College disciplinary policy is not the same as criminal law, nor is it meant to be. There are many things that will get you disciplined that are not criminal. For example, cheating on a test.
This law provides a new set of actions that, if done in context of academia, can get you disciplined, yet they are not criminal by themselves.
And that’s one of the things that the skeptics say concerns them. That under the standards for “mere” institutional discipline the organization may seek to “play it safe” and weigh the presumptions too heavily in favor of the complainant if it comes down to he said / she said. That they will not dare say “sorry Ma’am, to be fair, we need to question your version.”
But then again we could try to be more generous to the intelligence and integrity of the officials and believe that there CAN be an outcome to the effect of “looks like a mere stupid mistake; no punitive action required but get with the program, young man, that’s no longer how it works…”. Certainly the officials could apply a “reasonable person” standard as to how you determine consent.
As has been mentioned many times, that concern also seems to somehow assume (a) that a significant part of normal sexual interactions already happen sort of on autopilot with neither side paying too much attention to consent and (b) that there are a whole bunch of psychos out there just waiting for this change of paradigm to lash out by enticing you then claiming that’s not what they meant. I have my doubts on both of these.
. . .
Some other people, meanwhile, just may be upset at the possibility that in order to satisfy the new standard, the college crowd may have to say goodbye to the random zipless hookup as we’ve known it… Well, too bad, kids, ask Mom about the good old days…
Well I don’t, but Real Men aren’t as noisy as Real Women. 
Seriously, moaning, “Oh, yeahhhh” only gives affirmative consent retroactively. If I, say, touch my wife’s breast expecting her to say, “Oh, yeahhhh,” and instead she says, “Not now, dear,” even if I, like a gentleman, remove my hand, under affirmative consent I’m still in the wrong.
If we all trust the intelligence and integrity of university officials, why was it necessary for women to sue them under Title IX in the first place?
Not a whole bunch, but one psycho here or there goes a long way.
I firmly believe that women are the equal of men, but that can be a frighteningly low level. If there are men so morally bankrupt as to rape a woman, there are women who will ruin an innocent man’s life for some half-assed reason.
Fair point. They had their chance and blew it big time, so one can worry that they’ll just decide to go all in to swing the pendulum the other way because, legal counsel.
(But let’s say they DO get their act together… It will not prevent mattress-carrying and cyberharassment and indeed further lawsuits. )
Thing is, maintaining a defensive position against that 24/7 is just no way to live. And is pointless if the psychos will just strike randomly.
And at the xkcd it’s such a slice of modern life…
Personally, I think the solution will most likely be that, as society is getting more and more used to filming ourselves, our naked bodies, and our sex acts, people will just naturally start filming things.
“Does this video look like someone who wasn’t consenting?” or “Does this video look like someone who is capable of consent?”
That’s essentially what I’m arguing : that this policy requires in practice a verbal consent before any individual sexual act. You can’t assume that your partner is willing to have her genitals touched now just because she was willing to have her breast touched 5 minutes ago, nor because she was willing to have her genitals touched yesterday. If your assumption rely on body language rather than actual consent, it’s both subjective and uncertain (unless you’re a psychic), and certainly won’t amount to an affirmative consent.
As I wrote above, let’s assume that your last sex partner complain to me that s/he wasn’t consenting when you touched his/her butt. How are you going to demonstrate to me that his/her body language was the equivalent of an affirmative consent to have his/her butt touched? How did you actually make sure beforehand s/he was clearly consenting last time you touched your partner’s butt? I’m pretty certain you didn’t, and you just assumed that s/he wouldn’t have an issue with it based on various factors none of which amounts to an affirmative consent for this specific act at this specific moment.
Precisely. And you make sure you have this prior permission how, when the standard is affirmative consent?
You’re totally mistaken. I took the pain to write him/her this time in order not to confuse you more. Of course, a man could be deemed a sex assault victim under this standard, everybody not only can, but is. Because nobody is following this standard, and as a result, everybody who has sex is in the wrong. Luckily, most of the time, your partner will be happy with what you have done, of if s/he unhappy, you’ll be able to sort out the issue without much fuss. It doesn’t change the fact that when you touched him/her in a sexual way, 95% of the time at least you acted on faith, not on the basis of a clearly expressed consent (verbal or not), hence didn’t respect this standard. If you had been unlucky and for some reason s/he suddenly really didn’t want you to touch him/her once more, and s/he was really mean about it, you’d have been unable to show that s/he clearly expressed such an affirmative consent. “But…but…I felt he was enjoying it and it was the 2135th time I was touching him down there” isn’t an affirmative consent.
I’m not discussing whether it’s criminal or not. I was asking if it was a good policy or not.
If it’s a good policy, shouldn’t it apply to everybody, including you? If it’s a bad policy, why would you want it to apply to anybody at all?
If you support this policy, then presumably you think this is a good standard. And if you think so, then presumably you’re going to apply the same standard in your own sex life.
Ok, well, I don’t agree, but I also don’t see that as a huge burden (and neither does this dude).
So there are two issues here. First, people in couples who have been together a long time recognize signals, including non-verbal signals, including that the last 1000 times they had sex it included butt-touching and the person whose butt stands to be touched knows it’s coming and can be more subtle in their assent; verbal consent is nice but, in that situation, somewhat optional. Second, verbal consent is not insurmountably difficult, nor is it a radical change in how well-meaning people have sex; if you don’t know the person very well, if you’re not sure you’re reading the signals correctly, if there’s the slightest doubt in your mind, if you want to heighten anticipation, you ask. And again,this doesn’t require a specific verbal formula: “you may touch my penis now” and if he says “can” or “cock” it’s no good. I think you are assuming the humans making these judgments are going to be overly punctilious. I can see the Disciplinebot 9000 taking that approach, but human beings who have actually had sex are probably ging to be more tolerant of nuance than that.
This does little to convince me that you’re not trying to make the argument “this standard is so horrible that it might result in women getting in trouble for ‘sexually assaulting’ men.”
[quote=“Hershele_Ostropoler, post:68, topic:725483”]
Ok, well, I don’t agree, but I also don’t see that as a huge burden (and neither does this dude).
What you’re refering to (example of verbal consent being sought before each significant move:
That’s cute and all, but that’s not what people really do. They don’t ask consent with every step. And after the 20th time, it would stop being cute and would turn into a boring procedure.
Optional until it happens that you’re mistaken. Are you arguing that unwanted touching is fine in a long term relationship, but not acceptable in a casual relationship? Or that people in a long term relationship are less likely to be mistaken so that even though it’s an equally serious issue, it’s unlikely to happen? Or that even if it happens, they’ll likely to be able to deal with the issue? All three statements seem problematic to me if the concept is that affirmative consent is the way to go.
Now, let’s assume older post-doc students in a New-York campus, who have been together for 5 years. Will your “consent is optional in our case” concept fly in a disciplinary hearing?
Again, it’s not technically insurmountable, it’s just not how people are having sex, presumably yourself included. The first time you had sex with your current or last partner, did you actually ask him/her (in whatever way, awkward or not) before each progression? Before kissing? Caressing under clothes? Touching breasts, buttocks, inside of thighs, genitals or any other part that might be considered highly private? Did you ask before mouth-genital contact, etc… ?
If you did, did you ask again the second, third, fourth, tenth time? After one month? Two months? Outside actual sex, while having intimate contact, like kissing or putting your hands on hips? At what point did it become “optional”?
I’m assuming that regular people giving their opinion might judge that your actions were very reasonable, but that the same people, in charge of a disciplinary hearing, and having to answer specifically the question “was affirmative consent given in this particular instance?” will answer “no” in the same circumstances. For instance in your example that arguing that you have been together for a while hence that verbal consent became optional won’t fly, and that your reliance on “subtle” signs of consent doesn’t meet the standard by a long shot.
IOW, that what you’re usually doing when having sex in all likelihood doesn’t meet these standards. Hence that regardless how tolerant and understanding I am, how reasonable and understandable your actions were, how good your intents presumably were, I’ll have to answer “no” to the question actually asked. “Was affirmative consent given?” isn’t the same thing at all as “were the actions of this person reasonable and his intents respectable?” Very probably, I would have to sanction you almost every single time your current or latest partner would complain about pretty much any of your sex acts.
And can you point to me what exactly made you think that? Reread what I wrote, you won’t find any such statement, neither direct nor implied.
It might be good policy within an academic environment, but not outside of one. Context matters. Just as, to take a simpler example, the rules are very different within an elementary school than outside one.
OK. Can you expand on this? Can you tell me what makes it a good policy for some people and not for some others? Let’s assume a 22 yo plumber and a 22 yo student. Why should the student be held to stricter standards wrt his interactions with a sexual partner, exactly?
Or if yourself and a student both meet a new partner, why should the student make sure that his partner says “yes” while you only need your partner not to say “no” to proceed?
A thought experiment: let’s say there were a Western democracy, a common-law country of, say, 35 million people, in which afirmative consent were in fact the legal standard for rape.
Wait, there is. It’s called “Canada”[1]. When a student at SUNY Buffalo attempts to flee the repressive anti-sex rules on campus over the Peace Bridge, they’re actually going from bad to worse.
Canada had over 380,000 births in 2014, so there doesn’t seem to have been a chilling effect on sex.
I can’t know how many of those people are violating the letter of the law and getting away with it only because they aren’t violating its spirit and their putative victims aren’t turning them in (because they don’t regard themselves as having been victimized). But I think this is evidence that affirmative consent doesn’t mean the end of sex.
That said, when I say to my partner “hey, let’s do exactly what we did last time” and she agrees (or vice versa), that’s affirmative consent to each of the things we did last time. Disciplinebot 9000 might not recognize that, but humans will. And that’s a single example – there’s a narrow path between explaining it so any human should be able to understand it, and TMI.