# Is there really any point to the new NY law on sexual advances?l
**URL:** https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612
**Category:** Great Debates
**Created:** [July 19, 2015, 2:48pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612 "2015-07-19T14:48:16Z")
**Posts on this page:** 20
**Page:** 7
### Author:  [@Haberdash](https://boards.straightdope.com/u/Haberdash)
#### Post date: [July 21, 2015, 12:16am UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/121 "2015-07-21T00:16:46Z")
I appear to be the only one analyzing the actual problems with the text of the law instead of accusing everyone who has a problem with it of being a rapist, so why don’t you figure out the answer to that one yourself?
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### Author:  [@El\_Kabong](https://boards.straightdope.com/u/El_Kabong)
#### Post date: [July 21, 2015, 12:27am UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/122 "2015-07-21T00:27:07Z")
OK, wrong on pretty much every assertion you’ve made, repeating talking points that were refuted dozens of posts ago, and absolute refusal to argue in good faith. That’s all the time I’m going to waste on this.
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### Author:  [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)
#### Post date: [July 21, 2015, 1:52am UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/123 "2015-07-21T01:52:29Z")
> [@Haberdash](#):
>
> The same people advancing affirmative consent also have explicitly stated that no one ever lies about rape, there is no such thing as a false rape accusation, and even the act of defending yourself or a client from a rape accusation is “perpetuating rape culture.” But again, I’m not worried about the specter of the crazy false accuser – this whole thing makes needing an accusation irrelevant.
In the spirit of Voltaire’s prayer, I’m not sure whether to ignore you or egg you on.
But ok, In what way does this law\*, as written\*\*, “make needing an accusation irrelevant”?
\*Not some hypothetical future law you’re sure this one paves the way for
\*\*Not what you’re certain the people who support it really meant, or how you expect it to be enforced that’s at odds with what the law actually says
> [@Haberdash](#):
>
> The problem is they are running into the well-known principle of American law, that “A statute should be construed so that effect is given to all its provisions, so that no part of it will be inoperative or superfluous, void or insignificant.” This law cannot be a simple reminder that nonconsensual sex is wrong. It literally CANNOT be interpreted that way by the judiciary; they must find novel meaning.
The novel meaning being that this explicitly and specifically covers college disciplinary proceedings, rather than criminal trials, and also that it makes the legal definition (in that context) include situations in which consent was not obtained.
[QUOTE=Haberdash]
by the nature of what a “mutual decision” is, must of course be a formal verbalization no matter how much our resident contradiction-smiths insist it doesn’t).
[/quote]
Where do you see that in the law? Or, where do you see judges supporting that interpretation?
[QUOTE=Haberdash]
Basically, Title IX requires colleges to investigate rapes, but gives no training on how to investigate crimes to the educational administrators, Gender Studies professors, and departmental secretaries who get put in charge of doing it.
[/quote]
Where in Title IX does it prohibit training the people tasked with investigating crimes in how to do so?
[QUOTE=Haberdash]
activists who earnestly believe that the entire male population of America’s universities is made up of rapists
[/quote]
Wow. Citation very much needed. Without “earnestly” I would have taken this for hyperbole (though still wildly off the mark), but if you’re going to stress how sincere they are in that belief, that implies you are claiming they literally believe it.
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### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [July 21, 2015, 2:46am UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/124 "2015-07-21T02:46:41Z")
> [@Haberdash](#):
>
> What law? I thought you said this thing passed by a legislature that mandates certain behaviors is definitely positively absotudinely not a law?
It’s a law, but it’s not a criminal law. This law doesn’t change the definition of rape in the criminal code. At all. Not one bit. This law does not make anything illegal that was not already illegal under New York State law in regards to rape.
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### Author:  [@puzzlegal](https://boards.straightdope.com/u/puzzlegal)
#### Post date: [July 21, 2015, 3:06am UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/125 "2015-07-21T03:06:02Z")
> [@Haberdash](#):
>
> …and even “she enthusiastically participated” is not enough – you must show a “mutual decision making process” which, by the nature of what a “mutual decision” is, must of course be a formal verbalization no matter how much our resident contradiction-smiths insist it doesn’t…
Huh?
Why must a mutual decision be a formal verbalization? Have you ever played a team sport? The team (or parts of it) makes mutual decisions that aren’t verbalized all the time. People point, grunt, make eye contact…
Um, in my experience, people communicate non-verbally during sex, too. Often very explicitly and completely unambiguously.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [July 21, 2015, 3:33am UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/126 "2015-07-21T03:33:22Z")
> [@Haberdash](#):
>
> Not the people who drafted this bill.
>
> The problem is they are running into the well-known principle of American law, that “A statute should be construed so that effect is given to all its provisions, so that no part of it will be inoperative or superfluous, void or insignificant.” This law cannot be a simple reminder that nonconsensual sex is wrong. It literally CANNOT be interpreted that way by the judiciary; they must find novel meaning. That, in addition to the entire context of its passage, and the realities of how it’s already being enforced, is why it must be seen to create additional burdens on rape defendants to prove their own innocence (and even “she enthusiastically participated” is not enough – you must show a “mutual decision making process” which, by the nature of what a “mutual decision” is, must of course be a formal verbalization no matter how much our resident contradiction-smiths insist it doesn’t).
I agree. There are many of us talking past each other in this thread, but ultimately this law must do something. It clearly makes acts that under the old definition would be fine, but under the new law are forbidden. I am a lawyer and couldn’t possibly advise a client as to what he (or she) must do to be in compliance with this law. Even a written and notarized contract would not suffice since consent may be withdrawn verbally at any time. Posters here have said that verbal consent is not required, but that a person can rely on non-verbal actions.
As you said, that is exactly what we do now. That cannot be the purpose of any new law. The law must do something.
All of us here are against non-consensual sex and having sex with a person who is passed out drunk, but that is currently against the law. Could someone give me a circumstance that would not be prosecuted as a crime under NY law, but would be a violation of campus policy under this new statute?
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### Author:  [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)
#### Post date: [July 21, 2015, 4:37am UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/127 "2015-07-21T04:37:44Z")
> [@UltraVires](#):
>
> It clearly makes acts that under the old definition would be fine, but under the new law are forbidden.
That is trivially true of any expansion of the definition. “It is unlawful to engage in sexual intercourse with someone who is wearing green” also forbids an act that under the old law would have been permitted. The question is whether the “acts that under the old definition would be fine, but under the new law are forbidden” are bad things to do. Sex with someone who isn’t consenting is considered _malum in se_, I hope.
[QUOTE=UltraVires]
I am a lawyer and couldn’t possibly advise a client as to what he (or she) must do to be in compliance with this law.
[/quote]
Try “don’t have sex with someone if you’re not sure they’re consenting.”
[QUOTE=UltraVires]
Posters here have said that verbal consent is not required, but that a person can rely on non-verbal actions.
As you said, that is exactly what we do now. That cannot be the purpose of any new law. The law must do something.
[/quote]
> [@N.Y. PEN. LAW § 130.05](#):
>
> 1. Lack of consent results from:
> (a) Forcible compulsion; or
> (b) Incapacity to consent; or
> (c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct; or
> (d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances
So there’s already an affirmative consent standard for [sexual abuse](http://codes.lp.findlaw.com/nycode/PEN/THREE/H/130/130.55) or [forcible touching](http://codes.lp.findlaw.com/nycode/PEN/THREE/H/130/130.52), but not for rape.
[QUOTE=UltraVires]
Could someone give me a circumstance that would not be prosecuted as a crime under NY law, but would be a violation of campus policy under this new statute?
[/QUOTE]
Sexual intercourse with someone who is awake and sober and hasn’t explicitly declined, but hasn’t clearly agreed either, would not be rape under current New York State law, but would be prohibited on campuses under the statute.
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### Author:  [@coffeecat](https://boards.straightdope.com/u/coffeecat)
#### Post date: [July 21, 2015, 8:14am UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/128 "2015-07-21T08:14:05Z")
I’ve read this thread and the Wikipedia article on Title IX, so I think I’m a little more up to speed. I found this post interesting:
> [@even\_sven](#):
>
> A common reaction to rape- and especially date raps- is to freeze up. Sometimes it’s fear that their reaction will cause the attacker to become more violent (which is something that happens- indeed, women are often told not to make a rapist angry). Sometimes it’s pure shock- one second you are on a date, perhaps with someone you trust, and the next minute you are being assaulted. Sometime it’s a way of distancing the pain and humiliation, trying not to experience it. Other times, it’s a calculation about what the fallout will be, and just being unsure if you aw ready to make this public. This reaction is well documented in psychological literature.
>
> And right now, “they didn’t say no” is a perfectly viable defense. You can have sex with a wincing, crying, petrified person that you know perfectly well is not consenting, and that person may have no legal recourse because they didn’t say the magic words.
Cite? If this is true, we need affirmative consent laws, or something like it, not just on college campuses, but across the land in the criminal code. OTOH, none of the women who’ve rejected my advances had any trouble saying “no.” (Maybe I just wouldn’t make a good rapist.)
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### Author:  [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)
#### Post date: [July 21, 2015, 3:49pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/129 "2015-07-21T15:49:57Z")
> [@Hershele\_Ostropoler](#):
>
> > [@UltraVires](#):
> >
> > I am a lawyer and couldn’t possibly advise a client as to what he (or she) must do to be in compliance with this law.
>
> Try “don’t have sex with someone if you’re not sure they’re consenting.”
I guess that isn’t very satisfying from a legal perspective, if it is your professional duty to advise people on how to get as close as possible to the limits of what the law allows without doing anything illegal. But whatever the law says, I can’t really endorse people having sex without both parties being sure the other is consenting. And if people are reluctant to have sex when they aren’t sure the other party is consenting for fer of violating the law, again, I’m not sure I see the problem.
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### Author:  [@coffeecat](https://boards.straightdope.com/u/coffeecat)
#### Post date: [July 21, 2015, 5:02pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/130 "2015-07-21T17:02:21Z")
> [@Hershele\_Ostropoler](#):
>
> And if people are reluctant to have sex when they aren’t sure the other party is consenting for fer of violating the law, again, I’m not sure I see the problem.
Nervous guys with lackluster people skills will get even less sex.
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### Author:  [@clairobscur](https://boards.straightdope.com/u/clairobscur)
#### Post date: [July 21, 2015, 5:57pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/131 "2015-07-21T17:57:12Z")
> [@Hershele\_Ostropoler](#):
>
> And if people are reluctant to have sex when they aren’t sure the other party is consenting for fer of violating the law, again, I’m not sure I see the problem.
As long as, when you have casual sex with a casual partner, you make sure to ask her to reaffirm consent before moving you hand from her lower thigh to her upper thigh, or before you kiss her for the second time, or every time you touch her breasts, I guess you’re in the clear.
I think I understand your view. You’re thinking something along the lines of “I’m always certain my partners have been consenting to everything I did, and only would be rapists would need to fear not to do such ludicrous things as asking before every single move while having sex”.
But if you don’t do that, you’re _not_ in the clear. Even with your regular partner of 20 years that you know like the back of your hand. Any sexual move you do is potentially an assault. You _can’t_ know for sure that she wouldn’t refuse, this time, that you touch her ass. You _can’t_ know for sure that her body move is actually meaning “you can go ahead” without clearly asking. Absolutely nobody, in fact, is in the clear, because nobody has sex this way.
You of course have no intent to have sex this way. You never had sex this way. But you’re thinking that this kind of regulation is good for the others, the evil guys who don’t care about consent, not the good guys like you. But what is good for the goose is good for the gander. If some random college student gets in trouble because he misinterpreted some signal ( “I thought she was enjoying it”), and you think that he deserves what happens to him because he should have put more effort into making sure she was actually consenting, then you have to see yourself as a sexual assaulter too. Because it’s pretty certain that you didn’t, aren’t, and won’t make absolutely sure your partner is consenting to everything you do which is the only way to be actually in the clear. What you’re doing on a regular basis is nor better nor worst than what he did. He happened to be wrong, and you _assume_ you weren’t ever, aren’t, and won’t ever be wrong.
This kind of rules is utterly idiotic because absolutely everybody is breaking them every single time they have sex. If you support them, then make sure your ask clearly for consent before keeping touching your girlfriend or wife rather than assume she’s silently enjoying your caresses because otherwise you’re no better than these evil rapists you have in mind. You’re just absolving yourself for a behaviour you’re ready to condemn in others. You’re just assuming a nefarious intent in others for doing the exact same things you’re doing yourself with a clear conscience.
Maybe your wife does actually enjoy your caresses. But if you’re even slightly mistaken once, you’re a sexual assaulter. And presumably you don’t want to be one. If you think other people should take extra steps before doing anything sexual, then you should apply the same rules to yourself, and take the same extra steps every time, even with your loving long term partner. Otherwise, you’re a self-absorbed hypocrite who thinks “I’m a good guy with good intents, so the rules don’t apply to me. They’re for these other people who are probably bad guys with bad intents”.
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### Author:  [@Haberdash](https://boards.straightdope.com/u/Haberdash)
#### Post date: [July 21, 2015, 8:30pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/132 "2015-07-21T20:30:14Z")
> [@puzzlegal](#):
>
> Huh?
>
> Why must a mutual decision be a formal verbalization? Have you ever played a team sport? The team (or parts of it) makes mutual decisions that aren’t verbalized all the time. People point, grunt, make eye contact…
You know, I wouldn’t advise a rape defendant pleading “it wasn’t rape, her grunts and eye contact made it clear she wanted it” under the actual standard for rape that exists in sane states right now. In the guilty-until-proven-innocent-and-there-is-no-way-to-prove-innocence places that this law is creating, so much the worse.
The whole notion that an affirmative burden on defendants to prove “mutual decision-making” can be satisfied by anything but a verbalized discussion with proof of same is looking increasingly thin. And that’s one of the many problems here – a law set up to make it illegal to do what a hundred million people are going to do tonight (have consensual, non-rape sex without a “mutual decision-making” parliamentary debate and flowchart that gets videotaped & notarized first). I am correct about this law. It makes everything rape and gives the state the ability to declare anyone a criminal at will. i can’t imagine why you are defending it other than sympathy for that state of affairs.
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### Author:  [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)
#### Post date: [July 21, 2015, 8:41pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/133 "2015-07-21T20:41:01Z")
> [@UltraVires](#):
>
> I agree. There are many of us talking past each other in this thread, but ultimately this law must do something. It clearly makes acts that under the old definition would be fine, but under the new law are forbidden. I am a lawyer and couldn’t possibly advise a client as to what he (or she) must do to be in compliance with this law. Even a written and notarized contract would not suffice since consent may be withdrawn verbally at any time. Posters here have said that verbal consent is not required, but that a person can rely on non-verbal actions.
>
> As you said, that is exactly what we do now. That cannot be the purpose of any new law. The law must do something.
What the law does is discussed in exhaustive fucking detail in this thread.
There is a group of you in this thread who are lying about this, and it is obvious. It absolutely cannot be true that if you were assigned a book report about this thread, and had to answer the question “what does this law change,” you wouldn’t be able to answer that question. You, and the rest of this sadsack crew, could answer that question with a simple cut and paste in five minutes. You know what the law does.
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### Author:  [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)
#### Post date: [July 21, 2015, 8:41pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/134 "2015-07-21T20:41:49Z")
I think you’re still thinking of the robot lawyer approach as the only way to discuss consent.
And beyond that, you’re making the claim that each millimeter one partner moves their hand is deemed a new activity that must be separately consented to. Both of these things are ridiculous, the latter to the point that I’m skeptical that you actually think anyone believes it.
Without going int too much detail about my sex life, I do actually get consent – not always verbal, but this is someone I’ve been with for more than ten years, and I actually do check in verbally if I’m in doubt – before moving on to a different activity. I’m not sure why someone might think this isn’t possible. I think it is totally fair to ask this of people; after all, consider the alternative.
I don’t continually barrage my partner with requests to be allowed to continue what I’m doing, because once consent has been established it holds until the activity stops unless it is withdrawn. Does the text of the law say otherwise? It doesn’t that I saw.
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### Author:  [@Haberdash](https://boards.straightdope.com/u/Haberdash)
#### Post date: [July 21, 2015, 8:45pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/135 "2015-07-21T20:45:23Z")
Among other things, what the law does is create standards in one part, such as the possibility of nonverbal consent, that cannot be fulfilled due to other parts, such as the part demanding a “mutual decision making process”; and give guidance on how to obtain consent while drunk, even though other parts restate the existing law that having sexual contact with a drunk person is rape (which has been the case under existing laws for years). The law is a MESS, legally. I don’t care where you stand on the “all heterosexual sex is rape and all men are guilty” question – any law that contradicts itself and can’t be enforced in practical terms is a bad law.
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### Author:  [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)
#### Post date: [July 21, 2015, 8:52pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/136 "2015-07-21T20:52:36Z")
> [@Haberdash](#):
>
> In the guilty-until-proven-innocent-and-there-is-no-way-to-prove-innocence places that this law is creating, so much the worse.
You’ve said you’re not trying to raise the specter of false accusations. So of course the accused have no way to prove their innocence; if they aren’t falsely accused, they aren’t innocent.
[QUOTE=Haberdash]
what a hundred million people are going to do tonight (have consensual, non-rape sex without a “mutual decision-making” parliamentary debate and flowchart that gets videotaped & notarized first)
[/QUOTE]
I wonder if there’s anything in between “Sam leaps upon Pat and proceeds unless Pat actively resists” and “Sam and Pat write everything down in exhaustive detail and wait 36 hours for objections to be filed.” I wonder if there are any other possibilities there.
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### Author:  [@Haberdash](https://boards.straightdope.com/u/Haberdash)
#### Post date: [July 21, 2015, 9:01pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/137 "2015-07-21T21:01:37Z")
No one has to accuse anybody. Both partners are guilty of raping each other if they have a sexual encounter in line with the way people actually have sexual encounters. Any cop or prosecutor can just toss both of them in jail if they feel like it. That is the effect and intent of this law.
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### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [July 21, 2015, 10:39pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/138 "2015-07-21T22:39:21Z")
> [@Haberdash](#):
>
> No one has to accuse anybody. Both partners are guilty of raping each other if they have a sexual encounter in line with the way people actually have sexual encounters. Any cop or prosecutor can just toss both of them in jail if they feel like it. That is the effect and intent of this law.
No, it’s not. Again, this law does not change the definition of rape in the criminal code. This law mandates a specific sexual assault policy on college campuses, mandates that people who report sexual assault to the college not face disciplinary proceedings for other offenses incidental to the act, and increases funding for counseling programs on college campuses. That’s what the law does.
If you want to argue against the law, there are a bunch of reasons you can. But the argument that it’ll lead to more criminal penalties for rape because of the affirmative consent provision is a non-starter. It won’t. It can’t.
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### Author:  [@Haberdash](https://boards.straightdope.com/u/Haberdash)
#### Post date: [July 21, 2015, 10:43pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/139 "2015-07-21T22:43:25Z")
I’m not going to indulge in the fantasy that this isn’t a template for the criminal code in the future, or go down the stupid semantic rabbit hole of “this isn’t a law because it only applies in certain places.” What you _want_ is for everyone in the US to be branded a rapist; you think that it will be advantageous if you can simply declare that I’m not allowed to object to this until it’s in place, but I am under no obligation to comply with your demands.
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### Author:  [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)
#### Post date: [July 21, 2015, 10:55pm UTC](https://boards.straightdope.com/t/is-there-really-any-point-to-the-new-ny-law-on-sexual-advances-l/725612/140 "2015-07-21T22:55:04Z")
I don’t want everybody in the US to be branded a rapist. I don’t want anybody to be branded a rapist except actual rapists. I’m not even a big fan of the law; I think it’s overly broad, I think private colleges should have the right to make their own disciplinary policies, and I think it’s more motivated by the Governor’s desire to be seen as “doing something about sexual assault on campuses” than anything else.
But when you make sweeping generalizations about what the law says, not respond to the people who are debating you, and throw around ad hominems, you’re not being an effective advocate.
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