Colleges can already do that, which is to say that colleges already have their own disciplinary procedures for violations of college rules.
I’m not sure I agree with this last part. An overzealous administrator can destroy the life of a young person through the misuse of this law to have them expelled from school. So long top grad or professional schools. Even if cleared the stain stays with the person. Remember the McMartin defendants? McMartin Defendant Who 'Lost Everything' in Abuse Case Dies at 74
Or am I misunderstanding how this could work?
How would you defend someone charged under a law that mandates a “mutual decision” but claims the decision doesn’t have to be verbalized? How would interpret a law containing guidelines for how to get consent when under the influence, in the same statute that remembers that it’s not permissible to have sex with someone under the influence in the first place? Would you consider it at all improper for all inquiries about the hastily written, agenda-driven law’s contradictory or nonsensical passage to be met with “it doesn’t matter that this law is a mess because it’s not a real law?” How about the government just declaring certain zones of the state to be law-free places where no normal statutes, crimes, or rights apply?
I’m hoping the good lawyers take some responsibility for fixing the disaster that the bad ones have created here.
So it would never happen, and anyone who thinks it might happen is paranoid, but it’s OK that it happens all the time, because it’s already happening. Clear as mud as usual.
From what I can tell, most MRAs want women to enthusiastically participate in whatever sex the MRA desires at that moment, then shaddup and go make them a sandwich/bake them a pie.
Basically, it’s Eric Cartman, but with sex.
Look, this isn’t rocket science. What do you think happens when somebody slips and falls on ice in front of a coffee shop and then sues? They present whatever evidence they have, which is almost never dispositive, and then they argue a whole bunch about what happened and call each other liars. This isn’t a new thing. None of this new. You keep flipping out about everything, and then no matter what individual point you’re corrected on the extent to which you’re flipping out about it doesn’t change. To me, that suggests you don’t care what’s true, because you’ve decided how you feel about it regardless. But whatever; we’re role playing.
So I would say to my client, “Please explain to the members of the panel what you did to ensure that Complaining Party affirmatively consented to the sexual activity in question.”
And then I would say “what was Complaining Party’s demeanor during this time period? Did Complaining Party actively participate? Had Complaining Party been drinking? How much? How did you know? Did you observe any signs of intoxication? Explain how you would have known. Was there any conversation? What was said? What did you do to ensure that you had ongoing consent when this happened, and then that happened, and then that happened?”
And my client – because my client isn’t a sociopath, and only ever has sex with people my client knows want to have sex with my client, right? – tells the honest truth about how first they kissed at the party, and then my client said do you want to come to my room, and the other person bla bla bla, and a WHOLE STORY during which my client is acting like a responsible person who is paying attention and actually noticing whether or not consent is present. And because this is true, and my client remembers it, and because my client knew about this policy and so didn’t do anything stupid or take any unreasonable risks, my client presents a credible accounting of the whole deal. Right?
Alternatively, the hearing never happens, because I talk through all that with my client, realize that in fact my client sexually assaulted the other person, and then I tell them to take the deal and try not to be such a sociopath in the future.
But how’s your sex life today?
So…no?
I’m curious, why is the criminal law standard insufficient for college campuses? Rape is when the other party:
- Verbally manifests a lack of consent (e.g. “No!” “Stop it!”)
- Is so grossly intoxicated that no reasonable person could believe she consents, or
- Had been involuntarily drugged, is asleep, or otherwise in a position where she cannot consent.
That standard is good enough for the 21 year old college dropouts meeting at a bar. Why do 21 year olds who meet at a bar, but happen to attend the public university, risk having their academic and professional careers ruined by having to meet this higher, terribly vague, and unreasonable standard?
Because sexual assault victims in college don’t go to the police, because the police don’t help, so it’s a choice between a low reporting rate via university processes and an even lower reporting rate via the police.
I’m a little confused. It seems like you have to distinguish between two things here: criminal offenses, which is handled through the criminal courts and can get you thrown in prison, and violations of school policy, which is handled through internal disciplinary hearings and all that, and not through the criminal courts.
So lets say there’s some party on campus, and campus security finds a 20 year old with a beer, for instance. That’s a violation of New York State law, and the campus security could press charges against the kid, at which point he’d go up before a judge and undergo the whole criminal process. But it’s also (probably) a violation of campus policy, and even if charges aren’t pressed, the kid can be disciplined internally by the college.
Colleges even have rules for things that aren’t illegal. When I was in college and living in the dorms, for instance, you weren’t allowed to have candles. It’s obviously not illegal to own a candle, but it violated school and dorm policies, and if they found you with a candle, they could do all sorts of stuff, including kicking you out of the dorms. There was obviously no criminal proceeding involved there.
So I’m not really sure what you’re getting at.
Also, btw, this law applies to all colleges in New York, both public and private.
What do the elements of the offense have to do with the reporting rate? And if this will increase the reporting rate, the why only stop at universities? Why not the workplace or the general population?
This is what I believe this policy is intended to do, and correct me where I am wrong:
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The reporting rate on college campuses is far too low.
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This is largely because it is difficult to prove rape when two parties are alone, and most accusers will not be successful.
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Let’s change the standards so that any accusation can be proven by having a standard under which nearly everyone is in violation.
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We will only use this awesome power in cases where we think a rape occurred but we otherwise can’t prove it.
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We pinky promise not to abuse this and apply it to cases where we don’t believe the accuser.
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By doing this, rape accusers will be more successful and be more likely to report rape in the future.
Of course, they don’t say it that way, but it is the only conceivable reason I can see for it.
Apologies, I misread - you were talking about the standard, I thought you were talking about the criminal law remedy itself.
As to the motivation, you don’t have to speculate about it; I’ve occasionally been in the room for policy conversations about this kind of stuff. Your #1 is correct but tangential. The rest are not correct. The policy is intended to stop sexual assaults from occurring.
You guys know that none of this actually changes the rape law or what is or isn’t rape or sexual assault, right?
The New York law appears to be better than the California law as it specifically mentions that affirmative consent doesn’t have to be verbal. If the CA law says that affirmative consent doesn’t have to be verbal I didn’t specifically see them mention it. Okay, I’ve changed my mind. After looking at the law I am not greatly concerned. As with any law I suppose there’s a possibility that it could be abused but until I see it in practice I won’t worry about it. I’m not convinced it’s going to fundamentally change anything on campus though.
If she enthusiastically participated, and then said she didn’t consent, she is probably lying. Or was drugged at the time and doesn’t remember.
Construct mentioned this, but you didn’t comment, so I’ll mention it again.
Two of your examples would violate the law. You can’t ask “Does this feel good?” or “Want more of that, baby?” unless you’re already doing the thing without consent.
That’s the problem with this law, it introduces a method of consent that is unnatural. You have to ask “would it feel good if I did this?” and “would you like some of that, baby?” every step of the way every time you have sex. I’ve been married over 10 years, and the idea of asking this every time we have sex is a complete turnoff.
Now, you might say “you’re married, you don’t need to do this”, but marriage doesn’t require consent to sex, not anymore it doesn’t. If this only applies to students, why is it that young women in college deserve more sexual assault protection than other women? If they don’t, are college women overprotected, or are other women underprotected, and when can I expect a yes means yes criminal law to be proposed?
Marriage doesn’t imply consent anymore, but I think it does imply a higher baseline assumption of probable consent. I think you can grab your spouse’s ass and then see if he rolls into you or pulls away, for instance. Whereas I think that would be inappropriate between people who weren’t in an on-going sexual relationship.
Nm