Also, in an on going relationship, you can have arranged signals that request and grant consent for a raft of behaviors, all at once. It would be normal in a marriage for one spouse to say, “I’m horny” and the other to reply “how about when I finish this email”, and for them both to have clearly communicated consent for whatever sort of intercourse they are in the custom of having. That would be really weird if you were just dating, where it would be appropriate to negotiate various steps asking the way.
Ok, if this campus regulation is so terrible, how do you address the problem?
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.
Is there any other law like that? Would “He didn’t say no to borrowing his car?” Be an airtight defense? “She didn’t seem to object being hit”?
What is the answer to this? Or do you think it just isn’t a problem?
No you don’t.
You don’t have to ask literally anything.
As should be expected, there’s a lot of reasonable arguments in this thread, and then some that are batshit insane. In accordance with the rules, I won’t say which is which.
[QUOTE=Construct]
One would think, if our high courts had any shred of legal integrity, that laws like this would be struck down on the same imaginary “right to privacy” that got sodomy and abortion legalized. But alas, that will not be so, because courts are purely political institutions that pretend to actually interpret the law.
[/QUOTE]
Because our high courts have legal integrity, they don’t pre-emptively rule on laws as soon as they are passed. They only rule on actual, pending legal disputes, and weed out cases that are moot or in which a litigant doesn’t have standing. Since, you know, they are not political institutions.
And, if you don’t believe a “right to privacy” exists in the Constitution, then on what basis do you suggest that the court strike down this law. Or are you proposing that the court act as a purely political institution, because it suits your perspective?
[QUOTE=Cheesesteak]
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.
[/QUOTE]
The law was quoted in this very thread in which you are participating! In all caps even! AFFIRMATIVE CONSENT IS A KNOWING, VOLUNTARY, AND MUTUAL DECISION AMONG ALL PARTICIPANTS TO ENGAGE IN SEXUAL ACTIVITY. CONSENT CAN BE GIVEN BY WORDS OR ACTIONS, AS LONG AS THOSE WORDS OR ACTIONS CREATE CLEAR PERMISSION REGARDING WILLINGNESS TO ENGAGE IN THE SEXUAL ACTIVITY. SILENCE OR LACK OF RESISTANCE, IN AND OF ITSELF, DOES NOT DEMONSTRATE CONSENT. THE DEFINITION OF CONSENT DOES NOT VARY BASED UPON A PARTICIPANT’S SEX, SEXUAL ORIENTATION, GENDER IDENTITY, OR GENDER EXPRESSION.
[QUOTE=Jimmy Chitwood]
You don’t have to ask literally anything.
[/QUOTE]
Bingo!
Which means, that my answer to this question
[QUOTE=Haberdash]
Do you or do you not think that all sex without “affirmative consent to every component” is rape?
[/QUOTE]
is yes! When I go down on my wife, and she smiles, spreads her legs, and runs her hands through my hair, she’s giving consent! When we get a little playful and I grab her hair, and she gives me “that look” and makes a little gurr noise, she’s giving consent! (I could go on, but I don’t want to give Construct the vapors). No words need be spoken!
And if she didn’t do those things (which has happened! We are good at fighting, even if we don’t like to do it!), and instead gives me the literal shoulder when I go to grab her, or gives me “cheek” when I’m aiming for “mouth”, she’s not giving consent! Without words!
And if I forced myself on her, I’d then be raping my wife. Just like it’d be rape if, even though my wife was willing to engage in coitus, she didn’t want to perform oral sex (another sad reality at times).
See, it’s really not that difficult. Sexual activity includes different things at different times, and each party can choose which ones they want to participate in. And change their mind. And the other side does have a responsibility to obtain consent (whether verbal or physical) from the other, at the risk of being a rapist.
The first question has to be what is the problem? What is the underlying cause of the problem you’re trying to fix?
Men and women are trained to approach sex from different angles. Men are trained to pursue, we learn that if we want sex to happen we have to initiate it. Women are trained to be pursued, to be more passive about making sex happen. Couple that with
You get a major problem, one person actively pursuing something, the other person not communicating they fact that they don’t want it.
I don’t know the answer, but we’ve been attacking this problem from one side only, to the point where men are trained to pursue women, but if they do it the wrong way, don’t dot every i and cross every t, they’re rapists. I think it puts too much of the responsibility on men, not just for rapes, but for the management of every single sexual encounter they ever have. Every bit of sexual contact they have with women is shrouded in the potential for rape and it is the man’s job to deal with it.
Is there any other mutual activity where, based entirely on the internal uncommunicated feelings of one participant, two outwardly similar events can be correctly described as “an enjoyable activity for all” and “a rape”?
If it’s not words, then it’s unspoken affirmation. Which is murky as hell. Non verbal communication sucks, people get it wrong all the time. If you get it wrong, you’re a rapist, best of luck to you.
If you are like most people, you get it right, because you have a mutually consensual encounter, and neither side ever claims rape.
And if you are in one of those situations where a participant comes to later regret the encounter, then this particular standard of student conduct gives a basis to justify your actions, as Jimmy Chitwood described.
[QUOTE=Jimmy Chitwood]
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?
[/QUOTE]
What it doesn’t allow for is to “assume” that she was consenting because she was too trashed to say so, or because she “just laid there”.
[QUOTE=Cheesesteak]
Men and women are trained to approach sex from different angles.
[/QUOTE]
So look at this as re-training, where both sides learn to communicate better. People upthread mentioned that it was discussed during college orientation, so it literally is being taught.
I think you’re a reasonable person and I always like your posts, but I feel this sort of rising desperation as I read this post. As I read it, first you say you don’t know what the problem is that we’re supposed to fix, then you describe the problem, then you say you don’t know the answer!
The problem is that the prevalence of sex under ambiguous circumstances is fertile ground for sexual assault, which is traumatic for victims. The more “grey” sex that occurs, the more people are being victimized (and by victimized I mean caused, by another person’s actions, to engage in sex they do not feel comfortable with).
University sexual conduct policy is training. If you believe there’s a problem with how men think in terms of pursuit, and women think in terms of being pursued, then how is “CLEAR PERMISSION REGARDING WILLINGNESS TO ENGAGE IN THE SEXUAL ACTIVITY” not the thing we should be training people to have and to give when they have sex?
If this standard is gendered, it’s only by implication, not by design. The general rule - nobody should have sex unless everyone clearly indicates they want to - does not target men. It targets people who feel inappropriate entitlement to “grey” sex. If those people are predominantly male, then there is your problem, and this is part of your solution. No?
By definition, this only applies where the hypothetical victim actually is not manifesting any consent to sexual activity. How on earth is it NOT the other person’s “responsibility” to “manage” that situation?
It’s actually very difficult for me to put down what I’m thinking. I know what I want the answer to be, I want women to be able to say no when they don’t want sex. I want women to own their own sex lives and not depend on men to ensure everything is OK.
I don’t feel like this policy does anything to encourage women to be active in these encounters, and be in charge of themselves.
That’s what I find frustrating, the person who is failing to communicate isn’t responsible for communicating, the other person is.
Maybe I have it backwards and the end result is women feel empowered to tell men what they think, but the way it reads suggests the responsibility simply falls to the men to figure it out for both parties.
Aside from the obvious hypothesis, you mean?
But I agree, I’d like to see spelled out either the argument for allowing someone to have sex with someone who has not given permission, or an argument that this law prohibits some form of sex with someone who has given permission that doesn’t invoke any sort of slippery slope or assume its proponents are lying.
I manage to have consensual sex without sounding like a robot lawyer. No one actually wants written contracts exept maybe a handful of idiots on Tumblr.
You might be projecting. Do you regularly bulldoze over your partner’s refusals?
But even if that’s common, that doesn’t mean it isn’t bad.
If someone who can’t figure out a way to have sex while listening to what their partner wants is unable to legally have sex at all, I’m not entirely sure I see the problem here.
I’d like to see how you got that from the text of the law. Are you at least able to imagine two people mutually agreeing to a sex act?
Yes. I do.
The one thing I think Haberdash got right is that the law cannot make someone a rapist. There are things I would definitely call “rape” that it would be very difficult to legally prosecute, or even legally prohibit, and so I’ve resigned myself to rape laws having some false negatives. But making affirmative consent the standard would eliminate a whole slew of them, without being overly broad and forcing non-rapists to rely on their partners not going to the police.
There is not.
[ul]
[li]The “rape epidemic” is a metaphor, and from the numbers I’ve seen, not an unreasonable one; I suppose it might be unreasonable if you consider anything that doesn’t result in someone going to prison as a “false accusation.” Otherwise I’m not sure how you would characterize the problem as “nonexistent,” unless you’re just quibbling about the aptness of the metaphor.[/li][li]There are a few people shrieking, but that doesn’t discredit all anti-rape activism in the same way PUAry discredits men who want to get laid.[/li][li]Hoaxes – and ff the top of my head I can think of four high-profile hoaxes in 30 years – no more disprove the claims about rape than Piltdown Man disproves evolution.[/li][li]No one is making consensual sex illegal, therefore no one is making all sex illegal.[/li][li]You can already be prosecuted for rape at any time. An affirmative consent law would simply change what would need to be proven. The only way to completely eliminate false positives would be to legalize rape.[/li][/ul]
Is that not how people ought to be having sex already?
Where could you possibly have gotten that number?
And again, this is bad. They should stop. There is no threshold at which enough people are doing an objectively bad thing that makes it not bad. When every doctor believed in the four humors, their patients would up just as dead as the patients of a doctor who believed it in 2015 would.
Can you quote the same person saying both those things?
Did I retroactively rape my ex-girlfriend when she was at Columbia? No, because we don’t have ex post facto laws. Moreover, I don’t recall ever acting without her affirmative consent (even off campus), though I don’t remember every detail of every sexual encounter for three and a half years.
I have tried to hold myself to an affirmative consent standard for nearly as long as I’ve really been familiar with the concept, so if I’d believed that to be the legal standard at the time I strongly suspect I would have made sure to follow it.
Better be careful and ask if you’re uncertain. Of flee to a cave and lead a hermetic existence for the remainder of your natural life.
One of those is an overreaction, but I’m not sure there’s unanimous agreement among the people in this thread as to which one.
So then ask. Open your mouth and ask. If you are somehow so socially inept that you can’t tell the difference between enthusiastic consensual sex and raping someone, there is a simple, free, foolproof way of clarifying this with your partner. Sure, it may be a little awkward. But what is the alternative? Shrugging your shoulders and saying “Oh gee, and I just thought she was crying in joy, oh well her problem”?
This policy REMOVES the ambiguity you are complaining about. It provides a standard for making sure you don’t accidentally rape someone. It makes it LESS likely for you to be a rapist, not more.
What I don’t get is all the hue and cry over “Wait, now you are telling me that I am 100% responsible for making sure every sexual encounter I have is consensual?”
Yes. Yes. You are 100% responsible for not raping anyone. Is this really that onerous? Is it really that hard? What kinds of lives do you live where it is just confusing and baffling who you are having a good time with and who you are raping? And is whatever you think you are going to miss out on by asking “Wanna do this?” really worth it?
Sex can be confusing, ambiguous, and scary positive consent makes it less so, not more.
“Want more of that, baby?” is illegal. If you’re asking whether they want more of it, that means you’ve already done it. You have to ask before.
Whatever. Use your imagination. When single, if he didn’t do it first, I always asked some kind of question (usually along the lines “Do you want to to have sex?”) when moving to the next base with a relatively new partner. I don’t want to do anything with anyone that they are uncomfortable with! Why would I want to risk that?
Look, I’m a 54 year old married guy, so this type of law would make absolutely no difference to me.
But even when I was single, I’d have asked this question: “Who the heck wants CONSENT? I want ENTHUSIASM!”
I don’t drink at all, never have. Regardless, I’ve never had the slightest interest in forcing myself upon a woman who’s passed out, in a stupor, or just not in the mood. I think most men will attest that sex with a woman who’s not into it (let alone one who’s sobbing, screaming, begging you to stop) just isn’t any FUN!
When a woman IS in the mood, it’s unmistakable! Stick to those women and I’m pretty certain you won’t have to worry about getting arrested.
I think it does encourage women to be active. It means that “not saying no” isn’t enough, so if they want to engage in sex, they need to take the initiative to say “yes”. How is that not “owning their own sex life”?
It appears from the California legislation linked up-thread that the onus of proof there is on the person initiating to prove affirmative consent for each sexual act, and that the onus is the civil “preponderance of evidence”, not the criminal “beyond a reasonable doubt”.
If all relevant facts were equal (e.g. no one other than the two were party to what took place behind closed doors) in a he-said she-said dispute, the person accused of initiating a sexual act without affirmative consent should lose for lack of evidence.
By this standard, safe sex now includes video recording of the words and actions immediately prior to and during sex. That, IMHO, makes the affirmative consent a very poor standard.
A better way of dealing with the very serious problems of date rape and the related very serious problem of alcohol abuse is to get serious about educating kids early on, and keep at it throughout their education, from kindergarten on up. Teaching respect and consent in general from the git go, and applying it to gender and sexual issues in contexts appropriate to children’s ages, is a better way to go.
No, you don’t. You never have to ask. Well, OK, to be more precise, the only time you’d be in a position where asking would be required of you would be if based on everything else that had occurred, it was NOT CLEAR that the other person wanted to have sex with you.
And under those circumstances… you would ask, right? We all, in this thread, would either ask or not have sex. So we’d never have to ask, except in situations where the only possible moral choices would be to ask or to not have sex, and practically speaking, because we are all against assaulting people, we’d never find ourselves in that situation, because we’d never be about to have sex with someone and not have any idea whether or not they wanted to.
[QUOTE=Cheesesteak]
That’s what I find frustrating, the person who is failing to communicate isn’t responsible for communicating, the other person is.
Maybe I have it backwards and the end result is women feel empowered to tell men what they think, but the way it reads suggests the responsibility simply falls to the men to figure it out for both parties.
[/QUOTE]
Both parties are responsible for communicating, and both parties are responsible for not having sex with a non-communicative, not clearly consenting party. I don’t think you have it backwards; I just think you’re thinking in terms of a one-way street when it isn’t.
Think about it - if men in New York immediately start following the letter of the law, the women those men want to have sex with will have a choice between affirmatively consenting to sex or not having sex with them. Women want to have sex, so those who are already affirmatively consenting (which, for the record, is not a small number - I’ve never not known, beyond a reasonable doubt, whether the person I was having sex with consented to sex) will keep doing what they’ve been doing.
Those women who heretofore had not been communicating either way (which is a number that you think is larger than I think, but whatever the number is) will have the same choice. If they don’t choose to affirmatively communicate, they won’t have sex, and the women who do affirmatively communicate will get all the booty. And nobody will be sexually assaulted on a college campus, ever.
I don’t understand this thread at all. Men complain about women playing games…this is an attempt to avoid that. If you haven’t had full 100% enthusiasm from your sexual partners in the past then I submit you are doing it wrong. My partners never had to wonder if I was into it, even without express verbal consent. And I have certainly been asked “Do you want to go further?” “Is it ok if I touch you there?” Gentlemen ask!
If you ask a woman if something is OK and she doesn’t answer, then why in the nine hells would you go on?
I hear all the time: if I didn’t push her/nag her/bother her then I wouldn’t have had sex that one time. I hear it on this very board. And then (often the same party) will turn around and say “Women play games”.
This is a way for you to just stop. Just stop all those games. You might not get your dick wet, but who would want to, if they weren’t 100% sure their partner was into it? What kind of decent man would want to? You don’t respond to the games you say all women play, they will stop playing them because it doesn’t work.
Nothing is wrong with clear consent, and to be honest, I am happy we are actually addressing potential rapists instead of potential rape victims. N.B. I am not saying all men are potential rapists and all women are potential rape victims…but we sure treat women that way, don’t we? We give women 1000 ways not to be raped (which don’t work anyway). So now we are giving men some ways not to rape, not even accidentally.
I’ve been with my SO for 20 years and he still doesn’t have rights over my body, and he still checks with me some times. Now a lot of stuff has gotten to the point where we don’t need consent for every little thing, but we certainly need consent for new things, and we both hold veto powers (no sex tonight). I don’t know what kind of world you guys live in where apparently you never check with your sexual partner to make sure things are OK with her, but it’s a hella scary world.
Seriously. What is sex like in your world? Once she agrees to sex, that’s it? Let’s envision this scenario. Say you pick someone up at a bar. You guys mutually agree to go somewhere, maybe her house.
You get to her house and you’re kissing. You start to unbutton her top. She
a) stops your hand
b) starts unbuttoning with you
c) freezes up and does nothing
Are you really saying in option c) you’d just keep going, lalalala, she must be enjoying it, she’s not stopping me? There wouldn’t even be a little bit of a check-in? “Is this Ok?”
-
Any info on what constitutes “sexual activity”? In English, the adjectival version of a noun is broader than the noun. E.g.: All spheres are spherical but a lot of things are spherical without being spheres. In the same way, all sex activity is sexual activity but not all sexual activity is sex activity. So, what is included in “sexual activity”? In Canadian criminal law at least, any sexual contact counts which can go from mouth kissing to coitus.
-
The law says that consent has to be unambiguous. Most of the time, consent is inferred based on non-explicit behavior and body language. A law that requires an absence of willful blindness or recklessness is quite reasonable but this goes further.
-
What happens if someone, having paid attention to body language, behavior, believes the other person consents to making out, starts it, realizes it isn’t the case and backs off? There was no unambiguous affirmative consent to engage in sexual activity. There was an honest, reasonable belief in affirmative consent and there was diligence in ceasing the activity once it was realized that the belief was erroneous. But that law seems to require more.
Bolding mine.
Is this law limited to relatively new partners and new things? No? Would you be willing to behavior in the manner prescribed even when the partner is not relatively new or for things that are not new and not just some times?