigates personal responsibility for his or her own actions.
By the time they reach college, most students have been exposed to 18 years of prevention messages, in one form or another. Thanks to repeated messages from parents, religious leaders, teachers, coaches, the media and, yes, the culture at large, the overwhelming majority of these young adults have learned right from wrong, and enter college knowing that rape falls squarely in the latter category.

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. (Unfortunately, we are not aware of reliable research on female college perpetrators.)”

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The Temporary Name 11.13.14 at 12:02 am

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?

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gianni 11.13.14 at 12:07 am

And as I am typing, we get another.
I have no idea where @113 finds evidence for that reading of Ezra Klein’s piece, but I think it is demonstrative of the pattern on this thread where some people are eager to debate strawperson arguments. When you think that your interlocutor is advocating something clearly absurd or objectionable, and you know that person to not normally advocate for the absurd or patently objectionable, it is usually the case that the source of the disagreement is a simple mis-communication.

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gianni 11.13.14 at 12:12 am

@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?

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gianni 11.13.14 at 12:13 am

Sorry everyone, I said I would be done and I’m getting drawn in again. I am now done with this thread as it has devolved into pointless squabbles. I apologize for whatever role I may have had in that. To all the above I have been talking to, do not expect any future responses.

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Moby Hick 11.13.14 at 12:14 am

Active consent would make necrophilia a lot harder.

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Moby Hick 11.13.14 at 12:18 am

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

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The Temporary Name 11.13.14 at 12:20 am

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.

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The Temporary Name 11.13.14 at 12:22 am

Oh well, that’s that I guess.

126

John Holbo 11.13.14 at 1:39 am

OK, things are perking along, caustically. I have not made any serious attempt to study the law in the last 10 hours but I will venture to clean up what I take to be a pair of lingering conceptual confusions in the thread.

Main Street Muse: “It is interesting that the examples given in this thread of the “loving couple” getting embroiled in rape charges actually don’t involve “loving couples” – but instead, people who hate each other. The narrative of vindictive, scorned woman is quite terrifying to many on this board!”

I’m sure Muse is only feigning failure to understand how the dimension of time can turn love into not-love, so I’ll proceed past that to this: since we are trying to decide whether it is a bad law, it is natural to focus on trouble cases in which, hypothetically but plausibly, the law might go badly wrong. Hence it is natural to focus on the types of cases in which someone might have both means and motive to charge rape regarding circumstances that we think really shouldn’t count as rape. Muse mistakes (this time sincerely, if I make no mistake) reasonable concerns about badly-crafted law (or law that could be better crafted) for obsessive fear of women scorned. That is, Muse mistakes a prudential concern to avoid worst-case scenarios for an irrational belief that most cases are worst-case scenarios.

Let me also suggest a response to the line Watson Ladd and others have been taking: this law is dangerously illiberal! I suggested, earlier, that that’s exaggeration. I really owe a bit more than that.

The troubles of this law – if indeed it has them – are precisely analogous to those associated with statutory rape law. You want to draw a bright line between two cases that you regard as very morally different: consensual/non-consensual sex. Sex between adults and adults/between adults and children. The hell of it is: that’s a hard bright line to draw, in a clear way that is also legally operative. Statutory rape law ends up drawing rather arbitrary lines, and it is easy to construct hypothetical cases involving birthdays that produce rather outrageous results. And some of those cases have come true. 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. And it certainly doesn’t follow that all such laws are intolerably illiberal or any of that.

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John Holbo 11.13.14 at 1:42 am

And, it should be added, it’s not as though things would be totally bright-line clear if we just kept it the way it was. So the existence of trouble cases is not something we can avoid either way.

128

Watson Ladd 11.13.14 at 2:03 am

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.

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Brett Bellmore 11.13.14 at 2:10 am

But doing that might not serve the actual purpose of such rules, depending on what really motivates them. And dealing with real rape isn’t necessarily the motive here.

130

bianca steele 11.13.14 at 2:20 am

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”?

131

Moby Hick 11.13.14 at 2:29 am

Typing that all out, did they really sound more sympathetic that necrophiliacs?

132

J Thomas 11.13.14 at 2:36 am

#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.

133

bianca steele 11.13.14 at 2:37 am

Moby Hick @ 131: I’ll leave that for others to decide.

134

hix 11.13.14 at 2:44 am

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.

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bianca steele 11.13.14 at 2:51 am

I’ll even modify “sluts” to “sex-enjoying women, whom naturally ought to be uniformly enthusiastic about sex at all times and in all situations.” So, people who expect to get a slap in the face from a prude (though who slaps anybody in the face nowadays?), but are comfortable with their body and hope women will be comfortable with theirs, too, and do what comes naturally? Though that probably only describes a small, college-educated, urban, latte-sipping elite.

I’ll admit there’s an issue in my posts about using the language of the people I’m talking about in a way that makes it not always clear I’m being ironic. That’s something my freshman-comp teacher warned me about.

136

Moby Hick 11.13.14 at 2:52 am

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.

137

John Holbo 11.13.14 at 3:09 am

“But doing that might not serve the actual purpose of such rules, depending on what really motivates them. And dealing with real rape isn’t necessarily the motive here.”

Brett, you are a peach among trolls!

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

This one is easy. Take A who regularly engages in consensual sex with B, and knows it (that is, has a justified, true belief that all the sex engaged in has been consensual); but doesn’t know it, in a given case, on the basis of explicit, positive consent given by B in that case. This is basically the case Ezra Klein sketches. It’s an obvious concern. As I’ve said, I don’t think it’s likely to be a wide-scale concern. But it is something to worry about, in crafting legislation. How to gauge reasonable expectations of sexual permission, given that expectations will, in fact, be different in a long-term sexual relationship vs. with some stranger you just met in a bar.

Some folks have been saying that, in fact, the Cali law deals with these cases ok, I don’t know, but the question was not which class will be hurt by these laws but which class might, predictably, be hurt by this type of law.

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bad Jim 11.13.14 at 4:50 am

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.

139

bad Jim 11.13.14 at 5:04 am

To expand: a teacher described the Steubenville case to a middle school class, and one student objected that the victim didn’t say “no”.

It’s encouraging that such young kids already knew the “No means no” rule, so promulgating a better standard, like enthusiastic consent, seems entirely desirable, and for most practical purposes this is what California’s new rule does.

It could be better; incoming students could be issued a gift bag with instructions, contraceptives and lubricant, but we can’t have everything.

140

Tom West 11.13.14 at 5:36 am

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?

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Ze Kraggash 11.13.14 at 8:04 am

“It’s encouraging that such young kids already knew the “No means no” rule, so promulgating a better standard, like enthusiastic consent, seems entirely desirable”

Enthusiastic consent seems like the ideal situation, and if anything short of the ideal is an actual, literal crime, then we are in a completely new world indeed, where all of us have been victims and perpetrators.

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bad Jim 11.13.14 at 9:10 am

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?'”

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Val 11.13.14 at 9:46 am

At least part of the problem, as ever, is neoliberalism. In the ‘olden days’ (when I was young), it was supposed to be an act in which the active agent (male) tried to get what he could from the passive object (female). (Not that that necessarily describes what people felt, but that’s the patriarchal ideology).

Then feminism came along, and that wouldn’t work any more. So the patriarchy, ever inventively protecting itself, dreamed up this new plan where both are independent, rationally choosing adults carrying out a contract where both are supposed to have equal free choice and get equal pleasure.

Trouble was, sex isn’t like that – never was, never will be. It is above all things a social relationship which ties us in, not only to the social world, but to the ecosystem, hence its glory and pain. But you know, the patriarchy, it’s always trying to maintain itself (here as elsewhere). Was it Harry b above who said his students thought it exciting that consent should be negotiated at every stage, or something like that? I think they are right, and lucky.

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Brett Bellmore 11.13.14 at 10:50 am

” 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.

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John Holbo 11.13.14 at 11:10 am

“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.”

Brett, your notion that these measures are being backed by people who likely don’t care about preventing rape and only wish to punish the innocent, as an end in itself, is very damning, if true. But this is, like, the single least plausible thing ever.

I hereby recommend that you at least shift to this position: the feminists behind this measure care about protecting one class of innocent people, but perhaps haven’t thought hard enough about protecting the rights of other innocent citizens. This may or may not be a valid criticism of these affirmative consent laws, but at least it isn’t silly.

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Jim Fett 11.13.14 at 12:57 pm

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.

147

SamChevre 11.13.14 at 2:24 pm

John Holbo @ 137

It seems that the Swarthmore case (one of the most-publicized) fits your description of “Take A who regularly engages in consensual sex with B, and knows it (that is, has a justified, true belief that all the sex engaged in has been consensual); but doesn’t know it, in a given case, on the basis of explicit, positive consent given by B in that case ” up until the last sexual encounter.

148

Main Street Muse 11.13.14 at 2:47 pm

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.

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LizardBreath 11.13.14 at 3:01 pm

147: The last sexual encounter being the one in which she said “No, I don’t want to have sex with you,” that is. Reading the link, it doesn’t seem to give anything like an example of the sort of confusion people are afraid of.

Seriously, it is hard to describe this sort of thing explicitly and in detail without turning the CT comments section into incompetently written pornography. But the Ezra Klein worry about perfectly ordinary sex (a long term couple who” slip naturally from cuddling to sex”) that is nonetheless criminalized because one party has done nothing to indicate by word or action that they are consenting to it seems to involve describing ordinary sex very oddly. Both cuddling and sex generally involve a fair amount of mutual activity, with active participation from both sides, and active participation is the sort of thing that indicates consent to the activity being participated in. It is possible for that sort of communication to be ambiguous, and an affirmative consent standard puts the onus on the more active partner to clear up any ambiguity, but the fact that communication can be ambiguous doesn’t mean that it’s terribly difficult or unlikely.

Serious ambiguity as to whether there was affirmative consent wouldn’t come up in a case of mutual cuddling leading to mutually actively participated in sex, for serious ambiguity you’d need sex where one partner was lying motionless and unresisting. And that isn’t impossible, but it’s the kind of thing that one would expect most couples either to verbally check in with each other about as it was happening, given the oddness of it, or to have prearranged if they were into that kind of thing.

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Brett Bellmore 11.13.14 at 3:04 pm

“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.

151

Moby Hick 11.13.14 at 3:05 pm

…for serious ambiguity you’d need sex where one partner was lying motionless and unresisting.

Everybody keeps coming back to necrophilia.

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Watson Ladd 11.13.14 at 3:24 pm

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.

153

Patrick 11.13.14 at 3:47 pm

“Serious ambiguity as to whether there was affirmative consent wouldn’t come up in a case of mutual cuddling leading to mutually actively participated in sex, for serious ambiguity you’d need sex where one partner was lying motionless and unresisting. “

All you need is for two people to have different beliefs about what their non-verbally expressed intentions covered. That’s… not hard.

Man and Woman are making out, then making out with reaching under shirts. All communication of specific intent is non-verbal. As they are passionately kissing, Man slips his finger tentatively inside the waistband of Woman’s pants. Woman reaches down and gently removes his finger. Man understands non verbal communication, so he stops.

Man may have believed that he had consent based on her non-verbal communication (actively and enthusiastically participating in the sexual encounter). 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. The fact that he stopped when asked is meaningless as the sexual contact had already occurred.

Further, note that even if she had enthusiastically welcomed his actions, it would still violate affirmative consent because affirmative consent doesn’t require you to do only what your partner welcomes- it requires you to do only that to which partner has given specific and explicit consent.

I acknowledge, of course, that Woman in the above scenario would be exceedingly unlikely to go to campus authorities over this.

http://studentconduct.osu.edu/page.asp?id=41
http://swc.osu.edu/sexual-violence/sexual-violence-education/consent/

As for your mens rea question above- when a statue doesn’t define mens rea, there will be a default rule in state law that clarifies the default mens rea. It almost invariably says something like known, or should have known, or was reckless as to. Some states add negligent as to. This almost never comes up though because mens rea based defenses to rape charges are incredibly rare.

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Ze Kraggash 11.13.14 at 3:55 pm

“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.

155

LizardBreath 11.13.14 at 4:19 pm

Some states add negligent as to.

As part of the definition of criminal mens rea generally? No, they really don’t. I could be wrong, but I’m certain — is there a particular state you’re talking about?

156

LizardBreath 11.13.14 at 4:36 pm

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.

157

Ragweed 11.13.14 at 6:19 pm

@Holbo, 126,

But there are ways of crafting statutory laws that address the birthday issues. Washington state law defines statutory rape based on a combination of the age of the younger party and the age gap. So it is legally rape of a child if the victim is 12 and the older party more than 24 months older, when victim is 13-14 and the older party is 36 months older, when the victim is 15-16 and the older party 48 months older. You still have the issue that there is not much difference between 36 months – 1 day older and 36 months +1 day older, but you never have the problem where two 16-year-olds are dating and suddenly on the older ones 17th birthday they becomes legally a rapist.

158

J Thomas 11.13.14 at 6:50 pm

#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.

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Patrick 11.13.14 at 6:56 pm

“As part of the definition of criminal mens rea generally? No, they really don’t. I could be wrong, but I’m certain — is there a particular state you’re talking about?”

Hmm. I included “negligence” because I’d been told that Pennsylvania had this, and I wanted to be complete. But looking it up, I appear to be misinformed. Title 18, 302(c) says that I am wrong. Sorry.

“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.”

I’m just reading what’s written. Is there a sexual contact? Yes. Did it occur without explicit consent? Yes. It was also unwanted contact, though it isn’t clear that matters. If you want to claim that there’s a de minimus exception for fleeting contact or momentary miscommunications which occur in good faith, please cite to the text in the rule that shows it. I’ve provided the links.

I guess I should note that the word “explicit” occurs in the commentary and not the rule itself, which just uses the synonym “clear.”

This is what is frustrating to me about this debate- Advocates for affirmative consent laws like to pose as if they’re defending the idea that if Jack and Jill are engaged in sexual activity, and a reasonable person in Jack’s position would be able to tell that Jill doesn’t want to even though she hasn’t specifically asked him to stop, then Jack should not proceed. But that is 1) nearly uncontroversial, and 2) not what affirmative consent rules actually say. They lay out a specific set of rules for how that scenario is to be avoided. Those rules are what is at issue.

As it happens, those rules state that you are in violation if you engage in “any intentional sexual touching” without clear (interpreted as “explicit” by the people charged with enforcing the rule), knowing, and voluntary consent.

The commentary continues to add that “It must be asked every step of the way,” (note “asked,”) and “It cannot be implied or assumed, even in the context of a relationship.” Also “If consent is not obtained prior to each act of sexual behavior (from kissing to intercourse), it is not consensual sex.” Note “each act” . Also, “The only way to know for sure if someone has given consent is if they tell you.” Note “tell,” and the fact that the section continues to recommend verbally asking. So the people assuming that verbal consent is required are not technically correct under the terms of the rule, but are not crazy in their assumption that the rule can be interpreted to require it as the only means of ensuring that you are not in violation, since that appears to be OSU’s interpretation of their own rule.

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Ragweed 11.13.14 at 7:41 pm

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.

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James Conran 11.13.14 at 8:19 pm

Couple of troubling points raised by the Ezra Klein piece:

“…the law is only worth the paper it’s written on if some of the critics’ fears come true. Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.”

I’m no philosopher but this sounds like it’s violating a “treating people as ends not means” principle. The passage is open to more than one interpretation, but the most obvious to me is that Klein is saying “punishing innocent people will send such a scary message out that men will behave better”.

My understanding of John Holbo’s position was that affirmative consent, by making rape easier to prosecute, might do something to reduce the mountain of unpunished sexual assault, but at the smaller cost of small increases in convictions of innocent people (plus backlash). This trade-off (type two versus type one error if you like) is the same one facing all criminal laws, because all laws and all justice systems will make mistakes. In this case JH thinks (or he might tell us otherwise!) the balance between the two kinds of errors needs to be re-adjusted, because there is so much unpunished sexual assualt, but punishing the innocent is in now way desired or necessary (so we’re in “double effect” territory) – it isn’t a “mechanism” through which the law’s good effects come to pass.

The second troubling quote from Klein is related. After saying (no evidence offered) that false accusations of rape are, while terrible, “very very rare”, he says of opposition to affirmative consent:

“This is, in a way, the definition of what it means to be entitled: the rules are designed to protect you from dangers that barely exist at the expense of exposing others to constant threat.”

Leaving aside the unsupported claims about the near non-existence of false accusations, there seems plentiful evidence that sexual assault is astonishingly widespread and criminal justice systems the world over seem to do a horrifically poor job of punishing it, so there’s a reasonable prima facie case that the type two/type one error ratio (i.e. false convictions/unpunished crimes) is way smaller than with other serious crimes. Still, there is a failure here to recognize that having the prospect of a false conviction be weighed more heavily than the prospect of a false acquittal is supposed to be the “privilege” of all defendants.

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John Holbo 11.13.14 at 11:55 pm

Muse: “You are talking out of both sides of your mouth.”

If you hereby accuse me of trying to see both the advantages and the potential downsides of affirmative consent standards, I plead guilty as charged. If you intend some other complaint, I’m afraid I’m not seeing it. Your position seems to be that worrying about worst-case scenarios is tantamount to believing worst case scenarios are normal-case scenarios. I quite appreciate that right-wingers are, inevitably, going to ring alarm bells about the masses of innocent men who will be herded into jail over this. That’s silly. Nevertheless, it is reasonable to focus on these cases for critique purposes. You don’t want to write a bad law. You don’t want to write a law that criminalizes stuff you don’t want to criminalize, even if, predictably, no practical harm will come of it it. You don’t want to write an unclear law. There are things that would count as ‘serious problems’ short of actual occurrence of such mass andro-incarcerational events as Brett Bellmore is pleased to fantasize about.

This brings me to LizardBreath’s comment:

“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 think the problem really is that the standard of ‘explicit’ is, inevitably, a bit unclear. The problem is that ‘explicit’ consent to such things inevitably involves implicit factors, of one sort or another. And, conversely, most implicit understandings (accurate or erroneous) involve some explicit signs or statements. She explicitly raised one eyebrow in such a way that I knew she wanted me to go on!

LizardBreath is right that insisting that a strict, explicit consent standard would make this way too hard. ‘Sign here …. AND here … push harder, so it goes through to the copies!’ (Kinky!) But if we are allowing implicit understanding to count as explicit, then what, exactly, is changing? LizardBreath in fact thinks not much is. She could be right. I’m just not sure she’s right. Per above, some of the legal language seems to suggest otherwise. If the law can be interpreted, absurdly, to imply that you need to be constantly asking a series of questions to which you need to receive clear, unambiguous, articulate, verbal responses, then it is hard to be sure exactly how this will be understood. It won’t be understood to mean this silly thing, I grant. But what other thing, short of the silly thing? If we aren’t sure, that’s a problem.

I think it’s worth emphasizing as well that the good that will come of this law, if any, will not consist in a huge increase in the prison population, due to rape convictions. The good will come from the fact that, knowing what the law is, people adjust their behavior and social norms shift in a way that reduces the numbers of sexual assaults suffered by women.

To pick a trivial comparison point: anti-littering campaigns in the 70’s worked not by levying tons of fines for litter but by shifting social norms away from the idea that just tossing stuff from your car window into the side the highway was a reasonable way to dispose of trash.

We are looking for a shift in social norms, not an increase in prison population for rape convictions. We want people NOT to run afoul of the law because, knowing what it is, they take the very simple steps to avoid running afoul of it. And, in doing that, they make society a better place in lots of little ways.

In order to be a stimulus for that sort of attitude change, the law needs to be perceived as basically clear and basically reasonable – it lays down a marker of reasonableness, as it were. If the law is perceived to be, by contrast, unclear and unreasonable (even if those unreasonable features do not, in practice, cause many problems) this desired social effect may backfire.

If no one was quite sure what ‘littering’ meant, in the eyes of the law, anti-littering campaigns would have been a lot less effective.

There isn’t an easy fix for this problem because it just isn’t easy to draw a bright line between consent and non-consent, due to it inevitably being a mix of implicit and explicit understandings that are typically too various and subtle for the law to codify, in some simple way. It’s still worth trying to do this, I think, but I predict serious problems, all the same.

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engels 11.14.14 at 12:25 am

why should universities facilitate a culture of substance abuse, promiscuity and juvenile behaviour

This must be stopped. Nobody should be allowed to go to college until they are at least 35.

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engels 11.14.14 at 12:31 am

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?

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engels 11.14.14 at 12:34 am

(Sorry if that seems facetious, and I haven’t read all of the thread…)

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John Holbo 11.14.14 at 12:36 am

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. The law aims to remove some of that cover by shifting social norms away from the sorts of (often innocent) behavior that is, often, cover for sexual assault. This is a reasonable goal, assuming some reasonable route to realizing it exists. Given the seriousness of the problem being addressed, it is reasonable to take serious steps in this regard. But it is also inherently problematic and tricky. Even if you don’t end up punishing the innocent, you end up insulting the innocent by hinting that they are sexual predators. When really that isn’t the point at all. It’s tempting to make a joke about it like so: imagine two college kids, as Ezra Klein does, sort of quietly escalating from cuddling to sex, without explicit consent on either side. Now Offissa Pupp taps them on the shoulder, earnestly tells them to cease and desist. Why? Not because they are rapists. Rather, they are interfering with ongoing investigation of other cases. (If Pupp is being honest about what the harm is, this is how he will explain it.) That is, the fact that this sort of behavior is normal genuinely does make it more difficult to investigate and prosecute other cases in which there is assault or rape. In effect, the law asks these innocent kids to shift their private sexual practices, just a bit, for the sake of the greater social good of preventing an epidemic of sexual assaults. Is that reasonable? I tend to think it is – or could be – reasonable. This has to do with it really not being a hardship to get explicit consent from one’s partner. It is also silly to think that somehow explicitness will Kill The Romance. Even setting assault fears entirely aside, I think on balance most people’s private sexual lives would go better if lived according to a social norm of affirmative consent. But it’s still a screwy way to run the railroad, shifting social norms by potentially criminalizing stuff that shouldn’t be criminal, to deprive actual criminals of social cover. It is not what I call optimal.

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John Holbo 11.14.14 at 12:41 am

“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.”

I had thought of that, too. You ought to be able to explicitly consent to the other party initiating sexual contact, without explicit consent, for the next 90 days, say. It would be kind of a sweet Valentine’s Day present.

Roses are Red
Violets are Blue
The law asks for explicit consent
And I give it to you for 90 days or until such time as I explicitly revoke it.

And then there would be a lot of lawyereze legal boilerplate crammed in at the bottom of the hallmark card.

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Ronan(rf) 11.14.14 at 1:09 am

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.

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John Holbo 11.14.14 at 2:06 am

“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.”

Yes, but that is consistent with saying that if the other 97% start following the norm, as a rule, it will be easier to detect the 3%. It will be harder for the 3% to masquerade as part of the 97%. So far as I can see, this is the logic of the this sort of measure.

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js. 11.14.14 at 2:13 am

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.

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John Holbo 11.14.14 at 2:36 am

“The result: they haven’t helped that much”

I would have predicted as much, but surely the justification for the law can’t be that it hasn’t helped that much. If the law literally doesn’t change anything, that’s no good either. The question is: what is the change? We can’t just bobble back between Brett Bellmore style absurd paranoia and reassurances that really we were almost operating under some such standard already.

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js. 11.14.14 at 2:45 am

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.

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parse 11.14.14 at 2:50 am

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. The law aims to remove some of that cover by shifting social norms away from the sorts of (often innocent) behavior that is, often, cover for sexual assault.

Can you say more about that, and perhaps be more specific about what forms of behavior can give cover for sexual predation? And to tie back in to you anti-littering example, are they garbage, something nobody would value but wouldn’t necessarily put somebody in jail for spreading? Or do you think we might need to stigmatize some behaviors that actually have value but are too closely tied to acts of sexual assault to tolerate safely?

I think on balance most people’s private sexual lives would go better if lived according to a social norm of affirmative consent. But it’s still a screwy way to run the railroad, shifting social norms by potentially criminalizing stuff that shouldn’t be criminal, to deprive actual criminals of social cover. It is not what I call optimal.

I’ve been fortunate enough that shifting social norms have ensured that at least in my jurisdiction, at this time, homosexuality is no longer even potentially criminal. But I don’t think it was even two years ago in Manhattan that undercover detectives were propositioning men in video arcades and then arresting them on preposterous charges of prostitution. Once these laws are passed, police and prosecutors typically have enormous discretion in determining what potentially criminal stuff becomes the subject of investigation and prosecution.

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John Holbo 11.14.14 at 3:00 am

Well, first, the point of the littering example is emphatically not to compare anyone to garbage. It’s just an example of a public campaign to shift social norms that worked very well.

“Can you say more about that, and perhaps be more specific about what forms of behavior can give cover for sexual predation?”

In a world in which a lot of consent is genuine but merely implicit, people who engage in non-consensual sex – i.e. sexual predators – have more plausible deniability for their crimes. They can just say they took the victim to be implicitly consenting. An explicit consent standard makes that a bit harder to do.

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parse 11.14.14 at 3:33 am

I didn’t think you were comparing any people to garbage, but I was asking about those “forms of behavior” that we are building social norms in opposition to. Are they garbage, e.g. things we can dispose of without losing anything of value, or do the forms of behavior providing cover for sexual predation include things that might be valuable but that we will have to regretfully give up?

Is it difficult to talk about any specific behaviors? I think you are saying an explicit consent standard makes some behaviors that are currently accepted no longer justifiable. If I understand you, it’s not merely tthe predator can’t claim that “they implicitly consented.” It’s that some behaviors that previously provided cover for sexual assault are now beyond the pale. I’m not clear about what behaviors you have in mind.

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John Holbo 11.14.14 at 3:51 am

“I think you are saying an explicit consent standard makes some behaviors that are currently accepted no longer justifiable.”

I think unless this is true, somehow, the law doesn’t do what it’s supposed to. The question is: what behaviors are these? Except we should change ‘justifiable’ to ‘legally defensible’. (We are talking law, not morals, in asking what the law does.)

But, insofar as the point of the law is to shift social norms, we are also aiming at a moral shift. We are fudging the line between legal and normal and justifiably normal.

“It’s that some behaviors that previously provided cover for sexual assault are now beyond the pale. I’m not clear about what behaviors you have in mind.”

Nor am I. But the logic of the law has to be that there are such cases. Obviously it would be silly if you had to bring a public notary to every sexual encounter, to verify consent. Somewhere between that silly scenario and the situation we’ve got now is the social level this law could nudge us towards. Namely a level at which it is considered non-normal to NOT get certain sorts of explicit consent that, as things stand, it is considered normal not to get. The point of the law has to be to raise the bar, generally, in this regard. But I am concerned that it is unclear how much the bar is to be raised, strictly legally, to nudge us in this more generally socially healthy direction. I find the legal standard unclear, while also believing that asking people to get affirmative consent is not a big deal, won’t Kill The Romance, and also believing that there is no serious risk we are on the road to locking up all the men for rape.

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John Holbo 11.14.14 at 3:59 am

It’s worth adding that passing laws to nudge the populace in the direction of healthier social norms is not so unusual. The reason murder was made illegal, originally, was to facilitate punishment of murderers, procedurally. But, more generally, to send a social message that this is uncool, and to generally discourage people from thinking that bashing in the neighbor’s head is an acceptable private lifestyle choice. You want the law not to have to be used much because people adjust their social lives to avoid collisions with it.

I am simplifying legal history somewhat.

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parse 11.14.14 at 4:28 am

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.

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John Holbo 11.14.14 at 4:35 am

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

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parse 11.14.14 at 5:16 am

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.

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John Holbo 11.14.14 at 5:26 am

“Implicit consent isn’t a behavior.”

I think it is. Unless consenting, in general, isn’t a behavior. (But that would be a view I would resist.)

Sorry if my view was not as obvious as I thought it would be. Let me say it again (but I really do think I said it already.) 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.

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bad Jim 11.14.14 at 7:06 am

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.

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Ze Kraggash 11.14.14 at 8:48 am

“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.”

It sounds like this law takes discretion away from juries and judges, in the same sort of way as the ‘three-strikes’ and ‘mandatory minimum’ laws do.

It seems obvious to me that the thinking behind this is, indeed, illiberal. Which, depending on the wider circumstances, doesn’t necessarily mean unacceptable. But it would be useful to acknowledge it, just to be clear. Compare to this: if a train is late, the train driver must be shot. Sure, some of them might not be guilty of the delay, but this is the only way to make the trains run on time.

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bad Jim 11.14.14 at 9:13 am

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.

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bad Jim 11.14.14 at 9:37 am

I don’t understand why it isn’t universally acknowledged that it’s wrong to fuck somebody who doesn’t want to be fucked.

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parse 11.14.14 at 1:16 pm

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?

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John Holbo 11.14.14 at 1:45 pm

“If rapists are lying about consent, it seems like the explicit consent standard only changes which particular lies they tell.”

The change wouldn’t make it impossible to lie, but it might necessitate more flagrant lies, which might, as a result, be less plausible.

Patrick’s scenario seems like an illustration of the point I have been making (and Patrick is making) there there is potential unclarity about what the law mandates. What counts as affirmative consent? What is explicit and what is implicit. The problem, inevitably, is that communication and expectation are always a function of both explicit and implicit understandings. You can’t make everything explicit. But what, then, may be safely taken, implicitly, for granted?

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John Holbo 11.14.14 at 1:48 pm

And again: I’m not seriously worried about all men being sent to jail.

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parse 11.14.14 at 2:15 pm

You can’t make everything explicit. But what, then, may be safely taken, implicitly, for granted?

When your position is that if implicit consent is permissible, then sexual predators enjoy plausible deniability for bad behavior, it suggests that the answer to that question is “nothing can be safely taken implicitly for granted.”

I’m not seriously worried about all men being sent to jail, either.

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John Holbo 11.14.14 at 2:31 pm

In practice the upshot will have to be that less can be taken for granted. (Not nothing. that’s impossible. But less.) But it isn’t clear how much less.

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afeman 11.14.14 at 2:51 pm

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Patrick 11.14.14 at 6:09 pm

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.

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bianca steele 11.14.14 at 6:21 pm

Patrick @ 192

The word “relationship” seems to indicate an ongoing sexual relationship but the examples are changed drastically if “relationship” means “assigned study partner” or any number of other things, don’t you think?

The space I think the rule is trying to close is the space between having to order someone out of your room and tell them never to come back (and wonder if you’re going to have to scream to get them to leave), and between having someone assume that if you’re study partners, it’s actually better probably not to bring sex into the relationship especially if you’re not mutually enthusiastic about it. I tend to think many people discussing this just aren’t aware of the variety of–initially explicitly nonsexual–situations rape intrudes into.

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js. 11.14.14 at 6:33 pm

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”!

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Patrick 11.14.14 at 7:21 pm

Bianca- I was using “relationship” to refer to ongoing romantic relationship. The purpose of the example was to illustrate cases that come out differently under affirmative consent versus generic rape law.

If you’d like to posit a different hypothetical, go ahead. I’m not sure I follow yours.

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bianca steele 11.14.14 at 7:32 pm

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.

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dr ngo 11.14.14 at 7:37 pm

I have followed this thread with distant interest, since I’m nearly half a century removed from the age in which it would have been most personally salient. WRT what actual legal consequences might arise from this legislation, I’m no better informed than anyone else, so I’d tend go along with what seems to be the consensus here: there would be few cases, but they’d be messy (and politically explosive ones).

But I am intrigued and somewhat disconcerted by the now-explicit subtext: that this law is not actually for enforcing (much) but for setting a standard, drawing a line, changing mentalities (and thus future behavior), i.e., social engineering. It can work, and the citation of anti-littering laws and campaigns seems apposite here. We now all know that Littering is Wrong. But if we stop for a second, we also all recognize legislation outlawing behavior that we do not (as a rule) regard as Wrong, even after the laws are passed. Marijuana laws, for many people. Jaywalking. Minimal speeding (i.e., driving less than ten mph over the posted limit). In these and similar activities we recognize that we might be caught and convicted, but we may do so with no sense of remorse, or of having done Wrong. If anything, such legislation tends to foster contempt for the law itself.

And that, it seems to me, may lie at the root of much of the visceral reaction against such legislation. It’s not that it prevents me (at my age!) from doing anything I might otherwise do. It’s that it is trying to tell me that things I once did were Wrong when I don’t believe they were. (Mind you: I did do some things that were Wrong, and I knew that they were, and repented of them, so that’s not the issue.) When I think back nearly fifty years to when I was trying to figure out who I was and how adult relationships were supposed to work and what were the practical strategies and tactics of negotiating potentially sexual situations – and everyone I knew was in roughly the same boat – I’m not sure that demanding “affirmative consent” would have clarified matters legally, ethically, or practically.

There’s a recurrent subtheme on this thread expressed most recently in the form “I don’t understand why it isn’t universally acknowledged that it’s wrong to fuck somebody who doesn’t want to be fucked.” As stated, I would agree, as would most people, I believe. The problem with this statement, however is that it’s binary and static – it assumes that someone who at point A in time isn’t sure whether s/he wants to have sex cannot change her/his mind a short time later: a dynamic reality.

And it was precisely in this interim – as I recall it through the mist of memory – that some of the most sensitive interactions occurred, when we went from “Should I/we or shouldn’t I/we” into a more clear “Yes, let’s” or “No, let’s not.” As I understand it, this arena is now all but foreclosed by the legislation – such negotiation or attempted persuasion or whatever is theoretically criminalized and, more broadly, portrayed as Wrong. Which bothers me. No means no, or should have, even Back In The Day. But uncertainty should not, IMHO, preclude any attempt at persuasion, however fumbling. Awkwardness is certainly inherent in this; sensitivity has to be developed; one looks back and thinks “That went well” or “I could certainly have handled that better,” but that, I believe, is inherent in the human predicament.

For the record, I agree that the problem of sexual assault is a real one, and that appropriate steps to resolve it should be taken. I’m not sure these are the appropriate steps, however. I try to avoid this logic (which led us into the invasion of Iraq, as well):

1) Something must be done
2) This is something
3) Therefore, this must be done.

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J Thomas 11.14.14 at 8:13 pm

#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.

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The Temporary Name 11.14.14 at 8:14 pm

The problem with this statement, however is that it’s binary and static – it assumes that someone who at point A in time isn’t sure whether s/he wants to have sex cannot change her/his mind a short time later: a dynamic reality.

I know a couple of people who like to be clambered onto in the middle of the night and be woken up to the reality of ongoing sex. They give their mates consent to do that when wide awake of course, but you’d think at some point there’s going to be a bad night. I don’t think it’s possible to square the onset of an incident like this with the UC policy (or maybe most current law), so partners have to be awfully trusting to play around with the Wrong of it.

It’s interesting men having to identify trustworthiness is such a scary step, and yet women have to do it all day long.

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js. 11.14.14 at 8:30 pm

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.)

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Patrick 11.14.14 at 8:51 pm

bianca- I’m still not following. I wasn’t trying to define all possible rape. I was trying to show scenarios that are the intended targets of affirmative consent laws. That means, scenarios that might come out one way with affirmative consent and another way without, and which advocates of affirmative consent are willing to or likely to endorse as examples of targeted behavior.

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Patrick 11.14.14 at 9:04 pm

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.

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bianca steele 11.14.14 at 9:14 pm

Patrick: Since I think both your examples and mine would come out one way with affirmative consent, and another way without[1], I don’t see what the problem is. My initial point was, as I said, that the use of the word “relationship” will imply to most people that the cases affected by the law are only cases of unwanted sex that occur within an existing and sexual relationship. That’s not the case. I’m not sure why you’re so insistent on not following this point. (Okay, after @202, I see why, because you want to insist the rule is actually about something you’re imagining is a huge problem.)

[1] For instance, M touches W, she steps farther away, he pulls at some item of her clothing so it comes off. Under affirmative consent, he knew he didn’t have consent. Under the current standards, she didn’t shout at him or start to cry, so he says he thought she didn’t say “no.” But that’s assault, even if the frat boys of the past thought they had a right to do it “all in good fun.” It’s not social engineering, either; off-campus, it was always assault.

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js. 11.14.14 at 9:15 pm

@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.

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J Thomas 11.14.14 at 9:28 pm

#197 bianca steele

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?

When she gets uncomfortable she should let him know.

If she says “Please go away now, I want to take a shower” and he doesn’t go away, then at that point there is a problem that isn’t rape but it’s at least trespassing.

If she dials 91 on her cellphone and asks him how he feels about her calling the police and he grabs the phone out of her hand, at that point there’s definitely some coercion going on.

If she thinks about it ahead of time she can find a variety of ways to make it explicit coercion on his part and rape if he continues. But if she isn’t willing to say no because of social reasons, then she has given up her rights.

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.

Tell him to stop. Find out whether he stops when she says to. If he doesn’t, do something. Scream. Try to seriously hurt him. Whatever.

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.

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engels 11.14.14 at 9:28 pm

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…

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js. 11.14.14 at 9:43 pm

Isn’t this sexual assault under existing law though ( = non-consensual contact)

I think Patrick’s issue is with getting prior affirmative consent for each act. The way I understand current law (and I’m not a lawyer), if you stop when the person says “No”, you haven’t committed sexual assault. If you need prior consent for each act on pain of committing sexual assault, then stopping after you realize that the act wasn’t consented to isn’t enough. I think that’s the thought. But looking at the CA law, this whole issue seems orthogonal to the distinction between the current standard and the affirmative consent standard—it’s just a quirk of the way the OSU regulation is written.

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engels 11.14.14 at 9:56 pm

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.

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js. 11.14.14 at 10:14 pm

Here’s how I understand the basic change, or at least a basic change (someone has probably supplied a similar example above, but the discussion has been so bizarre, I’m not sure):

Let’s say I’m in the middle of some sort of sexual activity with someone, and in the middle of it, s/he realizes s/he doesn’t want to go on with it. 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. Under affirmative consent, it would be my responsibility to ensure that my partner was positively into whatever was happening (if necessary by asking—but in most normal cases, the standard sorts of nonverbal communications that let one know that one’s partner is positively into it would suffice; why wouldn’t they?). If I failed to ensure this, I could be guilty of assault even in the absence of positive resistance from my partner.

Similar points would apply to initiating sex.

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engels 11.14.14 at 10:52 pm

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.

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js. 11.14.14 at 11:04 pm

Well, I quoted California’s specification of “affirmative consent” @204. If you think that text supports your interpretation better than mine, maybe you can say why? (And if you think I’m leaving out anything that’s relevant, you can read the full text of the bill by following the link @204.)

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engels 11.14.14 at 11:15 pm

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.

213

Abbe Faria 11.14.14 at 11:22 pm

You’re both right.

Under existing law (typically) the prosecution has to prove an act, sex without consent, and a guilty mind, that the defendant didn’t reasonably believe consent existed. (Though campus codes – see OSU – are usually behavioral and don’t require proof of the second.) If someone doesn’t want to have sex with you and you have no good reason to believe they do, it’s rape – whether they just lie there passive or not.

On the other hand, there are perverse ‘wearing a short skirt’ jury decisions and proof beyond reasonable doubt is often tough, certainly proving lack of reasonable belief is easier if you testify you screamed stop. I think that combined with feminist rhetoric got us the line that women have to resist, even if that’s not the letter of the law.

Under the new law the prosecution would have to prove sex without affirmative consent (however that ends up being interpreted, but presumably it’s narrower that just consent or what’s the point?), and that the defendant didn’t reasonably believe affirmative consent existed (again presumably harder).

214

Collin Street 11.14.14 at 11:26 pm

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.

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Abbe Faria 11.14.14 at 11:30 pm

“Well, I quoted California’s specification of “affirmative consent” @204. If you think that text supports your interpretation better than mine, maybe you can say why?”

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

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Abbe Faria 11.14.14 at 11:31 pm

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.

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js. 11.14.14 at 11:56 pm

engels @212:

Then presumably an affirmative consent standard, as understood in the US context, wouldn’t change much in the UK. Frankly, I’m willing to be convinced that it’s not going to change much in the US, especially as regards practical consequences—as I’ve already mentioned. On the other hand, I’m extraordinarily skeptical that these are “terrible” laws that will outlaw previously wholly innocent and normal activities.

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J Thomas 11.15.14 at 12:50 am

#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.

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Collin Street 11.15.14 at 1:45 am

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. I am, yes: that my advice seems needless is something I’m genuinely glad to hear, and I wish all the best for you and your loved ones.

[but this is stuff I learned the hard way, trust me. My formal diagnosis came back with “Well, yes, but he doesn’t actually appear to be _impaired_, you know…”.]

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engels 11.15.14 at 2:44 am

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).

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js. 11.15.14 at 3:55 am

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

This makes me think that we’re only disagreeing on what would count as non-verbal consent. I’m thinking it’s a reasonably low bar—the sort of thing one anyway relies on if one is not an asshole or a rapist (if the other person is seeming oddly non-responsive, stop and ask, that kind of thing). And I’m taking it this way because that would seem to be the point of having a category of nonverbal consent. But yes, if one thought that nonverbal consent were still setting a bar like verbal consent each step of the way—or anyway something similarly unreasonable-seeming—then the standard would in fact seem like it were outlawing otherwise perfectly innocent things. I still think having a category of nonverbal consent cuts against reading the standard in that way.

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Lynne 11.15.14 at 11:27 am

“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.

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J Thomas 11.15.14 at 12:53 pm

I still think having a category of nonverbal consent cuts against reading the standard in that way.

Yes, if you allow subtle nonverbal signals then it amounts to the old standard, with different wording.

Except the other partner can’t be unconscious. “Your Honor, I saw breathing motions that meant consent.”

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Lynne 11.15.14 at 1:12 pm

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.

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Pat 11.15.14 at 1:53 pm

Lynne @224:

“Yes, she does.”

I simply cannot disagree more forcefully. Yes, she has

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Pat 11.15.14 at 1:54 pm

(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.)

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Main Street Muse 11.15.14 at 2:18 pm

To JH @ 162: “You don’t want to write a bad law. You don’t want to write a law that criminalizes stuff you don’t want to criminalize, even if, predictably, no practical harm will come of it it. You don’t want to write an unclear law.”

We agree!

I am primarily responding to Ezra Klein’s argument that loving couples will somehow find themselves in court for a rape charge – it’s silly and will not happen, unless the love has left the relationship. But that’s a different scenario. (As I noted earlier, I’m really not a fan of Vox or of Klein’s method of argumentation.)

What I see is the significant problem of date-rape on college campuses. MOST of these cases will never, ever go to court – unless there is photographic evidence (as with Steubenville, Vanderbilt rape cases – if you are not familiar with these cases, please read up on them – they are about students raping a girl who has passed out – pictures are taken and shared of this event – it’s horrific – not only was there no mention of “yes” but the victim was too incapacitated to say “no” either.)

CeeLo, when charged with date rape, recently tweeted: “People who have really been raped REMEMBER!!!” Given the Steubenville and Vanderbilt cases, he seems not alone in this thinking. The definition of rape today is unclear – and the lack of clarity does not serve anyone well at all.

Most prosecutors do not want to take on “he said, she said” cases – they are generally difficult to prosecute. However, universities then try to adjudicate the issue – often with a kangaroo court composed of students and faculty. It’s truly awful – for both the accused and the accuser. And in the US, colleges are doing a horrible job of dealing with the repercussions of date rape on campus.

Will “yes means yes” provide a profound change in how we charge and prosecute people for rape? Somehow, I doubt it.

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J Thomas 11.15.14 at 2:30 pm

#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.

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Saurs 11.15.14 at 2:39 pm

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.

It’s considered in these types of threads — where otherwise mostly intelligent and otherwise reasonable men suddenly becoming willfully thick and prone to playing dumb — poor form for women to “shame” neuro-atypical men for their poor social skills (when it comes to sex, all men are suddenly on the spectrum and all women are increasingly mysterious creatures whose motivations are irrational, nonsensical, and ought to be ignored because of some tenuous biological or evolutionary reason); the reality is that neuro-atypical people can’t help it if their behavior is viewed as deficiency.

The same is true here. You may not like it, J. Thomas, that women — reared in a culture that sexualizes violence and that romanticizes predatory and abusive behavior (when it involves sex and is directed against a woman) as seductive and alluring — negotiate their physical safety and reputations in ways that minimize bruising men’s egos, particularly publicly. Women don’t like having to do that. We do it, anyway. Doing so sometimes saves our necks. If you’re going to bury your head in the sand and deny reality, if in the face of some of the frank admissions by women in this thread, you’re happy to easily dismiss them as “insane,” then your contributions are of null value. You’re playing armchair academic vulcan-boy.

But bianca steele’s point couldn’t be more obvious: women are discouraged from delivering a hard and unrelenting “no,” especially when faced with the possibility of violence. If nothing else, a “yes means yes” policy underlines the (moral and ethical, if not legally binding) responsibility of all people to elicit the enthusiasm, consent, and permission of their sexual partners. I’d like to say I don’t know why this is such a kerfuffle, but then I hear from commenters like dr. ngo, who want to make sure they still have a right to “negotiate” and “persuade” women who don’t want to have sex into having sex. As bianca suggests, being “persuaded” into sex is hardly consensual in a meaningful sense, anyway, when the alternatives are injury or being held responsible for a man’s acute discomfort or ego-bruising (which can readily lead to immediate or future injury). Not to mention the psychological costs (gas-lighting, social ostracism, harassment, being saddled with a reputation as a liar or hysteric or prude) if she draws attention to the situation in the “wrong” way.

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Saurs 11.15.14 at 2:41 pm

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.

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John Holbo 11.15.14 at 3:38 pm

Final comment from me, probably.

I should have distinguished more, in my comments, between college policies and actual laws. They aren’t the same. But I was thinking about the issue, abstractly, in a ‘model rule’ sort of way, without addressing that distinction. Not good.

I also realize, upon reflection, that I have a rather insufficient understanding of existing ‘non-explicit’ standards of consent. Existing legal precedents and norms.

Why did I post without more knowledge of the law? 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.

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js. 11.15.14 at 5:09 pm

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

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bianca steele 11.15.14 at 5:28 pm

Saurs @ 229: I don’t think I’d describe my beliefs exactly the way you describe yours, but that’s a very helpful formulation and gives me a lot to think about.

As for some of the other commenters, this thread has given me a lot of new additions to my “don’t even bother to read what they write” list.

Kudos to the other women who’ve spoken up. You don’t want to let this comments section become a forum for building a solid consensus among a budding community of misogynists.

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geo 11.15.14 at 5:54 pm

235

geo 11.15.14 at 5:58 pm

Come to think of it, more likely inspired by Maria’s.

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harry b 11.15.14 at 6:06 pm

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.

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Chris M 11.15.14 at 6:17 pm

If you want to know whether “no” always means “no” you can look at the empirical evidence:

Do women sometimes say no when they mean yes? The prevalence and correlates of women’s token resistance to sex.
Muehlenhard, Charlene L.; Hollabaugh, Lisa C.
Journal of Personality and Social Psychology, Vol 54(5), 1988

We investigated whether women ever engage in token resistance to sex—saying no but meaning yes—and, if they do, what their reasons are for doing so. A questionnaire administered to 610 undergraduate women asked whether they had ever engaged in token resistance and, if so, asked them to rate the importance of 26 possible reasons. We found that 39.3% of the women had engaged in token resistance at least once. Their reasons fell into three categories: practical, inhibition-related, and manipulative reasons. Women’s gender role attitudes, erotophobia–erotophilia, and other attitudes and beliefs varied as a function of their experience with token resistance and their sexual experience. We argue that, given society’s sexual double standard, token resistance may be a rational behavior. It could, however, have negative consequences, including discouraging honest communication, perpetuating restrictive gender stereotypes, and—if men learn to disregard women’s refusals—increasing the incidence of rape. (PsycINFO Database Record (c) 2012 APA, all rights reserved)

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Rich Puchalsky 11.15.14 at 6:50 pm

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.

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engels 11.15.14 at 7:02 pm

Criminal law aims at shaping expectations and educating people too though, it just does in somewhat less subtle way than a liberal arts college. Anyway, I thought campus codes were backed by sanctions, including, potentially, expulsion, so I don’t see the difference with criminal law is huge…

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MPAVictoria 11.15.14 at 7:06 pm

“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.

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Rich Puchalsky 11.15.14 at 7:26 pm

Sorry, MPAVictoria.

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js. 11.15.14 at 7:29 pm

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.

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engels 11.15.14 at 7:34 pm

From Patrick’s links to OSU:

“Consent Is… Sober, Not coerced, Imaginative ,Enthusiastic, Creative, Wanted, Informed,Mutual, Honest, Verbal” ???

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

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engels 11.15.14 at 8:31 pm

“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.

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MPAVictoria 11.15.14 at 8:34 pm

“Sorry, MPAVictoria.”

In no way your fault Rich. :-)

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Sasha Clarkson 11.15.14 at 8:55 pm

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”

“Yes m’lud, but the shopkeeper wanted me to”

“Did he say he wanted you to?”

“No – he asked me what I thought I was doing, but I could tell he didn’t mean it.”

or

“No, he’d fallen asleep so I assumed he wouldn’t mind”

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!

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Saurs 11.15.14 at 11:48 pm

Thank you, bianca steele, and I apologize for extrapolating your commentary beyond what you intended and explicitly stated. I really appreciate your continued and vocal presence here. The commentariat can be incredibly, painfully tone-deaf when rendered the least bit uncomfortable with discussions of misogyny and white supremacism, in particular, and it is always heartening to hear your nuanced and reasonable and empathetic thoughts (and those of a few others, also too!).

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John Holbo 11.16.14 at 1:08 am

“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.”

We’re talking about a law about campus conduct:

http://thinkprogress.org/health/2014/08/29/3477319/yes-means-yes-california-law/

More generally, we are talking about an approach to making law that might be applied more generally. In my comments I shifted unclearly between talking about the Cali case and a more notional ‘model law’ case. As I said above, that wasn’t good because a lot of the argument has to be about relative benefits, which requires keeping your feet more on the legal ground.

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John Holbo 11.16.14 at 2:29 am

“I am primarily responding to Ezra Klein’s argument that loving couples will somehow find themselves in court for a rape charge – it’s silly and will not happen, unless the love has left the relationship. But that’s a different scenario.”

That different scenario is the one that is the source of (admittedly long-shot) concern, in practice. In practice, loving couples are not going to drag each other into court, obviously. But both scenarios are sources of concern in theory, so, at the theory level, it is actually useful to lump them together. 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.

The most beneficial effect of the law, as I’ve repeatedly said, is not going to be as catalyst for a huge uptick in rape/sexual assault charges/convictions. The new law doesn’t make it easy to charge rape. It’s very hard to charge rape. (This is reasons 1 -9,999 why concerns that the law will result in all men being locked up are silly. The danger of a tsunami of meritless rape charges is zero. Rape is hard to charge. Most sexual assault will go uncharged and unpunished. That will go right on being the case.)

The most beneficial effect of the law will be, rather, to shift social norms. People – men, mostly – will steer clear of legal trouble by doing the right thing: seeking affirmative consent. Good! This is good in itself and has the knock-on benefit of clearing a certain amount social terrain in which sexual assault may conceal itself. So even if there aren’t many more charges/convictions, hopefully crime will be deterred. The social terrain will shift, overall, in a way that allows fewer opportunities for bad behavior.

But, ideally, you want people not just to shift behavior but to feel that the law makes sense. If, by contrast, people feel that the law technically makes all sorts of perfectly innocent stuff illegal, people will not feel that the law expresses a correct social norm. Legal bullshit that never causes legal trouble is still perceived to be bullshit. For purposes of shifting social norms, we would like people to feel that, technically, the law that marks the norm shift marks the norm. For that purpose, it is good if the law actually is well-crafted.

Now, honestly, for purposes of shaping public opinion, legal craft is perhaps less important than the spin that surrounds it. So maybe, by putting a somewhat negative spin on the law, I am guilty of aiding the enemy. Right-wing hacks who want everyone to believe this law is the end of the world. 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. The vaguely stringent language of explicitness will get over-applied in some case by some overzealous administrator. There will be born unto the world a poster child male victim, picture perfect for right-wing outrage. Then it will be all over FOX news for a month. (And if he isn’t picture-perfect from birth, FOX will make sure that he’s perfect by the time he’s in pictures.) There is literally nothing to be done to stop this prophecy from coming true, that I can see. Such cases will be bad in themselves (as far as they go) and bad as PR for the healthy new norm. I trust it will get more or less painfully worked out and precedents will be set, making such rare cases rarer as time goes on. But there will be a period in which people are genuinely unclear what the new norm is, since the law doesn’t make it clear, and precedent hasn’t been set. (It’s more stringent than what we’ve got, but how much more?) This in-between space is doomed to be a front in the Culture War, which means backlash and Brett Bellmore-style ‘poor poor pitiful me’ victimology without end. This doesn’t mean it’s a bad idea to generate this space. If liberals never did anything that might inspire a backlash of irrational, bitter right-wing victimology, nothing liberal would ever get done. There is literally no law that liberals could possibly propose, in this area – however sane, however insulated against possible unintended consquences – that would NOT inspire irrational right-wing predictions of certain doom. Right-wing victimology is the sun. It will rise tomorrow.

That being the way of it, we might as well call ’em as we see ’em. If the law looks like it might have theoretical or long-shot practical problems, say so. If and when problem cases arises, it is marginally better to have predicted their emergence than to have pooh-poohed the very notion.

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Thornton Hall 11.16.14 at 2:53 am

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.

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John Holbo 11.16.14 at 3:20 am

“Whatever caused the update to the original post is wrong.”

You are saying my belief that I support the law is false? I don’t actually support the law, despite my belief that I believe this?

This sounds like nonsense to me, as does the rest of your comment, Thornton. Are you just assuming fatalism without argument? As a tonic to infinite boredom, I don’t call that the road to Thrillsville. Derailing policy discussions with dogmatic metaphysics is its own branch of the great World-Tree of tedium, up and down which runs the squirrel of non sequitur.

252

Saurs 11.16.14 at 3:28 am

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.

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John Holbo 11.16.14 at 3:30 am

“The thing is, John, what else is there to do?”

Nothing, so far as I can see. Very often the only thing to do is something a bit problematic. Which, I hope, we are doing.

“That’s just an utter exaggeration, Vulcan reasoning at its finest.”

Blackletter law interpretation often has a somewhat Vulcan quality, if you want to call it that. The law is a technical business.

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John Holbo 11.16.14 at 3:32 am

“Who, truly, gives a shit what willfully and irresponsibly ignorant and mean-spirited professional misogynists think or do?”

People who care about politics. It’s no good pretending professional misogynists don’t have a real effect on politics.

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Saurs 11.16.14 at 3:35 am

People who care about politics. It’s no good pretending professional misogynists don’t have a real effect on politics.

I’m not pretending that. As a woman, I am politically powerless against them. I’m discussing a law that circumvents their fantasies, that is is actually wonderfully generous to men, in that it doesn’t pretend, as misogynists do, that rape is inevitable because men can’t control themselves, can’t respect boundaries, can’t discern enthusiasm from terror.

This is a practical policy. Reducing it to armchair theoretics is fucking humiliating for me as a woman.

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John Holbo 11.16.14 at 3:41 am

Sorry, just to be clear: no one is going to seriously describe the new law as ‘black letter law’ in the sense that it is, at birth, beyond reasonable dispute. My point is that people are likely to try to read the law in a mechanical, literal way, because that is how the law aspires to work. Therefore, it is worth thinking about a candidate law very mechanically, to see how thinking about it that way would work, and perhaps not work. Worrying about how mechanistic thinking could go wrong is not the same as suffering from mechanistic thinking.

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John Holbo 11.16.14 at 3:46 am

I don’t see the problem you have with what I’ve written, Saurs. I’m not, so far as I can see, doing any of the things you are complaining about me doing.

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John Holbo 11.16.14 at 4:33 am

OK, let me just try one last time:

“I’m discussing a law that circumvents their fantasies”

No, no no (I think)! This law taps into the mainline of rightwing fantasy in the most direct way possible. Because there is nothing rightwingers fantasize about more than liberal laws interfering with their manly private lives. It’s a wish-fulfillment fantasy apparently come true! Thinking that this law healthily circumvents right-wing fantasies is wrong. We need to think, rather, about how this law fuels right-wing fantasies. What to do about that unfortunate fact.

You may say the law circumvents fantasies about the bedroom, it doesn’t fuel them. But the personal is political. The law means backlash politics gets into the bedroom in a new way. Before, the fantasy was that the woman really wants it. Now the fantasy is that the woman really wants it PLUS I’m being politically persecuted for speaking truth to power about that. You risk a situation in which rape could come to seem like a form of political protest against liberal fascism. (You’re honor, I had to do it just to prove that the liberals are liars to insist that only ‘yes’ means yes!) The old bedroom fantasy, now on political victimology stilts.

I don’t seriously predict a wave of right-wing sexual assaults, in protest of the new law. But I do predict the cultural politics of it will be ugly. I think it’s over-optimistic to suggest, as Saurs does, that the law will just steamroller bad fantasies flat, in a healthy way.

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dr ngo 11.16.14 at 6:03 am

Saurs @2:39: commenters like dr. ngo, who want to make sure they still have a right to “negotiate” and “persuade” women who don’t want to have sex into having sex. As bianca suggests, being “persuaded” into sex is hardly consensual in a meaningful sense, anyway, when the alternatives are injury or being held responsible for a man’s acute discomfort or ego-bruising (which can readily lead to immediate or future injury).

No. If it’s accompanied by threat of any kind (“when the alternatives are . . . “), yes, of course, “persuasion” can be sinister, and I fully acknowledge that.

But that wasn’t what I was talking about. I was talking about the kind of “negotiation” that most people have all the time on other topics: “Let’s go for a walk.” “No, I’m reading.” “C’mon, it’s a beautiful day and we can walk up to the lake and be there by sunset.” “OK, you’ve talked me into it.” Or equivalents for which movie we go to, or what restaurant, or what time to leave for the game, etc. Between near-strangers and casual friends and long-term spouses, the same kinds of differences of (initial) opinion recur endlessly, throughout life.

In each of these cases we take for granted that an initial demurral or difference of opinion need not settle the matter once and for all, but that there is the possibility of changing the other person’s mind. Any of these might turn ugly at any point – we all know, or know of, people who will fly off the handle at the slightest contradiction, even on the most innocuous topic — but we don’t assume that means such discussions should not take place. We only try to conduct them in a civil and sensitive manner. We learn, with any partner with whom we spend much time, what their tolerances are for disagreement and where their tipping points are; we learn or the relationship goes south. My wife of 45 years and I know most of each other’s foibles, but even now one of us will sometimes misjudge just how much “persuasion” on a particular point the other is open to — and stop as soon as this becomes clear.

Now potentially sexual situations are potentially much more explosive than most of these, and the stakes – especially for women – are generally higher, which is why we should all deploy particular caution in this arena. And any clear negative, whether verbal or otherwise, ought to be respected. (You refer to “women who do not want to have sex” – if this is clearly the case, fine.) No quarrel (with me) on this point at all.

But I am unable to see why, in principle, some of the same kinds of non-coercive attempts at “persuasion” that we employ in a gazillion other human encounters should be – as this code seems to imply – absolutely prohibited in the sexual domain. If you ask someone to go for a walk, and they are not immediately enthusiastic, you are not enjoined from talking them into it. You may ethically try to persuade someone initially reluctant to attend a lecture, to drive you to the station, to meet your parents, to vote Democratic. (I’m not sure if you can ethically try to talk someone into voting Republican, but that is a different matter.) Yet if you do not meet initial rapture at the first hint of anything remotely sexual, the topic is permanently closed, not to be re-opened at all? That’s not a world in which I would care to live; if it is the world in which you live, I am sorry for you.

Admittedly, this approach is unhelpful in terms of legislation (and college codes), so I remain agnostic on the OP’s question as to how useful/dangerous these rules are. And it does not resolve the perpetual awkward conundrum of exactly how each of us, in each situation, should handle the practicalities of persuasion and negotiation, while respecting the persons with whom we are dealing. But that is the human dilemma, and to attempt to foreclose it entirely is, in my judgment, a losing strategy. If we forbid persuasion in all forms, we relinquish some of our humanity.

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Watson Ladd 11.16.14 at 6:06 am

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.

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John Holbo 11.16.14 at 6:31 am

Watson, I think it is very consistent of you to be opposed as well to statutory rape law, per your earlier comment. But I think you need to take one further step, and it’s a doozy. You need to be opposed to current rape/sexual assault law as well. Explicit consent is a standard that can be abused (you and I agree). But so can existing standards (and pretty much all alternative standards that can be conceived). I take it you do not oppose rape and sexual assault laws tout court, on grounds that the only way to write such laws is in such a way that they can be potentially abused, due to the complexity and subtly of the situations to which they apply. The criminalization of rape/sexual assault is not inherently an illiberal legal practice.

You may reply that the explicit consent standard will make abuse risk greater, by being more stringent. But now you have given up your principled position. In for a penny, in for a pound. We are balancing likelihood and likely seriousness of potential abuse against the good the law will do. Why not then favor the new standard on the grounds that, seriously, the likelihood of abuse – let alone widespread abuse – is low, especially compared to the good it is likely to do. What say you?

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Watson Ladd 11.16.14 at 7:09 am

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.

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js. 11.16.14 at 7:37 am

If, by contrast, people feel that the law technically makes all sorts of perfectly innocent stuff illegal, people will not feel that the law expresses a correct social norm. Legal bullshit that never causes legal trouble is still perceived to be bullshit.

I quoted CA’s definition of affirmative consent above. Here it is again:

“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.

It would I think be helpful if you, John Holbo, could point out what about this sounds like “legal bullshit” to you. Philosopher to pseudo-philosopher like—point out the passage and interpret it for me.

(I will also admit that I got to 250, vomited in my mouth, and stopped for a second to write this. So if you’ve already gotten to this, I’ll get back to you.)

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js. 11.16.14 at 7:52 am

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.

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John Holbo 11.16.14 at 7:54 am

“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.”

The problem is that this could illegalize pecking my wife on the cheek, friendly-like, without asking her first … if you want to get silly about it. I am not allowed to cite our ongoing relationship. It is arguably a sexual act. I don’t ask her first. She won’t complain – she hasn’t yet! – but that is no defense. (And if she does complain, it’s too late. The damage is done. The peck, planted.) The fact is: this kissing behavior would be grossly inappropriate with anyone else except my wife. I can’t go around pecking strange women on the street. You can’t peck someone on the cheek at the start of a first date. My wife is different, due to our relationship. But the law says that difference doesn’t make a legal difference.

No one is going to entertain such a patently silly interpretation for a second, but the letter of the law would appear, to a literal-minded sort of mind, to support it. So what does the law, then, say? There is uncertainty on that point. It must raise the existing consent bar (no one says the change makes no difference.) It can’t say something absurd. But that leaves a lot of leeway.

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John Holbo 11.16.14 at 7:57 am

“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?

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js. 11.16.14 at 8:03 am

But I am unable to see why, in principle, some of the same kinds of non-coercive attempts at “persuasion” that we employ in a gazillion other human encounters should be – as this code seems to imply – absolutely prohibited in the sexual domain.

It’s just possibly worth recognizing that really fucked up power dynamics exist in the “sexual domain” that don’t really exist when you’re trying to persuade someone to go for a walk in the park or whatever.

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js. 11.16.14 at 8:06 am

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.

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js. 11.16.14 at 8:10 am

@265:

I just don’t see this. Where is it asking for strictly prior consent each step of the way? (I’ll grant you that the OSU regulation seems to do this, and it is in that respect badly drafted. But where are you seeing this here?)

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John Holbo 11.16.14 at 8:18 am

“It’s just possibly worth recognizing that really fucked up power dynamics exist in the “sexual domain” that don’t really exist when you’re trying to persuade someone to go for a walk in the park or whatever.”

The question isn’t whether fucked up forms of persuasion exist. The question is whether non-fucked up forms exist.

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js. 11.16.14 at 8:25 am

@270:

I’d really rather see you respond to 268/269, which were in fact directed at you, but anyway:

At this time and place, it’s probably best if men didn’t go about trying to “persuade” women to have sex with them. It’s really quite possible without the “persuasion” bit.

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John Holbo 11.16.14 at 8:26 am

“if you found an article equivalent to Klein’s about marital rape law–it’s terrible!!!”

I’m still not seeing it. Write the analogous article for me. Sketch out some patently innocent act that is, absurdly, made strictly illegal by the shift from no marital rape to marital rape?

“Where is it asking for strictly prior consent each step of the way?”

Well, I have to get affirmative consent. I can’t get it after the fact. When am I going to get it if not prior to each step of the way?

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John Holbo 11.16.14 at 8:34 am

“At this time and place, it’s probably best if men didn’t go about trying to “persuade” women to have sex with them.”

This will have the effect of ruling out any and all expressions of desire or preference in the context of sexual relationships. To ask is to seek to persuade. Ruling out asking seems extreme. I’m sure that isn’t what you mean, js.

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ZM 11.16.14 at 8:38 am

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.

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js. 11.16.14 at 8:43 am

Sketch out some patently innocent act that is, absurdly, made strictly illegal by the shift from no marital rape to marital rape?

Well, since I don’t think that any patently innocent act is, absurdly, made illegal by the affirmative consent standard, this is an impossible ask. But I don’t think it’s quite that hard imagine an article along the lines of: Look, they’re married; they’ve been married along time! Not both of them are going to be super into it!!! all the time! We’re now going to have judges evaluating every single instance of sex between married couples! Each time!! The judges are in every married couple’s bedroom! It’s terrible I tell you! I could imagine someone like Ezra Klein writing it. (Don’t get me wrong, I like EK when he writes about healthcare policy, e.g.)

As to the other point, I still don’t see why you think “affirmative consent” means “strictly prior” consent.

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js. 11.16.14 at 8:49 am

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

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John Holbo 11.16.14 at 9:23 am

“Look, they’re married; they’ve been married along time! Not both of them are going to be super into it!!! all the time! We’re now going to have judges evaluating every single instance of sex between married couples! Each time!! The judges are in every married couple’s bedroom! It’s terrible I tell you!”

Eh. I don’t think that’s a good Ezra Klein impression at all. You are waving your hands and deploying exclamation points. You have no hypothetical case and apparently no means of constructing one. You work on it for a while and if it starts to sound like Klein, you can re-audition. In the meantime, I am going to take this attempt at proof of your point as a strong disproof. (I hope you don’t think that’s unfair.)

“Holbo’s bizarrely fine attunement to the use of scare quotes seems to have deserted him”

Ah. If by “persuade” you mean the exact opposite of persuade, then that is, indeed, a horse of a different color. But, seriously, what’s your point, then? Obviously ‘persuading’ someone, in the mafia sense, is different from persuading then in the ordinary, friendly sense. Who says otherwise?

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John Holbo 11.16.14 at 9:39 am

“I still don’t see why you think “affirmative consent” means “strictly prior” consent.”

If it isn’t prior, then it risks being too late. I take it you are imagining that somehow consent to the act, and the act itself, just sort of happen together, in that happy way they may. But that doesn’t give us the sort of ‘ensuring’ the law stipulates, looks to me. If things turn not so happy, then what will have happened is not that we have found the limits of consent but exceeded them. 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.

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John Holbo 11.16.14 at 10:48 am

Quick response to Watson. (Sorry about the triple posts. I’m sort of fighting a two-front war here.)

You are trying to argue that this form of thing is in principle illiberal. Let me try another angle, to argue not. Think of affirmative consent as just a very informal licensing scheme the state is mandating. You may think that is wise or not, but licensing schemes are not illiberal in principle. They have a certain logic. Even though you have the right to bear arms, you may need a gun license.

Or take a driver’s license. Someone who knows how to drive perfectly well may reason that, morally speaking, they shouldn’t need a license. All that really matters is that they aren’t, in fact, a threat to others on the road. That’s true, in a sense. But it’s still permissible to demand the license. (This sort of relates to ZM’s point about informal vs. formal title exchanges, although I confess I know nothing about that.)

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Saurs 11.16.14 at 11:31 am

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.

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John Holbo 11.16.14 at 12:16 pm

“To ask is to seek to persuade.”

“No. To ask, in the context of consensual sexual activity is to confirm something you suspect …”

No. You can ask if someone wants to go see “Interstellar” without thereby seeking to confirm a suspicion that they do want. Likewise, in a sexual relationship (or potential relationship) you can ask if someone wants to x without any basis for reasonable suspicion they do want. Possibly all you have is hope. To ask is to exert a small but real amount of social pressure, since people like to be agreeable in these contexts. So if persuasion is out, asking is out. Communication of preference is (except in special cases) out. And this is DEFINITELY out: “Offering sex while risking rejection is, yes, uncomfortable and nerve-wracking.” How can you think offering sex is not a case of trying to persuade someone to have sex?

“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.”

Well, yes, but no. One could likewise say that rape law tells judges what to do in rape cases. That doesn’t mean that defendants don’t have a legal responsibility not to rape. Here’s the relevant passage:

“An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “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 statement unambiguously assigns responsibility to persons and those persons are not administrators but students engaging in sex.

“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.””

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.

“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.”

We all agree that it cannot possibly say this. The question is HOW it doesn’t say this.

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Saurs 11.16.14 at 1:06 pm

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).

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Saurs 11.16.14 at 1:15 pm

I’m going to bold that bit again, because it’s getting lost or forgotten: “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.”

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, it’s offered in bad faith, and even if, by chance, a disciplinary board found that you’d kissed her against her wishes, what specific discipline would you face, do you think? Please be clear.

You are acquainted with how actual rape accusations are (mis)handled by universities, yes?

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ZM 11.16.14 at 1:20 pm

“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.

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Main Street Muse 11.16.14 at 1:33 pm

JH: “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.”

Honestly, John, if you feel you will be hauled into court for kissing your wife on the cheek, the problem is NOT this law, but an egregiously invasive police-state that seeks to criminalize behavior where there are no victims who’ve gone to the police.

We are talking about a law that seeks to define consent among a group of people for whom consent is clearly an ill-defined concept. To stretch it and say you could end up in jail for kissing your wife on the cheek is a very poor argument. We have cases of marital rape now – today, the existence of the marriage cannot be used to say no rape can occur between spouses. This law will make it easier for a husband to be convicted of raping his wife?

Here’s a case in Canada where the laws protected the males, not the females: http://bit.ly/1y6T4Ax Where is the justice when teens can post pornographic pictures of a vomiting girl being raped – and there’s no law violated for doing so?

Will “yes means yes” change anything? Probably not – because it’s just providing the opposite of “no means no” – which is ALSO legally difficult to prove. What needs to happen is sexual education for males that does not include pornography and the desire to get a girl so drunk/drugged that she passes out, giving the men free rein to fuck her as they wish. (This certainly was going on back when I was in college, WAY back in the day. Grain alcohol punch was the preferred method then – today, it’s the date-rape drug.)

And when did sex become a team sport? WHY do boys have to gang-bang a girl who’s passed out or vomiting out the window? Boys REALLY should think twice before doing something like this… the consequences can be damaging to both boys and girls engaged in such behaviors.

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Main Street Muse 11.16.14 at 1:45 pm

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

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engels 11.16.14 at 2:05 pm

‘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’

So many consensual loving acts are deemed legally to be crimes, but because the ‘victims’ will never go to the police it doesn’t matter?

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Thornton Hall 11.16.14 at 2:05 pm

@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.

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engels 11.16.14 at 2:07 pm

‘breaches of code’ / ‘campus authorities’

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John Holbo 11.16.14 at 2:11 pm

One last comment then I’m signing off, because I’m definitely starting to repeat myself. Every new comment I write is giving me serious deja vu.

Let me try to end on an agreeable note. We all agree (except for Watson) that there isn’t any serious risk that we are going to get into some position in which people are guilty until proven innocent, much less a position in which people are guilty until proven innocent and the evidence that would prove them innocent has been arbitrarily ruled non-admissable.

We disagree about whether what the law does say is clear. The reason I have been pressing the ‘how are you sure it is not saying this absurd thing’ is not because I think it might say that thing but because I thought that angle would highlight the unclarity. Instead, apparently, it distracted onto the issue of whether it did say one specific absurd thing (which we all agree it can’t be saying.)

Let me try one last time. Then I give up. Saurs: “Disciplinary boards that review accusations of violence by students already must evaluate the credibility of witnesses, not accept their word as truth.” The concern can be put this way: the law (it looks to me) does not merely direct administrators as to how they may or must seek evidence of consent, the better to establish real credibility. It tells them what consent is, for legal purposes. It defines (constitutes) a legal category of consent, distinct from our ordinary sense. It says that notion (not our ordinary notion) is operative, for legal purposes. My wife might be a very credible witness about consent in the ordinary sense. But her testimony could be legally irrelevant. The question the law directs administrators to focus on isn’t whether she ‘really’ consented (obviously so) but whether she legally did so (not so clear).

Now obviously this is seven kinds of nuts. There is zero chance I’m going to be charged for kissing my wife and triple-zippo chance I’m going to be charged if even my wife doesn’t think I’m guilty. The point isn’t to worry the husbands (and wives!) out there. The point is that, on paper, the thing just seems unclear. Thus, while Saurs is no doubt right that sane administrators will want to investigate the facts about consent, in a sane way, the law does not clearly do an optimal job of inducing them to focus on what really matters, what should really count. Hence it is reasonable to be concerned that confusion and bad judgment may result.

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engels 11.16.14 at 2:34 pm

‘The concern can be put this way: the law (it looks to me) does not merely direct administrators as to how they may or must seek evidence of consent, the better to establish real credibility. It tells them what consent is, for legal purposes. It defines (constitutes) a legal category of consent, distinct from our ordinary sense. It says that notion (not our ordinary notion) is operative, for legal purposes.’

I think the law already does this (people under a certain age can not legally consent). The problem as I see it is that the new rule covers acts that oughtn’t to be criminalised, and the rationale for doing so is that they look evidentially similar to acts that are rightly criminalised but hard to prosecute.

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John Holbo 11.16.14 at 2:36 pm

Let me end on an even more agreeable note: Saurs is quite right that the ‘by itself’ helps considerably. I should have noted that but didn’t. Thanks for that. But that doesn’t, by itself, clear up the problem, since in the kissing case literally my only evidence for positive consent was past relationship stuff, and that is not allowed to be the only stuff. Also, other stuff from upthread. We’ve only been around about five times by now.

“It’s not realistic, it’s farcical, it’s offered in bad faith”

Obviously it’s not realistic, obviously it’s farcical. I’m glad you followed me at least up to that point. As to my bad faith, I will just have to charitably assume you have misunderstood, in good faith, my good faith (whatever their other merits or demerits!) arguments.

And that’s it for me. Have good, clean consensual fun in my absence.

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engels 11.16.14 at 2:38 pm

Also, on more expansive interpretations it seems to mandate a type of sex (‘creative, imaginative, enthusiastic’ e,tc) which might not be everyone’s thing…

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William Timberman 11.16.14 at 2:39 pm

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….

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bianca steele 11.16.14 at 5:20 pm

John Holbo @ 261: But I think you need to take one further step, and it’s a doozy. You need to be opposed to current rape/sexual assault law as well.

Goody, I guessed right! As I was trying to fall asleep last night, I wondered if what we were trying to get at here was some kind of quasi structuralist, quasi Freudian thing where we only criminalize acts of rape because we can conceptualize acts of rape, and we only can conceptualize acts of rape because we have a horrible, dominational, pathological psychological set. Therefore, if we abolish all laws, we will live in harmony with nature and one another.

Along the same track, there’s nothing we can do about brutal, forceful rape. But it doesn’t happen to people we know! They’re more likely to be saved by better formulating what they mean by consent and explicity, and making sure to stay away from The Wrong Kind of Person.

Saurs, thanks for the kind words.

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js. 11.16.14 at 5:30 pm

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

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Rakesh 11.16.14 at 6:24 pm

Haven’t followed this discussion, but survey data may be relevant here. I have seen Lauman’s survey data cited by Kristen Luker (Salsa Dancing into the Social Sciences) that revealed while roughly 21% of women in college report having been coerced into sex only 3% of men in college report having coerced sex from a woman. About 1% of men report having been coerced into sex.

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Watson Ladd 11.16.14 at 6:33 pm

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.

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js. 11.16.14 at 6:47 pm

Meanwhile: Canada’s sexual assault law, structurally exactly like affirmative consent laws—at least as regards what seems to be bothering Holbo et al. It’s been in effect for some years, but I suppose we haven’t yet gotten to the 10,000th case that will be the Sexborne Toxic Event that undoes Canadian society once and for all.

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Sasha Clarkson 11.16.14 at 7:13 pm

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!

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bianca steele 11.16.14 at 7:31 pm

Seems to me . . .

Yes, but . . . It’s odd how nobody on this thread is interested in what the rightwingers call “rape rape.” Every time I (or Saurs) brings it up, it’s dismissed as not the real issue, or as a misunderstanding of the way men simply are.

Or in that article in the Times this morning. It seems to be taken for granted that “rape rape” doesn’t happen on campuses, and anyway isn’t worth talking about. No, what we need to talk about is the state of our own psyches, and our own (and our daughters’) personal behavior, and the rules and institutions that affect these things. (So it would make sense that we talk about how we relate to our spouses.) It seems to be presumed that there are no interesting issues about things that happen to other people. (Let’s ignore for the moment the question whether “we” are the only people reading CT, not to mention the opinion pages of the Times, of college newspapers, and so on. Or whether CT is a surprising kind of place to find people talking about the laws that govern parts of society other than theirs.)

Neither you or MSM is really talking about who enforces the law. John Holbo isn’t either. What’s being discussed is the rules that should govern behavior, not whether there’s some interesting difference in status between acts that happen within a university and out of it. I don’t entirely agree with this, but besides the points that js. has raised, that the new rules are really in line with existing law (and thus arguably bring university administration into better alignment with the law), these are in part guidelines for what to tell students and how to run hearings, not for what the law should be. For that matter, “no means no” was originally a slogan, not a complete description of the law. If it was misguided or is just no longer serving its purpose, it should change.

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bianca steele 11.16.14 at 7:32 pm

That should have been to Watson Ladd @ 298.

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Rakesh 11.16.14 at 7:37 pm

The Laumann survey data was not specific to college students, as I had suggested

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Watson Ladd 11.16.14 at 7:59 pm

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.

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js. 11.16.14 at 8:17 pm

I’m so glad Watson Ladd is around to inform us that “laws are different in different places”! What would we do without you, Watson?

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gianni 11.16.14 at 8:33 pm

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…

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Collin Street 11.16.14 at 8:43 pm

> The problem as I see it is that the new rule covers acts that oughtn’t to be criminalised

All laws do. Learn to cope.

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engels 11.16.14 at 9:04 pm

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

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Rakesh 11.16.14 at 9:18 pm

OK just read what harry b has written about the code alerting students to the high risks of engaging in sex without mutual affirmative consent. Now I couple that eminently reasonable point with the survey data that indicate that many men seem to be unaware that over 20% of women report having suffered coerced sex, and it seems to me that the code protects women from rape and men from devastating legal penalties. The new codes seem to be as good for men as for women. I don’t understand the opposition to them.

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Sasha Clarkson 11.16.14 at 9:39 pm

“… 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.

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dr ngo 11.16.14 at 9:47 pm

Sasha: the problem – as has been suggested several times already in the thread – is that official banning (disapproval or even criminalization) should NOT depend upon the likelihood of a specific violation being enforced. Cf. “anti-sodomy” laws on the books until very recently in several states, which rarely resulted in prosecutions (much less convictions), as I understand it, but primarily functioned as means of intimidating the violators and indicating strong state disapproval of them and their actions. You are Bad People, even if we don’t catch you at it! If it puts “at risk” people who are doing nothing wrong, it’s not good law/regulation. It may be the best we can do under the circumstances – I haven’t made up my mind yet on all the implications and alternatives – but it’s not good.

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engels 11.16.14 at 9:56 pm

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

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js. 11.16.14 at 10:47 pm

the problem – as has been suggested several times already in the thread – is that official banning (disapproval or even criminalization) should NOT depend upon the likelihood of a specific violation being enforced. Cf. “anti-sodomy” laws on the books until very recently in several states

Good thing then that California’s SB-967, e.g., is entirely unlike anti-sodomy laws in this respect.

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Saurs 11.17.14 at 12:23 am

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.

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Saurs 11.17.14 at 12:31 am

(Also, thanking folk like js. for hanging in here and doing the lard’s own work. Thank you.)

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John Holbo 11.17.14 at 12:45 am

Since there is no likelihood that me offering the same arguments for an umpteenth time will be any help, I will confine myself to asking for/offering clarifications where that seems helpful, or needful.

js.: “structurally exactly like affirmative consent laws—at least as regards what seems to be bothering Holbo et al.”

Thanks for the link, js. But I don’t see what analogous problem cases could arise from the Canadian law, which looks to me structurally different. Notably, there is no obvious way to read the Canadian law as redefining what consent means in such a way that it might depart significantly from common notions. The reason is that the Canadian law is written negatively. It enumerates a set of conditions in which consent is NOT obtained. None of the ‘not’ clauses seem problematic. The Cali law, by contrast, worries people by specifying a positive construction of what consent IS that seems, potentially, too narrow (hence potentially at odds with intuitive, ordinary notions.) That’s a big difference. If you see a Sexborne Toxic Event on the Canadian horizon, you are welcome to elaborate. We will see if your Don DeLillo impression is more convincing than your Klein!

Maybe this goes back to the question of obtaining prior consent at every stage. You didn’t reply to my argument about that, so I don’t know whether you were convinced.

Since I’m bored by all the fighting, perhaps we can get a straw vote on the Canadian version. Here’s the link again:

http://www.sascwr.org/files/www/resources_pdfs/legal/CRIMINAL_CODE_OF_CANADA.pdf

Those who think it looks exactly like the Cali thing, and like the Cali thing, will be happy. Those who think it looks very different, and better, will be happy. Whoever’s right, everyone can be happy. Hell, maybe even Watson will like it. The crucial thing it does is clearly codify the right to say ‘no’ at any point (and have it mean no). That really is very important: the explicit right to withdraw consent, after giving consent to some earlier stage. This is obviously what the Cali law aims at, but the concern is just that, instead, the Cali thing technically generates a positive duty to say ‘yes’ at every point. Which could be ok, but this duty to say ‘yes’, stage by stage (to maintain your partner’s non-guilt, moment by moment) could be construed in an overly rigid, narrow way.

This thread, if I may say so, has gotten acrimonious in a silly way. At bottom, the issue is whether a particular law, as written, is likely to have the effect it is supposed to have. Everyone pretty much agrees that the effect would be good. The question is whether the legal language seems well-crafted to achieve those effects in an optimal way. If you cannot discuss that sort of thing without getting terribly indignant and outraged at the other side, that is probably a sign that, in your mind, you are debating something else. Which is fine. But, whatever that other thing is, it’s another thing.

Obviously the reason this has happened is that this is the internet. I quite understand. Still.

We could also discuss the piece Muse linked upthread:

http://www.nytimes.com/2014/11/16/opinion/sunday/mishandling-rape.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region&region=c-column-top-span-region&WT.nav=c-column-top-span-region&_r=0

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. So I will sneakily just not say anything about what I think about the linked op-ed.

Also, I’m busy with other stuff today so I’m off again after this. Anyone who wants to read a new Holbo comment should read one of the old ones at random and pretend it’s new. Probably comes to about the same.

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John Holbo 11.17.14 at 12:57 am

“I still fail to see the relevance of Holbo’s wife being kissed (but she doesn’t care, and makes no complaint)”

OK, I’ll answer this one. 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. For that purposes, the sillier – the more innocent – the better. If it is even arguable that such a patently innocent case could, technically, be guilty, that is a sign that the definition of ‘consent’ needs tweaking. It is irrelevant that the case isn’t going to arise. We aren’t, for the moment, investigating indictment/disciplinary procedures. We are investigating the scope of ‘consent’. The law constructs a notion of consent. Do we like that construction or don’t we?

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engels 11.17.14 at 1:00 am

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.)

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Val 11.17.14 at 1:05 am

Reading through this post and comments, the impression I get of why some men (possibly including the blog author?) are worried about the legislation, is because they think or assume that:

– in heterosexual relations, men normally have to initiate, “ask” or possibly even “persuade” women to have sex
– 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.

Is this totally harsh or unfair? I’m open to argument or counter-opinion, but that is honestly the impression I get, as a woman reading some of the views expressed here.

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engels 11.17.14 at 1:05 am

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.

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engels 11.17.14 at 1:14 am

= 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

If anyone thinks this (and textual evidence for your reading of the CT comments section would be welcome [I haven’t read it all]) it doesn’t seem to motivate opposition to an ‘affirmative consent’ standard. This is a worry such men would have under the ordinary legal standard, and would not have under an affirmative standard.

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John Holbo 11.17.14 at 1:22 am

I’ll run through Val’s list quickly:

“in heterosexual relations, men normally have to initiate, “ask” or possibly even “persuade” women to have sex”

You have to ask, because otherwise it’s rape. Asking is a form of persuasion, so you have to persuade, otherwise its rape. As to the incidence of initiation, gender-wise, that’s neither here nor there.

“– women while not being ‘sex objects’, remain somewhat mysterious beings who have their own, different, agenda”

Not sure where that one is coming from. I think you may be thinking of me as a mysterious being with an alien agenda, Val. I assure you, I am not!

“– 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”

This is true (apart from the mystery bit) but neglects the important fact that rape is extremely difficult to charge, and this sort of case would be the very hardest. The demographics of rape make this sort of case a negligible blip.

“– under this law you could then be in trouble.”

Under any law you may be in trouble if some malicious person concocts a fraudulent case against you. So, while obviously it would be terrible to be framed for a crime – and it happens – this isn’t an especially salient worry.

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Val 11.17.14 at 1:27 am

@ 321
No I don’t think that follows. If absence of “no” means consent, then they don’t have to worry. But if absence of explicitly stated “yes” (which is what people are worrying about, including an actual spoken yes) potentially signifies lack of consent, then they could.

It’s an awfully long thread, and going back to find the textual evidence would be time-consuming. But given my alternative is doing some marking, maybe I will! (I’m actually off sick so can justify a bit of not-too-arduous diversion, I guess)

324

Saurs 11.17.14 at 1:33 am

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.

325

Val 11.17.14 at 1:40 am

@ 322
I was taught in history, always look at what’s not being said as well as what is. You may argue this is all gender neutral, but my impression (difficult to verify on the net of course) is that men, not women, are expressing concern about this law.

Maybe, like Engels, you’d like some evidence. I’m going back into the thread, and I may be gone for a while.

326

engels 11.17.14 at 1:55 am

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.)

327

Val 11.17.14 at 2:00 am

May I also, as I have previously, put in a request for people not to use supposedly gender neutral language in a way that obscures actual power relations. I am frequently reading, on these threads, about hypothetical wealthy female employers who are exploiting their workers, and hypothetical women who are sexually assaulting men, etc. Ok, these things happen, but they are far from the norm, and to use language in a way that suggests they have an equal probability as males doing these things, is just as bad as using the male pronoun “he” to encompass everybody. I’m sure that most people here can recognise that if you were doing this in the context of race – arguing in a way that suggests blacks are equally likely to be racist as whites, and it has the same impact either way – it would be BS, but apparently some can’t see that in the context of gender relations.

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engels 11.17.14 at 2:01 am

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.

329

John Holbo 11.17.14 at 2:01 am

Val: “I was taught in history, always look at what’s not being said as well as what is.”

Ah, but in intellectual discussions, as in other areas, ‘no’ means no is also a good rule!

Saurs, I think I have addressed all your objections upthread. It is obviously possible to examine whether the law constructs ‘consent’ in a problematic way. You are, of course, right that definitions operate within procedures and, if the procedures are otherwise healthy, such silly cases will be precluded. But that isn’t the concern, as I have repeatedly said. You don’t want to write a bad definition, then prevent it from doing harm by insulating it, procedurally. You want to write a good definition.

330

js. 11.17.14 at 2:02 am

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).

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js. 11.17.14 at 2:05 am

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

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bianca steele 11.17.14 at 2:11 am

@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.

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js. 11.17.14 at 2:11 am

Also, Saurs @324:

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.

I cannot endorse this enough.

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engels 11.17.14 at 2:17 am

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.

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engels 11.17.14 at 2:19 am

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.

I cannot endorse this enough.

See above- it appears to define acts which no-one regards as criminal, as criminal. Laws aren’t meant to do that.

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engels 11.17.14 at 2:20 am

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.

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John Holbo 11.17.14 at 2:24 am

“If I were being literal-minded about this, it would seem pretty obvious to me that Holbo has not obtained consent”

I don’t think this is right. I obtained the relevant consent to kiss my wife quite a while ago, and it is ongoing. The consent is implicit in our overall, and past relations, and in social mores, in an intuitively undeniable way. A literal mind, operating with our ordinary notions of consent, can see that plainly enough. Canada is ok with that. Obviously California is ok with it, too, because people are basically sane. But the concern is that the California statute can be construed as, technically, not ok with that. This is really a very narrow point, which I think is throwing a lot of people. My ONLY reasons for thinking my sleeping wife is ok with me pecking her on the cheek as I head out the door is stuff to do with our past relationship. The Cali statute specifically says that can’t be my ONLY reason. If it is, then she is defined, legally, as ‘non-consenting’. This is absurd. I’m not worried that people will do absurd stuff, as a result. But I worry that, eventually, trouble will arise because of this.

But really you shouldn’t smoke and we should just agree to agree that the Canadian law looks good. If we agree about that, how much can we seriously be disagreeing about?

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Ronan(rf) 11.17.14 at 2:27 am

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)

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John Holbo 11.17.14 at 2:29 am

Saurs: “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.”

I ignored this as obviously irrelevant but js. has seconded it, so I will ask: what have I said that apparently commits me to this absurdity? You seem to be committing that bad old ‘perfect is the enemy of the good’ fallacy. Namely, I’m asking for something better, to fix a stated problem. You are objecting that nothing is ever perfect. How is that relevant to my point?

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John Holbo 11.17.14 at 2:29 am

I’m not doing a good job of not contributing to the thread. I will try to do better.

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ZM 11.17.14 at 2:45 am

John Holbo,

“I don’t think this is right. I obtained the relevant consent to kiss my wife quite a while ago, and it is ongoing. The consent is implicit in our overall, and past relations, and in social mores, in an intuitively undeniable way. “

But what if the wife was very cross at that time at her husband? If she was very cross and not in the mood for being kissed then the husband probably should not kiss her no matter if the wife had previously consented to being kissed in their relationship. I doubt the wife would bother to go to the university disciplinary committee about this though, except in a Katherine Hepburn movie.

“My ONLY reasons for thinking my sleeping wife is ok with me pecking her on the cheek as I head out the door is stuff to do with our past relationship. “

Well pecking the wife on the cheek could just be an affectionate sort of kiss, not a sexual kiss. I think kissing is a very poor example for this discussion because it is quite normal to affectionately kiss a range of people not just sexual partners. It would make social gatherings very awkward if greeting people with a kiss on the cheek was to need prior consent.

“Asking is a form of persuasion, so you have to persuade, otherwise its rape.”

Well you are a philosophy professor so you would understand that their are different forms or categories of asking/persuasion. Even I know you could distinguish between Platonic/Aristotelian forms, and Sophist forms.

This distinction would actually bring up an interesting difficulty. What if a sophist sort of student obtained consent from another student through deception?

Would that count as true informed consent, or since it was through deception as a violation without true consent?

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William Timberman 11.17.14 at 2:45 am

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.

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Rakesh 11.17.14 at 2:46 am

Please are people really criticizing the new code because it could make criminals of long-standing couples who initiate sex with a well-honed signaling system of pre-verbal groans, undressing of the other, and mutual genital touching followed by verbal expressions of what is desirable during the acts. There is so much implicit and explicit affirmation before and during the act no worries about the law would form; and if there is not such affirmation, then something is probably wrong. One partner could be feeling coerced or be impaired. Coerced sex does happen among long-term partners.

Or is the concern here that by invading the sphere of intimacy the law will change our behavior in unexpected and undesirable ways. In a recent book Axel Honneth discusses the movie Kramer vs. Kramer to show how the behavior of the divorced parents is changed in order to behave visibly in such a way that the court will recognize each as a worthy parent, deserving of custody. Don’t remember the movie but the father seems to have done ridiculous, unnecessary things to keep up appearances. We can be interpellated by the law in surprising ways.

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John Holbo 11.17.14 at 3:12 am

OK, one more and I’m truly done. Out the door.

“What difference does it make if people are heated here?”

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

Upthread Bianca writes: “I wondered if what we were trying to get at here was some kind of quasi structuralist, quasi Freudian thing”.

I think Bianca has something else in mind, but my money is on ‘narcissism of small differences’. Don’t pretend to disagree about more than you do, just to underscore the degree of disagreement that actually exists.

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William Timberman 11.17.14 at 3:42 am

Don’t pretend to disagree about more than you do, just to underscore the degree of disagreement that actually exists.

Zen. Or maybe the time zone differential (blues). Either way, you’ve done yeoman work here this day. Respect.

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Saurs 11.17.14 at 4:13 am

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.

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Val 11.17.14 at 4:54 am

Ok Engels, John Holbo and anyone else interested:

JH starts this by saying in his post:
“I confess: I worry affirmative consent standards will generate serious problems, even while I acknowledge the real problems they are meant to address.”

Melanie @1 asks what are the problems you foresee?

JH doesn’t really answer but refers her to Ezra Klein who says (a) innocent people (suggesting this could include both men and women) may be criminalised for innocent behaviour under this law (b) it’s needed because one in five women on campuses have been sexually assaulted.

After that there are basically two key patterns relevant to the questions:

Apparently or self-described female commenters (Melanie, clew, Main Street Muse, Lynne, MPAVictoria, Bianca Steele, spurs, me) questioning what is the problem and/or actively supporting the law.

Apparently or self-described male commenters ( Harald K, Bristol Resident, Brett Bellmore, Watson Ladd, Ronan F, Trader Joe, Mario, Patrick, Hix, Ze Craggash, dr Ngo, Ragweed, James Conran, Engels) suggesting that the law will cause problems, potentially criminalising innocent people/behaviour (Gianni sort of suggests this too but in a very self reflective way so not included here, but discussed later).

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 (Bristol Resident, Brett Bellmore, Mario, Hix, possibly Trader Joe , who is talking about rape accusations in the context of divorce but does not explicitly say only women make such accusations)

Men who generally say the law is probably needed because of the sexual assault problems (similar to Klein) but suggest it will inevitably lead to problems of criminalisation. Most examples of possible criminalisation are non-gendered (in several cases they are very carefully constructed to be non-gendered).

The contrast between the acceptance of a clearly gendered problem (female students being assaulted by male students) and the careful construction of the likely bad effects as non-gendered is interesting (ok, I will cynically say it looks like they are being careful to avoid saying this will particularly have bad consequences for ‘innocent men’)

This group includes Harald K, Watson Ladd, Ronan F, Patrick, Ze Craggash, dr Ngo, Ragweed, James Conran, Engels, and, most of the time, John Holbo.

Then there is another small but important subsection, comprising Patrick, who specifically talks about how his behaviour as an initiator of sex with his wife could be criminalised under the law. John Holbo specifically agrees with him @187. (Several people refer to John Holbo kissing his wife – I’m not sure if he ever mentioned that, but he did agree with Patrick’s scenario about doing that).

Then there are quite a few apparently male commenters who are supporting the law without the buts. I haven’t noted them all but I think: js, Sasha Clarkson, Rakesh, bad Jim, Collin street, Abbe Faria, Harry b (sorry if I’ve missed anyone, not for lack of appreciation, just because of the way the questions were asked).

There’s also quite a few that were joking or made different points that didn’t neatly map to the questions I’m looking at here.

This is down to about #260, there didn’t seem to be much new after that.

I don’t see how you can argue with the conclusions that those expressing concern about the law were predominantly male, and that some of them quite specifically referred to consequences to innocent men from women who make complaints because they are angry, offended, revengeful (or plain evil). I can see that my contention that those men who talked about gender neutral bad consequences were rather artfully framing it that way, is more contentious, but if so, why was it only men (apparently), who were worried about these consequences? I think that Patrick (and John Holbo in supporting him) are actually being more honest – their concern is that their behaviour as males, and as initiators of sex, could theoretically be criminalised (even though they see it as innocent in fact). I also think what Gianni suggests @7 is worth noting:

“Just read the Klein piece, and I don’t think he is exaggerating so much as his language reveals his discomfort as he reflects on his own sexual encounters and realizes that according to this stringent standard, many of them fail to pass its test. But maybe I am just projecting here.”

I think the reference to “discomfort” is the key thing – it’s not just a claim that they’ve done something totally innocent that could be criminalised (a la Patrick) but perhaps a fear that they may at times have stepped over the boundaries of “affirmative consent”?
An honest discussion about this (such as a reflection by men on how patriarchy may have shaped their lives and sexual relations) would be interesting.

You can contact me if you want more details, but basically it was a cut and paste content/thematic analysis.

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Anarcissie 11.17.14 at 5:28 am

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.

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js. 11.17.14 at 5:50 am

Val @247:

This seems like a good summing up of the thread to me. If I had to add one commenter, I’d say LizardBreath’s comments about the law—way up in the thread—were very good, and supportive of the law. Not sure of their gender.

(Unrelated: I actually had a response to Holbo, but at this point, fuck it. I am done with this thread. Thanks all.)

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John Holbo 11.17.14 at 6:05 am

Val, certainly you are entitled to armchair assessment of the psychologies of your fellow internet folks. But it’s a bit of a conversation-stopper. (Maybe that’s what the thread needs.) If I make what I obviously think is a good argument and you say ‘oh, you are just saying that out of discomfort’, where do we go from there?

Saurs, you misconstrue the object of my concern – this thread, not your emotional well-being. Your emotional well-being is entirely your own business, of course.

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Val 11.17.14 at 6:54 am

@350
I’m not analysing anyone’s psychology (including yours), I’m only theorising on what Gianni said. The rest is just thematic and content analysis of what people said – publicly – plus a bit of speculation about the particular way they said it.

It was specifically in response to Engels asking me for textual evidence, but you also seemed to querying my interpretation, so I addressed it to you also.

I’ve been in this kind of situation before, where I offer a feminist analysis and men suggest I have to provide high level evidence before they can take it seriously. Then if I say, oh ok, I’ll provide evidence, I’m a kill joy. Bit heads you win, tails I lose, I think.

Anyway, no probs, happy to leave it there.

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Val 11.17.14 at 7:01 am

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.

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Collin Street 11.17.14 at 7:22 am

> But it’s a bit of a conversation-stopper.

Because that’s the important thing, here, that you always be left with something to say.

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Ze Kraggash 11.17.14 at 9:10 am

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.

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Val 11.17.14 at 9:13 am

@ 350 John Holbo
Hang on a minute! I just realised there’s something important that I may not have made clear.

As far as I could see, every female commenter on this thread queried your point above (that affirmative consent standards would generate “serious problems”) or actively disagreed with it. That is important and definitely worth thinking about.

If John Holbo never returns to this thread, I hope someone may tell him this!

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John Holbo 11.17.14 at 9:51 am

“If John Holbo never returns to this thread, I hope someone may tell him this!”

Not to worry, Val!

But, honestly, I’m more worried that maybe no lawyers agree with me. Since all I’m really doing is discussing a technical point of law, without benefit of actually being a lawyer.

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Saurs 11.17.14 at 9:57 am

Saurs, you misconstrue the object of my concern – this thread, not your emotional well-being.

Yes. It’s safe to say, John, that your affection for this post, the thread, your part in it has been noted, your concern for anything else a neither particularly convincing nor successfully distracting bit o’ troll.

Val, thank you for slogging through it all again and gathering that data. As you say, strong feelings about and Actual Real-Life Experience with the subject doesn’t necessarily mean that we are credulous imbeciles rendered blind to all the “technical” “nuance” (woah, shop talk) some of the lads would like to inject into this discussion; I don’t actually require the patronizing hand-holding — I’m following along, like you, just fine — but I’m not interested in following them down a rabbithole of endless, fruitless, and repetitive JAQing off and I don’t intend to entertain every passing whim that is introduced in the course of the discussion, even by our OP, as if it is novel, important, or relevant per se.

Then again, I’ve been accused of not understanding how much I agree with Holbo (if only I’d listen better, and also stop being emotional and combative for the sake of theatre, or something). Fascinating what one learns (about oneself, from a stranger) on the interwebs!

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Val 11.17.14 at 10:06 am

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.

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Val 11.17.14 at 10:19 am

My previous comment was for John Holbo, but Saurs @ 357, thank you, and yes to all you said. I am maybe older than most commenters here, but there are moments in my past sexual life that look dubious in hindsight and also still seem relevant to this discussion. They’re not go to law things (in spite of all the hypotheticals here), but things that make me wish that I, and the young men I used to go out with, had had the opportunity to be educated about affirmative consent, as opposed to, say, making a man happy, or not being a “prude” (or “prick tease” – goddess how I hate that expression). Like I said to JH, it’s possible to see this as a real step forward – a chance to throw off the old patriarchal shackles for both women and men.

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John Holbo 11.17.14 at 11:05 am

Val: “But it is possible to look at the notion of affirmative consent as an exciting step forward socially.”

Well, I would honestly LIKE to look at it like that.

It may be that my skepticism about the CA law is due to me reading it as doing something more radical than it actually is doing. Namely, pushing for a broad shift in social norms. That is, the law isn’t just targeted at offenders. It quite literally tries to nudge everyone – college students, anyway (but they’re people!) – into all having sex a bit differently. A new normal, then. (This is often a vice of non-lawyers, by the by. Sometimes the law looks radical to us, on the page, and the lawyers know better what the page really means.) I am, on balance, in favor of this radical thing I think the law tip-toes up to. But I think it is likely to lead to backlash and, potentially, a few abuses – or at least teething problems, as social norms and the law grind for a time, and precedents get sorted out. (And if there are any abuses, that will be a major force multiplier for the backlash.) But it could turn out, after all, that the actual reason the law is ok is that Lizardbreath is right, and it just doesn’t make much of a difference. In that case, everything I have said in this thread is flagrant overthink of how much difference a definition of ‘consent’ makes. (Philosophers often put too much stock in definitions. This thread can be added to that dusty exhibit, in the event I am proved wrong) Time will tell.

Saurs, your latest comment is not increasing my concern for your emotional well-being one bit. So, since you don’t want me to care about your emotional well-being so darn much … we’re still good, I hope!

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Sasha Clarkson 11.17.14 at 11:17 am

It seems ironic to me, that Limbaugh and his allies are the political heirs to Moral Majority. Liberals are often very wary of talking about moral values, because they don’t want to be associated with repressive religious values and organisations. But as I suggested before, a liberal society needs to be underpinned by a moral code.

In the aftermath of the horror of WWII, the Germans gave themselves a new constitution whose first article stated “Die Würde des Menschen ist unantastbar” which can be translated as “The dignity of human beings is inviolable.” I think that might be a good place to start.

One of the consequences, which if given as a commandment, might, amongst other benefits, prevent many of the problems we have been discussing on this thread could be “Thou shalt not use people.”

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Brett Bellmore 11.17.14 at 11:46 am

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.

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Val 11.17.14 at 12:12 pm

@ 361
A virtual ‘like’ for your comment.

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Val 11.17.14 at 12:15 pm

@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.

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Saurs 11.17.14 at 12:22 pm

Women don’t have to worry about this law, they’re not going to be the target of it.

Nope, not unless you think all men are rapists or potential rapists, or that women can’t be or never are. Since it’s not possible that you think that (you literally say as much in your final paragraph) and the code itself is explicitly and intentionally gender-neutral when discussing both victims and alleged offenders, I can’t see how the bill unfairly targets men; men can and are victims of rape, too, and the bill, by design, affords them the same protection as it does women. I’d expect that more men might be found responsible for violating consent as the bill defines it, but not in numbers disproportionate to the ratio of male to female rapists.

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Saurs 11.17.14 at 1:08 pm

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.

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Saurs 11.17.14 at 1:22 pm

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

We already agree that the system fails male victims, too. Presumably, your solution to this is not to make rape legal (baby and bathwater), but to tighten the law in certain places and expand it elsewhere, to make the language as universal as possible so as to protect as many future victims and to discover and prosecute as many victimizers.

How is requiring affirmative consent an example of misandry? Are men especially incapable of eliciting affirmative consent for some odd, ev-psych reason, or what? I’m genuinely at a loss as to how the bill “targets” just men, only men, in a way that is both distinct from and especially egregious when compared to the existing laws and their practical applications.

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Ronan(rf) 11.17.14 at 1:27 pm

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)

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CRW 11.17.14 at 3:05 pm

I’m remembering (clinical psychology) graduate school several decades ago. Some years before my cohort, one of our professors had an affair with a student, left his wife and married her. Ethical standards during my training were shaping into the absolute proscription against such behavior that currently exist. I and my classmates looked askance at our professor, no doubt gossiped about his behavior, and let it go.

My point being, attitudes and behavior shifted over time. As far as I know, it’s still not illegal to have an affair with one’s student, but it would currently almost certainly get one fired. I dare say most academics here would agree that it is unethical and worthy of being let go. Sexual expectations and attitudes changed for the better, in the direction of less chance of exploitation, over the course of decades and conversations about proposed regulations such as this.

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Brett Bellmore 11.17.14 at 3:17 pm

“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.

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Ronan(rf) 11.17.14 at 4:27 pm

On the topic of ‘changing the culture’ – I think one of the problems here is (afaik) we don’t know a huge amount about how these larger ‘cultural changes’ occur. Or, perhaps more specifically, we look at instances where there has been a significant change in societal norms, and work backwards explaining how this occured , emphasising our own preferences.
Take something like the change in attitudes towards same sex relationships. I’ve no doubt a lot of people here will have better ideas than me on how this societal shift in attitudes occured, buy I’d assume there’s a number of historically contingent factors built into it which were neither desirable or the result of planned human intervention (think the AIDs epidemic) So how do you deal with systemic inequalites in a society that is hostile towards the discrimanted group ? I would think specific policy interventions (repealing anti sodomy laws, putting in place anti discrimination laws, supporting same sex marriage as a matter of fundamental human rights) is the most effective method.
That’s probably just a personal preference on my part, and Im not claiming it’s empirically more effective, but my feelings are ‘affirmative consent’ will end up as a conversation with those men (and Id put myself in this category, perhaps a little self interestedly) who are slighlty kneejerk, emotional and a lot of times not entirely rational, but somewhat open to convincing. The smaller, though substantial, group of ideological misogynists, and the smaller still group of sexual predators, wont change their behaviour by and large.

This doesnt negate the idea of affirmatve consent, but I think it does mean weighing pros and cons is legit and important. (not only the ‘falsely accused’ aspect, which I agree will at most be minimal, but also the backlash, what’s the best way to implement it and a realistic appraisal of the positive outcomes that will result from it.)
Still, it’d be my impression that the group who most need to be tackled (ie sexual predators) wont be stopped by a cultural change, but only with a reform of the justice system that more consistently punishes them for their predation. (Where their starting assumption won’t be that ‘theyll get away with it’, and the costs are more explicit)

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CRW 11.17.14 at 5:19 pm

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.

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LizardBreath 11.17.14 at 5:41 pm

But it could turn out, after all, that the actual reason the law is ok is that Lizardbreath is right, and it just doesn’t make much of a difference.

That’s a bit of an overstatement of what I meant (probably a fair reading of what I actually said). I hope laws like this would have an effect on some types of sexual behavior, I’m just not seeing the affected behavior as including ordinary, genuinely consensual sex of the kind Ezra Klein references (cuddling escalating non-verbally to sex in the context of a relationship, or whatever his wording was).

The behavior that seems to me to be obviously targeted by affirmative consent laws are sexual encounters where it’s easy to say that something has gone wrong, but hard, under previous standards, to be sure that rape or sexual assault was the right name for it. Situations where (once the facts are established by whatever method) it appears that one party was motionless and nonverbal, or verbal in ways that attempted to evade the question of sexual contact rather than straightforwardly refusing it. The kind of situation where a tribunal might, while believing that one party had been subjected to sex that they did not want, find that it was not sexual assault because they can’t see why the complaining party didn’t leave, or clearly verbally protest, or something along those lines. For that class of situation, changing the question from “Did the complaining party do enough to indicate non-consent” to “Did the complaining party say or do anything to indicate consent” is going to move a sizable category of cases from disturbing, but probably not in violation of any rule, to clear violations. And I think that’s the point of the rule changes.

(Your concern about consent having to be absolutely temporally prior to any sexual contact isn’t nonsense, but I think it’s the kind of thing that can be handled pretty easily with the concept of a de minimis violation. Yes, you don’t have prior affirmative consent to kiss your sleeping wife on the cheek, no, it’s not anything that’s ever going to be a legal issue. And similarly for situations where one party momentarily misunderstands and slightly oversteps the boundaries of the consent that’s been agreed upon, and then stops when they realize that their partner is no longer affirmatively consenting.)

(Anyone trying to sort out people’s opinions by gender in this thread, I’m a woman. LizardBreath isn’t transparently a version of Elizabeth to most people?)

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Brett Bellmore 11.17.14 at 5:45 pm

“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.

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Ronan(rf) 11.17.14 at 5:48 pm

I doubt that is coming, and Ive no idea what you’re talking about !

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Brett Bellmore 11.17.14 at 5:57 pm

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Brett Bellmore 11.17.14 at 6:00 pm

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

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Ronan(rf) 11.17.14 at 6:13 pm

“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? )

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engels 11.17.14 at 6:37 pm

Your concern about consent having to be absolutely temporally prior to any sexual contact isn’t nonsense, but I think it’s the kind of thing that can be handled pretty easily with the concept of a de minimis violation. Yes, you don’t have prior affirmative consent to kiss your sleeping wife on the cheek, no, it’s not anything that’s ever going to be a legal issue.

Can you elaborate on this? It sounds reasonable to me, but I don’t feel understand it properly. For one thing, I assume Holbo kissing a stranger while she is asleep would not be a ‘de minimis’ sexual assault, so why would his kissing his wife while she is asleep be? (And again IANAL apologies if I am just revealing my ignorance.)

I’m just not seeing the affected behavior as including ordinary, genuinely consensual sex

Could you comment on the OSU guidance linked above? This seemed to me to imply that affirmatively consented-to sex was at some distance from ordinary consensual sex.

“Consent Is… Sober, Not coerced, Imaginative, Enthusiastic, Creative, Wanted, Informed, Mutual, Honest, Verbal”

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

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J. Parnell Thomas 11.17.14 at 6:44 pm

Even if they’re drunk!

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Lynne 11.17.14 at 6:49 pm

LizardBreath, yes, I thought of Elizabeth because of the For Better or For Worse comic strip.

I would have taken Sasha to be a woman’s name, though Alexandre Trudeau (son of our late prime minister, P.E. Trudeau) goes by Sacha. And for some reason I thought Ragweed was a woman, too.

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dr ngo 11.17.14 at 7:28 pm

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]

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engels 11.17.14 at 7:58 pm

My comment disappeared. I thought Lizardbreath’s last post, explaining with referemce to de minimis sexual assault why Holbo wouldn’t end up in court for kissing his sleeping wife, sounded very plausible but I would like to know more about it. In particular, how can kissing his wife when she’s sleeping be de minimis when (I assume) kissing a sleeping stranger wouldn’t be? (As I said, IANAL, apologies if the answer is obvious.)

I’m just not seeing the affected behavior as including ordinary, genuinely consensual sex of the kind Ezra Klein references

Could you comment on the OSU guidance linked above, which suggested to me that affirmatively-consented to sex was quite a different thing from ordinary consensual sex.

“Consent Is… Sober, Not coerced, Imaginative ,Enthusiastic, Creative, Wanted, Informed,Mutual, Honest, Verbal”

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Brett Bellmore 11.17.14 at 8:01 pm

“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.

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LizardBreath 11.17.14 at 8:21 pm

In particular, how can kissing his wife when she’s sleeping be de minimis when (I assume) kissing a sleeping stranger wouldn’t be? (As I said, IANAL, apologies if the answer is obvious.)

This isn’t lawyering, but ordinary human interaction. Kissing a stranger without their permission is a very socially strange, and depending on the circumstances threatening and upsetting thing to do. Kissing someone who you’re in a relationship with that involves a lot of habitual kissing might not be always consented to (they might be angry, they might have a cold they don’t want to spread, whatever) but, if the circumstances are as described, it’s a fairly minimal violation. Worrying about how an objective tribunal is going to tell the difference is solved by noting that the de minimis case is simply never going to show up in front of the objective tribunal; worrying about people are going to tell the difference in their day to day lives is solved by assuming that they have some sense.

“Consent Is… Sober, Not coerced, Imaginative ,Enthusiastic, Creative, Wanted, Informed,Mutual, Honest, Verbal”

I admit that I don’t know really what to say about that list of words, other than I doubt that anyone is going to rate consent as insufficiently ‘creative’ to count as such. This page describing the policy seems clearer.

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bianca steele 11.17.14 at 9:34 pm

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.

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engels 11.17.14 at 10:02 pm

Lizardbreath, thanks for the reply. So Holbo’s relationship with his wife is irrelevant to determining whether he assaulted her but it is relevant to determining that this assault is anything more than de minimis. I wonder if the availability of this line of argument lets back in some of the bad defences in other cases the rule was supposed to shut down, but perhaps not.

One last question: what about the hypothetical case mentioned above where a third-party (corroborated by other witnesses) reports a couple having engaged in sex without explicit consent, where the participants are both clear they consented but admit they did not do so explicitly. I know this would be strange but I don’t think it’s impossible; for example, perhaps college or police could be investigating an indecency complaint when they see from CCTV there was no affirmative consent and add further charges to the list. What would stop this from proceeding (assuming it shouldn’t proceed)? (I think someone suggested above the couple would just lie to the authorities, but I didn’t think that was satisfactory.)

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MPAVictoria 11.17.14 at 10:05 pm

“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.

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Lynne 11.17.14 at 10:13 pm

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.

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LizardBreath 11.17.14 at 10:15 pm

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?

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LizardBreath 11.17.14 at 10:18 pm

But yeah, the real answer is suggested by MPAVictoria and Lynne, which is that it’s not really a likely enough situation to spend a lot of time worrying about.

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MPAVictoria 11.17.14 at 10:19 pm

“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.

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Val 11.17.14 at 10:26 pm

@388
MPAVictoria, I would like to ‘favourite’ your comment. (Possibly I’m spending too much time on twitter)

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engels 11.17.14 at 11:49 pm

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.

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Val 11.18.14 at 12:06 am

@394
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 bloody frustrating that I go to all the trouble of analysing these comments to point out some important gender patterns, only to have it wearily dismissed by men who obviously have much better things to do than worry about what girlies think, and why it might be different from what they think.

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Val 11.18.14 at 12:13 am

@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?

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John Holbo 11.18.14 at 1:16 am

Hi Lizardbreath, welcome back to the thread! – if I’d known you were coming, maybe I could have cleaned up the place, but probably not.

In honor of your reappearance, let me just explain why I concocted the silly example I did – the notorious sleeping spouse-smooching scenario. Saurs and js. and some others were outraged by this example, and I assumed they were just trolling me, using this as an opportunity to pretend I was worried about stuff I obviously wasn’t the least worried about, the better to dismiss my argument without argument. (This isn’t ‘are you still beating your wife’? It’s ‘are you still worried you’ll be prosecuted for kissing your wife?’ Eh, it’s the internet.)

But maybe that was unfair of me, because the practical bearing of my theoretical point in fact wasn’t obvious. It’s easy to construct the world’s least plausible theory of how this law could lead to abuses. That’s why God created Brett Bellmore – to blow the trumps for the least plausible view, just in case the world’s least plausible apocalypse is upon us. But what actually plausible abuse cases can be hypothesized? If it’s not obvious, here goes.

The point of examining the most innocent possible case is NOT (not not!) to raise worries that even the most innocent cases will be prosecuted but to make vivid the sense that, technically, if this could be read as a violation, anything could be read as one. I am glad that you, Lizardbreath, agree that the way to stop this sort of nonsense is basically just to be a non-idiot about what the law says. The world is full of slightly badly-written laws, if you squint. The world doesn’t have to fly apart as a result. I, as a philosopher, sometimes forget that bad definitions are not the end of the world. But it is true. They aren’t.

So: what abuses, realistically? Let’s focus narrowly on the California law, regulating colleges and universities. There it is, if you missed it before:

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

Let’s just think about these sorts of discipline cases (not proper criminal cases), handled by university administators, not judges. Let’s focus just on the abstract concern Lizardbreath concedes, that can easily be met with de minimus common sense re de minimus violations. (I agree that’s all you need.) Why might this modicum of good sense be lacking? Why would an administrator have motive, not just strained technical means, to do the wrong thing?

One of the main reasons everyone agrees colleges and universities handle this stuff badly, at present, is that administrators really want such problems to go away as quickly and quietly as possible. Administrators aren’t maliciously indifferent, I don’t suppose. But they are concerned that the school not look bad, and anxious not to get ensnared in an elaborate mess. Due process is, in its nature, an elaborate mess waiting to happen, so administrators would prefer that cases either not arise or, if they do, be over quickly and tidily. No administrator wants a disciplinary hearing to turn into the trial of the century. They aren’t equipped for that. It can only result in embarrassment for the institution, even in the best case.

99 times out of 100 this background condition of administrative self-interest – ‘do what’s best for the institution’ – hugely favors defendants. The university doesn’t want to see trouble because it doesn’t want there to be trouble, so if there’s a way to look the other way, administrators may find it. But, once the the trouble has gotten to a certain stage, the calculus shifts, possibly against the defendant. Suppose a case is brought – perhaps even with news and fanfare! or at least campus gossip! Suppose there is pressure on the administration to show it can Do Something because, in the past, it has been lax (see above for reasons why this might be so.) Now suppose the case falls apart. What at first seemed a highly credible accusation seems, on examination, not so credible. (At this point I will be trolled for accusing women of being likely to bring false accusations. Sigh. No. That is not the point.) This is the point at which an administrator, who doesn’t want to appear to be contributing to a pattern of lax enforcement, but also doesn’t want a mess, might be tempted to take advantage of the fact that, technically, nearly anything might be a violation. Here is a ready-to-hand mechanism for getting the ugly business behind us and getting back to the life of the mind. You find that the guy didn’t explicitly ask before moving from stage A to stage B. Violation. We’re done. This decision may lack common sense, if in fact the distance between A and B is de minimus. But that won’t necessarily be obvious, from the outside. Guy probably was a bad guy if they found him guilty! Administrator can say, truthfully, that they followed the letter of the law.

Is this likely to happen a lot? Hell no. Is any law perfect? Obviously not. But giving to administators who have a motive to think first about ‘what’s best for the institution’ a tool that can, technically, say anything, is risky. (Note that I am not humoring any of Brett Bellmore’s wish-fulfillment fantasies about how this is a big gynospiracy to achieve pan-androincarceration. I am merely regressing to the mean or modal administrative mind.)

Is there a legal fix for this problem? Actually, I think there may be. js. made the objection that Canada already has the same affirmative consent law, basically, and Canada hasn’t exploded, so how bad could it be? But the Canada law, on examination, is actually written rather differently.

http://www.sascwr.org/files/www/resources_pdfs/legal/CRIMINAL_CODE_OF_CANADA.pdf

The California law tries to spell out what positive consent is. It defines it. The Canada law, as I understand it, stipulates a number of conditions in which positive consent is NOT obtained. The via negativa – here as in theology – is significantly safer. The entity we want people to be concerned with – consent – is not a thing the law creates but a real psychological condition. The law is not an adequate tool of psychological description. This is why the CA law is liable to the misinterpretation that sex is this thing you get notarized, as you proceed. The law can only define consent, legally, as a kind of informal licensing scheme for sexual permissions. Since that’s not quite what consent really is, in a psychological sense, a certain artificiality results.

Basically, the Canada law does not seem to need constant infusions of common sense about de minimus violations to keep it on the up and up. Yet it maintains a positive consent standard.

Now, how much difference does this make? Not a lot, probably. Most California administrators are not going to let themselves be idiots about any of this. And if some Canadian authorities are determined to be idiots, they will probably find a way. But I just wanted to clarify what sorts of real abuses I can anticipate arising, in small numbers, from the fact that the definition of ‘consent’ can be read as too narrow. And, as I have said, I regard any such cases – be they ever so few – as likely force multipliers for backlash. I think conservatives will want to whip up irrational P.C. persecution fantasies about all this. I hope they don’t succeed.

Thank you all for attending the Crooked Timber Endless Thread Nightmare Symposium On Outside Chances Of Abuse Of One Law, Like We Really Know What Is Going To Happen. No refreshments will be provided.

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John Holbo 11.18.14 at 1:55 am

Val: “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.”

Sorry for the inadvertent stuck-in-moderation situation, Val. I don’t know why you were stuck. I can’t speak for Engels, but it is possible he is waiting for you to provide a different sort of evidence. To be fair, you sort of changed the subject on him … which is fine! He asked, specifically, why you think the reason some folks are critical of the law must be because we males fear “the somewhat mysterious nature of women” (your phrase) will lead to rampant false accusations. He made the point 1) that no one seems to be saying anything about the “mysterious nature of women”; 2) if this really were the secret worry, it’s not clear why affirmative consent would make things worse. I might add 3): if this is it, we critics of the law sure are a lot of idiots! So it’s a serious charge.

Your analysis of the gender breakdown of comments is fine, of course – thank you for that! But the bar really is a bit higher when it comes to establishing all this stuff about hidden motives. I know you say you aren’t doing armchair psychology. And, insofar as you are counting participants, you aren’t. But, insofar as you are hazarding a sort of diagnostic critique of male ‘discomfort’ I think you are, for better or worse.

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John Holbo 11.18.14 at 2:28 am

Sorry, rereading, that comment came out too harshly, Val. I actually think it is quite reasonable to suspect that male hostility to the law is motivated by discomfort, and that this is sort of irrational, and that a survey that finds all critics of the law to be male is a bit of a red flag that maybe our man panties are just getting into a bit of a twist. I think most reactions to most laws are motivated by some degree or irrational comfort or discomfort with what the law is thought to say, or seek to do. Most people aren’t lawyers. That means most people’s legal opinions are kind of idiotic – including my own, often enough.

The question is: what do we conclude from that? Not a lot. We just try to balance the suspicion that people are probably being a bit idiotic, as usual, against the attempt to analyze the law/policy issue/whatever. Not all legal analysis is just an irrational expression of comfort or discomfort, or tribalism, or any of that, even though, in the aggregate, most legal analysis in fact isn’t much more than that.

Does that make sense? I apologize for inadvertently implying that you were trolling with your ‘discomfort’ thesis. I don’t think you were. I just think you’ve done a bit less than you think you have.

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engels 11.18.14 at 2:37 am

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.

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LizardBreath 11.18.14 at 2:48 am

Suppose a case is brought – perhaps even with news and fanfare! or at least campus gossip! Suppose there is pressure on the administration to show it can Do Something because, in the past, it has been lax (see above for reasons why this might be so.) Now suppose the case falls apart. What at first seemed a highly credible accusation seems, on examination, not so credible. (At this point I will be trolled for accusing women of being likely to bring false accusations. Sigh. No. That is not the point.) This is the point at which an administrator, who doesn’t want to appear to be contributing to a pattern of lax enforcement, but also doesn’t want a mess, might be tempted to take advantage of the fact that, technically, nearly anything might be a violation. Here is a ready-to-hand mechanism for getting the ugly business behind us and getting back to the life of the mind. You find that the guy didn’t explicitly ask before moving from stage A to stage B. Violation. We’re done. This decision may lack common sense, if in fact the distance between A and B is de minimus. But that won’t necessarily be obvious, from the outside. Guy probably was a bad guy if they found him guilty! Administrator can say, truthfully, that they followed the letter of the law.

Seriously? You’re picturing a situation where an administrator is faced with a accusation of sufficient gravity that it has become a campus cause celeb, and an complainant that generally lacks credibility, but is credible on some minor issue: say, so that we’re talking about the same thing concretely, that the accusation is straightforwardly of rape, and what the administrator believes is credibly proven is that both parties agreed to kissing on the mouth, and the accused progressed to kissing on the neck without consent. You’re seriously worried that under those circumstances, an administrator is going to believe that the easy way out is to find the accusation of rape unsubstantiated but punish the accused harshly on the grounds of non-consensual neck-kissing? Because that sounds to me like a recipe for outraging everyone, regardless of whose story they believe.

I’m not saying it’s impossible, unreasonable people do all sorts of stupid things. But I can’t see that as a tempting cop-out to any reasonable authority, and if we’re speculating about stupid things people might possibly do, we have to remember that stupidity is always with us, and you can’t eliminate the possibility by designing rules that won’t let people be stupid.

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John Holbo 11.18.14 at 3:05 am

“You’re seriously worried that under those circumstances, an administrator is going to believe that the easy way out is to find the accusation of rape unsubstantiated but punish the accused harshly on the grounds of non-consensual neck-kissing?”

Oh, no no sorry, no I didn’t mean that at all. No no not the silly kissing case. (I really should never have invented that case.) We see the silly case. We see that this might be, absurdly, a technical violation. We set the kissing case aside. We move on to more plausible cases, having seen from the silly case how all can perhaps be technically construed as violations, if you want to be an idiot about it. Now imagine a more plausible sexual encounter between two students. A lot of stuff happens. Hands in places. Other things in places. Who is to say what is Point A and Point B?

Lizardbreath: “situations where one party momentarily misunderstands and slightly oversteps the boundaries of the consent that’s been agreed upon, and then stops when they realize that their partner is no longer affirmatively consenting.”

Here is the point where, you admit, de minimis common sense needs to help us along.
My point was simply that if an administrator was looking for a way to hang someone up, technically, this would be the sort of point at which to withhold that. (No no, not light kissing on the cheek.)

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John Holbo 11.18.14 at 3:10 am

And it may be such a far-fetched worry that it’s not worth worrying about. But it does seem that the Canadian approach makes it marginally harder to be stupid about it, so that would be good.

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J Thomas 11.18.14 at 3:18 am

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.

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LizardBreath 11.18.14 at 3:22 am

I don’t mean to make the comments section of a serious blog vulgar, but I don’t think I can understand what you’re talking about without specifics. That is, you’re talking about a situation where the established facts are of some violation that’s purely technical — the sort of minor, momentary, overstepping of boundaries that is going to happen as people communicate where the boundaries are. So, yes, something happened that wasn’t affirmatively consented to; yes, any reasonable person would agree that it would be very strange to punish that severely; but you worry that a malicious administrator would use that sort of technical violation to punish someone severely if they wanted to for other reasons.

So far, so good. But when I offered the kind of de minimis violation that it sounded as if you were talking about about, you said, no, not that kind of thing at all, something more plausible. And I don’t know what you mean. More plausible as in more likely to happen in the real world? Because my example sounded like the sort of thing that easily might happen in a real encounter. Or more plausible as in it would seem less absurd to punish someone severely for it? If that’s what you’re saying, I would really like to know what you’re thinking of.

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Rakesh 11.18.14 at 3:34 am

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.

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John Holbo 11.18.14 at 3:50 am

Well, it needs to be a de minimis violation concerning pretty serious sexual acts. If it is just a kiss on the cheek it will sound sound silly, yes.

Let’s keep comments rated PG. This is a family blog. People probably read these threads with their kids over the breakfast table! Imagine consent to A – some kinky something. Now imagine B – another kinky thing in vicinity. Make it close enough to A that we think it reasonable that, if you have gotten consent to A, you might try B on for size – prepared to stop if told to! – without needing to say, in so many words ‘I am now about to attempt B. Are you ok with that?’ If the person says stop and you do, there is (as you say) still de minimis violation concerning something that is, ex hypothesi, sexually pretty maximis (as you like it!) The administrator who wishes to find a technical violation finds that the student did B without the victim’s consent. This sounds bad, because B is serious (not a kiss on the cheek).

Incidentally, the reason I waited so long to sketch a plausible case is that, in doing so, I am damned if I do, damned if I don’t. To make it plausible you have to get highly specific, and then I sound as if I am prophecying some very specific thing. The general point is just that giving people, whose first instinct may be to defend the reputation of the institution, a tool that allows distortion of due process, may result in abuse.

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Rakesh 11.18.14 at 3:56 am

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.

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John Holbo 11.18.14 at 4:01 am

I think we all know there will be hard cases. That is not at issue, since no one denies it, and no law fixes it.

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John Holbo 11.18.14 at 4:03 am

Work to do. I’m seriously going away for a few hours at least.

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Saurs 11.18.14 at 4:05 am

Suppose a case is brought – perhaps even with news and fanfare! or at least campus gossip! Suppose there is pressure on the administration to show it can Do Something because, in the past, it has been lax (see above for reasons why this might be so.)

Who is exerting the pressure? In what form does it take? What are the consequences for not yielding to it?

Now suppose the case falls apart. What at first seemed a highly credible accusation seems, on examination, not so credible. (At this point I will be trolled for accusing women of being likely to bring false accusations. Sigh. No. That is not the point.)

The whole point of a review process is to find out whether details, testimony, evidence, and data gathered and neatly organized on paper is, in fact, credible. That’s not to suggest that every case that doesn’t meet the standard of evidence involves prevarication on the part of the victim or the witnesses; there simply may not be enough evidence. This happens all the time. This is not unusual.

This is the point at which an administrator, who doesn’t want to appear to be contributing to a pattern of lax enforcement, but also doesn’t want a mess, might be tempted to take advantage of the fact that, technically, nearly anything might be a violation.

Who is this lone “administrator”? Who invested in him the power to act unilaterally, without supervision? Do you understand how Student Conduct Committees (at UCLA, a three-member committee) that come to a consensus-based decision on these complaints function? The Title IX officer or other resolution officer who receives the complaint and initiates the investigation if they find that formal proceedings are warranted is not directly involved in the disciplinary process or execution of the findings, you realize.

Here is a ready-to-hand mechanism for getting the ugly business behind us and getting back to the life of the mind. You find that the guy didn’t explicitly ask before moving from stage A to stage B. Violation. We’re done. This decision may lack common sense, if in fact the distance between A and B is de minimus. But that won’t necessarily be obvious, from the outside. Guy probably was a bad guy if they found him guilty! Administrator can say, truthfully, that they followed the letter of the law.

In a case that receives this amount of attention (“gossip,” you’re calling it, perhaps that includes keen attention from students, demonstrations representing both “sides,” campus or local media coverage), you are suggesting that “an administrator” would willingly and knowingly discipline a student he believes didn’t actually violate the spirit of the affirmative consent code — resulting, at most, in that student’s expulsion from the university — and that doing so would not draw the considerable ire you purport that he wishes to avoid? That an appeal to the decision (which is built into this process) would not reverse the decision?

Quite apart from that, your hypothetical administrator was emphatically not following the letter of the law, which still requires a preponderance of evidence consistent with that in a civil case. And again, because you continue to pretend otherwise, the code does not say that failure to elicit affirmative consent (voluntary, conscious, and ongoing; can be revoked; is invalid if the victim is incapacitated) is an admission of guilt; it says that a review board cannot accept as a reasonable defense a pre-existing relationship or an assertion that the victim did not struggle or say “no.”

Divorced of all other circumstantial evidence, an accused student saying that they elicited the appropriate consent in the appropriate way and a victim saying the student did not results, not in finding the accused guilty automatically, but in a stalemate. The preponderance of evidence for guilt has not been met.

As I mentioned before, universities already have in place an informal mediation system to handle “sticky” or unclear cases (the previously discussed Early Resolution scenario).

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LizardBreath 11.18.14 at 4:12 am

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?

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Val 11.18.14 at 4:25 am

@398, 399 and 400
Yep, I made a tentative hypothesis @319, asked whether it was “too harsh or unfair”, invited comment, looked at the evidence, and came up with some slightly different conclusions. Guilty as charged your honour. Should have spent even more words discussing how what I found looked somewhat different from what I hypothesised.

We feminists, we must get everything right at all times, because otherwise how could anyone ever believe anything we said? No speculation, no theory, no playing with ideas.

Can I just repeat, I did not introduce the word ‘discomfort’ – Gianni did. I speculated (again the speculation!) on what ‘discomfort’ might mean.

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.

Oh stuff it! As I’ve said, I would sincerely love to hear some of the undoubtedly thoughtful and intelligent men here try to analyse how patriarchy and male privilege may have influenced their way of seeing the world. Otherwise it’s just a waste of energy debating, I think. If you are talking about gender-related issues, but not apparently interested in what women think, it’s hopeless.

Recently I did an analysis of gender patterns in voting on the (former) Australian carbon price (which were quite clear, and interesting), and the guy who asked me for the evidence told me I was irrelevant to the debate (about climate change) – because you know, if you don’t like the evidence, call it, and the person who produced it, irrelevant.

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John Holbo 11.18.14 at 4:36 am

Hi Saurs, I am ignorant of the administrative details. The lone administrator was just a simplification for illustration purposes. Obviously more actors complicates the scene. But groups and bureaucracies can be as dysfunctional and institutionally deformed as individuals – sometimes even more so.

You write: “you are suggesting that “an administrator” would willingly and knowingly discipline a student he believes didn’t actually violate the spirit of the affirmative consent code — resulting, at most, in that student’s expulsion from the university — and that doing so would not draw the considerable ire you purport that he wishes to avoid?”

You find this incredible? I don’t. (Except I would delete ‘willingly and knowingly’. I believe administrators doing so would find a way to convince themselves they were doing the right thing, for which purposes a narrow reading of the law might do.) I think, sadly, such stuff happens all the time, just going in the other direction. This is one of the main reasons the law is necessary, on balance. Often universities haven’t taken sexual assault seriously, as you well know (I don’t mean to lecture you as if you are an idiot about this, but it’s things you well know that prove the thing I’m saying is not incredible.) Lots of credible allegations go uninvestigated and undisciplined, by all accounts. Why does that happen, since it seems to mean administrators are moral monsters who ‘willingly and knowingly’ flout existing policies of enforcement, letting men prey on young women (that’s usually the gender dynamic). Blame the patriarchy? Sure. But I think the reason is probably more that administrators are fallible and in an institutional setting, such that they very naturally get a bit confused about where their duties and loyalties lie. They are loath to do things that would damage the institution or create a horrible stink. They would strongly prefer for there not to be a problem. People with power who would prefer problems go away often find a way to make it so, sometimes not in the best way. (You know all this.)

“Divorced of all other circumstantial evidence, an accused student saying that they elicited the appropriate consent in the appropriate way and a victim saying the student did not results, not in finding the accused guilty automatically, but in a stalemate.”

But the whole point of my spiel to Lizardbreath is that what might break the stalemate could be the accused student honestly describing a de minimis violation, and counting on the tribunal using common sense to recognize that by any reasonable standard this was ok, and the tribunal not doing so but instead taking the defendant’s statement as a confession that he was in technical violation.

But why wouldn’t the appeals process correct the problem? What are the odds we will have the same problem twice? I don’t find it that incredible. The same sorts of institutional loyalties that made the first tribunal make a bad decision might incline the next tribunal not to reverse. After all, it looks bad if the appeals court says the first court did something dumb – let alone outrageous. The more the university is under pressure to clean up its act about sexual assault, the more pressure on individuals, who feel loyal to the institution, to insulate the institution from any appearance that it doesn’t have its act together. Circle the wagons is a thing.

And that really really is it for me for a while.

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Rakesh 11.18.14 at 4:54 am

Given that you have provided very vague scenarios of the law being abusively applied and still discussed them at length, I don’t see how you have made a case that, on balance, this law is necessary. In the OP you have bravely said that you would not make Limbaugh’s case against the law. There are 400+ posts; where did you make that case?

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Rakesh 11.18.14 at 5:00 am

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.

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Saurs 11.18.14 at 6:32 am

People with power who would prefer problems go away often find a way to make it so, sometimes not in the best way. (You know all this.)

Yes, they do. And I know how they sweep such problems under the rug. You do, as well.

The more the university is under pressure to clean up its act about sexual assault, the more pressure on individuals, who feel loyal to the institution, to insulate the institution from any appearance that it doesn’t have its act together.

They already feel this pressure, they already act in ways that preserve the institution at the expense of student safety and liberty. And this doesn’t involve conspiracies to find innocent students guilty of rape and assault. Quite the opposite. As we know.

Acknowledging a culture of enabling rape and of insulating rapists would require them to do something to fix that culture. That’s costly in many ways, and nothing about the passage of this code signifies their willingness to do so.

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Patrick 11.18.14 at 7:28 am

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.

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Rakesh 11.18.14 at 7:54 am

@418 you do owe js a reply; he noted that your arguments against affirmative consent were based on the stipulation in OSU code that there must be consent previous to each new step that does not appear in the California law. I don’t see your response to js.
But the thread is long, and perhaps you responded.

Surprisingly you don’t seem to have commented on this in the OSU regulations which you have criticized at length:

“Recognizing Non-Verbal Communication
Remember, an absence of “no” does not mean “yes.” Here are some ways that your partner’s body language can let you know that you do NOT have consent:

Not responding to your touch
Pushing you away
Holding their arms tightly around their bodies
Turning away from you or hiding their face
Stiffening muscles”

The California code does not seem to allow a man to ignore such non-verbal communication just because he may be drunk.

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J Thomas 11.18.14 at 8:19 am

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?

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Rakesh 11.18.14 at 8:30 am

On consent previous to each new step, obviously the initiator may learn that what he thought was continuous with had already been mutually affirmed had become something different and unwanted for the partner through her verbal and/or non-verbal communication (e.g hand in the shirt to the unsnapping of the bra).
Only if one proceeded at this point would he–it seems to me–to be violating the code, i.e. not getting consent for each new step of sexual activity. It’s good that the code is, in effect, teaching men to be aware of this possibility, i.e. his idea of what is continuous may not be shared, and discomfort may be expressed non-verbally.
Of course there are clear cases where an act would not be continuous with what had already happened and should not be tried without affirmative consent. Too obvious to spell out.

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Saurs 11.18.14 at 9:20 am

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?).

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Patrick 11.18.14 at 9:22 am

Rakesh- No, I missed it.

js- To a certain extent, arguing about specific wording is… problematic. This isn’t a real law. It’s a university policy. Worse, the California SB is just a law telling universities to come up with a policy that includes certain concepts.

I’ve been using OSU because they have elaborated on what they mean, which is important given the Two Step of Terrific Triviality that goes on in these threads (most importantly, the trivial “absence of no isn’t yes” or “pay attention to your partner’s feelings” versus the problematic “you must have X, Y, and Z or we may punish you at our discretion”).

The California SB lacks the problems of the OSU policy in part because the California SB is only an order that universities come up with a policy. The specifics can’t be good or bad because they mostly aren’t there.

It does contain one good sign though- it implies that if you take reasonable steps to determine affirmative consent, a good faith belief that you have it is a defense.

For completeness I should add- I’ve noticed that OSU also has another section of their website on “consent” which might somewhat alleviate certain issues. Or make them worse. It’s kind of a mess. At least one section is unusable due to a typographical error. The section on revocation of consent doesn’t seem to mesh with the overall rest of the document. Further, consent can be non-verbal… so long as it creates a “mutual understanding” of “who, what, where, when, why, and how.” Good luck communicating that degree of precision via groping. And statements on consent not being assumed within the context of a relationship seem to presume that the consent in question is to reasonably large sexual acts, but elsewhere the policy insists it applies to de minimus acts like kissing.

By far my favorite is the bold, unqualified declaration that consent is impossible no matter what someone might verbalize if the “victim” is an unqualified “elderly.” Just, elderly. Not senile. Just, no sex for old people, ever.

The reason I’m pointing all of this out is to emphasize that we are NOT dealing with real laws here. Real criminal laws are, at least in theory and in the ideal case, sets of precise guidelines written by professionals using carefully defined terms of art, and intended for other professionals to interpret and apply in court. Ambiguities generally occur in precisely defined ways and contexts, which are given to juries to evaluate. Affirmative consent in colleges is more like… mushy statements thrown together by committees that do not seem to be on the same page with respect to both what is to be prohibited, and what purpose the policy is to serve.

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J Thomas 11.18.14 at 9:31 am

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?

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Rakesh 11.18.14 at 9:57 am

the elderly? Of the many turns this discussion could take, I was not expecting that Patrick would become a spokesperson for the Harold and Maude Society on the OSU campus.

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Val 11.18.14 at 10:13 am

@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?

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ZM 11.18.14 at 10:50 am

Patrick,

“By far my favorite is the bold, unqualified declaration that consent is impossible no matter what someone might verbalize if the “victim” is an unqualified “elderly.” Just, elderly. Not senile. Just, no sex for old people, ever.”

Harold and Maude jokes aside, you have not written the exact wording of the clause about elderly people in context.

While there might be some concerns about the particular wording (difficult to know since you haven’t copied it), the sexual abuse of elder women in nursing homes is a real issue and is appalling and quite frightening for women.

Elderly women in institutions are often very vulnerable and might not say “no” in the event of a nursing home worker or visitor abusing them, which should not be indicated as them consenting. They are likely to be ashamed and might not to confide to anyone about the situation, and like child abuse it is something that people don’t want to hear. It is really quite a serious issue and shouldn’t be trivialised.

428

Brett Bellmore 11.18.14 at 11:18 am

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?

429

J Thomas 11.18.14 at 11:38 am

Brett Bellmore’s #428 is nearly a perfect example to show the problem I have with my #2 argument above. It is entirely invidious. When we argue about who suffers more, or who is victimized more, nothing good will come of it.

It is an opportunity to stoke our anger at the enemy, and nothing more.

430

Val 11.18.14 at 11:39 am

@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.

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Ze Kraggash 11.18.14 at 12:15 pm

J Thomas: “Has there been a significant fifth argument?”

It may fall under one of your other categories, but it seems that most consistent complaint is about criminalizing unobjectionable conduct. Obviously, it’s not a good thing, as most (if not all) commenters (male, female, and gender unknown) realize.

The controversy is typical: does the current sad state of affairs (i.e. public interests) justify this radical/drastic measure?

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Val 11.18.14 at 12:38 pm

@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.

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J Thomas 11.18.14 at 12:47 pm

#431 Ze Kraggash

It may fall under one of your other categories, but it seems that most consistent complaint is about criminalizing unobjectionable conduct.

Yes, that’s different from victimizing men since it isn’t just men doing the unobjectionable things. And it’s different from the law being unclear about the difference between some bad actions and some good actions if it really does criminalize the good actions.

5. The new law may criminalize things that should be legal.

The controversy is typical: does the current sad state of affairs (i.e. public interests) justify this radical/drastic measure?

Now we’re uncomfortably close to my #2. Yes, the current sad state of affairs justifies drastic measures. Arguing that the status quo is acceptable will generate hatred.

The question at hand should be, if the current proposal has flaws, what better alternative could we try?

The status quo is not acceptable. We will do something else. This law is not going to help much, and it might do some sort of harm, but we will do it unless there is an obviously better choice.

We have to do something.
This is something.
We have to do this.

Until there is a better alternative to argue for, the logic is ironclad. We have to do something. I don’t think anybody has great hopes for this particular proposal, but we have to do something and if this is the only proposal being considered, we will do this.

If the wording is bad, think of a better wording.
If the concept is unclear, think of a better concept.
If you can come up with an entirely different better idea, do that.

You cannot argue that the status quo is OK. You cannot argue that in public, and you probably can’t argue it in private in mixed company. Unless you are Brett Bellmore.

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Ze Kraggash 11.18.14 at 1:21 pm

@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.

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Sasha Clarkson 11.18.14 at 1:39 pm

I can’t see that any unobjectionable conduct it criminalised. People in a genuine relationship have their own codes and understandings, and aren’t likely to complain to the authorities about their own normal behaviour.

The regulations/laws are aimed at those who are not in an intimate relationship and/or those who seek casual sex, and are designed to ensure that criminality cannot occur by misunderstanding between people who don’t know each other well enough. If as a side effect, it also encourages people to consider what constitutes civilised behaviour, then that’s even better.

Even if you think it’s going to be casual, the sexual act is very intimate and can have a powerful emotional effect. It may create an emotional bond, but it can have the opposite effect. Waking up with someone one doesn’t want to be there is not very nice, and there are worse experiences than that which are perfectly legal. Youngsters who are technically adults may find a bad experience to be devastating. The wrong kind of experience can cause emotional problems for years to come.

Sex can be very nice, but from the point of view of physical and mental health, it is not desirable to encourage the culture which regards sex as a commodity which one ought to have as much of as possible. Just because some may be good, that doesn’t mean that more is better. Nor is there a right to have it, any more than there is a right to be rich, or beautiful.

We should be discouraging the subculture which bullies the young in particular that if they aren’t doing it there’s something wrong with them. I suppose that most adults sort themselves out with maturity, and there are ways for those who are highly sexed or have “sophisticated” tastes to meet like-minded people. But even there, rules on affirmative consent protect the parties involved.

436

ZM 11.18.14 at 1:45 pm

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.

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J Thomas 11.18.14 at 2:02 pm

#434

@ 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.

#6. A law which is mis-stated, even if innocent people are rarely targeted, creates the impression that law is a joke.

How can we state it better? If the only alternative is the old law, that is unacceptable and the new law will spread.

What can we do about the basic problem that this new law can at best slightly palliate?

A lot of women get into situations where they feel that they are being raped. Even more women feel afterward that they have been raped. I want that to not happen, or at least to happen much much less often.

By the time it gets to the courts it’s too late for the rape being prosecuted. It is unlikely that the percentage of rapes that get prosecuted will go up a lot. Most rapes and probably most rapists will not be directly affected by the old law or the new law. It will affect public opinion, but look how it is affecting public opinion on this thread — Women know that it isn’t nearly enough, it’s at best a tiny step, while men believe they are innocent but are concerned they could be hurt badly. If we want men to behave different as a result, ideally we would have clear, explicit rules they could follow to stay out of trouble.

With drunk driving laws, once drunks got the idea there were truly life-wrecking serious consequences they started having designated drivers etc. It took some years while they noticed their friends getting pulled over on the road and their lives wrecked, and then when they saw they had to do something, it was clear what to do.

For this to work like drunk driving laws, probably we need for men to notice that they are very likely to get into a lot of trouble when they do something questionable, and then we need crystal-clear rules for them to stay out of trouble.

What would it take to provide those crystal-clear rules?
What would it take to make sure that men who do questionable things will get into trouble within a few years?

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Ze Kraggash 11.18.14 at 2:27 pm

@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.

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MPAVictoria 11.18.14 at 2:38 pm

“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.

440

ZM 11.18.14 at 2:43 pm

“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).

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Ze Kraggash 11.18.14 at 2:51 pm

ZM, but your example of cycling without a helmet is also nothing like rape. Clearly, we are now on a different topic: criminalization of unobjectionable private behavior: whether it’s acceptable or not, to what extent, and under which circumstances.

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J Thomas 11.18.14 at 3:02 pm

#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.

443

ZM 11.18.14 at 3:03 pm

The example of helmet regulations is an example of regulating behaviour to avoid worse consequences. In the case of helmet wearing it is to prevent brain damage in bicycle accidents. In the case of regulations specifying consent it is to prevent rape.

It is a bit of a bother to wear a helmet all the time, and you don;t have wind in your hair, and there are some objections that it discourages bike riding compared to Copenhagen (although hills have more to do with that I think), and does not prevent enough injuries. Nevertheless the regulations are not too demanding given they are meant to avoid brain damage.

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. Possibly sometimes people might be derelict like me with my not wearing a helmet, but as it will happen in private rather than on the roads it is unlikely the police will chase them with a blaring siren.

444

ZM 11.18.14 at 3:07 pm

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.

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Brett Bellmore 11.18.14 at 3:12 pm

“What would it take to make sure that men who do questionable things will get into trouble within a few years?”

I think I’ve already suggested a solution to this, and it got labeled dystopian: People should just start recording their entire lives, and create the expectation that nothing you do with another person present is going to be legally undocumented if the other person finds it objectionable.

If dash and badge cams are a reasonable response to police misconduct, why not carry it further? Just record everything that happens, period. You could set up a system where it went straight to encrypted storage, legally accessible only if a crime were alleged.

Don’t change what gets said in he said/she said situtions. Eliminate such situations.

““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. And that’s a position half the population is not going to accept being subjected to.

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Watson Ladd 11.18.14 at 3:24 pm

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.

447

Ze Kraggash 11.18.14 at 3:28 pm

ZM 443, so, you’re suggesting that people should actually ask their sexual partners, and get a confirmation every time and at every stage? Fair enough. But that would require a major change in the culture. It may happen in the future, with the help from the mass-media, Hollywood, etc., but it hasn’t happened yet. If you were to enact this law, you’d still be criminalizing behavior that is, at this time, wholly socially acceptable.

448

Anarcissie 11.18.14 at 3:36 pm

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.

449

ZM 11.18.14 at 3:47 pm

Watson Ladd,

Rape is illegal, but there are arguments about whether rape has or has not occurred in various situations. This regulation attempts to generate greater clarity about what is and is not rape. So it is a sort of regulation like title transfer regulations, but not as strict.

But title transfer can be ruled null and void if the regulations are not followed. Unfortunately if someone is raped the rape it is an irrevocable event even if the regulations have not been followed.

So then as well as wanting to provide greater clarity through regulating, there is the impetus to discourage rape as an irrevocable event, like the impetus to discourage brain damage caused by cycling accidents by mandating protective helmet wearing.

Helmets only prevent brain damage in the event of a certain sort of accident. But people have to wear helmets whenever they ride a bicycle, whether they are going to proceed to have this particular sort of accident or not.

Similarly, with this consent regulation people would have to ask for and give consent, even in the aforementioned mysterious situation where previously they were not used ask and give consent but were also not committing rape.

Having to ask for and give consent is not any more onerous than having to wear a helmet. In Maria’s Pick Up Artist thread some one was upset about implications for rude people, but rude people can just take etiquette lessons on how to ask for and give consent.

You might argue needing to ask for consent does not prevent rape, but it probably would prevent some rapes. This is the same with helmets – some people still get brain damage in bicycle accidents , but the helmet wearing prevents some brain damage.

450

Lynne 11.18.14 at 3:58 pm

““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.

451

John Holbo 11.18.14 at 4:33 pm

Good night all. After a long day, not on the internet, I am off to bed. I confess to not having read the thread so if I’m refuted, I’m refuted, and I’ll learn about it in the morning.

Play nice.

452

William Timberman 11.18.14 at 4:46 pm

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.

453

Brett Bellmore 11.18.14 at 5:24 pm

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

Not that complicated. You can’t give a panhandler $5 today, and decide tomorrow that you were robbed. You can “feel” all you like that a crime was committed against you, and if the circumstances don’t meet the legal definition of the crime, you feel wrong.

And half the population is not going to let the other half have to power to retroactively make acts into crimes because they later decide to feel differently about them.

454

Rakesh 11.18.14 at 5:24 pm

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.

455

Sasha Clarkson 11.18.14 at 5:30 pm

“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 ….”

Cultural history is that sex outside of marriage is frowned on – even punished. And in the last few centuries, cultural norms and laws in Europe and the US certainly haven’t allowed dragging a woman to the alter without explicit prior consent.

In the brave new world we find ourselves in, it is, in my fairly limited experience, quite possible to ask or be asked with courtesy. I’m pushing 60, but I would guess that the trend has been growing since WWII at least.

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. Of course he was a ‘ladies’ man’ in that he enjoyed the company and conversation of women too.

The men who prefer the rougher approach seem to be those who find women physically attractive, but don’t like or value their company. I suppose, if one wanted to wind-up someone like Limbaugh, one could call it psychological homosexuality?

456

bianca steele 11.18.14 at 5:37 pm

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.

457

Brett Bellmore 11.18.14 at 5:38 pm

“Coercion does not mean the victim did not make choices, or was denied agency; “

And, neither does it mean that somebody else didn’t go out of their way to provide the ‘victim’ with their desired range of choices. It must mean something like, choices somebody was legitimately entitled to were denied them.

This requires a theory of what choices people are entitled to have available to them.

458

bianca steele 11.18.14 at 5:39 pm

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

459

Ronan(rf) 11.18.14 at 5:48 pm

Apparently or self-described male commenters ( Harald K, Bristol Resident, Brett “Bellmore, Watson Ladd, Ronan F, Trader Joe, Mario, Patrick, Hix, Ze Craggash, dr Ngo, Ragweed, James Conran, Engels) suggesting that the law will cause problems, potentially criminalising innocent people/behaviour (Gianni sort of suggests this too but in a very self reflective way so not included here, but discussed later).”

Sorry I missed this. I didnt say it *would* cause problems, I said it *could*. But there’s no problem assuming it will (it can still be a net positive even if it does) My main problem is that everyone seems to agree it’s going to not be effective, so I dont really see the point.
Though I havent really commented much on this, or engaged in the hypothesizing, so not sure why I was thrown in with the rabble (no offence to the rabble)

460

Anarcissie 11.18.14 at 5:54 pm

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.

461

Ronan(rf) 11.18.14 at 5:55 pm

Val- actually, I dont have aproblem with your comment there. Youve explained my position fairly. I was just surprised to see my name put into a convo between yourself Holbo and Engels which I wasnt involved in (and dont have any opinion on) But I take your point.
I still think the article posted by MSM above

http://www.nytimes.com/2014/11/16/opinion/sunday/mishandling-rape.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region&region=c-column-top-span-region&WT.nav=c-column-top-span-region&_r=1

is an interesting take.
Other than that I dont really know anything about the law behind all of this, and have founds lizardbreath pretty convincing throughout, so Im still kind of ambivalent but dont have a strong view one way or the other.

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J Thomas 11.18.14 at 6:18 pm

#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.

463

LizardBreath 11.18.14 at 6:59 pm

While that would certainly be a tragic thing to happen for everyone involved, the traumatized woman and the absolutely innocent man who further traumatized her through absolutely no fault of his own, it’s a bit of a sideshow to the current discussion, isn’t it? If you’re going to stipulate that there’s no way for the man to have known anything was wrong, I’m not seeing a public education/change in culture/change in the law that would have much of any effect on the chances of that happening.

And honestly? That’s a scenario that I suppose is not literally impossible. But someone so terrified of being killed that they’re ‘consenting’ to unwanted sex, despite having no actually immediate reason to believe they’re in danger, who’s convincing enough in their false consent that the other person has legitimately no way of telling there’s anything wrong? I’m not saying it couldn’t happen, but it doesn’t seem like a situation that’s going to come up terribly often.

There really seems to be a disproportionate amount of attention to the possibility of accidental rape in conversations about rape law — how to make sure not to punish anyone who was legitimately, honestly unaware that the person they were having sex with didn’t consent to having sex with them. And again, while it’s not literally impossible? I do not believe that situations of that nature account for any significant percentage of situations where someone has sex that they did not consent to. It’s a big world, and even really strange things happen sometimes, so I’m sure this does too, but not anywhere near frequently enough to justify the amount of attention the possibility gets.

464

Lynne 11.18.14 at 7:15 pm

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

465

geo 11.18.14 at 7:23 pm

Val @413: I would sincerely love to hear some of the undoubtedly thoughtful and intelligent men here try to analyse how patriarchy and male privilege may have influenced their way of seeing the world.

Not quite what (or who) Val asked for, but here’s two cents anyway. The sexual impulse, like the aggressive impulse, is frequently overwhelming. This is traditional wisdom: “The strongest oaths are straw to the fire i’ the blood.” Short of inducing physiological or neurochemical changes via drugs or surgery (or instituting infinite surveillance, as Brett cheerfully suggests), better sexual pedagogy is indispensable. I think affirmative consent is a useful step, notwithstanding JH’s astute and very tactfully expressed misgivings, but it’s too little, too late. I wonder if it might help if there were universal adolescent sex ed along these lines: “Listen, guys, we know it’s hard, it’s very hard, to deal with your sexual feelings. But girls, though they have slightly different bodies and slightly (in some ways) different sexual feelings from you, are otherwise EXACTLY THE SAME AS YOU, with the same feelings. Don’t push them — that’s bullying, which is something no decent person does. And girls: most of you are smart enough not to drink and drive — 80% of drunk driving citations are for males. But to drink and flirt is equally dumb. In a sexual situation, it’s hard enough to know (and say!) what you want when you’re sober. Besides, even if you’re willing, sex is a lot less enjoyable when you’re drunk.” If kids hear this often enough, without embarrassment or equivocation on the part of the speaker, they might come to believe it and to remember it in their hour of need.

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Sasha Clarkson 11.18.14 at 7:30 pm

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.

467

Collin Street 11.18.14 at 7:31 pm

There really seems to be a disproportionate amount of attention to the possibility of accidental rape in conversations about rape law — how to make sure not to punish anyone who was legitimately, honestly unaware that the person they were having sex with didn’t consent to having sex with them.

Autism!!

468

Collin Street 11.18.14 at 7:41 pm

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

469

geo 11.18.14 at 7:46 pm

PS to 465: Also, Krav Maga training (http://en.wikipedia.org/wiki/Krav_Maga) for all girls.

470

Sasha Clarkson 11.18.14 at 8:06 pm

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! ;)

471

Brett Bellmore 11.18.14 at 8:07 pm

“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.”

See, this is what I’m saying: You women are not concerned, because you, rightly, do not anticipate this law being applied to yourselves. That’s why the ‘gendered’ response: ‘Gendered’ application is a certainty.

Aparently Alan Dershowitz is among us troglodytes”:

Alan Dershowitz: Campus sexual assault rules ‘preclude a defense’ for the accused

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Sasha Clarkson 11.18.14 at 8:21 pm

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

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J Thomas 11.18.14 at 8:36 pm

#463 LIzardbreath

I’m not saying it couldn’t happen, but it doesn’t seem like a situation that’s going to come up terribly often.

That is not my point.

Somehow most of our discussion is about laws, as if that could be central. It creates an adversarial atmosphere. Women are potential rape victims and men are potential rapists, and then men are potential legal-system victims. Everybody believes that most rapes are never prosecuted and the ones that are, mostly do not produce a conviction. The legal system does not work for this and probably mostly cannot work.

Why should we focus on legal rights, when it is not going to work for us? We need another approach.

Apart from legal garbage, the whole argument about whether a woman can decide after the fact that she was raped is worthless. Apart from prosecuting people, the whole question about women making false accusations is a waste of time. It is a sideshow apart from the real problem.

The goal here should be a world where women never feel like they have been raped. Apart from deciding who to punish, we don’t have to think about whether a woman who says she feels raped is lying. If she feels it then it’s real to her. I want that to not happen.

The central idea about overt consent is that women might be scared to say no. Men who have good will are supposed to be able to tell from body language that she means no even if she won’t say no, but that’s too hard for a court to deal with, so it’s rape unless she says yes.

But I say, if she’s scared to say no then in the crunch she’s likely to be scared not to say yes.

A man of good will can tell from body language that she means no even when she says yes. But if she’s scared enough, she can be persuaded to provide seductive body language. Maybe not immediately.

It’s a step in the right direction, but only a small step. Anyway, the legal issue is mostly not about men who have good will, but men who are trying to provide themselves with legal cover. 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.

It’s a good step toward prosecuting men who have sex with unconscious or very drunk women, though.

I think in this case when you try to use the broken legal system to change the culture, you’re holding the wrong end of the stick.When the culture is changed the legal system will change to match it, after a delay. I’m not telling you that you shouldn’t get the law changed, go ahead. It doesn’t look like any big catastrophe. But we also need something better.

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Val 11.18.14 at 8:49 pm

@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.

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Collin Street 11.18.14 at 9:00 pm

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.

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Ronan(rf) 11.18.14 at 9:06 pm

” 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.

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LizardBreath 11.18.14 at 9:09 pm

Why should we focus on legal rights, when it is not going to work for us? We need another approach.

Cultural change, to reduce the number of people who are ever going to commit rape? I’m all for that — it’s hard but necessary. But this is a conversation about a particular change in the rules on college campuses: there’s something specific to talk about.

Did you have a particular topic to raise on how to change the culture that supports people in committing rape? Or were you just musing generally?

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MPAVictoria 11.18.14 at 9:16 pm

“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.

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J Thomas 11.18.14 at 9:17 pm

#465 geo

The sexual impulse, like the aggressive impulse, is frequently overwhelming. This is traditional wisdom: “The strongest oaths are straw to the fire i’ the blood.” Short of inducing physiological or neurochemical changes via drugs or surgery (or instituting infinite surveillance, as Brett cheerfully suggests), better sexual pedagogy is indispensable.

Thank you! At last, an idea!

I think affirmative consent is a useful step, notwithstanding JH’s astute and very tactfully expressed misgivings, but it’s too little, too late.

In one sense, it’s never too late. But I agree, it could have some value but it doesn’t do much.

I wonder if it might help if there were universal adolescent sex ed along these lines: “Listen, guys, we know it’s hard, it’s very hard, to deal with your sexual feelings. But girls, though they have slightly different bodies and slightly (in some ways) different sexual feelings from you, are otherwise EXACTLY THE SAME AS YOU, with the same feelings. Don’t push them — that’s bullying, which is something no decent person does.

And yet, a lot of guys do a lot of bullying on other guys who are even more exactly the same as them. Looking back at my high school friends, it seems like every time we did something particularly stupid somebody had to talk the holdouts into it, and there was a certain amount of hard sell involved.

And high school romance, back in those days — if a guy could get a girl to have sex with him then she would be his girlfriend. If he encouraged her to put it off, she might do it with somebody else and be *his* girlfriend and he wouldn’t have another chance with her until they broke up, months or years later.

And if he didn’t get her drunk the first time, it was like saying she was a bad girl who’d do it when she knew better. But if she could say he got her drunk, then she had an excuse. I’m glad those times are gone.

Arguing that normal people don’t bully each other sounds kind of like arguing that marijuana is a dangerous drug that will kill you.

And girls: most of you are smart enough not to drink and drive — 80% of drunk driving citations are for males. But to drink and flirt is equally dumb. In a sexual situation, it’s hard enough to know (and say!) what you want when you’re sober. Besides, even if you’re willing, sex is a lot less enjoyable when you’re drunk.”

That sounds good to me. I think girls should get a lot of experience with sober sex before they try it with alcohol or drugs or exhaustion etc.

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J Thomas 11.18.14 at 9:21 pm

#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?

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Val 11.18.14 at 9:33 pm

But what about the position that affirmative consent is a Good Thing? I’m not going to trawl back through all the nearly 500 comments this time, but from my prior reading, most female commenters (and some men) thought:
It’s Good, or at least OK, but on it’s own it won’t achieve much
It’s Good

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?

Really, why?

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Ronan(rf) 11.18.14 at 9:34 pm

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.

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Val 11.18.14 at 9:38 pm

Sorry the two positions that most women supported in my previous comment were – most women seemed to think “affirmative consent” was a good idea, but some thought it might not achieve much on its own.

(Think the way I said it before was not quite clear)

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

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Ronan(rf) 11.18.14 at 9:57 pm

“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.

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Lynne 11.18.14 at 10:01 pm

Way up thread I cited the YWCA statistics on sexual assault reports (it isn’t called rape in Canada any more): According to the YWCA, of 1000 sexual assaults in Canada, 33 are reported, 29 are recorded as a crime, 12 have charges laid, 6 are prosecuted and 3 are convicted. No wonder so few women report being assaulted.

That is why I am not concerned that this policy change will cause serious problems. Women hardly ever report rape, much less more minor offences, and when they do, rarely does anything like justice result.

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J Thomas 11.18.14 at 10:02 pm

#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.

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Ze Kraggash 11.18.14 at 10:13 pm

“But what about the position that affirmative consent is a Good Thing?”

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. Something like what geo said, perhaps: more awareness, more respect, better social skills. But it’s hard to do: people are more socially isolated now, and you don’t learn this stuff from nintendo.

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Ronan(rf) 11.18.14 at 10:19 pm

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.

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LizardBreath 11.18.14 at 10:19 pm

First, it’s Holbo, no ‘r’. (I hate correcting misspellings of my own name, and am much happier if someone else points it out. Hopefully, he feels the same.)

I’ve looked at the Canadian law he linked, and I think it’s slightly inferior to laws or rules actually mandating affirmative consent, although close enough that if applied in good faith the inferiority wouldn’t make much of a difference. The relevant text is:

No consent is obtained, for the purposes of sections
271, 272 and 273, where(a) the agreement is expressed by the words or conduct of a person other than the complainant;(b) the complainant is incapable of consenting to the activity; (c) the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority;(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or(e) the complainant having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to
continue to engage in the activity

The issue I have is with (d), which, depending on how people applying the law choose to interpret it, could be read to mean that silence gives consent — if neither consent nor non-consent is clearly expressed, then the default is consent. And then we’re right back in the current status quo, questioning whether a complainant was forceful enough in expressing lack of consent. There is what looks like commentary text following the statutory language, which is reassuring, and suggests that the statutory language isn’t intended to be interpreted like that, but it’s commentary rather than the statute.

The unclarity of the OSU and CA codes seems to me to be overstated, as well. To get into a troublesome case, we have to invent some very strained hypotheticals. In the real world, they both seem perfectly adequately functional to me.

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LizardBreath 11.18.14 at 10:20 pm

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

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The Temporary Name 11.18.14 at 10:30 pm

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.

As it is, people find all sorts of wiggle room in what’s preceded this, and not often enough to the benefit of people who are raped. There’s all sorts of law, policy, contract, and code out there in which people have to find a thing reasonable or un-; you don’t need to nail down all the particulars – eyebrow raise? lean in for snuggle? – to understand the intent of a document. SB 967 is not really so vague.

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The Temporary Name 11.18.14 at 10:31 pm

Or, what LizardBreath said better.

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J Thomas 11.18.14 at 10:32 pm

#489 LizardBreath

I’ve looked at the Canadian law he linked, and I think it’s slightly inferior to laws or rules actually mandating affirmative consent, although close enough that if applied in good faith the inferiority wouldn’t make much of a difference.

Thank you!

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

…if neither consent nor non-consent is clearly expressed, then the default is consent. And then we’re right back in the current status quo, questioning whether a complainant was forceful enough in expressing lack of consent.

I will say again, pending evidence from Collin Street or anybody, this law can help to protect people who are unconscious, drugged, drunk etc. But for people who are scared to say no, it’s only a tiny step to be scared not to say yes.

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LizardBreath 11.18.14 at 10:33 pm

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!

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js. 11.18.14 at 11:11 pm

LizardBreath’s point @489 is well-taken, but it’s maybe worth noting that in lots of discussions (in IHE, Pollitt in the Nation, etc.), Canada’s sexual assault law is treated as an implementation of the affirmative consent standard. (I’m on my phone right now and it’s a pain to link, but I might do later.)

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js. 11.18.14 at 11:59 pm

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.)

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J Thomas 11.19.14 at 12:31 am

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

I have some beginning ideas along those lines.

To reduce the number of women who feel raped, we need to know something about rapists. This data is hard to get, because it’s predictable that known rapists will lie, falsify psychological tests, etc.

Here’s my best guess. A small percentage of men do violent rape. Here’s how I imagine that: They are getting a giant thrill. They are being utterly antisocial, basicly betting their lives that they can get away with it. Go to jail when the wrong people think they are guilty, and they are unlikely to come out alive. Betting everything. The ultimate gamble. The adrenaline rush may be the main payoff. The sex could be secondary, even a sort of excuse. They need some overt reward to justify the whole thing, and if they stole large amounts of money there would be much bigger efforts to catch them. They typically repeat rapes a lot. They want that experience over and over. Some of them eventually get caught.

There could be lots of variations on that. Antisocial rapists don’t have to be alike. I think this is a good first pass, subject to correction from real-life data.

Then there’s something more like date-rape. A man — often one known to the victim — wants sex considerably more than the victim does. One way or another he persuades her to give in. She doesn’t want to, but she goes along. He doesn’t think he’s a rapist at all, he thinks he’s a forceful negotiator etc.

The first group will be hard to deal with. We probably can’t influence them much by changing the culture because they think they’re outside the culture. It might help some to give them alternate sources of excitement.

The second group is open to persuasion. Like, the first might have already decided to kill his victim. She might be able to help identify him. And it increases the stakes. If you do everything he wants just like he wants it, and he might kill you anyway, your odds of survival might not improve at all with him. The second has not thought about disposing of bodies and has no plan. Not unlikely there are witnesses to say he was the last person you were seen alive with. Etc. He isn’t going to kill you on purpose and he doesn’t want you to have important injuries. He doesn’t want to break your arm or your leg and then have sex with you. He doesn’t want to discuss why he broke your arm with the police, he doesn’t want them involved at all. He might slap your face, not intending any bruises. Or your breast, likewise. Or what he thinks of as a jolly spanking.

The worst he will do if you tell him no, is roughly the same thing he’ll do if you don’t tell him no.

These are two different groups of men and culture change should be quite possible with the second group. The big issue I see in the USA is that we have two big cultures, call them Red State and Blue State. The Reds teach men that no does not necessarily mean no, it only means no when a woman actually means it. They aren’t going to change real fast. They aren’t going to change to MPAV’s sex-positive culture real fast either.

Probably we need to teach everybody that there are these two different cultures and to get it clear which culture people are from. In Blue culture a woman will come out and say yes if she means yes. In Red culture she mostly won’t. Don’t assume that no means yes from a Blue woman because she will do things you don’t like if you try it. She actually means no, or she won’t say no. Women can be raised Red and still mean it when they say no, too.

It might likely go better if we can get people sorted out that way.

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Val 11.19.14 at 12:45 am

@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!)

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Ronan(rf) 11.19.14 at 12:56 am

“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.”

I assume that’s in response to my above (although I didn’t use those words) Of course it’s confirming your thesis in part, I was responding specifically to your questions about male privilege as best I could. Is it part of it, sure. Is it all of it, I doubt it. The problem with emphasising privilege *only* is that it works as an ad hominem (the reason for your view is your gender) Of course the persons gender is *part* of it, but again – there are a variety of arguments here (ranging from awful to good), made by different people. These arguments live on their own and can be refuted on their own, on the basis of whether they make any sense.

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engels 11.19.14 at 1:01 am

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…

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js. 11.19.14 at 1:07 am

I’d say that ‘Ze Kraggash’ is really the more relevant clue.

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Brett Bellmore 11.19.14 at 1:11 am

“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.

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Saurs 11.19.14 at 1:16 am

No need to speculate or guess about rapists; they continue to be a viable subject of academic research. Here’s the oft-referenced Lisak and Miller paper (referenced so often, in part, because of Thomas Millar’s “Meet the Predators“; here, incidentally is Millar himself on affirmative consent which has some additional useful citations).

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J Thomas 11.19.14 at 1:45 am

#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.

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J Thomas 11.19.14 at 1:48 am

#501 js.

I’d say that ‘Ze Kraggash’ is really the more relevant clue.

I don’t see what his being a Robert Sheckley fan has to do with it.

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engels 11.19.14 at 1:53 am

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.)

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J Thomas 11.19.14 at 2:03 am

#503 Saurs

Here’s the oft-referenced Lisak and Miller paper (referenced so often, in part, because of Thomas Millar’s “Meet the Predators“; here, incidentally is Millar himself on affirmative consent which has some additional useful citations).

These studies depend on self-reporting by rapists. So they contain unknown biases. We might as well go ahead and look at the implications that would arise if their data was accurate, but it’s important not to trust them.

What they do is what works. They rape their drunk acquaintances because it works. They rape their drunk acquaintances because we let them.

We need to revoke the rapists’ social license to operate.

Regardless of any suspicions about the data, I like his results. His idea looks sensible to me and it doesn’t depend much on the numbers.

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Sebastian H 11.19.14 at 2:05 am

“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.

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Anarcissie 11.19.14 at 2:06 am

engels 11.19.14 at 1:53 am @ 506 — 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). It seems like the departure was in sexual matters, where the party whose consent was in question had to utter a vigorous, explicit protest, and perhaps physically leave the presence of the other party in order to withdraw consent. ‘(Only) yes means yes’ makes sexual consent more like other kinds. I think this is one of the things that bothers those who are bothered.

510

engels 11.19.14 at 2:06 am

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Anarcissie 11.19.14 at 2:15 am

Brett Bellmore 11.19.14 at 1:11 am @ 502:
‘… 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….

Consent is first, a mental state, and second, an expression of that mental state — in other words, a feeling. If it is legally or politically or administratively important, then it must not be deprecated by quotation marks, as some sort of irrelevant epiphenomenon, but must be given space in which to fully appear.

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engels 11.19.14 at 2:17 am

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).

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Sebastian H 11.19.14 at 2:25 am

Anarcissie, I suspect sex came before contracts. But consent doesn’t have to be overt and explicit in contracts either. Saying “I’d pay you $5 to drink this glass of milk” can form a contract for $5 by drinking the glass of milk. Its a bad analogy because doing things for people isn’t always a contract, but in any case consent is often inferred when the person does the thing if they could have chosen not to. The real question is what kinds of coercions count toward sexual assault. No one is currently arguing that threatening to pout constitutes rape if the woman gives in.

Affirmative consent is a great thing to try to aim for culturally. It encourages people to think about their partner more and not just their own sexual needs/desires. But the problems I have with it are that it is drastically different from actual sex in practice, it doesn’t address the real reason rapes are hard to prosecute (that they are often he/she said issues–which can and will be lied about by rapists), it opens up a huge area to prosecutorial whim, and the inevitable selective enforcement doesn’t have good procedural safeguards in the ‘non-criminal’ proceeding where they are just going to publically kick you out of college–quite probably contributing mightily to ruining your life.

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Sebastian H 11.19.14 at 2:26 am

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

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engels 11.19.14 at 2:32 am

Also the aim of bringing sexual offences law into harmony with contract would seem to be an odd one (and possibly rather reactionary)…

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John Holbo 11.19.14 at 2:52 am

A few quick responses. Saurs: “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.”

Well, eminently reasonable people. You yourself think the law relies on reasonable people to apply it, and that administrators will probably be reasonable (I am a bit more skeptical, but let that pass). 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. I initially took it to be more radical in its implications, by design. She has convinced me that was probably just a case of a philosopher reading the CA law without sufficient allowance for how what it says will be applied, in practice, i.e. when reasonable lawyers (gentle or men or otherwise) get their hands on it.

To my mind, the dispute has narrowed to whether the CA law is liable to unintended (or at any rate more radical) readings. Are lawyers or administrators going to read it the way I honestly thought it was supposed to be read (and was, with reservations, ok with it being read) – i.e. as effectively legislating a fairly broad-based shift in sexual norms? Or are they going to read it the way Lizardbreath says was probably intended. I am happy to admit Lizardbreath is probably right. I have no good reason to think she’s wrong. The thing about the future is that it hasn’t happened. So we lack the sort of data that would really settle the issue.

At the start of the thread I was conflating positive consent laws, in the abstract, with the Cali case, which was the only one I had studied (albeit cursorily) and read about. That was not such a good thing to do, especially if I misread the Cali law. At any rate, on reflection it’s obviously not the case that positive consent laws HAVE to be framed in the fairly radical way I took the CA law to have been framed. The Canada law is not. I take it to be a positive consent law, and others apparently do, too. Again, the link:

http://www.sascwr.org/files/www/resources_pdfs/legal/CRIMINAL_CODE_OF_CANADA.pdf

Interestingly, Lizardbreath sort of disagrees. She sees clause (d) [see link and her comment] as a kind of loophole: “depending on how people applying the law choose to interpret it, could be read to mean that silence gives consent — if neither consent nor non-consent is clearly expressed, then the default is consent. And then we’re right back in the current status quo.”

The Canada law clearly establishes one thing that affirmative consent laws are rightly concerned to: namely, ‘yes’ can be always be changed to ‘no’. This is one step beyond ‘no’ means no. But it may be short of ‘yes’ means yes. The Canada law also rules out a ‘no’ that lapses into silence, i.e. a kind of passivity. ‘No’ followed by nothing does not mean yes. That seems to leave cases in which the alleged victim is literally completely passive throughout the entire encounter, giving no ‘yes’ or ‘no’ indications whatsoever. In practice, I think we can be pretty sure most such cases are going to be due various sorts of incapacitation, which is covered by clause (a). People incapable of consenting can’t consent. But suppose someone is sober and awake but totally passive throughout the entire encounter (realistically, out of shock or fear, I suppose, but it doesn’t really matter what the reason is.) Is there any way to read the law as permitting a total lack of signalling as ‘default’ consent? I don’t think so. It defines consent as: “the voluntary agreement of the complainant to engage in the sexual activity in question.” ‘Voluntary agreement’ implies some degree of positivity as an ingredient of consent, which seems sufficient to rule out total passivity as a case of consent.

That’s pretty much it for me. I have been converted to the view that the CA law, rather than being a big deal, is not SUCH a big deal. I think the Canada law is framed better. (Of course, if we want the radical thing I was imagining, the CA law is better, because – hell – the text might support it if you squint.)

I anyone feels they have made some devastating objection to my foolishness, to which I have given no sufficient response, please re-indicate – as briefly as you can – wherein you think the foolishness consists. I try to give satisfaction. But thread is long and life is short.

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engels 11.19.14 at 3:35 am

it is drastically different from actual sex in practice

Could you spell this point out (our other learned friend, Lizardbreath, has stated the opposite [#390])?

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LizardBreath 11.19.14 at 4:25 am

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.

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js. 11.19.14 at 5:02 am

engels @506:

1. Here, more or less at random, is Pennsylvania’s rape statute. I think the Canada statute is considered to be an affirmative consent—or positive consent—law is because it (more or less) explicitly makes non-consent the default position in a way that the PA law doesn’t (tho see LizardBreath @489). And it’s my understanding that most state laws in the US are closer to the PA model than the Canada model. And again, my sense is that a lot of the criticism of the “ordinary legal concept of consent” in the US context is that non-consent is not the default position, at least explicitly. How much you think the affirmative consent standard departs from the ordinary legal concept will depend on what you think about that.

2. I’m not sure what’s going on with the “double plus ungood comrade” bit—I mean get the reference, I just don’t know if it’s directed at me—but in general, if I’m responding to someone, it’s a pretty reliable indicator that I like or at least respect them as a commenter; I tend not to waste time fucking around with the Brett Bellmores and Ze Kraggashes of the CT-world.

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engels 11.19.14 at 5:17 am

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.)

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Sebastian H 11.19.14 at 5:35 am

I just reread the beginning comments and unless it was corrected somewhere, a seriously wrong impression has been gotten.

I’ll quote dsquared because he says it pithily, but unless I’m wrong lots of people seem to agree:

“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.”

The California law doesn’t change for criminal liability. It changes for disciplinary hearings in schools. You can’t be convicted of rape and go to jail for it yet (though lots of people are talking about it in that context). You can get very publically expelled from a college though, something that will cause problems for you ever getting a college degree. You get that with a burden of proof well below “beyond a reasonable doubt”, without the benefit of a well trained investigator, without the benefit of someone who is used to interpreting the law (and understands the precedent on it) and without most protections of a regular court proceeding.

So the good news is you won’t have your life ruined–by going to prison–if the administrator gets things wrong. You might have trouble ever getting a degree and you will still owe your college debts. The bad news is that the likelihood of things going wrong seems quite a bit higher with the change in the burden of proof and a mandated sex practice well out of step with how lots of people seem to do it.

Which brings me to engels’ question.

“Could you spell this point out (our other learned friend, Lizardbreath, has stated the opposite [#390])?”

Sure, this isn’t my sex practice, but from friends of both sexes I understand that this isn’t a shocking scenario:

1. Man in regular relationship (especially early on) suggests sex.
2. Woman suggests too tired
3. Man whines
4. Man touches woman trying for arousal.
(we’ve very likely already had a sexual assault under strict readings of the law)
5. Woman kind of brushes him away.
6. Man stops but pouts.
7. Woman engages in some way to stop the pouting.
8. Man re-initiates attempts at sex
9. Woman gives in with widely varying ideas about how much she really wants it, often not verbalized or really even explicitly dealt with other than letting it happen.
(very likely could be characterized as sexual assault if you want to later under the wording of the law).

Now, this is certainly not a good way to have sex. If we want to make this scenario less likely through general social pressure, I’m all for it. If we want to mock men who do this, I’m all in.

I’m not sure I’m all for expelling someone out of college and publically marring their life for this allegedly very common scenario. Especially not on a reduced burden of proof and a horrible level of procedural protection.

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js. 11.19.14 at 5:38 am

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?

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js. 11.19.14 at 5:39 am

My last is a response to engels @520.

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John Holbo 11.19.14 at 5:42 am

“I’m not sure what you think counts as radical”

I can say quite precisely what I took to be radical. I took the law to be deliberately targeting not just the guilty but the innocent.

Not in the sense that it aims to harm or punish the innocent (sit down, Brett!) but in the sense that it aims to alter the behavior of the innocent by mandating what is, in most contexts, a perhaps redundant degree of explicitness about consent, such that you end up in a place in which you could have actual consenting sex between adults (by any reasonable, non-legal standard) without having it in a legal sense. I took the law to be actually aiming to achieve that division.

I see this as a highly distinctive, rather radical (albeit legally counterfactual, if Lizardbreath is right) strategy for tackling the problem of sexual assault. As I wrote in olden times (that is, nearer the beginning of the thread), the logic would be (or might be) to give the small group of serious offenders less cover – less plausible deniability. If sexual norms shift generally, such that everyone, as a matter of ordinary course, is more explicit and upfront and beforehand about this stuff, then lies that try to hide guilt under ambiguities of implicitness are more readily exposed.

Possibly it was wildly silly of me to think the law could actually aim, in any way shape or form, to give teeth to the complaint ‘there was a criminal lack of sex talk in their bedroom’. (I am making a joke, not the mistake of assuming only ‘sex talk’ is explicit consent, by the way.) But, in my defense, I was not alone. See here, for example:

http://nymag.com/thecut/2014/10/oh-yes-means-yes-the-joy-of-affirmative-consent.html

“The new law makes life easier for both them [nice guys, not rapists] and the women they sleep with, because it creates a compelling reason for both parties to speak up and talk about what they like. In essence, the new law forces universities — and the rest of us — to acknowledge that women like sex. Especially sex with a partner who wants to talk about what turns them on.”

That is, this law compels different behavior from the innocent, if they want to stay on the right side of the law. It isn’t just there to deter the actually guilty.

Now I actually don’t think it would be a bad thing if the law did this. I don’t think the law, if it did this, would be fundamentally ‘illiberal’, as some critics have said.

It wouldn’t be a cruel trap for men. What the law asks you to do, even if it is a bit extra, is quite simple. If you are worried about getting in trouble for not doing the simple thing, then DO THE SIMPLE THING. (This is like the scene in which Dirty Harry rages about the criminal going free because he didn’t read him his rights. ‘Geeze, Harry, if you care so much, why didn’t you just read him his rights? Was it going to break your jaw to breath a few lines of text?’)

Nevertheless, a law that attempts to change the behavior of the guilty and innocent alike is a different sort of law. Were I right that the law did this thing (which probably I am not) then I would predict backlash from certain quarters, and some potential abuses, as a new sort of legal regime took root and social norms adjusted to fit. Big change doesn’t usually come without some pain.

That’s what I meant by ‘radical’.

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bad Jim 11.19.14 at 5:56 am

the affirmative consent standard seems to me to clearly make life importantly better for a significant class of truthful complainants

Yay, Lizardbreath! Exactly. I’m actually hopeful that this regulation – not a law – will be radical in its implications. The status quo is intolerable, and I find it both risible and offensive that so many men find it threatening.

I’m not a follower of the ancient hippies, and in some respects find problematic the injunctions “That which is hateful to you, do not do to your neighbor” or “Do unto others as you would have them do unto you”, but it’s fascinating to see the objections being raised against them.

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bad Jim 11.19.14 at 6:13 am

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.

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Consumatopia 11.19.14 at 7:27 am

Ugh, can we at least all agree that that Pennsylvania standard js linked sucks? It’s not even no-means-no! Forcible compulsion! My state sucks!

If we’re predicting backlash, I think (OSU/ CA) affirmative consent is a red herring. Sebastien H is actually a pretty good canary here–what they’re complaining about is more the apparent lack of “due process”–the college disciplinary hearings instead of police and courtrooms, a preponderance of evidence vs. beyond a reasonable doubt. I don’t have an informed opinion on how reasonable those complaints are. I do note that in this altered context, it doesn’t make sense to assume good faith on the part of disciplinary hearings when the argument is over the hearings themselves.

On the subject of how “radical” the CA laws were going to be, it’s worth noting that an earlier version of the bill actually hinted towards Antioch College (verbal consent at every stage) rules:

Initially the bill, introduced by state Sens. Kevin de Leon (D-Los Angeles) and Hannah-Beth Jackson (D-Santa Barbara), called for consent given “by words or clear, unambiguous actions,” and said that “if there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved.” The bill noted that relying on “nonverbal” signs could lead to misunderstandings.

(Emphasis added. From here: http://www.latimes.com/opinion/editorials/la-ed-affirmative-consent-20140525-story.html disclaimer: I don’t think the rest of the editorial makes sense at all.)

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Ze Kraggash 11.19.14 at 8:40 am

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.

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J Thomas 11.19.14 at 9:43 am

Arguing about whether this is just a law for college administrations is irrelevant in the medium run.

Our basic argument is about whether this is a good idea, and just what the idea is. If it is a good idea, then it will quickly turn into an argument about changing state and federal law. Saying “This is strictly about colleges in some states and nothing more” is disingenuous unless somebody wants to argue that it’s a good idea for colleges but not a good idea for states.

The intention is to change the culture. Kind of like we changed the culture about drinking and driving.

But almost everybody agrees that drunk drivers are dangerous. We had to balance the danger to random other people on the road, versus the convenience for drunks.

About rape, we don’t want to just change *our* culture. We want to change Brett Bellmore’s culture. (To pick a familiar name out of the hat.) We want to change Rush Limbaugh’s culture. We want to change Dolly Parton’s culture.

In at least one culture, good women do not consent to sex outside marriage. If you proposition a woman, you are saying that you think she is a bad woman who might say yes. So if she actually does want to have sex with you, the first time she needs to get drunk and let you rape her or else admit that she’s a bad woman.She might put up a token show of resistance to prove to you and to herself that she is a good woman.

Of course all this hypocrisy causes problems, but then it’s easy to criticize somebody else’s culture. They’re changing in their own directions and they don’t want you to change them. (Ah, if your local police happen to mostly belong to that culture? And they’re supposed to investigate when a liberal bad woman says she’s been raped?)

We probably need a way for people to openly choose which culture they want to be part of.

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. That might not work, because it’s possible that the men who currently get women drunk to have sex with them, would switch to violence or something. But if the majority of rapists think that getting women drunk and having sex with them is OK, but other forms of rape are not, then it would have a big effect. It would inconvenience a lot of people, of course. Just like most of the the time that drunk drivers drive home they don’t have accidents, most of the time that men and women drink together nobody gets raped. But if we’re serious about stopping rape, this would make a great big change at the cost of some social inconvenience.

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Brett Bellmore 11.19.14 at 11:02 am

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.

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Collin Street 11.19.14 at 12:30 pm

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.

But this is the standard we use for crimes against property. 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. Same with [non-rape] crimes against the person; “I thought they wanted me to punch them” would be met with a strong, “on what basis did you conclude that”.

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

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Lynne 11.19.14 at 12:48 pm

@ 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.

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Sasha Clarkson 11.19.14 at 12:52 pm

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

A breath of fresh air to disperse the dense and turgid fog of casuistry! :)

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LizardBreath 11.19.14 at 12:53 pm

“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.

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engels 11.19.14 at 1:03 pm

it aims to alter the behavior of the innocent by mandating what is, in most contexts, a perhaps redundant degree of explicitness about consent, such that you end up in a place in which you could have actual consenting sex between adults (by any reasonable, non-legal standard) without having it in a legal sense

That was also my understanding, and I think Harry’s and his students (strict liability, etc). From Lizardbreath’s comments, I then stated to think this was incorrect. Sebastian’s example possibly doesn’t contradict this because it’s something many people would call sexual assault anyway (the woman doesn’t voluntarily agree to participate but ‘gives in’ to pressure iirc).

Js. possibly getting OT and a bit out of my depth but in general the prosecution had to prove its case in a criminal trial and changing the Denton of consent won’t change that (but cf Sebastian’d point about the different standard of proof that operates at a disciplinary hearing).

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engels 11.19.14 at 1:05 pm

‘the definition of consent’

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Saurs 11.19.14 at 1:11 pm

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

Yep.

The trouble is, for a great number of people rape is not distinct from sex so much as it is a subcategory of it. And, pace some commenters in this thread, women (especially but not exclusively) are assumed to exist in a more-or-less constant state of consent. Likewise, it is impossible for some men to imagine cultivating and maintaining a relationship with a woman that is not intimate or inherently sexual. Hence the standard victim-blaming defense: what was the victim doing, being near the rapist, unless they wanted (some kind of) sex, wanted to be “persuaded.” Which inevitably leads to the wrist-murdering hand-waving about Hard to It Is to Gauge Consent and how awful it is that women are encouraged to be such prudes, the whinging about how asking permission and ensuring the enjoyment of your partner(s) ruins all the fun.

Nevertheless, while the data can’t be entirely precise because so many assaults go unreported, 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.

Which, y’know, surprise: that’s the rape-enabling narrative affirmative consent guidelines hope to challenge. And for the dudes who don’t know what consent looks like: wahey! There’s even a definition built in! What could be easier?

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.

But weren’t you listening to all the experts in this thread, who are keen to inform you that women like being “dominated” and bullied into sex (in order to avoid slut-shaming, or something). What’s a guy to do? Just… not fulfill her rape fantasies that he’s sure she has because women are a monolith? Puritan! Etc.

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J Thomas 11.19.14 at 1:19 pm

#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.

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Saurs 11.19.14 at 1:23 pm

Yeah, the second half of this thread is just lousy with evidence-free pontificating (suddenly you’re an expert in this?), dehumanizing hate speech barely disguised as evolutionary psychology-rich just-so stories as old as time, and the sound of power wanking. Could some of you guys, just, get a room? And lock the door behind you? And never leave?

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engels 11.19.14 at 1:43 pm

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.)

541

MPAVictoria 11.19.14 at 1:47 pm

“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. “

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.

/Keep shining you crazy diamond.

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John Holbo 11.19.14 at 2:07 pm

LizardBreath: “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.”

I had in mind both sorts of cases.

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John Holbo 11.19.14 at 2:27 pm

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.

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engels 11.19.14 at 2:35 pm

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’.

545

LizardBreath 11.19.14 at 2:47 pm

I had in mind both sorts of cases.

Okay, this is progress. Let’s call them Case A and Case B. To the extent that we’re changing the behavior of people in Case B, that’s the explicit goal of the standard, and it’s a good thing, right? Serious problems are all about whether we’re oppressing the people in Case A.

I’m going to try to draw the line between Case A and Case B as follows: completely unobjectionable, fully consensual sex is sex where both parties are absolutely convinced for good reason (that is “Everyone wants me to fuck them at all times” is not a good reason, even if it’s a sincerely held belief, and so on) that the other party consents. Frightening and disturbing sex is sex where one party is going ahead despite not having a well-supported belief that the other party consents. Not everything in Case B is going to involve actual non-consent, but you’ve always got one party proceeding while at least recklessly indifferent to whether the other party consents.

So if you’re in Case A (where most actual sex happens), you have good reason to be absolutely convinced that the other party consents to everything you’re doing (leaving to one side minor boundary-establishing violations as discussed above). Without such a good reason, you’ve dropped out of Case A into Case B. Everything I’ve said about how affirmative consent describes the vast majority of ordinary sex already comes down to that 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. Anything I can think of that would be obviously not affirmative consent, would also be not enough to give a decent person the go-ahead to be sure their partner was consenting.

I can see an affirmative consent standard actually affecting the behavior of people who were comfortably in Case A before — while they did have good reason to believe their partners were consenting already, they get skittish about whether it’s good enough reason, and so they seek more explicit, probably more verbal consent than they would have had in the absence of an affirmative consent standard. These are Harry B’s charmingly commendable students, who say they are changing their behavior, but don’t mind it at all. But I’m confident that they mostly didn’t need to change their behavior to be safe from the disciplinary code, and the ones who did need to were the ones who were actually doing something that I’m happy to call wrong beforehand.

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LizardBreath 11.19.14 at 2:54 pm

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.

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William Timberman 11.19.14 at 2:55 pm

No one likes being cast as a character in someone else’s personal psychodrama. Of course, being human, we have no reliable way short of becoming a hermit to avoid occasionally being forced to play the roles assigned us by obvious loonies, often when it’s least convenient to our own self-esteem. There are degrees, of course, and generally observed limits, enforced in mild cases by social ostracism, or in extreme cases by legal sanction.

The trouble comes when the looniness becomes more general — when a significant number of people, for example, decide that its cool to go armed and dressed as Rambo to political rallies, or to shoot doctors who perform abortions — and the law, in its wisdom, decides to confirm this as normal behavior (I live in AZ) or to look the other way.

Despite all the agonizing over the legal niceties, most of it by men, the issue seems simple enough to me. Women are asking us to not to let our false fears of a loss of male self-esteem stand in the way of their need for full autonomy in our society. In my estimation, based on all sorts of evidence presented here and elsewhere, that need is genuine, and we deny it at our peril. We should listen to what they have to say. Just listen. That’ll do for a start.

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J Thomas 11.19.14 at 3:00 pm

#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.

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Consumatopia 11.19.14 at 3:04 pm

Harry B’s students seemed to be talking about Antioch College policy, verbal consent at every stage, which definitely does seem aimed at “changing the behavior of people having completely unobjectionable, fully consensual sex”, under the bicycle-helmet logic ZM offered.

I thought ZM’s logic was persuasive and I hope that schools adopting OSU/CA style rules today will adopt Antioch style rules tomorrow, with those rules becoming the norm for society at large as that generation grows up.

550

engels 11.19.14 at 3:07 pm

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.)

551

LizardBreath 11.19.14 at 3:10 pm

Those all seem to me like situations where explicit verbal consent would be necessary.

552

Brett Bellmore 11.19.14 at 3:13 pm

“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.

553

engels 11.19.14 at 3:14 pm

Lizardbreath, so you deny that in the absence of that, they are consensual?

554

MPAVictoria 11.19.14 at 3:23 pm

“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.

555

js. 11.19.14 at 3:32 pm

They might have a prior verbal agreement which includes agreed-on signals for retraction.

“Prior verbal agreement” sounds a lot like “explicit verbal consent” (tho obviously people’s intuitions about this case could differ).

556

J Thomas 11.19.14 at 3:51 pm

#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.)

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Anarcissie 11.19.14 at 3:51 pm

engels 11.19.14 at 2:35 pm @ 544 — Consensual BDSM is by definition consensual. Nonconsensual acts of the same type would violate a multitude of laws besides those against rape. One could argue reasonably that they were not BDSM at all.

In the case of prostitution, one must look at the situation of the prostitute. Some prostitutes are forced into the practice, for some it’s just a job which happens to be preferable to other jobs, still others positively enjoy the work. Nominally, however, it is a voluntary, fully consensual business transaction.

In regard to consent being informed, where I live there is periodically excitement about people who specialize in preying on the elderly whose faculties may be impaired by involving them in various kinds of contracts which they don’t understand, and thereby taking their money or property. There are laws and various administrative and police actions which are supposed to counter these predations. The underlying assumption is that a valid contract can be made only by an informed party not under conditions of duress or fraud.

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John Holbo 11.19.14 at 4:02 pm

I think you’ve got what I was thinking, Lizardbreath. I was writing out the following, to explain what you call Case A, when your comments went up. (I’m worried we don’t have enough comments, so I’ll post it anyway, even if it repeats.)

Knowing there’s a stringent standard, especially if there’s genuine uncertainty about how stringent (and maybe we aren’t sure a hyper-literal readings has no administrative traction), makes everyone considerate and inclined to err on the safe side – even people who, for obvious reasons, have seriously no reason to worry. (Because they are cuddlers who might reach for a stray boob now and again! No one is sending them to cuddle jail.) This law is a marker laid down not just to scare bad people – yes, that! – but also to set a high bar in honor of a kind of positive ethos as to what healthy, normal sex should be like. It should involve a lot of communication. “Stop! Why not ask before reaching for that boob?” (That could be the slogan for a public education campaign about sexual assault! I’m imagining a Sid Bass-style arm-and-boob graphic to go with.)

A positive ethos applies to everyone – cuddlers and kinksters and creeps and criminals. (Of course, as we go down the line, the positive ethos is honored more and more in the breach. That’s when the other side of the law comes into play.)

All this is fine and healthy. I agree with Ann Friedman: positive consent is the hotness! But it would freak some people out to find this affirmative attitude rolled up into a sexual assault law, just for starters.

Case B is a bit more complicated. On the one hand, I don’t call that sort of thing innocent (it depends.) On the other hand, I certainly don’t think all forms of potentially unhealthy, disturbing sex should be criminalized (or even disciplined by college administrators). On balance I have no problem with it coming out about like so: if you really want to be safe from accusations of assault or rape, don’t be always walking right up to the rape line. People have rights to privacy and to live their sexual lives in freaky ways, but they don’t, so far as I can see, have an absolute right to play chicken with the law without that increasing the risk they may get in trouble with the law. This is actually a non-trivial claim, even if it sounds sort of obvious. When it comes to free speech, for example, we seriously tell the law to back off – to err on the side of tolerance, even if that means some bad stuff happens. We could do that for rape. We could say: hey, some people make kind of rape-y lifestyle choices, without being actual rapists, and they shouldn’t have to pay for that. So let’s back the rape law away from all that private biz. But this just seriously isn’t a candidate for a fundamental right, because it so directly involves harm to others. In a consequentialist head-to-head between ‘you are cramping my rape-y yet innocent style’ and ‘1-in-5 women in college are sexually assaulted’, I’m willing to go with: stop the assaults.

Bit of personal background. I’m listening to Perlstein’s “The Bridge” on audiobook right now. Rise of Reagan. I’m mentally marinating for hours and hours in backlash cultural politics, circa 1976. I’m seeing backlashers under the bed. One reason why I literally put no serious thought into the bit of the post where I said there would be ‘serious problems’ was that, in my mind, the claim is trivial. The Cali law is liberal social engineering. Of course there is going to be backlash. I see now why that was unclear and set people off. But when people started protesting, I was like, ‘seriously, you think the sun isn’t going to rise tomorrow?’ (There was also the major problem that I only knew about the CA law and I equated my questionable reading of it with ‘positive consent’ in general. But now I am better educated about how they do things in Canada, for example.)

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engels 11.19.14 at 4:07 pm

Gotta go offline for a bit now.

Js. I think not because explicit consent has to be ongoing. Anarcissie, I’m sorry if this sounds dismissive but could you try reading my comments again and the statements Lizardbreath made that they were addressed to? Your reply doesn’t seem to bear any relation to that disagreement.

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John Holbo 11.19.14 at 4:09 pm

And again, if Lizardbreath is right, this expansionist reading of the CA law is my invention. But some other people have been thinking it. (Maybe some college administrators read Ann Friedman in “New York Mag”, rather than Lizardbreath comments at CT.) It’s interesting to think whether my imaginary law would be a good law.

Also, I mixed my marker/high-bar metaphor in the previous comment. What I meant was that if my reading of the CA law were right, the fascist octopus of sexual assault would have sung its swan song.

561

Consumatopia 11.19.14 at 4:09 pm

That seems to leave cases in which the alleged victim is literally completely passive throughout the entire encounter, giving no ‘yes’ or ‘no’ indications whatsoever. In practice, I think we can be pretty sure most such cases are going to be due various sorts of incapacitation, which is covered by clause (a). People incapable of consenting can’t consent. But suppose someone is sober and awake but totally passive throughout the entire encounter (realistically, out of shock or fear, I suppose, but it doesn’t really matter what the reason is.)

I don’t have the same difficulty imagining behavior during sex that is consistent with but not evidence of consent that you seem to have. (By this I mean the woman may or may not have internally consented, and has not communicated either consent or lack of consent, to put this in LB@96 terms.)

Going completely limp or rigid, or displaying “terrified motionlessness” is obviously not consistent with consent, and the text of the Canadian law might flag those as nonconsensual. But, without being graphic, someone might be physically reacting to sexual activity without necessarily intentionally responding to it. They might even be physically aroused. Perhaps someone acting this way consents to what is happening and is waiting to see what happens next. Or maybe they hate what’s happening and want it to end faster.

What’s worse, I don’t think this situation is even rare. I have never and would never have sex in ambiguous circumstances like that without clarification. I very much want to change laws and norms so that doing so would be abnormal and punishable. But I don’t think that this sex would violate Canadian law, and LB’s fears @489 look all too plausible. (Though I can’t blame them too much, my own state’s law is apparently much, much worse.)

562

J Thomas 11.19.14 at 4:19 pm

#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.

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J. Parnell Thomas 11.19.14 at 4:20 pm

560 lol

564

js. 11.19.14 at 4:21 pm

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

565

MPAVictoria 11.19.14 at 4:29 pm

“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.”

Nope. Nada. Nein.

Reread that exchange again J. He was complaining that no one cares about prison reform to reduce rate to a website full of leftists, all of who support prison reforms to reduce rape. That is stupid.

566

Brett Bellmore 11.19.14 at 4:34 pm

“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.

567

engels 11.19.14 at 4:42 pm

A positive ethos applies to everyone – cuddlers and kinksters…

To be clear about this (and to Js.) I don’t think it does and can. Admittedly limited understanding I have is that they generally discuss what is going to happen beforehand and agree on it, together with specific codewords for aborting things later. I don’t see that’s at all compatible with on going positive consent.

Anyway, would be very interested in Lizardbreath’s answer to #553 (but going off-line for a bit now as said).

568

J Thomas 11.19.14 at 4:51 pm

#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.

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LizardBreath 11.19.14 at 4:52 pm

553: In the absence of explicit verbal consent in the cases you describe, the active partner is at least being culpably reckless about the other party’s consent. There might be consent, but might not be, and the active party would not be justified in relying on it.

Your concerns about verbal consent given beforehand in a consensual BDSM situation are blitheringly idiotic. Obviously, verbal consent doesn’t have to be given continuously without a break — people are allowed to stop talking during sex, rather than keeping up a steady drone of “Yesyesyesyesyes…” If “I agree that I want to do X, Y, and Z with you, and I’ll say “W” if I want you to stop,” didn’t constitute explicit verbal consent because it wasn’t being uttered continuously during acts X, Y, and Z, that would mean that there was no such thing as explict verbal consent to anything if the person consenting every stopped talking.

I think I’m done with your hypotheticals — they’re strained and pointless, and don’t seem to me to be illuminating anything.

570

Dick Muliken 11.19.14 at 8:24 pm

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.

571

J Thomas 11.19.14 at 8:39 pm

#569 LizardBreath

If “I agree that I want to do X, Y, and Z with you, and I’ll say “W” if I want you to stop,” didn’t constitute explicit verbal consent because it wasn’t being uttered continuously during acts X, Y, and Z, that would mean that there was no such thing as explict verbal consent to anything if the person consenting every stopped talking.

Well see, when we talk about how we all need to get consent, that makes perfect sense. We all need to behave like reasonable adults about consent. Yes. Then it goes to what happens when things go wrong, how should the authorities decide who to punish. And you figure it doesn’t matter so much how it’s worded because we can trust the authorities to act like reasonable adults and do the best thing. I figure OK, they’ll release all their records so everybody can get a sense of how good a job they’re doing? It’s a rape case, and they’ll spill all the details? No, they’ll mostly keep the whole thing secret.

We had something like that 10 years ago with the Patriot Act. They were going to be responsible adults and only torture real terrorists who deserved it. They got secret torture chambers in europe etc, and they kidnapped people from europe and wherever to fill the torture chambers. Now apparently some of those people are still being kept because we don’t have enough evidence to convict them of crimes but it would be too expensive in money and world opinion etc to let them go. But the secret torture chambers are probably all closed because if there were new ones I’d have heard of them, right? And there was all that business about spying on the world including US citizens, and they lied about it….

I’m not sure I believe the authorities will secretly do the right thing. Get back to me on that in another 20 years.

So something has gone wrong and the authorities are involved. Usually when that happens there have been multiple failures by different people, and the authorities are supposed to sort it out. This one guy is the suspected perp. What should he have done?

First, he should have asked first about anything that might have upset her. He can’t expect her to tell him no because she might be too scared. But if he asks he and she says yes he has done his due diligence. He needn’t consider that she might be too scared to say anything but yes. If she says yes he’s OK.

But it isn’t enough for her to say yes ahead of time, because she might change her mind. If she changes her mind he can’t depend on her to tell him so. So he has to ask again and get a new yes, just before he does anything she might not like.

If he did all that then he ought to come out OK about active consent, right? Except, he’s still the suspected perp. Something has gone wrong. What could it be?

Separate from the details of the secret trial, affirmative consent looks just fine. I’m not sure about some of the details of enforcement.

572

LizardBreath 11.19.14 at 8:47 pm

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.

573

Bill Benzon 11.19.14 at 9:13 pm

Don’t know whether this has been mentioned here, yet, but Julian Blanc has been denied a visa to UK:

http://www.bbc.com/news/uk-30119100

“A petition to deny him a visa attracted more than 150,000 signatures ahead of his UK tour, due to start in February.

“Mr Blanc has apologised, saying his intention was “a horrible attempt at humour” taken out of context.

Crime prevention minister Lynne Featherstone said she was “delighted Mr Blanc won’t be coming to our shores”.”

574

Bill Benzon 11.19.14 at 9:14 pm

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

575

J Thomas 11.19.14 at 10:55 pm

#572 LizardBreath

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.

You agree about the secret trials? You think it’s proper that all details about rape cases be made public? I have a lot of doubts about that, myself. On the one hand if they aren’t public, you don’t know what kind of abuses might be going on. On the other hand, rape victims deserve a lot of privacy. I tend more toward the latter side.

Do you agree with me about what an alleged rapist should have done instead, to be innocent according to affirmative consent?

576

ZM 11.20.14 at 12:30 am

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. “

577

Patrick 11.20.14 at 1:35 am

ZM- If you want to claim that there’s context showing that the “elderly” passage refers only to elder abuse, uphold your side of the conversation and point it out. And no, the fact that their bold, unqualified statement that “elderly peopl”e cannot legally consent is not given “context” because they list the “elderly” next to children under 13. That makes it worse, not better.

Here is the link again.

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

The pertinent part is :

Circumstances in which a person CANNOT legally give consent:
(No matter what he or she might verbalize):…
…The victim is under the age 13 or is elderly

For the record- I completely agree that OSU probably intends this to apply to elder abuse, and not to all sex with the “elderly.” The context of MY statement was me pointing out how that their student code of conduct is really badly written, which makes it hard to determine exactly what they mean. This was one of the more egregious examples of badly written text. It should probably read something like, “Due to age or mental infirmity, the person is unable to understand the fact, nature, or extent of the sexual act in question.” Coming up with that language took me all of 10 seconds, presumably OSU could do even better. There’s a law school right on campus.

Just… repeating that, before someone accuses me of being a lunatic that thinks that OSU believes old people can’t legally have sex. Its been over a hundred comments since I last posted, and I know people won’t scroll up for context.

578

ZM 11.20.14 at 1:54 am

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.

579

engels 11.20.14 at 3:44 am

Lizardbreath, not sure if you’re expecting me to reply to that but just to set the record straight, the ‘blithering idiotic’ view you refuted isn’t one I hold (I’d like to think this might be because I’m not a blithering idiot…) I thought ongoing consent required checking in on your partner periodically for positive signs of digging what you’re doing. If it doesn’t require that, I’ll admit to being confused again as to what it does mean. If one-time agreement followed by a lack of verbalised retraction is okay for kinksters I don’t understand why it wouldn’t be okay for everybody else (to be clear, I don’t think it is okay for everybody else).

On the general point, you’ve said several times you couldn’t imagine a case of non-trivial sexual activity which was (and which partners reasonably took to be) consensual but wasn’t affirmatively consensual and you asked me a couple of times to give examples. So I gave ’em. I was hoping to a straight yes or no as to whether the ones I gave do in fact do that in your opinion, but it appears this is not to be. Absent further argument, in my opinion they do (leaving out 2 if you wish). I don’t think they’re strained at all (2 and 3 are presumably very common indeed and 1 while not common seems natural enough to me). I certainly find it very hard to see anything disturbing in 1. Ymmv.

Anarcissie, re-reading your comment I think I was a bit unfair- it was a legitimate misreading of my sloppy phrasing. I hope I’ve cleared up the second example now. On the point about informed consent, at least in England there’s no general requirement for contracts to be based on it (although there are requirements for specific domains, eg. consumer protection.)

580

js. 11.20.14 at 4:04 am

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.

581

engels 11.20.14 at 4:19 am

Fuck off, Js.

582

js. 11.20.14 at 6:31 am

Yikes! I said what that was so bad exactly?

583

John Holbo 11.20.14 at 7:03 am

“If one-time agreement followed by a lack of verbalised retraction is okay for kinksters I don’t understand why it wouldn’t be okay for everybody else (to be clear, I don’t think it is okay for everybody else).”

There is an interesting point to be made here that (miracle of miracles!) hasn’t been made yet. Kinksters have the safest sex, consent-wise, since they are habitually so explicit and upfront about stuff. They can say things like ‘I’m allowed to do anything I want to you for the next 20 minutes, unless you say ‘applesauce’, right?’ That puts a time stamp on the whole thing. Ties it all neat with a bow – and anything else that might be handy for the purpose. The law deals great with games with rules.

Everyone else has a bit more trouble. I asked to touch your elbow, but does that mean I can also touch your shoulder? You can monger de minimis paradoxes regarding time, not just space. (Lizardbreath is complaining about this upthread. It’s all part and parcel of absurd, hyperliteral readings of the law.) Zeno’s paradox regarding body parts.

But I digress. Kinksters have the safest sex, consent-wise. This seems like a wrong result. Surely bondage and rough stuff and so forth. All that is transgressive and inherently likely to put you on or near the edge of transgression, ergo assault, right? But actually that may be wrong – not legally, but empirically (hence, if legally, then good for the law, getting it right.) What is likeliest to put you on or near the edge of non-consensual sex is the vanilla-iest stuff, where there is nervous groping, no explicit words spoken, serious uncertainty about attitudes and right and wrong and all that. Shy uptight conservatives with baggage, maybe. One objection to affirmative consent is that, absurdly, it criminalizes those who don’t have an open, Ann Friedman “New York Mag” Dan Savage ‘Good To Go’ attitude about all this. 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. But, for better or worse, this is probably actually the right result. 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. Safer to have a safe word.

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.

584

John Holbo 11.20.14 at 7:22 am

Mostly I just want to get to 600. But here’s the thing. If anyone is totally freaking out, in pain, and they just need it to stop, the safeword is ‘applesauce’. I promise to close the thread if I see that someone has left a single-word post, ‘applesauce’.

But I do hope we get to 600.

585

Sasha Clarkson 11.20.14 at 8:14 am

js@582 Don’t worry, Engels enjoys gratuitous rudeness sometimes, which is why I for one don’t bother to read or respond to his posts any more.

586

Saurs 11.20.14 at 9:22 am

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.

587

Ronan(rf) 11.20.14 at 10:10 am

I will give 5,000! dollars, lodged in untraceable bills through an intermediary money lender in Nigeria, to whoever gets us to 601 comments.

588

Collin Street 11.20.14 at 11:15 am

> 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.

589

J Thomas 11.20.14 at 11:35 am

#580 js

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.

“Fuck off, Js.”

Yikes! I said what that was so bad exactly?

Well, let’s review the bidding here. You and others have claimed that this new law will have negligible bad results and important good results. Various people have asked why you’re so sure, and the response has been that the burden of proof is on them to show there is any ambiguity or possible problems.

When people pointed out possible ambiguities in the law, the response has been that this is not important because every example proposed has been about good people doing good things, so whether or not technically those are illegal still they will never be prosecuted for them so it is no problem.

When I questioned exactly what it took to be innocent, with an example that I thought was clear, I got no replies unless this was a reply:

“While I’m less concerned with who’s “in the clear” rather than who’s comparatively safe from being assaulted”

That is, this one person isn’t interested in the question about how to be innocent and comply with the law.

When engels gave examples that he hoped might clarify the question of what behaviors count as innocent versus guilty, which presumably should have had quick easy answers like yes or no for each one, you said you would not answer him.

Instead of telling him which of his situations would result in the law being broken, you told him that many people have already said it doesn’t matter which actions break the law, and that’s all the answer he deserves.

And then you didn’t understand why he was upset.

590

Brett Bellmore 11.20.14 at 11:40 am

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.

591

J Thomas 11.20.14 at 11:56 am

#588 Collin Street

“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.

I agree he wants a handshake protocol. His argument is that the deviants who can and do describe carefully what they want — which is necessary for them since they are deviants who don’t all want the same things — they have a working handshake protocol.\

But the “good” people who (for example) want to do some petting but also want to save themselves for marriage, who have it confused in their heads and can’t talk about it, do not have an adequate protocol.

And part of the reason we need active consent is that some of them can’t say no when they mean no. Some of them really *want* to go farther than they officially can consent to. And some evil men will use whatever tool they can find to get sex, preying on women who get drunk and have sex when they would not have sober, or scaring women into having sex with them, etc.

Some of the reason we need active consent at every step is that women might want to pet some and stop, or they might change their minds about what they want. And men can’t depend on them to say no, so they must ask.

By “default to safe”you mean “do nothing unless the response is yes”, right? Yes, if there’s a changed law here, that’s what it has to mean. There have been claims here that it’s a changed law but it doesn’t mean that, with no explanation what it really means.

I’ve seen a reasonable response, I don’t remember from who, that went “If you’re completely sure that you’re both in tune then you can go ahead without explicit consent. But the consequences are on you if you’re wrong.”

592

ZM 11.20.14 at 12:09 pm

“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

593

Brett Bellmore 11.20.14 at 12:41 pm

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.

So you have to ask, how does a change of protocol prevent deliberate violations of protocol, or allow them to be proven? And I don’t think it does, in “he said/she said” situation. It just mandates different lies.

So, this is not a way of dealing with rape. Whatever downsides it has do not contribute to dealing with rape.

It might be a way of dealing with awkward, innocent mistakes. But it’s an awfully huge social change to impose for that modest goal. Even assuming it would be impartially enforced, which I don’t believe for an instant.

594

John Holbo 11.20.14 at 12:59 pm

Saurs: “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.”

There are two kinds of cases. Consider two how-to-stay-in-the-clear questions:

Dear Agony Aunt, I am a sexual predator who wishes to prey on women serially. I want to do violent, painful things without their consent. I am wondering whether it is will be personally more effective and legally safer for me to seek victims in the kink community or else in the ‘straight’ community.

Now I think the true answer would be: on odds, you will enjoy more short-term success among kinksters but, because they are so open, word of your evil will get around, your successes will dry up, you may be at considerable legal risk in short order. But, obviously, the real answer is (and this is Saurs’ thought): how to help such a person live the life of his dreams is, ahem, not part of the process of crafting ideal sexual assault/rape law. Helping him is the opposite of a concern.

Case 2:

Dear Agony Aunt, I am a man with strong sexual appetites, but I am uncomfortable expressing them directly. I prefer things just to happen the way I want, if possible. I prefer my sex partners to be willing, yet modest in their expressions of desire. I consider myself a moral person and would never want to be guilty of even a minor sexual misdemeanor, let alone rape. I am nervous about legal trouble and am concerned about the new positive consent laws. I want to know how I can live the sort of sexual life I am comfortable living, and that I feel is right, without risking legal trouble.

To this letter, no encouraging answer is possible. The most you can say is: dude, few guys get in trouble even if they do the most terrible stuff, so if you are only guilty of minor stuff, what are the odds? But you are planning to live your life at the edge of the affirmative consent law. You could get in trouble. No guarantees.

Is this a problem, an injustice? Why would it be? Well, we would like people to be able to live the happy, fulfilled sexual lives they would like to live. It’s perfectly possible this guy will settle down with a nice girl who loves him just the way he is, and they will live together in contentful, consentful bliss. More generally: we don’t want to legally mandate an ethos people find ‘immodest’ or personally uncomfortable (even if we ourselves think they could do to loosen up a bit.) Freak flags come in all shapes and sizes; people should be allowed to fly even the freak flag of modesty – modestly, of course. Why not?

The problem is that the law hasn’t targeted him because p.c.-types disdain his uptight ways (even if it’s true they do). The law has correctly singled out his style of sexual behavior as risky, hence harmful to others. The reason it is easy for him to be mistaken for a rapist under the law is that it’s actually easy for him mistakenly to be a rapist, given his lifestyle. He doesn’t have a right to NOT be at legal risk, living a life that puts other people at risk of sexual assault.

Conclusion: the law should not be concerned to ensure either of these men can live the way he wants ‘in the clear’. The second case, unlike the first, is deserving of sympathy. Why deny it? But he doesn’t have a legitimate grievance.

595

John Holbo 11.20.14 at 1:00 pm

Almost there!

596

J Thomas 11.20.14 at 1:28 pm

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.

597

Ze Kraggash 11.20.14 at 1:44 pm

Comment 534, LizardBreath, her analysis of Sebastian H’s hypothetical. I find it unconvincing.

The assumption is (correct me if I’m wrong) that there is a possibility that it’s a real trauma, but if the reluctant partner “indicates by word or unambiguous deed that she has changed her mind” – somehow that makes it more likely that it’s just a boring night.

But the person indicating her consent is the same person that, in Sebastian H’s scenario, “gives in” without any indication. It’s not a third party, mind-reading psychologist in the room. It’s the same person, under the same pressures. The suggested protocol only adds the unnecessary humiliation of having to affirm.

Human being are pigs, sometimes. Nevertheless, some choose to enter into relationships and maintain them. Relationships are based on compromises. It would help to make it easier to end relationships that we perceive as abusive, but to regulate them on such an intimate level?

598

David 11.20.14 at 2:09 pm

Getting nervous, Ronan?

599

Ronan(rf) 11.20.14 at 2:11 pm

Im planning it be me.

600

David 11.20.14 at 2:19 pm

Might be …

601

David 11.20.14 at 2:19 pm

… might not.

602

Ronan(rf) 11.20.14 at 2:25 pm

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.

603

Ronan(rf) 11.20.14 at 2:25 pm

..no wait,that wasnt it.

604

David 11.20.14 at 2:27 pm

[Waives airily]

605

armando 11.20.14 at 2:42 pm

So as a dedicated kinkster, I feel I can contribute something here. It seems to me that kink rules for consent have to be safer for the participants than standard rules, because one is playing with difficult stuff. I want to say they are “better”, and I genuinely think that is the case, with the understanding that when kink things go wrong (either through carelessness or the act of an abuser) they can go pretty catastrophically wrong. Still, it seems to me that safely doing difficult things requires greater care – which kink manages to successfully negotiate a great deal of the time.

The thing is, this is really not done via affirmative consent at all. (By the way, Brett will be pleased to know that consent in kink circles, while being somewhat directional, is not inherently gendered. He actually makes a good point here, in that if one starts from assuming that women are victims, or less than responsible adults so to speak, then one’s consent rules are probably borked to begin with.) Rather, consent is much more like a “no means no” type of etiquette, with important differences. That is, it is absolutely every individual’s responsibility to be able to say no, and to actually say no, if things aren’t going well for whatever reason at all. One doesn’t play/have sex with people who do not have that level of responsibility or, from the other end, one shouldn’t play/have sex unless one is willing to take on that level of responsibility. It is vital for both parties that consent is immediately withdrawn if there are any problems.

Now, a good top will know how the situation is going, and where to draw the line and so on. But it absolutely the responsibility of the bottom to be prepared to draw that line themselves – its really the only way one can have good kink, where trust can genuinely develop.

606

Salem 11.20.14 at 2:55 pm

Kinksters have the safest sex, consent-wise.

Yeah, citation definitely needed.

607

J Thomas 11.20.14 at 2:58 pm

#530 BB

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

I disagree about this as a hilariously unlikely way to revive Prohibition.

Obviously, there can be men’s bars and women’s bars. Homosexuals can try to get each other drunk so they can rape each other, and that will still be illegal.

If you want to go meet members of the opposite gender hoping to have sex with them, try a coffeeshop, perhaps a singles coffeeshop. There’s nothing wrong with this, any more than there’s anything wrong with people needing cabs or designated drivers to go home from a bar.

If a woman visits a man in his home, and they are alone there, and the man offers her a triple martini, he is breaking the law. She should understand that he is propositioning her. If she accepts, she is breaking the law. She is creating a situation where she cannot legally consent. If there is a later prosecution, he should be charged with two serious crimes, initiating drinking in mixed company and statutory rape. She should be charged with the lesser crime of drinking in mixed company.

Obviously this would involve some little social changes. But if it’s already understood that people cannot legally consent to sex while drunk, then those changes are necessary.

How can we possibly expect to put together men whose judgement is deeply impaired, and women whose judgement is deeply impaired, and not expect rapes? It is absurd.

608

LizardBreath 11.20.14 at 2:58 pm

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.

609

John Holbo 11.20.14 at 3:06 pm

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

I meant they have the most explicit consent protocols of any group, probably. They take the most elaborate safety measures of this particular sort. They do this because of other risks they are taking so they don’t end up having the safest sex, overall. If someone wanted to be super paranoid about getting changed with sexual assault/rape, the best advice you could give would be: act like a kinkster. (Except for the kink. That part is more dangerous.)

610

John Holbo 11.20.14 at 3:11 pm

“We are now going to cuddle. If you start to freak out, the safe word is ‘wildebeest’.’ Legally ironclad, I’d venture.

611

MPAVictoria 11.20.14 at 3:13 pm

“(Except for the kink. That part is more dangerous.)”

But it sure can be fun!

612

bianca steele 11.20.14 at 3:18 pm

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

613

bianca steele 11.20.14 at 3:22 pm

I feel like Patrick is trying to get people to cast aspersions on the ability of people who write website copy–for universities in particular–to be clear and specific about what a law says. That would be rude.

I don’t think it’s “not-rude,” exactly, though, to use the fact that someone, somewhere, could write misleading website copy, to mandate what the law should be everywhere else.

Moreover, there should be some history and precedent with the Antioch code, which this misleading copy resembles. Did it in fact lead to the meaningless babbling of “yes” with no apparent reason?

614

J Thomas 11.20.14 at 3:24 pm

#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.

615

J Thomas 11.20.14 at 3:33 pm

#612 Bianca Steele

J Thomas: You really had to bring in Philip Roth?

Why would I not? He appeared to be reporting how things had sometimes worked for some people. It may still be like that for some people.

616

bianca steele 11.20.14 at 3:34 pm

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?

617

J Thomas 11.20.14 at 3:39 pm

#610 John Holbro

“We are now going to cuddle. If you start to freak out, the safe word is ‘wildebeest’.’ Legally ironclad, I’d venture.

What if she freaks out, but she’s so scared she doesn’t tell him? Isn’t it his responsibility to know she has freaked out and quit?

Isn’t it his responsibility to quit before she freaks out? If he does something she is not giving active consent to, and she freaks out when she has not given active consent, isn’t that his violation?

Of course reasonable people will not begrudge him a few seconds. It would be unreasonable to accuse him of doing wrong if he notices and stops immediately. Nobody would ever do that unless they were really freaked out or something.

618

Anarcissie 11.20.14 at 3:42 pm

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.

619

Sasha Clarkson 11.20.14 at 3:46 pm

Re Philip Roth: a discussion which starts Rush Limbaugh would be incomplete without a mention of Portnoy’s Complaint!

620

bianca steele 11.20.14 at 3:49 pm

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.

621

MPAVictoria 11.20.14 at 3:53 pm

“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?”

Yes. That exactly what it means. If all involved are legally of age and consenting the state/university has no business in the bedrooms of the nation/student body. It is the situations where consent is lacking that concern me.

622

Sasha Clarkson 11.20.14 at 3:57 pm

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

623

bianca steele 11.20.14 at 4:15 pm

MPAVictoria: The BDSM community is okay with self-selected communities practicing deviant versions of BDSM that are dreamed up by and carried out twenty-one year olds and inflicted on eighteen year olds with less than typical ability to retreat from the situation? If you say so, but it’s a bit different from the defenses we’ve been hearing of BDSM from its practitioners and defenders, that everyone involved is an adult who, though careful consideration, has decided that’s what they want.

Whether the university is reasonably permitted to take steps to reduce conflicts with landlords and neighbors, regarding things that can be predicted to occur–I guess you’d say no?

624

bianca steele 11.20.14 at 4:18 pm

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

625

J Thomas 11.20.14 at 4:40 pm

#621 MPAV

If all involved are legally of age and consenting the state/university has no business in the bedrooms of the nation/student body. It is the situations where consent is lacking that concern me.

Figure they have a responsibility not to do it in the road and scare the horses or sheeple or whatever.

Similarly, legally dubious contracts like 24/7 slave arrangements are probably better left for after graduation.

I get the impression these people tend to be clever, so they make good rules and then occasionally might think it’s funny to find ways to break them without technically breaking them. Like use a safeword like Rumpelstiltskin and then tickle him so that he can’t quite pronounce it. They’re supposed to have an alternative signal when gagged, but it might seem clever to a 19-year-old not to provide one.

The more important point is that they cannot rely on active consent, but require active denial. If somebody is wrapped up in a rubber suit and mostly immobilized, their body language is not visible at all. It might be fun to require them to make many many repetitive signals for yes, but that community instead universally requires them to make a signal for no when they mean no.

And yet the active participant is required to get them out immediately in case they stop breathing, or get heatstroke, etc.

626

armando 11.20.14 at 4:42 pm

“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.

627

MPAVictoria 11.20.14 at 4:56 pm

“or some reason I’m, probably unfairly, picturing MPAVictoria as Col. Jessup.”

No problem. I picture you as my prudish Aunt Shirley.

“That is disgusting! Those people are sick!”

628

bianca steele 11.20.14 at 4:58 pm

The Code Red did happen in the bedroom.

629

bianca steele 11.20.14 at 5:35 pm

And don’t call me Shirley. It’s funny, I thought I was defending the idea of BDSM and even of adult clubs that engage in what would otherwise be coercion. ISTM BSDM (speaking theoretically and from reading Susie Bright and stuff) provides an environment in which people who find sexual meaning in violence and coercion and so on can engage in it without hurting other people. Not, for instance, training people in proper real-world sexual technique. Telling people they shouldn’t require explicit safewords from their virginal first dates isn’t attacking BDSM. Putting limits on where certain acts can take place doesn’t mean we have to agree that those acts are outlawed. I’m not sure what set you off, MPAVictoria.

630

engels 11.20.14 at 5:49 pm

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

631

MPAVictoria 11.20.14 at 6:16 pm

“I’m not sure what set you off, MPAVictoria.”

Nothing “set me off”. I just believe very strongly that people have a right to their sexual identities, with the obvious limitations regarding consent and adulthood. I am sick of tired of prudes on the left and the right trying to control other peoples consensual bedroom activities. University students are adults and they have the right to engage in BDSM if they so choose.

Remember it wasn’t so long ago that we were throwing gay people in asylums (or even jail!) for expressing “deviant” sexual desires. And we are still arresting sex workers!

632

bianca steele 11.20.14 at 6:41 pm

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.

633

bianca steele 11.20.14 at 7:29 pm

I’m not talking about Story of O./Secretary, either. I think we’re agreed that the trust BDSM advocates have been talking about wasn’t present in those cases, and that the women in those stories could have pressed charges (if they hadn’t been transformed, somewhat surprisingly, into women who decided retrospectively that they’d liked it).

634

MPAVictoria 11.20.14 at 7:39 pm

“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.

635

bianca steele 11.20.14 at 8:06 pm

@634 Good, thanks for sharing your opinions, it helps me clarify my own.

636

armando 11.20.14 at 8:16 pm

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.

637

J Thomas 11.20.14 at 8:17 pm

#629 Bianca Steele

ISTM BSDM (speaking theoretically and from reading Susie Bright and stuff) provides an environment in which people who find sexual meaning in violence and coercion and so on can engage in it without hurting other people.

I get the impression parts of it are about pretending coercion etc. People who enjoy it as a fantasy even though most of them would not enjoy it at all as a reality.

Not, for instance, training people in proper real-world sexual technique. Telling people they shouldn’t require explicit safewords from their virginal first dates isn’t attacking BDSM.

Well, the idea of a safe-word is that somebody can have fun shouting “NO” all they want and pretend they’re getting coerced and the other guy is continuing over their objections, but then if they really do want to stop they can shout “Mustard” or whatever and it really does stop.

You only need a special safeword if you intend to say “No” and mean “Yes”.

You don’t need that for a virginal first date. “No” is a perfectly fine safeword for a first date. So is “Lawsuit”.

But it needs to be perfectly clear that “No” is in fact a safeword that must be honored.

It needs to be clear that your culture is Blue and not Red.

638

armando 11.20.14 at 8:19 pm

I have much agreement with J Thomas at 637.

639

Ronan(rf) 11.20.14 at 11:12 pm

Whoever gets us to #650 gets a new Mercedes.

640

The Temporary Name 11.20.14 at 11:13 pm

You suck Ronan!

641

David 11.20.14 at 11:32 pm

650? Pah. What’s on offer for 1000?

642

Ronan(rf) 11.20.14 at 11:37 pm

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

643

The Temporary Name 11.20.14 at 11:45 pm

You didn’t do anything crazy like nibble all the way along the top of the Mars bar right?

644

Ronan(rf) 11.20.14 at 11:50 pm

The Mars bar’s no longer available.

645

bianca steele 11.20.14 at 11:52 pm

@641 A color TV.

646

Brett Bellmore 11.20.14 at 11:52 pm

“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 11.21.14 at 12:09 am

I am rather enjoying J Thomas’ suggestion that The Ladies Lounge needs to be resurrected. This is the precise opposite of the feminist movement that ended gender segregation in Australuan drinking culture. I am not sure resurrecting it would meet much support…

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.

Sexual segregation in pubs persisted into the 1970s and only began to break down after women’s rights activists began to publicly challenge the convention. One of the most famous incidents in this informal campaign took place in January 1973, when a group of feminist activists staged a protest against the rule in the Public Bar of the Hotel Manly in Sydney”

648

J Thomas 11.21.14 at 1:30 am

#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.

649

ZM 11.21.14 at 1:43 am

I just have a suspicion this drinking segregation would be seen in Australia as a step backwards rather than a step forwards.

One of our feminist writers even wrote in a book about the issue of a professor at Ormond college, if I remember rightly , sexually harassing young women who took disciplinary action about it – that the young women were not as tough as young women in her day and they should have just elbowed him and cussed him out or some such thing.

You could ban getting very drunk instead – pleasantly tipsy men and women could then enjoy mixed gender pubs, but no one would be so drunk they could not give informed consent. This would be a solution that avoids gender segregation and solves public health problems associated with drinking too much .

I don’t know it would be anymore popular than your gender segregation idea though.

650

Collin Street 11.21.14 at 1:46 am

> 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?]

651

Watson Ladd 11.21.14 at 1:46 am

And having money in one’s purse leads to robbery. Rape is a crime, and the criminals responsible are the ones who commit it. The solution is to punish it, and go after the culture that encourages it. Banning women from drinking, or flirting, ignores the real problem: men who don’t stop when they hear “no”.

652

MPAVictoria 11.21.14 at 1:55 am

J. that is incredibly sexist. INCREDIBLY!

653

MPAVictoria 11.21.14 at 2:38 am

This is what people mean when they say that some men don’t think of women as real people.

654

John Holbo 11.21.14 at 2:43 am

“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. “

Let’s take the silly example of the couple who are cuddling lightly, and they have been very explicit and upfront that they are going to be cuddling lightly (on the couch, wearing their matching pajama boy jammies, watching the “My Little Pony” marathon on CN). And their safeword is ‘wildebeest’. In the event, the female freezes up to the extent that she is unable even to utter ‘wildebeest’, to stop the light cuddling. The male keeps cuddling because he has a strongly justified belief that she has given affirmative consent and he has no way – could have no way – to know that in the privacy of her mind, she has shifted to a strong desire that he stop cuddling her.

If you imagine a BDSM scenario, the case gets less preposterous but maintains its basic shape.

The question is basically whether the law can be read as a strict liability law re: a private, inner psychological fact. ‘Affirmative consent’ is sort of ambiguous between that and a set of due diligence protocols regarding such. Does ‘affirmative consent’ concern, strictly, an inner yes that has to be maintained unbroken, or just an outer ‘yes’ that has to be established and not cancelled?

If the former, then, logically, no amount of actual communication can necessarily establish it (if you want to get all Cartesian hyperbolic Evil Demon doubt about it.) I think it’s clear the law in fact is not open to reductio ad absurdum on Problem Of Other Minds grounds. ‘Voluntary agreement’ does not refer to (ought not to refer to) an inner feeling but a communicative condition. Voluntarily agreeing to cuddle, pending ‘wildebeest’, is itself ‘voluntary agreement’ in the relevant sense, whatever unexpressed private feelings may follow.

It is like a contract. Think about a case in which you sign a deal but there is a buyer’s remorse clause, saying you can cancel for any reason within 30 days. Now suppose it’s 60 days out and you want to cancel. Your argument is that you really wanted to cancel it already, within the 30 day period. You have the proof that you suffered serious buyer’s remorse, causing you to want to cancel. Here are these long letters you wrote, expressing your deep buyer’s remorse, and your desire to cancel, but you didn’t send them. You have a doctor’s note testifying to your neurotic inability to buy stamps. Literally the only reason you didn’t send the cancellation within the cancellation window is that you are neurotic about buying stamps. But you met the condition of suffering remorse and wanting to cancel within the 30 day window. Ergo you should be able to cancel now, even after that period.

What’s the result? You are out of luck. Cancelling a contract you have a right to cancel, if you want, isn’t a thing you do in your mind, just by wanting to. Similarly, canceling a voluntary agreement to have sex isn’t a thing you can do strictly in the privacy of your own head, without outwardly signaling the shift. (There is a sense in which, if your feelings have changed, your agreement is gone. But that is not a legal sense.)

It might seem that the law actually says otherwise. “Affirmative consent must be ongoing.” That doesn’t sound like contract law, more like a dead-man’s switch concerning your private state of mind. (A contract isn’t like a dead-man’s switch that cancels itself if you don’t re-up it every day.) But this confusion is due to thinking ‘affirmative consent’ refers narrowly to your mental state, not to a shared, communicative condition. If you have given me a strong, unambiguous indication that you are consenting, then the only way to cancel the communicative state of consent is by communicating something contrary, not by feeling something contrary.

These cases and analogies are quite silly and strained, but the point that ‘voluntary agreement’ should be read as referring to communicative conditions, not to private feelings, is important enough to emphasize.

I think that’s right.

655

John Holbo 11.21.14 at 2:54 am

I should probably add (having gone this far down the silly case rabbit hole) that if someone ‘freezes up’, i.e. goes all stiff and starts hyperventilating or whatever, that itself is a signal that partners are obliged to be on the look-out for. I took the case to be: what if I liked it at the start, and acted like I liked it, then stopped liking it, but kept acting like I liked it? Can I charge him with assault, even though he had literally no way to know it was, and every reason to think it wasn’t? Answer: no. It’s not a strict liability law concerning your private feelings.

656

ZM 11.21.14 at 3:05 am

I am not sure J Thomas is being sexist really , he is probably more critical of men rather than women in his solution. I think he just maybe does not understand the history
, at least in Australia, where a good number of women’s rights activists wanted women to be able to be treated the same as men and drink strong ale in public bars not just shandies in ladies lounges.

657

J Thomas 11.21.14 at 3:17 am

#649 ZM

You could ban getting very drunk instead – pleasantly tipsy men and women could then enjoy mixed gender pubs, but no one would be so drunk they could not give informed consent. This would be a solution that avoids gender segregation and solves public health problems associated with drinking too much .

That sounds fine if it works. The waitresses in bars could have cheap breathalyzer tests, and not give drinks to people who’ve had enough. We need to establish the custom that women don’t drink when they’re alone with men who want to get them drunk, also.

#651 Watson Ladd

Rape is a crime, and the criminals responsible are the ones who commit it. The solution is to punish it, and go after the culture that encourages it. Banning women from drinking, or flirting, ignores the real problem: men who don’t stop when they hear “no”.

Currently the bigger part of the problem is men who get women too drunk to say no. A surprisingly large part of the culture says that’s just fine. “Candy is dandy but liquor is quicker.” Etc. Women whose culture won’t let them say yes, can get drunk and not be responsible. It goes both ways.

I don’t think we are going to solve the problem by getting enough women to report it and punish enough men severely enough that they stop doing it. If they were drinking heavily too, how are they more responsible than the drunk women? Well they are, but still….

Look, when we had a big problem with malaria, we didn’t just fight the malaria organism. We attacked the mosquitoes that carried it. They were innocent themselves, it wasn’t morally their fault that they bit people who had malaria and got infected themselves. But it was easier to stop the mosquitoes and it worked.

If we want to show men that we really don’t want them to get women too drunk to say no, isn’t an obvious choice don’t let them get women too drunk to say no? If we tell them they shouldn’t, but we do nothing to discourage them, what does that tell them?

If we told people they shouldn’t drive drunk but we never stopped anybody who wanted to drive drunk, how much effect would that have?

#652 MPAV

J. that is incredibly sexist. INCREDIBLY!

I don’t see that it is. No, I just don’t see it.

If we had a great big problem of women getting men drunk so they could take advantage of them, and I only wanted to separate the drunks by gender to protect the women and not the men, I guess that would be sexist. But it is not an equal-opportunity problem. It’s men getting women drunk and raping them, and almost never the other way round. If a small fraction of women used the many opportunities available to them to get men too drunk to resist and rape them, they would be equally bad. It would be equality. In this particular case, I’m not sexist. Reality is sexist.

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MPAVictoria 11.21.14 at 3:19 am

Women are not children for you to make decisions for J.

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John Holbo 11.21.14 at 3:27 am

I must confess: when I fired off what I thought of as a throw-away Rush Limbaugh/Grice joke, nothing more, I did not anticipate any of this. (In case you don’t know what I’m referring to – what Rush Limbaugh joke? – the answer is: the OP, the OP. It’s a Rush Limbaugh joke, rolled in Grice. That’s all it was ever meant to be.) The post was from the bottom of my heart not an attempt to concern troll this thread into existence, as a symposium on the law, or as a consciousness-raising session, or as an occasion for people to shout at each other. I don’t want anyone to think I planned this. Not in the least. Not in my wildest imaginings did I dream the post would be taken seriously, let alone taken to such lengths. I expected sub-30 comments. How much of an audience is there for elaborate jokes about Grice’s theory of meaning, most days?

So let’s go for 700!

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MPAVictoria 11.21.14 at 3:38 am

Well this thread has at least been very revealing about some of the commenters here. So at least we have that going for us.

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William Berry 11.21.14 at 3:40 am

I have nothing of substance to contribute except to say that I pretty much agree with “lizardbreath” (I used to read “Unfogged”! Is it still around?) on everything.

Otherwise, this has been one of the weirdest threads on CT ever.

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engels 11.21.14 at 3:44 am

Fifty Shades of Grice…

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MPAVictoria 11.21.14 at 3:45 am

Hey J. I know what we can do reduce rape! Obviously it is all these women walking around in slutty outfits raising the libido of poor men. Let’s just make it the law that all women have to wear a burqa out in public. Sure that takes away some freedoms from those women but hey they can’t be trusted to make their own decisions anyway. Right?

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John Holbo 11.21.14 at 3:47 am

I don’t want to minimize the role my initially false beliefs about CA law had in setting people off. I just want to assure you all I am not the sort of person who intentionally forms false beliefs about CA law just for the sake of setting people off.

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J Thomas 11.21.14 at 3:51 am

#656 ZM

I think he just maybe does not understand the history, at least in Australia, where a good number of women’s rights activists wanted women to be able to be treated the same as men and drink strong ale in public bars not just shandies in ladies lounges.

That’s fine. And in an ideal world, any woman should have the right to go into a biker bar, take off all her clothes, put on a blindfold and gag and bondage gear so she was completely helpless, and be safe.

(And any man should be able to do that same thing in any gay bar and be just as safe.)

But we don’t have that world yet.

And some of the things we call rape go as follows: A man drinks until his beer goggles tell him he wants a woman that he would not want sober. (That might be a stupid mistake by his sober self, but there it is.) He approaches a woman who is so drunk she wants him when she would be horrified if she was sober. They have drunken irresponsible sex. By the rules this was the man committing rape because officially drunk women aren’t capable of real consent. But in reality it was more like some horrible accident that appalls them both in the morning.

Why shouldn’t society take efforts to discourage this?

People want to get drunk and be irresponsible and incapable of informed consent.
People do not want to be raped.
So discourage them from getting into situations where they are likely to have sex while incapable of informed consent.

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John Holbo 11.21.14 at 3:57 am

“Fifty Shades of Grice…”

That is an awesome idea for the most libido-damping genre of erotica ever. Erotica in which every level of Gricean M-intention is made explicit, and exhaustively analyzed on the page. So you would really have more like fifty layers of Grice, strictly. I quote from the SEP:

http://plato.stanford.edu/entries/grice/#Mea

‘”Grice’s idea is that an utterer U means that p by uttering x if and only if U M-intends that p by uttering x. We will use ‘M-intends’ in this way in what follows. Utterances may include, not just sounds and marks but also gesture, grunts, and groans — anything that can signal an M-intention. The example illustrates an indicative M-intention; such intentions may also be imperative. In such a case, the utterer intends to get the audience to perform an action.

In the case of sentence meaning, Grice’s idea is to explicate it in terms of M-intentions. He suggests that the claim that a sentence x means that p “might as a first shot be equated with some statement or disjunction of statements about what ‘people’ (vague) intend (with qualifications about ‘recognition’) to effect by x” (1957, 66). The underlying idea is the same as in the flashing lights example. When you utter, “She brandished her clarinet like a tomahawk,” I — as a Gricean audience — reason as follows. “The standard use of that sentence is to utter it intending (1) that the audience believe she brandished her clarinet like a tomahawk; (2) that the audience recognize the intention (1); and (3) that this recognition be part of the audience’s reason for believing that she brandished her clarinet like a tomahawk. This is a standard, non-deceptive use; hence I should believe that she brandished her clarinet like a tomahawk.”’

Now, fellas (and gals, with the right sort of prosthesis for the purpose). If you want to brandish your clarinet like a tomahawk, and have your partner consent to said brandishment, you need to make sure all your M-intentional Gricean ducks are in a row. Then everything is ducky.

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ZM 11.21.14 at 4:01 am

Me: “You could ban getting very drunk instead…”

J Thomas “That sounds fine if it works. The waitresses in bars could have cheap breathalyzer tests, and not give drinks to people who’ve had enough.”

In Australia we already have laws and training for staff about responsible serving of alcohol in licensed premises. Also people who have significant problems with alcohol are identified by the police and the police give local licensed venues their names and tell them they are not to be served alcohol.

The difficulty is determining what is too drunk , and this sort of varies according to premises I think . A restaurant patron is probably considered too drunk to serve at an earlier stage of drunkenness than a public bar patron is.

Anyway I do not think your segregation idea would work – men and women could just go to segregated venues and drink as much as they wanted and then wander about on the street instead of in venues hoping to bump into the opposite sex. Probably this would be even less safe due to having so many drunk people wandering around on the street. Traffic accidents would probably increase too.

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J Thomas 11.21.14 at 4:10 am

#663 MPAV

I know what we can do reduce rape! Obviously it is all these women walking around in slutty outfits raising the libido of poor men. Let’s just make it the law that all women have to wear a burqa out in public.

Men who have so little self-control that they rape women because they see them on the street, are not fit to be running around loose.

And in New York State, women can legally go topless in public, and I haven’t heard of them getting raped for doing it.
http://www.refinery29.com/2013/08/51161/topless-women-nyc

As far as I’m concerned if women chose to go naked in public there should be nothing wrong with it. When they’re fully conscious they’re quite capable of saying no to any proposition they don’t like. If they get attacked they can fight or run or ask for assistance from anybody nearby or call the police, just like anybody else can.

But the majority of rapes involve women who have impaired judgement, and usually the men also have impaired judgement.

I don’t think that the right to do stuff that makes you stupid and then get raped or statutory-raped is an important right. We should not make it easy for men to get women drunk and then rape them. If it makes you feel better I’ll also say that we should not make it easy for women to get men drunk and rape them either.

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MPAVictoria 11.21.14 at 4:13 am

“I don’t think that the right to do stuff that makes you stupid and then get raped or statutory-raped is an important right. We should not make it easy for men to get women drunk and then rape them. If it makes you feel better I’ll also say that we should not make it easy for women to get men drunk and rape them either.”

Yes because prohibition and the war on drugs have been such a success….

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Collin Street 11.21.14 at 4:22 am

> I don’t see that it is. No, I just don’t see it.

Well, no. Nevertheless it is: the problem is with your perception, and it’s something you need to work on if you want people to tolerate your presence.

> Why shouldn’t society take efforts to discourage this?

It does. Rape is a crime, after all. The question you’re actually asking is “why not discourage this in this way”, “why doesn’t society burden women with restrictions in order to make it harder for men who want to rape them”.

There are reasons, but you’re going to have to change your conceptual framework just a bit to see them, and that will probably take a bit of time [thinking patterns are habits; habits are hard to change: this will take _work_.]

To start with, why is rape a problem?

[focus on that and you might be able to work the rest out yourself; if not, just ask for help.]

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Collin Street 11.21.14 at 4:30 am

I don’t think that the right to do stuff that makes you stupid and then get raped or statutory-raped is an important right.

See, this is exactly and precisely equivalent to thinking that the right to not get raped is _not_ important if you’ve done “stuff that makes you stupid”, or in other words that only people whose choices you agree with have a meaningful right not to get raped.

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Collin Street 11.21.14 at 4:34 am

Or, because I couldn’t be fucked:

Forcing people to do stuff so that _they_ won’t get raped is destroying their autonomy in order to save it.

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MPAVictoria 11.21.14 at 4:48 am

“Forcing people to do stuff so that _they_ won’t get raped is destroying their autonomy in order to save it.”

100% right, 0% wrong. It is no different from blaming women for being in the wrong part of town or for wearing a skirt that is too short.

J we have to start from a position that women are full and equal members of society. They are not children to have their options limited. Now what can we do to protect their autonomy?

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Ze Kraggash 11.21.14 at 9:01 am

J Thomas, public intoxication is already a violation in many states and localities.

Watson Ladd: “And having money in one’s purse leads to robbery. Rape is a crime, and the criminals responsible are the ones who commit it.”

In some jurisdictions you can be fined for leaving your car unattended with the key in the ignition.Where I lived in the 90s, as I recall your could get a ticket for leaving your wallet in plain view in the car.

Needless to say, stealing is still a crime, and (I presume) the wallet left in plain view isn’t a mitigating circumstance.

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ZM 11.21.14 at 9:15 am

I think it is illegal to leave your car unlocked here.

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J Thomas 11.21.14 at 10:18 am

#670 Collin Street

“Why shouldn’t society take efforts to discourage this?”

It does. Rape is a crime, after all. The question you’re actually asking is “why not discourage this in this way”, “why doesn’t society burden women with restrictions in order to make it harder for men who want to rape them”.

I’m talking about burdening men with restrictions that will make it harder for them to rape women. You are talking about burdening women with restrictions, not me. It’s a perception thing.

There are reasons, but you’re going to have to change your conceptual framework just a bit to see them, and that will probably take a bit of time [thinking patterns are habits; habits are hard to change: this will take _work_.]

I probably understand the reasons why not. They involve habits of thought on the part of lots of people, habits of thought that are hard to change. There are lots of people who like the idea of getting drunk and having sex, who don’t realize that they are incapable of informed consent when they are drunk and that this makes it rape.

To start with, why is rape a problem?

Women who feel raped may have psychological problems about it for years, sometimes for decades. Sometimes for the rest of their lives. Some of them never get over the sense that they are victims, and that society does essentially nothing to protect them.

Then there are the second-order effects. Women who think about rape get angry even if they have never been raped themselves, and the anger about rape culture does not generate useful approaches to changing the society but only leads to more blame and less social cohesion.

There is that sense of entitlement. Women should have the same rights as men, they should have the right to do anything they want and never have to consider the possibility they will be raped, any more than men ever have to consider that. Rapists are male criminals and somebody ought to keep them from happening. It is not the responsibility of women to stop them — somebody else should do that. Since it is wrong for women to bear any of the costs of preventing rape, the fact that society allows this to happen is an injustice, it is a sexist fact. It proves that rape culture is sexist and should not exist. But rape culture does exist, and it victimizes women, and it’s just plain wrong. The fact that it exists is cause for women to be angry, and upset, and to demand that it stop existing. The problem would go away if all the rapists simply went away. It is their fault and it’s their responsibility to fix it.

When I propose reasonable plans that could reduce the incidence of rape and begin to change the culture in ways that could reduce rape in the long run, and then people blame me and tell me I’m being sexist, I start to think maybe they in fact like the status quo just fine. They like to complain about it and they also like it to be this way for them to complain about.

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LizardBreath 11.21.14 at 1:12 pm

(I used to read “Unfogged”! Is it still around?)

Sort of! The URL still goes to a website. There are posts. There are very long comment threads. It’s probably not much like it was when you were reading it.

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MPAVictoria 11.21.14 at 2:56 pm

“There is that sense of entitlement.”

Shorter J: “Those entitled bitches”

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Anarcissie 11.21.14 at 3:48 pm

MPAVictoria 11.21.14 at 4:48 am @ 673:
‘… J we have to start from a position that women are full and equal members of society. They are not children to have their options limited. Now what can we do to protect their autonomy?’

We could arm and train them in the use of light weapons. Basic martial arts and other hand-to-hand combat training would be good, as well. If I had the raising of a female child today she would become a dangerous person to start physical trouble with. You may laugh, but back in the day when feminists were feminists, these strategies were actively pursued.

I just thought I’d say that because it seems your local gun-rights libbits are falling down on their job.

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J Thomas 11.21.14 at 4:07 pm

#679 Anarcissie

“Now what can we do to protect their autonomy?’”

We could arm and train them in the use of light weapons. Basic martial arts and other hand-to-hand combat training would be good, as well. If I had the raising of a female child today she would become a dangerous person to start physical trouble with.

Weapons are not much use unless you have weapons. But it isn’t hard to improvise an edged weapon. You can kill somebody with an edge that penetrates less than half an inch, and even if it’s a fairly slow leak if they get distracted stopping their bloodflow they have less attention to attack you.

My daughters did not want to learn about that. They said it was gross.

I tried to get them to take a ki aikido class. It taught balance and how to harness energy from a human body, as well as defense. The methods they teach are good for pulling a handcart, opening a heavy door, falling on ice, etc. They were not interested.

I tried to teach them a few useful moves, things that can surprise somebody at close distance, that sort of thing. They said it was gross but they at least did learn a few and go through the motions.

They are living in a community where there is simply no violence. They have spent hours at school being taught not to bully, and the bullies they see are people who talk mean, who hurt people’s feelings. Bullies are people who use their social status to put down people with less status. People like the bullies in this forum. Their life experience does not include any violence and violence does not seem real to them.

I feel ambivalent about the whole thing. I don’t know what to do.

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Anarcissie 11.21.14 at 4:15 pm

Sometimes you have to override the autonomy of children in order to help them turn into autonomous adults.

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J Thomas 11.21.14 at 4:49 pm

#646 BB

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

Well, that was remarkably gratuitous, which is not to say surprising.

No, not gratuitous.

Rush Limbaugh mocked this policy, saying: “How many of you guys, in your own experience with women, have learned that ‘no’ means ‘yes’ if you know how to spot it?”

The men who say they can tell when no means yes, are consistently Reds. There may be Blue men who sometimes behave as if they think no means yes, but they don’t admit to it in print and in my presence they don’t admit to it in private conversation.

Families that raise their daughters to be virgins until marriage, who pay no lip service toward women’s liberation and women’s right to make their own choices about that sort of thing, are mostly Red. There may be Blue families that do that, but they don’t talk about it in public. The father/daughter purity pledge is entirely a Red thing.
https://en.wikipedia.org/wiki/Purity_ball

The male idea that you want to have sex with as many girls as you can and then marry a virgin, is a Red thing. Blues generally have no expectation that any of their serial wives will be virgins.

The idea that it’s a good strategy to get a girl too drunk to make effective opposition and then have sex with her, is Red. There may be Blue guys who use that exact strategy, but they don’t admit it. I don’t have any real data, but I imagine for them the post-rape conversation is likely to go something like:

“You raped me!”
“Ow, I’ve got such a hangover. Can you talk softer?”
“You raped me!”
“I don’t remember anything. I was soooo drunk. What? You say we had sex?”
“It’s all your fault!”
“The last I remember you wanted to play shot pong. I don’t know what happened after that.”

Obviously there’s lots of room for hypocrisy when it happens, Red or Blue. But Red is the culture where it’s built-in. Girls are encouraged to date and pick out a husband, and have sex after they marry. They are encouraged to cuddle enough to keep him interested, but never go all the way. Meanwhile most of the guys are looking for any way to get sex that works. Every time they do something that works, that doesn’t include the girl basicly saying “I’m a slut, go all the way with me”, and then the girl is dissatisfied with the result, it counts as rape.

And the Red police are not interested. If they jailed every Red boy who took a girl’s virginity without getting her explicit permission, it would be worse than the Drug War. They’d have to build a lot of new prisons to hold them.

Blue culture is the one that officially wants to stop rape. Red culture says boys will be boys, and while a raped girl is damaged goods still there’s nothing to do about it afterward, she should have been more careful.

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J Thomas 11.21.14 at 4:59 pm

Sometimes you have to override the autonomy of children in order to help them turn into autonomous adults.

IME that does not work. It did not work on me.

“You can lead a force to slaughter but you cannot make them think.”

My daughters aren’t interested in boys yet. Maybe after they get interested in boys they will also get interested in how to incapacitate or kill them.

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Ze Kraggash 11.21.14 at 5:15 pm

“Blue culture is the one that officially wants to stop rape. Red culture says boys will be boys”

By your stereotypes this “Blue culture” is the one of the educated upper-middle-class and the Reds are everybody else. In reality, I’m afraid, it’s quite different. And that’s the reason for the worry in the OP that “affirmative consent standards will generate serious problems”.

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Brett Bellmore 11.21.14 at 5:24 pm

Hm, would this be an example of Red culture, then? Maybe Bill Clinton was a conservative Republican?

No, I don’t think it aligns as well with our politics as you might like. I think it’s more a function of sociopathy, not culture. And sociopaths are found in every culture.

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Barry 11.21.14 at 5:52 pm

“And sociopaths are found in every culture.”

But in some cultures, they’re given leeway.

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MPAVictoria 11.21.14 at 5:56 pm

“But in some cultures, they’re given leeway.”

Heck in some cultures they are encouraged!

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J Thomas 11.21.14 at 6:14 pm

Hm, would this be an example of Red culture, then? Maybe Bill Clinton was a conservative Republican?

I dunno. So far it’s a scandal, and some people have been arrested, and the connection to Democrats is that one of the people who is alleged to have committed a crime has contributed money to Democratic politicians. They point out that the media hasn’t done much with it, maybe the media is waiting to find out whether there’s anything to it.

Here’s a quote from your link:

If one of President George W. Bush’s bundlers would have been charged with child rape, make no mistake about it, the media feeding frenzy would have been uncontrollable – which would be legitimate given the severity of the allegation.

But if you google “george w bush child rape scandal” you’ll get lots of hits. Various people have claimed child rape scandals that reached the Bush white house, and we did not get a media feeding frenzy about it. Maybe none of the scandals were particularly credible. I’m not interested enough to look at that, but if you think one of them is legitimate I guess I’d look at it.

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Harold 11.21.14 at 6:36 pm

There is a misconception that rape results from a misunderstanding or failure to communicate.
I believe that most rapists are serial offenders — predators, who single out vulnerable victims — or seize the opportunity to render them vulnerable. Rape is not something that occurs as part of the normal dating process. It is not something that just happens when a couple has had a bit too much to drink at a party.

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J Thomas 11.21.14 at 6:43 pm

#684 Ze Kraggash

By your stereotypes this “Blue culture” is the one of the educated upper-middle-class and the Reds are everybody else. In reality, I’m afraid, it’s quite different. And that’s the reason for the worry in the OP that “affirmative consent standards will generate serious problems”.

Oh, no! Are you telling me that everybody’s out of step but Johnny?

Say it ain’t so, Joe!

If everybody supports traditional rape-friendly culture except a fraction of the educated upper middle class, then over the next couple decades it’s pretty much hopeless.

In that case it’s obvious why people who’re upset about it talk about how it ought to be and do nothing to work, for improvements. There is nothing they can do. Even pathetic mostly-symbolic measures like this affirmative consent rule which would not actually affect anybody except the tiny minority who get accused of rape, will probably get shouted down.

There’s no point in trying to create a workable plan if no workable plan can get approved. Might as well just emote.

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J Thomas 11.21.14 at 7:01 pm

#689 Harold

There is a misconception that rape results from a misunderstanding or failure to communicate.
I believe that most rapists are serial offenders — predators, who single out vulnerable victims — or seize the opportunity to render them vulnerable.

?? If a man picks out a series of women, dates them, gets them drunk and vulnerable and has sex with them, how is that different from a man who has a series of dates, gets drunk with them to the point the women can’t coherently say no and leave, and has sex with them?

Is it that the latter should plausibly pick one woman for his girlfriend and then repeatedly get drunk with her and have sex with just her?

Rape is not something that occurs as part of the normal dating process.

Are you saying that date-rape is not part of the normal dating process? If the women it happens to thought it wasn’t part of the normal dating process they wouldn’t be doing it, would they? It looks to me like it’s a part of the normal dating process that you and I disapprove of.

It is not something that just happens when a couple has had a bit too much to drink at a party.

If they wind up in some private place and have sex, why does that not count? Men are supposed to know that drunk women cannot give true consent. And men who are drunk cannot understand whether women are giving true consent or not. Men are supposed to not let it happen because it is rape, and there’s some possibility the woman will later see it as rape — particularly if she is unconscious when he has sex with her.

What distinction do you make between people getting drunk at a party and later the drunk man has sex with the unconscious woman, versus rape?

What distinction do you make between people getting drunk at a party and later the drunk man has sex with the woman who is moaning no, and he doesn’t particularly notice because he’s drunk, versus rape?

I can possibly see a distinction between people getting drunk at a party and a woman who normally would say no, drunkenly saying yes and then regretting it later, when perhaps she does not remember ever saying yes or thinking yes, versus rape. But the rule is, if she is drunk she is not capable of true consent whatever she says.

Is the distinction that the predator serial offender does it without getting all that drunk himself, so he’s responsible for what he does? While the normal drunk is not a rapist because he is too drunk to be a conscious predator? So, like, if he wakes up next to a woman who is coyote-ugly, he’s just another victim?

I’m not at all sure why all these guys shouldn’t be considered rapists too. I don’t see any clear line between them and rapists. Except that they’re considered normal because lots of guys do it. Oh, and if they do it with normal women who just like that kind of thing, who shrug it off if the drunken sex isn’t all that pleasant this time, maybe then there’s no harm done?

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Ze Kraggash 11.21.14 at 7:51 pm

“If everybody supports traditional rape-friendly culture except a fraction of the educated upper middle class, then over the next couple decades it’s pretty much hopeless.”

Well, I can’t tell the future, and so far I haven’t noticed your Blue heroes running any “boys will NOT be boys, or else” campaign – but if they do, and if it hurts their electoral chances (which seems likely), they’ll certainly get rid of it or tone it down. Like with gun control.

Hey, there are only two parties. Every 4 years each needs 51%. Neither one can afford to annoy a majority. Or even a significant minority. Or even a small minority – if it’s a part of their base in a swing-state (like parts of Pennsylvania, or Ohio). Everything has to be calculated with precision.

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Brett Bellmore 11.21.14 at 8:08 pm

“Rape is not something that occurs as part of the normal dating process. It is not something that just happens when a couple has had a bit too much to drink at a party.”

But there’s a push on to change that, by redefining ‘rape’ to include essentially any sexual encounter a women later regrets. Part of that push is pretending that it has always meant that.

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Bruce Wilder 11.21.14 at 8:33 pm

We’re approaching 700 comments and I don’t see light dawning on Marblehead any time soon.

They shoot horses, don’t they? Can this thread not be mercifully closed?

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MPAVictoria 11.21.14 at 8:39 pm

Well basically the more comments from J. Thomas, BB, and Ze the more depressing this thread gets.

Still we have gotten some interesting insights into, as Jeeves would put it, “the psycology of the individual”.

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Anarcissie 11.21.14 at 8:56 pm

J Thomas 11.21.14 at 4:59 pm @ 683:
‘… My daughters aren’t interested in boys yet. Maybe after they get interested in boys they will also get interested in how to incapacitate or kill them.’

Maybe you haven’t informed them about what kind of world they’re living in. If I may be so tedious as to remind you, this discussion has been mostly about a serious, violent, often highly destructive crime which is said to be ‘epidemic’ at institutions of higher learning. That means it happens to nice people, too, not just dirty, lower-class slum children.

Only a few years ago people were being advised to teach even small children how to escape from predators. Everything is hunky-dory now?

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js. 11.21.14 at 9:11 pm

Wow! This thread has really gone places since I last checked in! Three more comments for 700! Yay! (Sort of.)

Anyway, engels, sorry if my comment came off as “content-free abuse”.

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Collin Street 11.21.14 at 9:20 pm

> Still we have gotten some interesting insights into, as Jeeves would put it, “the psycology of the individual”.

It’s a pretty good example of why I concluded that the problems of politics are fundamentally medical, I think.

[well, that and the US republicans]

699

MPAVictoria 11.21.14 at 9:22 pm

“It’s a pretty good example of why I concluded that the problems of politics are fundamentally medical, I think.”

Yeah. You ain’t kidding.

700

MPAVictoria 11.21.14 at 9:24 pm

And 700!

What do I win?

701

JanieM 11.21.14 at 9:27 pm

They shoot horses, don’t they? Can this thread not be mercifully closed?

Well basically the more comments from J. Thomas, BB, and Ze the more depressing this any thread gets.

Fixed that for you.

702

JanieM 11.21.14 at 9:52 pm

More seriously, I’ll second bianca steele all the way back @233:

…this thread has given me a lot of new additions to my “don’t even bother to read what they write” list.

Kudos to the other women who’ve spoken up.

Though in truth, the three mentioned by MPAV have been on my “don’t bother” list for a long time already, so I don’t have that many “new additions.”

BW looks for “merciful closure of the thread.” I’d rather see certain commenters booted or ignored. A daily limit on J Thomas’s word count would be a blessing, and it beats me why people keep biting the hooks dangled by Ze and BB.

703

J Thomas 11.21.14 at 10:06 pm

#695 MPAV

Well basically the more comments from J. Thomas, BB, and Ze the more depressing this thread gets.

Yes, it’s been getting pretty depressing for me too.

I had been thinking that probably there were things we could do that would actually make a difference to the problem. Like we did for drunk driving.

But it increasingly looks like it really is a rape culture, and there’s nothing much that can be done about that without first persuading about 60% of the population. Men and women that are currently on the other side. Basicly hopeless on a human-lifetime timescale.

Depressing, yes.

704

Ronan(rf) 11.21.14 at 10:27 pm

JT 703

I asked someone recently who works/volunteers in the area what she would do to reform the system, and she had numerous ideas (I don’t want to link to it without her permission, and dont know what the story with copy and pasting others opinions is – so people feel free to pull me up if I shouldnt here)
But this was part of her response (heavily edited for main points)

“Train cops, whether campus police or wider community police, around sexual violence and trauma in general.. Diversify the cops, too. .People of any gender can rape, but most of the time it’s guys, and someone who has been raped might not feel comfortable trying to report in a room of guys. .Widely publicize all steps taken to improve things, so that survivors are more likely to be aware that those steps have been taken.

Colleges:

Train as many students, staff, and faculty as possible in the basic dynamics of sexual violence, basic responding-to-disclosures skills, and bystander intervention (using a good bystander intervention program that focuses on addressing rape culture, not a crappy one that centers the police).. Require the campus victim advocate(s), whoever they are, to be trained as rape crisis counselors, and probably domestic violence advocates as well .. to have some amount of off-campus experience using that training to do response work, either in a paid or volunteer position.

Train all judicial board members on sexual violence.. Train all staff of campus news outlets that are likely to cover sexual assault cases (like student papers or official campus papers) on sexual violence and ethical journalism

Provide both on-campus and off-campus resource options, and have cards and fliers for a couple of major off-campus resources basically all over campus. An outside rape crisis hotline can discuss a student’s options with them without being influenced by the cover-your-ass tendencies of college admins.
Have an amnesty policy on non-assaulting misconduct for anyone who reports an assault – for instance, a survivor or witness should be protected from disciplinary action for any drug use or underage drinking that was going on around the time of the assault.

Wider society:

Institute some basic training on consent and respecting boundaries, and maybe even a simplified, gentle version of bystander intervention, in K-12 education.. Create some kind of law or policy to deal with the rape kit backlogs that exist in some states.

In states where this is relevant .. make it so that a rape crisis counselor or similar can accompany someone into the police interview without the rape crisis counselor later being called to testify in court.. Expand the SANE (Sexual Assault Nurse Examiner) program. A lot.
Relatedly, if there is no medical advocacy program at a local rape crisis center, fund one, and make it such that reporting a rape at any hospital, not just a chosen few, automatically dispatches a medical advocate.. If no legal advocacy/court accompaniment program for survivors exists at the local rape crisis centers, fund one, so that people can discuss their legal options with someone who is also trained in crisis counseling and get trained emotional support in court. As with all of these things, widely publicize the availability of this program.

Provide easily-findable explanations of what exactly a rape kit is in that state, how it works, and what your rights are. Massachusetts has this.

Disallow certain types of “evidence” that are irrelevant, like how many past sexual partners a survivor has had, in court.

Police reform”

705

Collin Street 11.21.14 at 10:32 pm

I had been thinking that probably there were things we could do that would actually make a difference to the problem. Like we did for drunk driving.

Well, you’ve misunderstood the problem. Because you have crippling cognitive problems.

Anyway. To reiterate: rape is a problem because it’s a specific manifestation of “a violation on the autonomy of the person”; “solutions” to the “rape problem” that focus on putting restrictions on people-likely-to-get-raped are also “violation on the autonomy of the person”, and aren’t actually any sort of substantive improvement on getting raped.

[you can legitimately argue degrees-of-violation that make your actions less-bad than actually raping someone, but “I’m somewhat better than a serial rapist!” — and you’d be doing it to more people — isn’t a good position to be in.]

[btw: a prohibition on X doing Y with Z is _also_ a prohibition on Z doing Y with X, even if X is the only one getting sanctioned, and therefore as much a violation on Z’s autonomy as X’s.]

Which is to say, JT, with absolutely zero hyperbole: people think of you as not hugely better than people who do rape-rape themselves. For good cause, because — bluntly — what you’re advocating is about as bad for women on-balance as actually getting raped, and what you are doing is not hugely better than raping someone yourself with your very own penis. This thought probably horrifies you: good. Maybe you’ll stop doing it.

706

ZM 11.21.14 at 10:35 pm

J Thomas,

“When I propose reasonable plans that could reduce the incidence of rape and begin to change the culture in ways that could reduce rape in the long run, and then people blame me and tell me I’m being sexist, I start to think maybe they in fact like the status quo just fine. They like to complain about it and they also like it to be this way for them to complain about.”

People do not agree that your plans for mandating gender segregated alcohol drinking are reasonable is the problem. As you mentioned, they are even more strict than Australia’s old Public Bar/Ladies Lounge separation. And I already pointed out as well that they would not work since people would proceed to drink separately and then mingle in public streets or parks.

In the US isn’t the drinking age legally 21 anyway? So undergraduate college students in the US should not be legally drinking together anyway. In Australia sometimes people say one solution is for Australians to adopt a more continental European drinking culture which is supposed to be about less extreme drinking….

You also have come up with the idea that people cannot give consent while drunk – but I do not think this is really right except at very extreme drunkenness, or of course if given a date rape drug or something. Rape can occur while less drunk , but this is due to one party not consenting, not due to being moderately drunk.

Your definition is too broad, although not as broad as Brett Bellmore’s idea that people want to legislate that regrets afterwards mean rape has occurred.

707

MPAVictoria 11.21.14 at 10:52 pm

Ronan that is a truly excellent set of ideas. Thank you for sharing them.

708

J Thomas 11.22.14 at 12:10 am

#705 Collin Street

Anyway. To reiterate: rape is a problem because it’s a specific manifestation of “a violation on the autonomy of the person”; “solutions” to the “rape problem” that focus on putting restrictions on people-likely-to-get-raped are also “violation on the autonomy of the person”, and aren’t actually any sort of substantive improvement on getting raped.

You have got to be kidding me. You are kidding, right?

… what you’re advocating is about as bad for women on-balance as actually getting raped, and what you are doing is not hugely better than raping someone yourself with your very own penis.

And you claim *I’m* the one with the crippling cognitive problems!

I can’t make a reasonable argument against your idea, because there is nothing of reason to it. You make no sense.

The best I can do is make an analogy.

Say we were concerned about the large number of people killed by drunk drivers, and looking for ways to reduce the carnage. And you said, “We need the fundamental freedom for everybody to drive anywhere they want, whenever they want. The problem here is not drunk drivers, the problem is drunk drivers who cause accidents. So any adequate solution will have to let anybody drive whenever and wherever they want. You have to keep them from hitting each other without reducing freedom. “

It’s your crippling cognitive problems which leave you with this absurd dilemma.

People do not agree that your plans for mandating gender segregated alcohol drinking are reasonable is the problem.

Of course they don’t. They haven’t had time to think it through. Also, a whole lot of people were raised in rape culture where it seemed perfectly reasonable to get drunk and have random drunken sex.

And I already pointed out as well that they would not work since people would proceed to drink separately and then mingle in public streets or parks.

You may have pointed out an important failure point here. My thought was that we should reduce the number of raped drunken women by making it harder for rapists to access drunken women. But if the drunk women are basicly going to put “RAPE ME” signs on their chests and wander around looking for rapists, maybe we should just let them have at it.

You also have come up with the idea that people cannot give consent while drunk – but I do not think this is really right except at very extreme drunkenness, or of course if given a date rape drug or something. Rape can occur while less drunk , but this is due to one party not consenting, not due to being moderately drunk.

In most US states, the law says that a person who is incapacitated cannot give consent. This includes various forms of mental impairment. But they don’t give any indication how drunk a person has to be to be incapacitated. Often a drunk victim’s alcohol level is not measured for many hours after the rape, so they can only guess how much alcohol was involved. Some states use the general rule that a person who is too drunk to legally drive a car cannot reliably consent to sex.

You have the right to your own opinion about how much impairment is required before a person has the right to later deny their prior drunken consent which they may not even remember. Everybody gets to have their own opinion. Rapists each have their own opinion about it too, except maybe some of them are so uninterested in the question that they in fact have no opinion.

Anyway, rather than listen to testimony by two witnesses, both of whom were drunk at the time, some states and some colleges prefer to say that if the woman was drinking she was not capable of consent which gives them an easy conviction.
http://www.safercampus.org/blog/2008/04/alcohol-and-consent/

In the US isn’t the drinking age legally 21 anyway?

It varies every-which-way by state. Most states have some circumstances where under-age drinking is allowed.

709

ZM 11.22.14 at 1:10 am

“You may have pointed out an important failure point here. My thought was that we should reduce the number of raped drunken women by making it harder for rapists to access drunken women. But if the drunk women are basicly going to put “RAPE ME” signs on their chests and wander around looking for rapists, maybe we should just let them have at it.”

MPAVictoria would address this better. That was not my meaning at all. It is not fair to say women who go out drinking are asking to be or deserving of being raped. This attitude justifies/perpetuates rape , and is a reason why women often do not report sexual assault, and why sexual assault is often not prosecuted by police or results in convictions.

But I don’t think I will contribute anymore comments to this thread.

710

Harold 11.22.14 at 1:17 am

I think if you look at actual cases. The problem is repeat offenders, not entrapment.

711

Collin Street 11.22.14 at 1:25 am

The thought strikes me that if you see “getting raped” as involving two parties, the person-getting-raped and the innocent victim, the rapist, JT’s analogy to drink-driving makes perfect sense.

And like I keep saying, you can tell what people are thinking by some pretty small details of the way they frame things, even if they don’t actually tell you yourself [it’s extremely hard to obfuscate your perspective, essentially impossible without training] and his constant and repeated use of “feels raped” is… consistent with that.

I mean, I’ve put a lot of effort into trying to help him… but that’s just sunk-cost fallacy, innit.

712

js. 11.22.14 at 1:29 am

To say that @708 is wrongheaded seems like a slur against wrongheadedness, but just:

In the US isn’t the drinking age legally 21 anyway?

It varies every-which-way by state. Most states have some circumstances where under-age drinking is allowed.

What on earth are you talking about?

713

js. 11.22.14 at 1:31 am

(Hey, look. I’m just trying to get us to 800. Who’s with me!?)

714

The Temporary Name 11.22.14 at 1:58 am

715

js. 11.22.14 at 2:03 am

Only the kind that give you teenage kicks!

716

Brett Bellmore 11.22.14 at 2:09 am

717

js. 11.22.14 at 2:13 am

I’m aware that minors can drink around family in private settings in most states. In the context of this thread, I can’t think of a less relevant fact.

718

Saurs 11.22.14 at 2:20 am

Women who think about rape get angry even if they have never been raped themselves, and the anger about rape culture does not generate useful approaches to changing the society but only leads to more blame and less social cohesion.

Good lord, you are a fucking asshole, J Thomas.

719

John Holbo 11.22.14 at 2:23 am

“They shoot horses, don’t they? Can this thread not be mercifully closed?”

As I have already explained, if you want to play the game without getting hurt, you have to know the rules. The safeword for this thread is ‘applesauce’.

See: #584.

So: if I see a single-word comment, ‘applesauce’, that will mean someone is in pain or suffering a freakout and I will close the thread. But you have to understand that I may be out of the dungeon for coffee or to get work done. So you can’t be sure I will close it, like, 1 second later. But I will respect the safeword.

720

J Thomas 11.22.14 at 2:31 am

#710 Harold

I think if you look at actual cases. The problem is repeat offenders, not entrapment.

Did you look at the Lisak paper when it came around last time?
http://www.davidlisak.com/wp-content/uploads/pdf/RepeatRapeinUndetectedRapists.pdf

I may be reading it wrong, but they used a conservative method to find 6.4% of their sample of college students self-reported committing rape, a third of the 6.4% only once, more than half of them twice or less. When they did interviews with a random sample of students they had tested, they found a 12.2% false negative rate. That is, the study apparently picked up only about a third of the rapists, and the real frequency was closer to 18%. Data about the 6% of detected undetected rapists may not be valid for the other 12% of undetected undetected rapists.

The ones who admitted to 9 or more rapes were less than 10% of the total and committed less than half the rapes. So if it was possible to catch those and take them permanently out of circulation, it would make a big difference but might likely reduce it less than 50%.

80.8% of the rapists in their study raped women who were incapacitated by drugs or alcohol, but some of them also attacked other women.

I’ve never had nonconsensual sex with anybody, but if I had I don’t think I’d admit it on a questionnaire with my signature and student number for $4, and I wouldn’t admit it in an interview. So the estimated 18% of the male population was probably a low estimate. Of course men might have lied and not done it but said they did.

So anyway, do you disagree with any of this?

721

Ronan(rf) 11.22.14 at 2:37 am

@714 – This comment’s just six words long.

722

J Thomas 11.22.14 at 2:45 am

#712 js

In the US isn’t the drinking age legally 21 anyway?

“It varies every-which-way by state. Most states have some circumstances where under-age drinking is allowed.”

What on earth are you talking about?

I apologize, I don’t drink alcohol myself and I was out of date on that. I did a very quick search and got this
http://drinkingage.procon.org/view.resource.php?resourceID=002591
which claimed some exceptions in 45 states.

Here’s another similar claim. They say that in 17 states minors can’t buy alcohol but they can drink it. I haven’t researched any details.
http://www2.potsdam.edu/alcohol/StateAndLocalLaws/20070914111947.html

723

J Thomas 11.22.14 at 2:53 am

#711 Collin Street

And like I keep saying, you can tell what people are thinking by some pretty small details of the way they frame things, even if they don’t actually tell you yourself [it’s extremely hard to obfuscate your perspective, essentially impossible without training] and his constant and repeated use of “feels raped” is… consistent with that.

You entirely fail to present any sort of reasonable ideas about the topic. Instead you psychologize. You do these underhanded passive-aggressive ad hominems. You act superior, as if you could think out the things you believe I have failed at, but it just is not worth the effort.

I find your strategy tiresome. It is dishonest. You pretended good will but a person with good will would not behave this way.

724

Ronan(rf) 11.22.14 at 3:10 am

MPA @700 – a lifetime subscription to the Odeon cinema in Leicester newsletter, or..

725

Ronan(rf) 11.22.14 at 3:10 am

..you can go for the mystery prize ?

726

J Thomas 11.22.14 at 3:18 am

#718 Saurs

“Women who think about rape get angry even if they have never been raped themselves, and the anger about rape culture does not generate useful approaches to changing the society but only leads to more blame and less social cohesion.”

Good lord, you are a fucking asshole, J Thomas.

I apologize, Saurs. I was putting in some effort to think outside the box and all the responses were verbal abuse. I felt a bit cranky.

I did not at that time understand that there are simply not enough people who want change, to get results. I had looked at some of the publicized cases, and felt there was a lot of anger about rapists getting light sentences etc, that could get focused on some tangible result. But looking back, the cases that got the most publicity usually had a racial element. Maybe it wasn’t so much about rape but about black rapists or black victims.

If there’s nothing you can do, of course you will have a lot of impotent anger. I apologize for being critical of that.

727

MPAVictoria 11.22.14 at 3:38 am

“..you can go for the mystery prize ?”

Mystery prize! Mystery Prize!

728

MPAVictoria 11.22.14 at 3:41 am

In case you were curious J. this is where you gave the game away:

“There is that sense of entitlement.”

If a bunch of people are angry at you for what you are saying about rape isn’t it possible that the problem is you and not them. Think on it.

729

MPAVictoria 11.22.14 at 3:43 am

“MPAVictoria would address this better. That was not my meaning at all. It is not fair to say women who go out drinking are asking to be or deserving of being raped. This attitude justifies/perpetuates rape , and is a reason why women often do not report sexual assault, and why sexual assault is often not prosecuted by police or results in convictions.”

I think you said it just fine ZM. Victim blaming pure and simple.

730

Saurs 11.22.14 at 3:58 am

bianca steele already said she felt triggered, way back up in ol’ comment 456.

J Thomas, please think yourself back into whatever box you first came from, and don’t address me again.

731

John Holbo 11.22.14 at 4:00 am

At the risk of calming things down, may I propose that, broadly, there are two strategies for minimizing/preventing/detecting/punishing assault/rape.

1) Modesty.

You can have a culture/social/legal regime that, in various ways and forms, encourages/enforces various forms of personal modesty (I am using this term in a very hand-wavy way, for lack of a better). Discourage drinking, dancing, partying, mixing of the sexes. Discourage sexy clothing. Discourage sex-friendly culture. Discourage talking about sex. Discourage normalizing unusual or extreme preferences. Discourage going for walks late at night. Discourage sex outside marriage. Discourage underage sex. Discourage exploration and risk. Discouragement may take various forms, but presumably strong social sanction (as opposed to legal sanction) will be a big part of it.

2) Openness.

Exactly the opposite. Make everything explicit and open and individualistic, emphasizing a strict ethic of personal autonomy and rights. Emphasize the rights of everyone to do whatever the hell they want, so long as they don’t hurt any non-consenting others. It’s basically J.S. Mill’s “On Liberty”. The harm principle. As in the J.S. Mill case, this approach is underpinned by an ethos of personal authenticity and nonconformism. The idea that probably the best things in life will emerge from a certain amount of healthy transgression of what ‘society’ deems best.

It isn’t really possible to mix these strategies in practice (let alone in theory). It’s hard to take a bit from column A, a bit from column B.

A lot of the tension in the debate is due to the way in which, socially and legally and culturally, the ship has sailed on option one. We are on the open ocean. We have not arrived safely at the harbor of Option 2. Some folks are looking longingly back for the shore from whence we came. Not just for bad reasons, although – I think – partly for bad reasons. If you are attracted to some aspect of the idea of a culture of sexual modesty, I don’t want to say you are wrong. Fly that freak flag! But I’m for Option 2. Option 1 is your kink and, since your kinks don’t get to dictate what others do …

As I was saying: people want to hold onto the first option because 1) they may be inherently attracted to the ethos of it (or aspects of it); 2) undeniably, there could be consequentialist arguments that make sense in this area. If you never drink any alcohol, it’s true you will be lessening your chances of ever being raped. If you never date, or go to parties or leave your room unescorted by a protective male – a brother or a cousin, say – you will be a lot safer from assault. That’s just true. The trouble is that if we hold onto ANYTHING in this area, we are never going to get to Option 2. What we want is to realize Option 2 fully and as perfectly as possible. For which purpose, Option 1 has to die.

I say: rip off the band-aid that is holding together the Option 1/Option 2 mix. But don’t expect people not to cry that it hurts them. (Given where the band-aid is located, some short-and-curlies are going to get pulled out. Sorry about that, society. But it’s the way it’s gotta be.)

I expect some people will want to point out that modesty in fact aids and abets abuse, because people are unwilling to be open/honest about sex. Predators find lovely opportunities for lurking and preying from concealment! That is exactly right. This means that if you really want to get the benefits of modesty, you need to be extreme about it. Don’t leave your damn room so much! Put a good lock on that door. Get married and stay home with the kids. To put it another way, mixing Option 1 and Option 2 significantly impairs the function of both. You end up with a kind of half-modesty that is no protection, and a kind of half-autonomy that is not equal, hence insufficient protection. The middle position is really the worst, safety-wise. Hence, if we are really worried about protecting women, and we can see that a strong Option 1 is not an option, at this late date, then Option 2 is it. But we aren’t there and it’s going to be a bit painful to get there.

732

Saurs 11.22.14 at 4:01 am

Also, this patronizing gimmick of requiring a “safe word” in order to permanently plug up this cascade of endless “innocent” misogyny and consent-is-hard apologia: that bullshit can also go fuck itself.

733

John Holbo 11.22.14 at 4:02 am

“bianca steele already said she felt triggered, way back up in ol’ comment 456.”

Bianca is a big girl! She can use the safeword, now that I’ve laid down the rules. That’s the whole point of a safeword. We don’t have to really on ‘feeling triggered’. We have a trigger!

734

John Holbo 11.22.14 at 4:04 am

“that bullshit can also go fuck itself.”

Sorry, Saurs and my comment crossed.

I just want to clarify: it’s not a patronizing gimmick. It’s a joke.

735

MPAVictoria 11.22.14 at 4:07 am

“If you never date, or go to parties or leave your room unescorted by a protective male – a brother or a cousin, say – you will be a lot safer from assault. That’s just true.”

Which is why rape is much rarer in patriarchal societies and no one is ever raped in Saudi Arabia….

More seriously I would love to see some proof for this assertion as it seems completely wrong head to me John.

/like the rest of your comment though.

736

John Holbo 11.22.14 at 4:15 am

“More seriously I would love to see some proof for this assertion as it seems completely wrong head to me John.”

Well, I tried to mitigate that by saying that modesty often has the opposite effect: enabling secret wrongdoing.

I honestly have no idea whether upper-class women in Saudi Arabia (women who live under a maximal regime of modesty and patriarchial-protection) suffer fewer sexual assaults. I would suspect so. They obviously won’t suffer NO assaults. But maybe less. But if indeed it turns out that modesty doesn’t work at all. Ever. More modesty means more patriarchy. More patriarchy means more assualt. If even this one small, hypothetical-consequentialst benefit of extreme modesty – at least I’m less likely to be assaulted! – evaporates, then the case for Option 2 over Option 1 is of course even more clear.

737

Saurs 11.22.14 at 4:15 am

Holbo: here are two completely contradictory solutions to rape
Later Holbo: the first one’s bullshit, though
Latest Holbo: I am not a crank or troll

Holbo: we need a safeword to protect people from this thread
Later Holbo: commenter’s a big girl, she can take of herself and use the safeword
Latest Holbo: oh, actually, the safeword’s a joke

You’re really showing your ass, here, dude.

738

Saurs 11.22.14 at 4:17 am

I honestly have no idea whether upper-class women in Saudi Arabia (women who live under a maximal regime of modesty and patriarchial-protection) suffer fewer sexual assaults.

If you don’t know something (paging every other man who has posted here), why are you dreaming up hypotheticals that reality (or a quick trawl through it to check your facts) might automatically disprove?

739

Saurs 11.22.14 at 4:20 am

If even this one small, hypothetical-consequentialst benefit of extreme modesty – at least I’m less likely to be assaulted! – evaporates, then the case for Option 2 over Option 1 is of course even more clear.

Your options are a fiction. You made up them up. You dreamt up a world in which only they exist, and we must choose between them. You have not made a case for anything. You do understand this, yes?

740

John Holbo 11.22.14 at 4:21 am

“If you don’t know something (paging every other man who has posted here), why are you dreaming up hypotheticals that reality (or a quick trawl through it to check your facts) might automatically disprove?”

Because, as I said, even if I’m wrong, it just makes my argument stronger. I’m not worried about my argument secretly turning out to be better than I thought.

741

Saurs 11.22.14 at 4:22 am

“Feeling triggered” is the new “feeling raped,” I gather. Sure you’re not sockpuppeting here, John?

742

Saurs 11.22.14 at 4:23 am

Because, as I said, even if I’m wrong, it just makes my argument stronger.

Oh my god. You’re actually serious.

743

John Holbo 11.22.14 at 4:39 am

“You’re actually serious.”

Now we’re getting somewhere! You understand that I am a serious person who also makes jokes. That’s me.

744

John Holbo 11.22.14 at 4:40 am

“Sure you’re not sockpuppeting here, John?”

Are you sure you’re not gaslighting me, Saurs?

745

Saurs 11.22.14 at 4:40 am

Have fun with the mental masturbation, John.

746

John Holbo 11.22.14 at 4:42 am

I really don’t want to fight, if it’s all the same to you.

747

bianca steele 11.22.14 at 4:52 am

I don’t know if it’s possible to have a reductio of a John Holbo thread, or if this would be it if there were, but either way, it would be fitting. Assuming it were.

748

bianca steele 11.22.14 at 4:54 am

While you were having fun here, I was watching Cats for the first time. Maybe a DVD should be the mystery prize.

749

LFC 11.22.14 at 4:56 am

The modesty/openness thing is, in certain contexts, an arguably false dichotomy. Although the thread (the parts I’ve read, that is) has meandered, the immediate occasion for the present debate is the problem of sexual assault on college campuses. In that context, discouragement of excessive drinking/partying would seem not to be imposing a regime of ‘modesty’ but rather trying to foster a climate in which when X, being ‘open’, says something, Y is not so drunk as to be unable to hear and understand it.

750

John Holbo 11.22.14 at 4:57 am

“Your options are a fiction. You made up them up. You dreamt up a world in which only they exist, and we must choose between them. You have not made a case for anything. You do understand this, yes?”

Obviously my options are fictions. They are descriptions of hypothetical normative goals. They are not the only options. They are extremes, marking out a continuum. My thought, obviously, is that most people will probably want something kind of in the middle, rather than on either end. (It’s getting so I can’t hardly write a sentence to you without help from ‘obviously’, Saurs. We should really try to get past that.) I make the case, briefly, that the middle options are likely to be worst-of-both-worlds options.

As to why one would want the other options? I don’t think I need to make the case for sexual modesty, as a possible ideal. I don’t think it’s a good ideal to shore up at this point, but lots of people have it. Since it is the norm in most times and places, historically, I don’t think I have to explain what it is. Just read about some society somewhere, at some time. You will probably encounter Option 1, in some way shape or form. Option 2 is a bit weirder – in Jonathan Haidt’s sense – Western, Educated, Industrialized, Rich, Democratic. Most of the world isn’t that, but the parts that are have been moving steadily towards Option 2 for some time.

I’m not making the case for Option 2, but I think, in fact, people find it attractive. If you don’t like Option 2, why would, say, affirmative consent laws appeal to you, Saurs? What’s the ethical appeal if not something like Option 2?

By the by, in a Millian spirit, I should have added to option 2: communicative ideal. For Mill, it’s really important that we talk to each other freely. Now, for many people, the bedroom – sex – is not the place for that. They want sex not to be based on clear mutual communication but on modesty and a shared, implicit sense of normality – conventional do’s and don’t. This is why affirmative consent is sort of a raw nerve for some people. Communication sort of goes against the way they think sex should go.

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Saurs 11.22.14 at 4:59 am

I’m sure that’s true, and in reviewing your comments from the last few days, I know you’ve expressed dismay and hurt, you’ve complained of being attacked, misrepresented, or misunderstood. You wanted a fun conversation / to play with philosophy using a subject Ripped from the Headlines.

But it’d be nice if, in the midst of your Thought Exercise in which there are no stakes because reality is not remotely reflected in it or in your solutions (which, no, you can’t just make up off the top of your head and then declare yourself the winner because one of those solutions clearly sucks), you Thought Exercisers might spare a thought for survivors who are reading this and for people for whom this is less than academic. I’m not an authority here by any means (this is not my field of study, this is not my profession), but I’ve tried to be diligent when commenting by researching something before asserting it blindly. I’ve also been crabby. Crabbiness begets crabbiness. It’s not the crabbiness itself that I mind, frankly.

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John Holbo 11.22.14 at 5:00 am

“Maybe a DVD should be the mystery prize.”

I already own “Cats” on DVD. It holds no mysteries for me. Damn.

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Saurs 11.22.14 at 5:15 am

I’m not trying to insult you, here John — I’m really fucking not — but I won’t be participating in this conversation because I don’t think you’re capable of or qualified to lead it; I don’t think this new framing you’ve introduced (the dichotomy of “modesty” and supposedly western “openness”) is novel, helpful, or reflects reality; and, frankly, given your last dozen comments or so and the goal post-shifting therein, I don’t really sense waves of good faith radiating from your person. Neither do I think that that’s intentional. I just think that, deep down, you want to play. So, play.

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John Holbo 11.22.14 at 5:50 am

I’m off to grade for several hours. Last call for ‘applesauce’ for several hours. Going, going … (I’ll be back to check in 15 minutes to see if I have takers.)

“The modesty/openness thing is, in certain contexts, an arguably false dichotomy.”

I think it’s more like a vague dichotomy. I am also somewhat guilty of sugarcoating it, and Saurs has evidently misunderstood my motives for doing that, so perhaps I should explain. ‘Modesty’ is the kindest label you can stick on the one pole. You could also say that this is the domination/control/hierarchy/patriarchy pole vs. the freedom/equality/individuality pole. And then the freedom pole just looks better and better. I tried to make the best, brief, abstract case for ‘modesty’ I could, by way of nodding at the fact that lots of decent, good-willed people are attached to ideals of ‘modesty, before telling them, sorry, we can’t have it. If even the best case is bad, we needn’t consider the worst cases.

“But it’d be nice if, in the midst of your Thought Exercise in which there are no stakes because reality is not remotely reflected in it or in your solutions (which, no, you can’t just make up off the top of your head and then declare yourself the winner because one of those solutions clearly sucks), you Thought Exercisers might spare a thought for survivors who are reading this and for people for whom this is less than academic.”

Saurs, what makes it hard for me to do what you want, frankly, is that I feel that, out of sincere outrage at real social problems, you have been mildly gaslighting me. That is, your way of saying these are real problems is to say I don’t see them. That restricts my options for agreeing with you about problems without agreeing with you about me. The mode I settle on, mostly, might be described as ‘you can’t gaslight Magoo’. If you see what I mean. (Or even if you don’t. It makes sense to me, anyway.) I’ll make you a deal: you don’t presuppose I’m a moral idiot, I won’t be a Magoo? Deal? I extend the hand of good will and friendship. I feel that I have learned quite a bit from this whole discussion, eerie and absurd as that sounds. I was clearly wrong about several things, at the start – ignorant about points of law, confused about the meaning of ‘affirmative consent’, generally half-baked in my notions. I have tried to confess my rather serious errors as I went, but quite possibly there are still more errors to confess. If so, point them out. I hope other people are, like me, feeling they learned something from this, the craziest. thread. ever. I hope it isn’t just stressing everyone out.

One final note: the dichotomy isn’t really between modesty and western. It would be closer to say that it’s between modesty and Millian liberty, where sex is concerned. But that’s a bit too specific.

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Saurs 11.22.14 at 6:07 am

That’s not what gas-lighting is. Just like a trigger isn’t what you think it is, just as safewords don’t work the way you want them to.

I’ll feel free to continue to point out errors as and when I see them, and where I feel they are particularly and obnoxiously egregious unless you, as a moderator, say otherwise, yes.

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John Holbo 11.22.14 at 6:14 am

Well, you aren’t banned, Saurs! I just wanted to clarify why my responses have the tone they do.

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John Holbo 11.22.14 at 6:30 am

Gaslighting is too harsh. I’m referring to a completely garden-variety internet rhetorical trick that happens to be structurally identical to the insidious techniques dramatized in a certain classic movie. Presuppose your opponent is nuts, to drive him/her up the wall. We all do it. (But I do sincerely commend the Magoo counter-gambit to all interested internet persons.)

Actually, come to think of it, that would be a good Mr. Magoo cartoon. I love old UPA stuff – the style mostly.

https://www.youtube.com/watch?v=7o5zipU6r7o&gl=SG&hl=en-GB

The trouble is that Magoo is basically boring and one-note after a while. He can’t see! But he keeps getting lucky! (We get it!)

In “Magoo By Gaslight” (my new cartoon!) an insidious villain is trying to drive our protagonist crazy, by subtly altering his living environment. Turning the lights subtly up and down. He’s hoping to steal jewels he knows Magoo has (which Magoo picked up somewhere randomly, thinking they were grapes or something. So they are in the fruit bowl the whole time.)

Obviously what’s going to happen is that Magoo is just going to miss all the attempts to drive him mad. So the villain tries to take more extreme measures, but nothing works. How is this possible? Eventually the villain starts to wonder if HE is the crazy one. Has he really been turning the lights up and down, and so forth, or hasn’t he?

In the end, Magoo’s nephew, having somehow figured out what is happening, comes rushing in with the police, to save dear Uncle from the villain. But by then the villain is a gibbering madman on the floor. He is hauled off to the booby-hatch by the men in white coats. Magoo thinks he is hungry and offers him the ‘grapes’ as he goes. The man just laughs louder!

Well, that’s the best I can do to entertain you all. I really am off to grade. I cannot afford to spend any more time on this damn thread, interesting as it has been.

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Saurs 11.22.14 at 6:55 am

Okay. I mean, I won’t pretend my peaches are being unfairly frozen if you ask me to abstain, is all.

I’m not suggesting that you being Magoo, or John Holbo, or a man makes you effectively tone-deaf in this discussion; I’m just leery to go down this particular rabbithole with you (where we’re going to solve patriarchy once and for all! By being explicit about our desires! Yes!*), specifically, because of the Kissing My Sleeping Wife hypothetical, the feigned fear of Prudish Administrators tapping folk on the shoulder to inform them they are now rapists thankyouverymuch (contrasted with the sober reality of title IX officers, their motivations and allegiances), the jokes about safewords, the totally irrelevant “concern” about whether commenters are too angry or emotional to be reasonable. The thing is: such offenses, innocent or otherwise, crafted to de-escalate and lighten the mood or no, invariably plague these discussions; I can predict them now almost like clockwork and I certainly can’t be the only one and I just don’t feel like copy-and-pasting my standard response this time. And so I don’t want to play Groundhog Day anymore. And I’m not blaming this on you.

*John, it would fucking great if we could do it like that, though. I’m with you. I wish it was easy. I wish it was about outdated shibboleths and taboos and sexual liberation an’ shit. It would be a piece of really watery piss if it were.

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Harold 11.22.14 at 7:17 am

@720J Thomas
http://www.npr.org/templates/story/story.php?...
– Mar 4, 2010
You are reading it wrong
Not nine per cent, 90 per cent.
-“What Lisak found was that students who commit rape on a college campus are pretty much like those rapists in prison. In both groups, many are serial rapists. On college campuses, repeat predators account for 9 out of every 10 rapes.”
See also Lisak on “The Predatory Nature of Sexual Violence”
http://www.middlebury.edu/media/…/original/

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William Berry 11.22.14 at 7:27 am

I am still trying to digest the idea that upper-class Saudi women might be less likely than western women to be seually assaulted.

It strikes me that it is, at least, a possibility worth considering, that a beautiful, thirty-year-old Saudi woman, married off by her family (i.e., her father), with little or no consideration as to her own desires and dreams, to some ugly, horny, eighty-year-old “sheik”, or “prince”, or whatever, might consider herself as being raped every time the old goat manages to get it up.

JT, ZK, BB (et al, perhaps): Great going! Give it a few days, come back and re-read the thread, and maybe you will see that you have managed (in a thread about sexual assault, no less) to make the female commenters here feel— well, assaulted.

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js. 11.22.14 at 7:47 am

Holbo, do you know about wife-burning in India? I’m guessing you probably do, so maybe the more relevant question is whether you think it had any relation to rape and sexual assault? I’m guessing you don’t? Because otherwise it’s basically it’s fairly well impossible for me to understand how you would think that something called “modesty” is a fucking normative goal. I mean, do you have any acquaintance with cultures that prize “modesty”? I mean, surely you do, and surely you understand the status of women within those cultures?

(This maybe sounds harsh, and sorry if I’ve missed something. I just really can’t begin to understand how you’re holding up “modesty” as some sort of possible normative ideal. We’ve had that, as you seem to point out. It fucking blows for the half of the population that is made up of women.)

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Val 11.22.14 at 7:54 am

@760
Thanks William B. I’ve been thinking something like that for some time, but not saying it because it seemed too confrontational and rude. Which is also confirmatory of what’s going on here – not just the obvious ‘women don’t speak up because we’re too timid/socialised to be nice to everybody’ stuff, but the actual social pressure behind that, which is that women who speak plainly about this stuff do often get at least socially punished.

There has been consistently through this thread an element of (some but not all) men ignoring or misrepresenting what women are saying, paying lip service to it, flat out contradicting it, pretending it didn’t happen – and just going on saying what they want to say, seeing the world the way they want to see it, asking questions which lead to answers they want – which is just profoundly reminiscent of the problem we are talking about – men imposing what they want on women. Not even being deliberately cruel, just being so insensitive, and so unused to taking women’s views seriously, or treating women with respect, that they don’t even hear what a woman is saying. Whereas obviously the idea about affirmative consent is that it requires them, as an absolutely minimum, to pay attention to what women are communicating.

So we have an online thread about rape in which (some) men won’t listen to women or take our views seriously, and we have rape in which (some) men won’t listen to women or take what they’re saying seriously, and it has a lot to do with patriarchy and entitlement, and stuff all to do with modesty or freedom, as far as I can see. I am left wondering if John Holbo has ever read any feminist theory.

And I got through all that without swearing, which is some kind of accomplishment. Anyway good for you William.

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Saurs 11.22.14 at 8:03 am

I just really can’t begin to understand how you’re holding up “modesty” as some sort of possible normative ideal. We’ve had that, as you seem to point out. It fucking blows for the half of the population that is made up of women.

Also, how will practicing “modesty” help children being raped, or the elderly? How will being “open” about shit in “the bedroom” keep boys and men safe from being raped in prison? Keep homosexual, bisexual, asexual, gender queer, and trans people being raped as punishment or for “correction”?

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js. 11.22.14 at 8:05 am

I tried to make the best, brief, abstract case for ‘modesty’ I could, by way of nodding at the fact that lots of decent, good-willed people are attached to ideals of ‘modesty, before telling them, sorry, we can’t have it. If even the best case is bad, we needn’t consider the worst cases.

Look, wife beaters can be “decent, good-willed people”, at least in some weird abstract sense that you seem to be drawing on. But why make a normative case for them?

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js. 11.22.14 at 8:25 am

Just one last thing on “modesty”. Who does it apply to? In your normative ideal, whose responsibility is it to be “modest”, and whose fault is it when a lack of “modesty” causes some harm to the person who failed to be sufficiently “modest”. This is seriously a normative ideal?

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John Holbo 11.22.14 at 8:27 am

js.

I believe that many people idealize modesty. I myself do not.

Does this solve the puzzle for you?

I am somewhat at a loss to trace the source of your evidently complete failure to understand what I am saying. But it seems to come down to this: you don’t see how I could believe other people have different ‘ideals’ from myself. If I think anyone prizes modesty, I must prize modesty. Think of it from your own position: you obviously know people prize modesty. But you do not. Now just imagine, hypothetically, that I am like you in this regard. (Now read my comment again and come to realize that this hypothetical identity between your views and mine is an actual identity!)

Regarding wife-burning, your mistake seems to be this: you don’t see how anyone could be in favor of any form of ‘modesty’ without being in favor of all possible forms of ‘modesty’ (however insane). That is, if someone thinks hems should be a little lower, for modesty, that person must be in favor of wife-burning. I really don’t think that follows.

Finally, regarding whether wife-burning is like rape and sexual assault: you seem to think there is some point of view from which this might not be evident. You are worried this point of view is mine. I confess: not only is it not my point of view; I can’t even imagine what you are thinking I must be thinking. Sketch it for me. Make the js. case for non-assaultive wife-burning. I won’t buy it before you sell it. (This is like the Ezra Klein and DeLillo cases, upthread. If you want me to believe something absolutely crazy, you have to start by making it sound relatively sane!)

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John Holbo 11.22.14 at 8:27 am

I lied about going away. I said I could give up this thread whenever I want. I can’t.

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Ze Kraggash 11.22.14 at 8:29 am

Of course modesty doesn’t have to be the opposite of openness. If I understand correctly (some of) what J Thomas was saying there about drinking, and also what Anarcissie was saying (arming and training), it’s that people also have the responsibility to protect themselves.

There is a problem with law enforcement, prosecutions/convictions. Trying to solve this problem is perfectly fine, but it may turn out that, due to the nature of the phenomenon, effectiveness of the law enforcement approach is limited. There is another approach: self-protection. Arming, training, sure – but a degree of modesty too, why not. Advocacy of responsible behavior. Common sense. Not at the expense of openness.

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js. 11.22.14 at 8:32 am

I’m just curious if you would in one of your posts describe fascism as a normative ideal. I suppose you would.

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js. 11.22.14 at 8:36 am

Look, I get that for some people enslaving black people was an ideal. For other people, including the enslaved!, freedom was an ideal. I would just never have thought to describe freedom and slavery as two “possible normative goals”. (That’s an actual quote, of course.)

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John Holbo 11.22.14 at 8:37 am

“I’m just curious if you would in one of your posts describe fascism as a normative ideal.”

Unfortunately, the history of the 20th century would preclude any other answer as truthful. But seriously, sorry for the snark (but you vex me with your imputations, js.!)

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John Holbo 11.22.14 at 8:55 am

OK, here’s the thing.

I am saying:

1) there are such things as ideals of sexual modesty. (See: any part of the world with humans in it.)
2) I don’t think such ideals, beefed up, will help with sexual assault/rape (see 4).
3) I don’t think all such ideals are objectionable, as private preferences (despite 2; see 5).
4) The objection to modesty is that it won’t work for reducing assault/rape – at least not for a society like ours (maybe for no society, but for sure not for a modern, western, industrialized democracy full of free citizens doing the things they are accustomed to doing).
5) From the fact that it won’t work, it doesn’t follow that people are Nazis just for saying society was better before there was so much sex on TV. Being nostalgic for some bygone age of grace and decorum may be silly but it is a lot less morally culpable than being nostalgic for the Holocaust, or the Atlantic slave trade. If two consenting adults want to be sexually modest in the privacy of their own bedroom, I am not going to equate that with wife-burning. It just isn’t my business, nor yours, js.

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Saurs 11.22.14 at 8:59 am

So then what was post 731 in aid of?

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John Holbo 11.22.14 at 9:09 am

“Of course modesty doesn’t have to be the opposite of openness.”

I am afraid it does. If you are modest about sex, you will not be open and communicative and expressive about it. By definition. Compare: Isaiah Berlin says more mercy means less justice. This is true. This does not mean we can’t have both, to some degree. But they do tend to exclude each other. I am suggesting, more specifically, that modesty and openness, combined, cancel each other strongly as strategies for preventing crimes like assault/rape.

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John Holbo 11.22.14 at 9:10 am

“So then what was post 731 in aid of?”

It was supposed to be in aid of me apologizing for being snarky to js. But who likes to apologize?

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John Holbo 11.22.14 at 9:17 am

This may also help re: 731. One reason I have a habit of describing things like pro-slavery attitudes as ‘normative ideals’, even though I don’t share them, is that I have a more than passing interest in what the hell those people were thinking. How did anti-abolitionist defend themselves?

http://crookedtimber.org/2013/08/29/how-moral-revolutions-happen-they-had-a-nightmare/

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John Holbo 11.22.14 at 9:18 am

I’m doing the world’s worst job of quitting this thread. Quitting the thread should at least mean not quadruple-posting comments.

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Saurs 11.22.14 at 9:23 am

Yes. I’m not trying to be funny, but as an extension to Val’s implied question in 762 (re how’s your grasp on feminist theory), how well-versed are you in Foucault, Foucauldian analysis, history of punishment, and all that (sort of) jazz?

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ZM 11.22.14 at 9:31 am

“I am afraid it does. If you are modest about sex, you will not be open and communicative and expressive about it. “

i would just like to point out that it is the men commenters who are consistently presenting this dualistic reification.

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Maxlex 11.22.14 at 9:52 am

Applesauce.

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Ze Kraggash 11.22.14 at 10:03 am

“If you are modest about sex, you will not be open and communicative and expressive about it.”

Yes, in some abstract sense, free of context. In a social environment we are open in some situations, reserved (modest) in others. Sometimes easygoing and sometimes formal. Most adults can figure it out, but it’s a problem for some (probably mostly upper-middle-class) college kids just out of the nest; from strict supervision to no supervision. In my opinion, anyway.

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