Reasonable belief as to the existence of affirmative consent is a defense to a misconduct charge, with the exception of situations where the complaining party was incapacitated.
It is? I’m having difficulty finding the text of the law.
Is it a general principle that reasonable belief is a defense to a misconduct charge? I’m not familiar with college rules at all.
The concern is the impact this will have on college disciplinary hearings. These are already somewhat of an issue - having a quite seperate legal process from the criminal, and one with a lower standard of proof (balance of probabilities vs. beyond reasonable doubt).
Now, with this definition, the onus appears to be on the defendant to prove “affirmative consent” (verbal or not) for each “sexual activity” during a sexual encounter. This may be rather challenging, including for those men and women who do, in point of fact, obtain 100% enthusiastic consent for each activity (as I think most people do, in reality - at least, so I would hope). It strikes me as creating a host of problems, from a legal POV.
In sum, the point isn’t that people ought to follow the process outlined in the Code (that I can agree on), it is that the Code is going to be used, after the fact, in administrative hearings. For that, it strikes me as leading to a situation where an affirmative defence to an accusation becomes difficult. Whether it will be unreasonably difficult is too early to say. Have to see how cases are actually processed. But it is at least a legitimate concern.
The text is in post 48.
It is a general principle in affirmative consent cases, though, as opposed to being codified in that statute. The California law it’s modeled upon comes closer to, but still doesn’t quite, make the principle explicit:
Emphasis mine.
Yes, that is in reference to college disciplinary proceedings. I don’t believe the legislature can, by statute, lower the burden of proof for certain crimes in criminal court. If I am wrong, I would oppose legislation that actually did so.
[QUOTE=Muffin]
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.
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That really depends on which party the triers of fact find more credible. If the purported victim is clearly lying through their teeth, the accused will likely walk.
[QUOTE=Muffin]
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.
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That is a strawman. It is possible to establish consent without being so strict about it. This is the sort of discussion that makes me wonder how people are having sex.
[QUOTE=Muffin]
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.
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What shall we teach them? Not to touch someone who’s told them not to? Or not to touch someone who hasn’t given them permission?
It strikes me that this wording excludes a defence of reasonable mistake. Consent has to be a “mutual decision” and create a “clear permission” in order to count. I’m not sure there is any room for “mistake” in that - any sort of reasonable ambiguity isn’t proper consent.
With that defense, the law does seem reasonable, then. There can be reasonable disagreements on minor points but that’s the nature of complex rules that apply to complex phenomena.
Does the text you quote imply that the consent doesn’t have to be reasonable, just honest? Honest consent is the standard in Canadian criminal law, with an ambiguous restriction of it.
The problem is that the “default” setting in most cases is that there is no evidence. Chances are that, in that case, if this Code is followed, a disciplinary order would follow any accusation.
Agreed, if the “… purported victim is clearly lying through their teeth”, a disciplinary order would likely not follow - but that describes a minority of cases.
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.
Well, statistically, false accusations are rare, does “that describes a minority of cases” take that into account?
But the standard of evidence isn’t a hill I’m going to die on if we’re in agreement that non-consensual sex is wrong – and you and I, at least, do appear to agree on that part.
I know what you mean, and it remains to be seen, obviously, but if you think about it from the perspective of litigating the issue, whether or not there was “clear permission” is a question of fact. A person can make a reasonable mistake about whether or not something is clear or whether it’s mutual.
It could pop up, for instance, in the obvious worst-case nightmare scenario where the alleged victim acts exactly one way and testifies that subjectively they felt exactly the opposite.
[QUOTE=MichaelEMouse]
Does the text you quote imply that the consent doesn’t have to be reasonable, just honest? Honest consent is the standard in Canadian criminal law, with an ambiguous restriction of it.
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I’ve only ever seen the standard applied as an objective test, i.e. would a reasonable person have the belief, not as a subjective one, i.e. did this individual person actually believe it.
The idea that sex can includes stages or levels of involvement shouldn’t be shocking, so the idea of multiple stages or levels of permission shouldn’t be shocking, either. Just because she’s doing one thing doesn’t mean she’s willing to do another. Hell, that’s true even in porn!
I can see a practical application similar to claims of probable cause. Does the person have an “articulable explanation” for how they obtained consent.
This law reasonably codifies that sex can stop progressing, or can even end, at any time. And if a person is going to defend themselves from accusations that they went too far, then I think it is reasonable to require that they be able to describe what sort of affirmative consent (i.e. “she asked if I had a condom?” “She physically grabbed me and…”) they obtained.
Who? Who specifically? One or two links. please. Also, from where do you get the notion that these unnamed people would be interpreting the law in a court case?
Lastly, would you please educate yourself in the actual text of the law before you erroneously spout off again? Sheesh.
The chances of my husband taking me to court on rape charges is exactly nil. Nobody is peeking in to our bedroom making sure that you get positive consent every time you have sex. This will only come up if lee accuses me of rape, which he is not going to do.
Of course some minority of rape trials are batshit crazies making stuff up out of whole cloth. This already exists, and the law doesn’t really change the situation with outright false accusations. It’s not look it’s easier to make up an accusation based on affirmative consent.
That leaves people who actually feel they were raped, of which my husband will never be one.
But just to be safe, if we are ever doing it on a NY college campus, I’ll make it a point to ask.
What law? I thought you said this thing passed by a legislature that mandates certain behaviors is definitely positively absotudinely not a law?
I would assume everyone agrees non-consentual sex is wrong - or at least, I hope I can assume that! :eek:
Rather, my critique is aimed at the wording of this particular bill, and its effect on such tribunals.
I agree false accusations are statistically rare - my concern is that the law is not a good law. I don’t think it will open the floodgates to false accusations, but I do think it has the potential to lead to a certain amount of individual injustices that would otherwise not occur, by lowering the evidentiary standard too much. No doubt based on a perfectly laudable intention to remove procedural barriers to justified complaints.
Is this a law for college disciplinary hearings or for courtrooms? If there is an epidemic of rape on campus, we don’t need new laws broadening the definition of rape, we need to enforce the old laws against this crime in courts, courts with the power to send the guilty to prison. College disciplinary hearings are for cheating on an exam.
I can’t help but feel I’m missing something here, and I don’t know if it’s that I was never a 19-year-old woman, or if the NY legislature passed a law because There’s a Crisis and We Have to Do Something! There’s no time to decide if it makes sense, we have to Do Something!!
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).
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. It also is interpreted (wrongly, but with disastrous effect by wrong people who wield power) to mean that no protections of the rights of the accused apply beyond the gate of a campus.
Colleges also have an interest in serving various groups besides the Constitution and justice – parents who might not make that tuition or donation check out if the campus gets a reputation as unsafe, or baying activists who earnestly believe that the entire male population of America’s universities is made up of rapists and want to see them punished. The result is a ridiculous mess that almost guarantees innocent people will be punished and guilty people will go free.
Add in a dose of the made-up “campus rape epidemic” and “1 in 5 women being raped in college,” shamelessly marching forward despite recent discrediting hoaxes and properly constructed studies, and here we are.
Good gracious. It’s like the Men’s Rights movement created an Eliza program.
I’ve said nothing of the sort. Honest mistake on your part, or something else?
For at least the fourth time: have you read the text of the law I linked to? You’ve been shrilly demanding that people answer your questions; why won’t you answer this one?