By the way:
If you are deciding which one of your clients are guilty and then refusing to represent them to the best of your ability, then you have no business doing criminal defense. I shudder to think how many people are in prison unjustly because your activism is clouding your ethics. Please find another line of work.
Cite, please.
Cite, please.
As those are factual assertions about someone’s personal views, I’m certain you can back them up with evidence. If not, I humbly suggest you’re getting awfully personal for no real reason.
To point is not to protect women. First of all, no woman would actually like to have sex like that: “may I put my hand here?” “May I do this?” “May I do that?” Nor would any man. It’s the exact opposite of sexy.
The first point is for politician to score points with voters.
The second point is to give women the upper hand when it comes to sex:
Instead of saying “I said no” all she has to do is say “I didn’t say yes”. Since that’s going to be true in virtually all real-life sexual encounters, it means a woman can claim rape - truthfully - whenever she gets mad at her boyfriend or ex-boyfriend. Knowing this, men will have to bend over backwards while walking on eggshells, when dealing with any woman they’ve ever had sex with. That’s the real point of legislation.
Any guesses as to who will be initiating sexual activities?
It infantilizes women - by pretending the word “no” is too hard to say. It objectifies women, by making them perpetual victims - rather than responsible actors - in their own sex lives. And it risks labelling innocent men as sexual predators.
It’ll change, eventually - after a judge, politician or other powerful individual sees her son arrested or kicked out of school because his girlfriend got mad at him. But a lot of people will suffer needlessly in the meantime.
So? If you think this is a good policy, you should think it’s a good policy everywhere for everybody. There are no particular reason why college students in New York should be held to higher standards than farmers in Idaho or than yourself in your bedroom. If you think the student should be sanctioned severely for not following these steps, the Idaho farmer and yourself surely are in the wrong too if you don’t follow the exact same steps, even if you can’t be prosecuted for not doing so.
Do you think these recomandations are sensible, and should be implemented, generally speaking? If not, there’s no reason to support them in the specific case of college students. If yes, you should prepare a checklist for the next time you will have sex with your spouse.
Surely you don’t want to feel you’re an horrible sex abuser and clearing up any conceivable misunderstanding that could result in you sexually assaulting your wife is worth the slight inconvenience of making sure in advance that she approves of every single thing you do. You’re no psychic and can’t really know whether she’s willing to have her vulva touched right now if you don’t ask clearly, can you? If that is the proper standard of bed behaviour for New York students, that’s the proper standard for you too.
“I’m certain I’m not assaulting my wife” isn’t a valid argument for not taking such steps unless “I was certain I wasn’t assaulting my girlfriend” is also a valid argument for the student facing an administrative sanction who also didn’t take these steps. If his certainty isn’t enough, yours isn’t either, regardless how much you’re convinced that your judgement is vastly better than other people’s.
I just want people to stop saying stuff about the law that’s not true. That’s all I want.
The law says something very different:[
](http://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/GPB_8R_CAMPUS_SEXUAL_ASSAULT_BILL.pdf)
Let’s walk through it.
Necking is a sexual act. Petting is different sexual act. Intercourse is yet another different sexual act.
Consent to necking does not necessarily constitute consent to petting.
Consent to necking and petting does not necessarily constitute consent to intercourse.
Consent to intercourse does not necessarily constitute consent to necking.
The law requires consent to each and every sexual act.
Such legal advice would be grossly incomplete.
An initiator believing, to a point of self-certainty, that consent has been given is not sufficient to establish consent (as one of my previous client’s learned the hard way when he was convicted of sexual assault / rape). The initiator may be mistaken, and as previously addressed by Malthus, this law does not account for mistake.
Or the accuser may be malicious. “Belief” is very poor evidence. When a matter is he-said she-said – when his evidence is that he believed she consented, but she says she did not consent – he loses because there is no evidence of affirmative consent.
I put it to you, Hershele Ostropoler, what must a person do to not only comply with the law, but also to prove such compliance to a tribunal in the face of the complainant swearing that there was no consent.
I don’t have any stats on false allegations of sexual abuse handy, but from what I’ve seen in my own practice, it is low but significant. When sexual partners are pissed off against each other, things can get extremely dirty, and slinging heinous false accusations is a tried and true tactic used by some parties. (For example, the most recent edition of The Lawyers Weeklyhas an article sets out that 5% of child mistreatment allegations are intentionally false, and that figure rises to 14% if there is an ongoing custody dispute.) “Don’t stick your dick in crazy” becomes all the more important when ongoing affirmative consent is mandated, the burden of proof is only the preponderance of evidence, and evidence other that he-said she-said is usually non-existent.
In short, a well intentioned law that tries to address an extremely serious problem, but throws the baby out with the bath water.
I honestly do not. The law purports to require “affirmative consent.” Okay, fair enough. So what is that, exactly? It seems to say that I must get a verbal response from a potential partner, even my wife of 30 years, each and every time I kiss her.
Nonsense, says your group of posters. Non-verbal cues are adequate.
But, again, that is exactly what we use now to gauge consent. When was the last time a guy beat a rape charge by saying, “Sure, she was sobbing like a baby and was lying there perfectly still except for the twitching, but she didn’t say no, therefore, I thought she was hot for me”?
I think it is pretty clear what the law does. With the language of “mutual decision making” and the “yes means yes” slogan, it creates a standard that can contort nearly every typical sexual encounter into rape.
Anyone defending a rape charge who says something like “I thought she wanted it” or “It seemed like she wanted” will be instantly guilty, even though that would accurately describe most of the sexual encounters that millions have every day.
The non-verbal cues that this accused believed were adequate were not. So we are back to the absurd “must ask verbally at every point.” Then you say that isn’t necessary, so I ask what non-verbal cues are adequate. Then you respond that it is painfully obvious which cues are adequate.
We keep doing this dance that goes nowhere because, as you admit, you cannot give this new law/policy any type of meaning that puts a person on notice as to what is or is not permitted.
The closest response I have seen is to advise a client that to be safe, he must make absolutely certain that he has consent. Apart from the fact that there is no way to do that, it doesn’t define the contours of the law, and requires that he forego legal, consensual sex solely for the purposes of satisfying this ill-defined law.
Or drop out of college to have sex. :smack:
Consider the following scenario:
Anusha and Bob have been together for a while and what with Anusha’s roommate being out of town and the Barry White CD on the player things are getting a bit hot and heavy. At some point during a mutual naked groping session Bob takes the initiative to slip Anusha the sausage. Anusha who comes from a culture that takes virginity very seriously, strongly objects. Bob stops immediately, apologizes, picks up his clothes and goes home.
Without affirmative consent, Bob did nothing wrong, he stopped immediately when there was an objection, and so didn’t engage in non-consentual acitivity. However this doesn’t do Anusha much good since even though it was stopped immediately the damage was already done at that point. In this case it is clear that what was needed was for Bob to get affirmative consent from Anusha before proceeding.
To those against this law, how would you craft a policy that would prevent this situation, or do you feel that Bob did just fine and any negative consequences Anusha suffered are her own fault.
Note: I don’t actually think that Bob is necessarily a bad person in this scenario, just that having a policy that made it clear to him what was required might have prevented a bad situation for everyone all around.
This is such a stretch but taking it as written:
It is Anusha’s fault.
Everything they were doing was consensual to that point. They also have been together for “a while” (however long that is but clearly this is not a drunken bar pickup or even third date). They have gone so far as to get completely naked with each other. It is normal for this sort of encounter to progress to the next step.
Besides, at this point I am unsure how Bob “slips her the sausage” without Anusha having some inkling where it is going. More than that though, given their relationship and Anusha’s strong feelings about her virginity, I think it is absolutely Anusha’s place to draw a bright line telling Bob how far he can go and no further. Especially when you are well on the road to a sexual encounter by having a mutual naked groping session. It is incumbent upon each person in that situation to be clear they do not want to go farther BEFORE the other person innocently and understandably tries to take it farther.
You glided over the part where he had genital intercourse with her against her will, assuming that’s what “slip her the sausage” means. You do know that’s already illegal everywhere, right?
Seriously? You don’t think you have any obligation to give people a heads up/veto power before sticking your dick in them? And that a given woman’s vag is fair game unless you are told different?
It seems to me that the fundamental question here is “When is it okay to have sex with someone?”
The options are:
A) When you have clearly confirmed that person wants to have sex with you
B) Something else
I can’t, for the life of me, make sense of the “something else” arguments. Here we have a clear, potentially one syllable (“Sex?”), unambiguous, no fail method of ensuring consent that if followed to a T pretty much eliminate mistaken consent and the liability that comes with that. All that complaining about mixed signals and whatever-- gone.
On the other had we have a lot of “sometimes it will fail, but come on, Anush was asking for it” stuff that is all less clear, more ambiguous, and if followed to the “T” will lead to more risk for everyone- risk of unwanted sex, risk of forcing someone to do something they didn’t want, legal risk.
Why is that better?
Of course not but you are changing the hypothetical.
In the one given consent was there the whole way with nothing off limits till that last, final act.
In your world you’d have the man asking if he can grab her boob then ask if he can squeeze her ass then ask her if the can undo her bra…repeat ad nauseum. Likewise she needs to ask him if she can squeeze his ass then ask if she can lick his nipple then ask if she can grope his groin…repeat ad nauseum.
OR…
I submit the better way is for one person to be clear where the line is if there is a line they do not want crossed. For the couple in the hypothetical she absolutely should have made that clear. Seems Bob would have been cool with it and respected her wishes. If he didn’t then yeah…he is raping her.
I disagree about what the fundamental issue is. To me, it is one of enforcement.
Yes, if everyone followed the code imposed by the law, you would eliminate claims about mistaken consent. That would be great.
The issue, though, isn’t that. It is about punishing people who don’t follow the code of conduct imposed by the law … which most either won’t conciously (how many people read up on the legal details of their college code of conduct before a date?) or will be unable to prove that they did.
What will happen, likely, is that the code imposed by the law will lower the evidentiary bar so much that it will priove very difficult in almost any situation to resist a claim for discipline, no matter what actually happened.
Don’t get me wrong: the difficulties in proving a claim of sexual assault are great and this has, historically, lead to claims being hugely under-reported. The intentions behind such laws as this are all the best - to make it easier to weed out the nasty actors.
However, this simply appears, from a legal POV, to tip the evidentiary bar too much in the other direction. If someone was badly-intentioned towards someone and had been in a romantic relationship with them, it would appear that this law will give them plenty of ammo to cause their ex-SO trouble - getting them kicked out of university and publicly labelled an abuser. How could they prove that in every sexual encounter at every stage they got express permission, even if they did?
Agreed. Any other policy would require Bob to ask if it is okay to penetrate her, even though we are told that verbal consent is not required. If non-verbal consent is okay, then how much more is necessary than making out naked with someone listening to romantic music? To everyone in the world who is semi-normal, this is an invitation to have sex.
If you are a person who differs from this norm, it is on you to tell people not to misinterpret your signals.
Such as “a yes-means-yes standard will make all sex rape”?
Quite so. I’m not sure there is a difference beteen “necking” and “petting” because I’m too young to use those terms, but in pinciple, yes, I entirely agree with this.
[QUOTE=Muffin]
The law requires consent to each and every sexual act.
[/QUOTE]
Yes, it does, but it does not require consent to be constantly given for continuing the same act.
Are you arguing “I should be allowed to do X to someone who hasn’t consented to it”? If not, perhaps you should clarify your position. If so, I very much disagree.
[QUOTE=Muffin]
I put it to you, Hershele Ostropoler, what must a person do to not only comply with the law, but also to prove such compliance to a tribunal in the face of the complainant swearing that there was no consent.
[/QUOTE]
Oh, this definitely shouldn’t be strict liability. Such a defendant may benefit from taking the stand in their own defense, and describing exactly what led them to the conclusion that the accuser was affirmatively consenting. If we’re talking about criminal trials under a hypothetical rape statute, the defendant need only raise reasonable doubt that they knew (or a reasonable person would or should have known) consent had not been given.
Not for them, however, it would seem, if they’d never gone on to “the next step” before.
I mean, either they’d talked about intercourse, and Bob knew where Anusha stood on the subject, and knew she would have said “no” if he’d asked, or (with more charity toward Bob) the subject had somehow never, as it were, arisen, and so he … guessed. He still should have asked first. And if he had, she would have said “no” and they wouldn’t have done it. But she did say “no,” only after the fact, and he had to stop, so I’m not sure the way it actually went down is better for either party than him asking and her declining would have been.
How does anybody prove anything? They assert the facts based upon which they know the thing they are saying is true.
If they got express permission, they did, and here’s how they knew: A, B and C.
If they didn’t get express consent , and if under the circumstances it was not reasonable for them to believe that they had express consent for whatever the thing was that they did, why is it a problem that they’re in trouble? Why is the fact that the policy can be enforced against that person an “enforcement issue,” as opposed to actually the thing the policy is supposed to prevent?
I mean, I understand that in this hypothetical you made up we’re assuming that the victim is a terrible liar (which I think it goes without saying I don’t think is all that productive), but you’re telling me that you think there’s a way for this terrible liar to manufacture a sexual scenario where he or she does not do anything to indicate clearly that the desire to have sex is mutual, but where sex actually occurs, and where the other person isn’t actually doing any of the problematic stuff you agree motivated the policymakers to make the policy in the first place?
If you’re just assuming that the disciplinary boards are going to throw out the evidence and throw the book at every alleged perpetrator based on every alleged victim’s lying testimony, then what do you care what the face of the policy says?
If someone has consensual sex with someone, and that person decides later to claim it was rape for whatever reason, you are choosing to turn the blame back on the person who being falsely accused. That is victim blaming.
You’re essentially saying the guy is asking for it. That’s just as wrong as saying a rape victim is asking for it. No one deserves to be raped, and no one deserves to be falsely accused of rape.
And before you try to say it doens’t happen: 10% of rape claims are verifiably false. Not withdrawn–that’s higher. But verifiably false.
The problem with this policy is that it at best does absolutely nothing, and at worst makes things a lot worse. If if just makes it where you have to make sure you have (verbal or non-verbal) consent before an action, that’s already the way things were.
If it makes it where colleges now automatically side with the accuser and not the accused–the direction a lot of people already want them to go–that creates a problem.
Affirmative consent is more the realm of a campaign than a code of conduct. It doesn’t change anything about what is or is not rape. It just is an argument that “no means no” is not enough. That the default is not consent but lack of consent.
Making it a code of conduct worries people that think that all those accused of rape will be punished, regardless of guilt. And for the 10% who will not be guilty, that is a bad thing. It’s not as if this is something kept private.
And, again, the solution to this is simply that sexual encounters will be filmed, because we are already moving that direction. People care less and less. As long as they get to control who sees it, people will be okay with filming it.
Then we can actually see both forms of consent, without any need for a presumption of guilt or innocence.
Abrahamic God:
William Blackstone:
Otto von Bismark
Pol Pot
Dick Cheney