[Warning: This post contains descriptions of, and discussion of, rape.]
In comments, a new comment-writer named “Ben” presented “three very strong objections to the California affirmative consent law.” Before I respond to Ben in a future post, I want to make it clear what Affirmative Consent laws do, and what problem they are intended to address.
I don’t think that this law is going to, by itself, create huge changes. “Affirmative Consent” laws – also called “yes means yes laws” – aren’t revolutionary; they’re a fairly minor change to existing laws, which have been moving in the direction of being consent-based for many years.
I’m not expecting California’s Affirmative Consent law to bring a big upswing in colleges punishing rapists, and I’m not expecting a huge drop in rape prevalence on California campuses. Rape prevalence has many factors, and no piece of legislation can create huge change. Changing the law is an important step, but it is only one step, not a whole marathon.
Let’s get a few common misconceptions out of the way, while we’re at it: The law is gender-neutral, at least in language (whether some of the people applying it will be sexist is another matter). ((Actually, let me just say straight out: Some of the people applying the law will be sexist, just as some people applying the previous law were sexist. This includes some college administrators who aren’t concerned enough with protecting accused male students’ rights, and who aren’t willing to recognize rape of male students as a problem. This is a serious problem – but the solution is to address the sexism, not to oppose Affirmative Consent. Repealing this law won’t make the sexism go away.)) The law doesn’t require explicit verbal permission at every stage of activity. The law does not say that men are automatically guilty if accused.
So what does Calfornia’s Affirmative Consent law say? The whole text is here, but I think this is the most important bit (emphasis mine):
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
So what kind of case could this law apply to? Consider Lisa Sendrow’s rape, ((Lisa Sendrow has chosen to publicly discuss her rape under her own name, in order to better help other rape victims. More information here.)) which George Will discussed – or, really, dismissed – in the Washington Post in June:
Consider the supposed campus epidemic of rape, a.k.a. “sexual assault.” Herewith, a Philadelphia magazine report about Swarthmore College, where in 2013 a student “was in her room with a guy with whom she’d been hooking up for three months”:
“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”
Six weeks later, the woman reported that she had been raped. Now the Obama administration is riding to the rescue of “sexual assault” victims.
Will thinks it’s ridiculous to call this “rape” – so ridiculous that he doesn’t even need to explain why. But we can guess that her lack of resistance, and the fact that she had voluntarily had sex with this guy in the past, figured into Will’s analysis.
Although Will’s column was controversial, many agreed with it. For example, Cathy Young, a national columnist who often writes about rape issues, tweeted:
She said no, the guy (her former steady hookup) made another move a few minutes later, she went along with it. Apparently b/c she was “tired” or something like that. Sorry, calling this rape is insulting to real victims.
Cathy is explicit – he was “her former steady hookup,” and Lisa “went along with it” (lack of resistance), therefore it wasn’t rape. Never mind that Lisa said “no” – in the minds of Cathy, and George Will, and the millions of Americans with similar views, it’s not enough to say “no.” Lisa didn’t say no enough. Lisa didn’t resist enough. Lisa just lay there, and in many people’s minds that’s as good as consent right there.
Implicit in Cathy and Will’s analysis is that it should be legal to presume consent exists until all possibility of consent is eliminated beyond all doubt. But that belief would make a huge number of rapes – of sex without consent – legal. That’s not what any of us should want.
Lisa Sendrow did not consent, and has been very clear that she did not consent. What happened to Lisa Sendrow was rape, if sex without consent is rape. But many people believe it’s not rape if the victim “went along with it,” or if it’s a “former steady hookup,” or if she let him into her dorm room. And, unfortunately, many college administrators share Cathy and Will’s terrible views.
That is why this law is necessary. So that when someone with an experience like Lisa Sendrow’s goes to her college administration and says she or he was raped, she or he won’t be told it wasn’t rape because the rapist was a former hookup, or because she or he didn’t resist. Or, if she is told that, at least the law will be clearly on her side, not the college’s.
Lisa’s story isn’t uncommon. Boys in particular, in the United States, learn that the way to get consent is to wear girls down. This is a direct result of beliefs like George Will’s – the belief that pestering a girl or woman until she just gives up resisting can’t be rape. Mallery Ortberg gets at why this view is dangerous and encourages rape:
One of the dangers, I think, of depending on passive consent — the idea that all conditions are Go unless you are met with a swift, stern “NO MEANS NO” or a slap to the face — is that it conditions sexual aggressors (particularly men) to ignore or deflect or attempt to wear down perfectly clear rejections. As long as a No is plausibly deniable, it isn’t really a No; and if she didn’t really say No then you can’t possibly have done anything wrong.
In my very highly-rated, wealthy Connecticut high school – and in the pricey summer camps I went to during the summers – guys traded tips on getting laid. I know a lot of people hate this term, but a lot of what we told each other is best described as rape culture 101. One of the most popular strategies – at least, to talk about – was to take a girl for a drive and then pretend to run out of gas in some lonely spot. I’m not in high school any longer, but I would assume some guys still trade similar strategies today. What “strategies” like this teach boys is that the way to have sex is to put a girl in a situation in which she can be pestered until she finally stops saying “no” or resisting. I’m sure for most of us it was just talk; I’m also sure that a few did more than talk. This was not considered rape by any of us.
The TV show It’s Always Sunny In Philadelphia captured this attitude perfectly:
Dennis: What do you mean, what do we need a mattress for? Why do you think we just spent all that money on a boat? The whole purpose of buying the boat in the first place was to get the ladies all nice and tipsy topside so we can take them to a nice comfortable place below deck, and, you know, they can’t refuse. Because of the implication.
Mac: Oh, uh, OK. You had me going there for the first part. The second half kind of threw me.
Dennis: Dude, dude, think about it. She’s out in the middle of nowhere with some dude she barely knows, she looks around, what does she see, nothing but open ocean. (Imitating female voice) “Oh, there’s nowhere for me to run. What am I going to do? Say no?”
Mac: OK. That seems really dark.
Dennis: Nah, it’s not dark. You’re misunderstanding me, bro.
Mac: I think I am.
Dennis: Yeah, you are. Because if the girl said no, the answer, obviously, is no. But the thing is she’s not gonna say no. She would never say no. Because of the implication.
Mac: Now, you’ve said that word “implication” a couple of times, what implication?
Dennis: The implication that things might go wrong for her if she refuses to sleep with me. You know, not that things are gonna go wrong for her, but she’s thinking that they will.
Mac: But it sounds like she doesn’t want to have sex with you.
Dennis: Why aren’t you understanding this?
This “implication” kind of rape – which is virtually never considered rape by the rapist – is commonplace. Find a vulnerable person, get her or him into a situation where it might be difficult to say “no,” and then persist until the victim becomes worn down and stops resisting. ((The cartoonist Uli Lust, in her in her autobiography, depicts herself as a young girl hitchhiking across Italy – and man after man rapes her using this strategy. As one especially blatant man told Uli, “We are far away from any village in the mountains. It is dark and cold outside, and it is raining. You can choose, either we have sex together, or you leave this house right now and sleep on the stones.”))
Sophia Katz, a young Canadian writer, wrote an essay describing how Stephen Tully Dierks, ((One of Dierks’ roommates has supported Sophia Katz’s account, and another woman has come forward with an account of being raped by Dierks almost identical to Katz’s. Dierks, it should be noted, didn’t deny Sophia’s story but said that he thought she had consented. Predictably, some people have criticized Sophia Katz’s actions and blamed her for her rape.)) an editor she had exchanged emails with, invited her to stay with him in New York City. It was her first visit to New York, and she didn’t know anyone there, and she didn’t have many resources. The first night she managed to fend Dierks off. The second night he wore her resistance down:
That evening we were in his room sitting on his bed, and he began kissing me again. I felt unsure of how to proceed. I had no interest in making out with him or having sex with him, but had a feeling that it would ‘turn into an ordeal’ if I rejected him. I had never been in a situation where I was living with someone for a period of time who wanted to have sex with me, that I didn’t want to have sex with. I knew I had nowhere else to stay, and if I upset him that I might be forced to leave. We continued kissing and I felt like vomiting. He took off my clothes and I felt like wrapping myself in one million layers of plastic. He seemed to be ‘preparing’ to have sex with me, and I imagined becoming invisible. Suddenly I heard the lock on the apartment door click, and all four of his roommates entered.
“Wait, Stan we can’t. Everyone just got home; they will definitely hear,” I said, hoping this was a way out.
“No they won’t. It’s fine. Let’s keep going.”
“No, I think they will. I really don’t want to if your roommates are home. We really shouldn’t.”
“No, it’s fine. We should. We should. Let’s keep going.”
“Stan, please can we just do this later. Your walls are really thin.” I felt tears welling up in my eyes and tried to dissolve them. I didn’t want to do it later. I didn’t want to do it ever. I didn’t know what I wanted to do. I wanted to leave, but I was trapped with him in his tiny, dimly lit room.
“No, we should keep going. Let’s keep going.”
He got on top of me. I began to relinquish control.
Was that rape? I sure think so. Was it legally rape? It’s ambiguous. She said no, again and again – but then she stopped resisting.
This is an ambiguous area in the law, and arguably a loophole in our current sexual assault law, and in our cultural idea of what constitutes rape. If you can just get her or him to stop resisting, if you wear her or him down, then you can have sex without consent and pretend it isn’t rape.
Shutting that loophole is what Affirmative Consent is about. Shutting the loophole legally, and – as one among many steps – shutting it culturally. It is part of the larger “yes means yes” movement to make people understand that merely because someone doesn’t resist (or did resist, but stopped) doesn’t mean they’ve consented.
It’s also important to realize that many people – but especially young guys who don’t know much about sex – have absorbed the cultural (and legal) message that lack of resistance equals consent. As long as this attitude is prevalent, committing rape doesn’t require being as overtly venal as the character from “The Implication.” It merely means being able to lie to yourself a little in pursuit of sex; being willing to ignore the signs of fear or freezing up or displeasure because they haven’t actually said “no,” or they did say “no” but that was several minutes ago. The British psychiatrist Nina Burrowes, who studies and writes about sexual assault, describes in this video (start at 5:03) how many rapists genuinely don’t think of themselves as rapists or want to be rapists. For these cases, making it clear, legally and culturally, that lack of resistance isn’t consent could actually rescue some people from committing rape – a benefit for both them and their victims. ((I’m not saying this is the case for ALL rapists. I suspect some readers will respond as if I’ve said that all rapists just misunderstand what’s going on, and if we could only explain rape clearly they’d stop raping. Clearly that’s not the case. But if there are marginal rapists whose behavior could, in fact, be influenced by making it clear that lack of resistance doesn’t equal consent, then making that marginal change is a reasonable thing to do.))
Is the law perfect? No, of course not. No matter what the law says, many rapes will be unprosecutable. That’s just the way it is; not all crimes can be proven. But that’s true of any imaginable rape law, not something unique to Affirmative Consent.
My major objection to the California law is that it doesn’t provide enough protections to the accused student; for instance, she or he should have a protected right to have an advocate and adviser present at all hearings, the right to consult a lawyer, the right to have a representative question witnesses. She or he should, in short, have guarantees of due process. However, this means that California law should be amended to guarantee due process for accused students (all accused students, not just those accused of rape); it doesn’t mean that Affirmative Consent itself is a bad idea.
Okay, now that I’ve explained the need I think this law is addressing, in my next post I’ll actually reply to Ben.
G&W, I generally treat victimless laws differently than crimes with victims, like rape. I trust I don’t have to spell out the justification for that.
Otherwise, I don’t see or agree that I’m treating the law regarding this crime differently than I would the laws regarding similar crimes. For example, I don’t think “Linus didn’t say that I couldn’t punch him” should be a defense against charges of assault. And if current laws against assault showed a persistent problem with people believing that assault is okay if the victim failed to say “don’t hit me,” then I’d favor changing the laws to make this point clearer.
I’ll say that as far as things like child custody and visitation go, here in California, this is already essentially the standard.
That is – you don’t get to keep your kid for another week just because your ex didn’t tell you to bring him back. You must have an affirmative confirmation from your ex that they’re okay with you keeping the kid past your scheduled time, and if you don’t have that, then you’re in violation of a court order, whether you ‘thought it would be okay’ or not.
—Myca
As Myca said, I think this is already the standard for most types of crimes. Just to give a few more examples, a couple of decades ago my wallet was stolen and my credit cards were used by the thief to buy all sorts of things. The thief was later apprehended by the police and most of the non-monetary contents of my wallet were returned.
Now, at no point in this, did I ever tell the thief out loud “don’t take my wallet and use my credit card”. Now, I wasn’t at his trial, but I don’t think his defense could have invoked that fact in order to argue that I actually agreed to his use of the card. On the other hand, had I affirmatively told him “you can take my wallet and use my card”, that would have been a valid defense.
The same logic applies to everything else: if someone were to notice I left a downstairs window open and used it to enter my house, they’d be trespassing. I don’t have to explicitly put a sign next to the window that says “no entry”. No defense lawyer could claim that the fact that I left the window unlocked was permission to enter the house. On the other hand, if I had told the person beforehand “you’re welcome to come in – use the window so you don’t wake us up”, then that means they were not trespassing because they had affirmative consent to enter.
etc etc etc.
So really, the point is that affirmative consent brings rape law in line with what is an already accepted standard in practically every other crime. And yes, I think this is entirely correct.
Trespassing is a particularly good example, Eytan. In the past, G&W has objected to the ‘theft’ or ‘assault’ analogies to rape because while people often consent to sex, they rarely consent to facepunches.
But I often invite people into my home. I often tell my friends “Hey, feel free to come on in whenever you like, whether I’m home or not!” That is: I give them affirmative consent.
And if I was to come home and a friend of mine I hadn’t offered that consent to was in my home uninvited, of course that would be trespassing. What else would it be?
—Myca
g&w @ 100:
Maybe I should not be the one to answer, as I probably do not fit into that camp. But, here is what I would infer about that mind-set.
What makes rape often so difficult to prosecute is the issue of consent. Now, that is generally not true in cases of stranger rape, or statutory rape. It is where you get into date rape or acquaintance rape that the issue of consent is much more difficult to determine.
Such ambiguities don’t typically exist with the other crimes you mention (though I am a bit unclear about what you mean when you talk about harassment crimes and fraud crimes). There are probably very high convictrion rates for violent crimes and drug crimes and even trespassing (when such cases are actually prosecuted). Their proof does not depend on subjective evidence. So, you often have relatively high conviction rates.
With rape, however, often the only evidence you have is subjective. So, almost every case of a “he-said, she-said” barely gets past the preponderance of the evidence. (Then, there are those cases where there is video or audio evidence, objective evidence, that helps one side or the other.) But, I can be gung-ho, pro-defendant and still say, “why are convictions for rape so much lower then for these other crimes? And, how can we get some sort of parity in convictions?” Two options: 1) lower the burden of proof; or 2) require certain actions (affirmative consent), the absence of which create the basis for the criminal charge.
So, you can be pro-defendant, but also have the nagging suspicion that a lot of people are doing the crime but not doing the time, like they would if it were some other crime. So, the system has to be fixed, so that fewer criminals get off scot-free. I mean, we don’t let murderers and drunk drivers off at the same rate we do rapists. So, we have to fix the system to make sure they are convicted at comparable rates.
I don’t know if that is the answers your question, but that is the best I could do.
-Jut
JutGory, please don’t attempt to describe the motivation behind views you don’t share (and in fact, I would guess, passionately oppose). You’re unlikely to do it accurately, and the attempt inevitably moves the discussion in bad directions.
For the record, nothing in your comment describes my motivations at all.
I’m interested in the fact that some folks are treating this as a burden of proof standard, because that’s not how I would look at it. I don’t support affirmative consent because I think it will lead to more rapists being convicted; I support affirmative consent because I think having sex without affirmative consent is often rape.
I’m open to arguments that the law could be written more clearly, for example, or that other implementation details could be fixed. But I’m having a hard time with the idea that it’s inappropriate as a philosophical basis for a law.
g&w,
I did not realize there had already been responses, but I don’t think they really address the point well.
Amp’s example of assault is not helpful for a couple of reasons. Assault can be consensual (making it not really assault), but that occurs in very limited contexts (football, wrestling, etc.). And, between people who know each other, consent may become an issue. With strangers, as with rape, consent to an assault should be easy to prove. Plus, with assault, you will often have a demonstrable injury. That is not always obvious with rape between people who know each other.
Myca’s first example involving custody does not make sense. Because he alludes to a Court Order, it is clear that permission has not been given. Again, you have pretty objective evidence. His second example, involving trespassing, shows the problem with the consent issue. If I were being prosecuted, I would bring in all of his friends who got permission to come in whenever they wanted, I would get himn on the stand to talk about how he often gives consent to his friends, then I would testify that I had gotten consent from him. However, if I am a stranger, that case is much more difficult to defend-just like it is with rape.
Eytan Zweig’s example is the least helpful, because you are dealing with a stranger. Arguably, the defense would have the option of raising permission as an affirmative defense. That is pretty hard to do when you don’t know the person from whom you stole the wallet (and that person has reported it stolen). And, if consent or permission became an issue, he would probably have to be brought in to testify that he did not know the person and did not give that guy permission to max out all four of his credit cards.
I do not think these examples get them out of the problem you raise. Consent could be raised in a number of them and it would be an issue that would have to be litigated. It is much easier to convict when consent would be hard to prove, such as when the perpetrator and the victim are strangers.
-Jut
Similarly, stranger-rape is generally easier to convict than rape between people who know each other. So? You’re just pointing out another way that rape is similar to some other crimes, legally. That supports my point, not G&W’s.
Kate Harding has written a summary of this thread’s most contentious point using the tv episode of The Mindy Project which I referenced before.
http://www.damemagazine.com/2014/10/14/sex-can-be-complicated-consent-not
She then references logic and, to confirm her point of view, that Danny did not committ sexual assault when he slipped his p in Mindy’s a without consent, cites the law that demands her consent to the activity – logically – before doing so. What Kate Harding is describing, like Richard in this thread, is a no-means-no scenario in which experimentation is allowed.
But that is not what’s mandated by the law unless logic has taken on some new meaning I’m not familiar with. I find it truly strange that so many people cannot seem to understand the difference between wishful thinking and what’s actually legally mandated. It’s baffling. If you’re taking seriously what’s in the law, Danny certainly anally raped his girlfiend Mindy, there’s just no other interpretation.
SomeOne – No, you just keep reading into the law things that are not in it. I have not seen the show, but based on the description of it I’ve read online:
A – Mindy (affirmatively) consented to sexual activity.
B – Within this context, Danny attempted an act which she was not happy with.
C – At that point, she revoked the consent.
D – Once consent was revoked, Danny ceased the sexual activity.
Assuming I am correct about the content of the scene, everything Danny did was within the parameters described by the law. Note that at no point does the law require that the partners establish a list of approved sexual activities as part of “affirmative consent”, and I’m really not sure why you think it does.
Eytan,
no, it wasn’t.
Unless “the sexual activity” covers *all* possible aspects of a sexual encounter – like anal sex specifically – he did not have affirmative consent, and he did not do anything to ascertain her affirmative consent, to anally penetrate her and thus anally raped her. Simple. How is that *not* written in the law? That’s precisely what’s written in the law. It may not be what proponents like Kate Harding of the concept *want* the law to say, but that really doesn’t change what the law says.
Your a-d are description of no-means-no, not the yes-means-yes the law requires.
Rape has a lot of unusual factors. For non-violent rape especially,
1) It involves behavior which is almost always consensual. Almost all non violent sex is NOT rape; that is especially true for sex in the context of an ongoing relationship but by no means is that a requirement; almost all one night stands are NOT rape, either.
2) There is basically no physical evidence that supports a side. You may find evidence of sex, but that doesn’t have anything to do with whether or not it was rape.
There are very few analogies which match that situation. There may be none. So if you really want to talk about rape, the best analogy is usually rape and not something else.
I mean, don’t get me wrong. We could try to use theft, for example, but not in the “wallet” sense: let’s assume that every time I gave money to a beggar and every time I bought a cup of coffee for a friend, that I could bring theft charges against them if they failed to get affirmative consent that I was in no way coerced or unwilling to do the act. Even that sort of extreme example tends to get bogged down in arguing about the hypothetical but it’s a lot better than wallets.
Because Myca has given such a good attempt, I’ll respond in some detail. But IMO the way to talk about rape is to talk about rape, not to talk about things OTHER than rape. There just aren’t enough commonalities.
It’s not written in the law because it’s not written in the law. The law does not address the question of whether, once someone is given consent to engage in one type of sexual activity (e.g. vaginal sex), how different another type of sexual activity needs to be for it to be “reasonable… in the circumstances known to the accused at the time” for the accused to assume that this consent also covered other activities.
This is a seperate issue from no-means-no and yes-means-yes; even in a no-means-no law, whether or not this constitutes sexual assault would depend on the circumstances (if, when they started dating, Mindy would have told him: “Anal sex for me is an uncrossable red line, I will never consent for you to attempt it”, Danny’s actions would be sexual assault under both legal standards). The change in the law here does not change the standard applied to this.
G&W – I agree with you here, but you were the one who specifically asked about things OTHER than rape. It’s rather unfair of you to ask us what we think about the commonalities, then criticise us for answering.
Thank you for remembering! So let’s go with your analogy, though I need to modify it a bit.
Sure, “Mi casa, su casa” is a nice thing to say to friends.
But that isn’t actually the sort of affirmative consent which would fly here. Instead, that sort of advance consent is pretty similar to, say, an ongoing dating/sexual relationship. After all, the fact that they’ve come over 100 times doesn’t mean that they’re invited THIS time, right?
To modify your analogy a bit to actually reflect real life:
Sue is a friend of Bob, and often drops by his house to visit (as he does to her.) One day Bob is working in Bob’s office upstairs. As Sue has done many times before, she comes over, enters through the back door, yells “HI BOB!” grabs a beer out of the fridge, plops down in the living room, and turns on the Orioles game.
Bob knows she’s there. He doesn’t leave his office. Eventually Sue finishes the beer (and the game,) figures Bob is too busy to come down, and heads out.
(Note that “what Bob or Sue actually knows/thinks about consent” is deliberately missing from this hypothetical. That is intentional. If you read a hypothetical which includes that information, it’s a bad one.)
Sue and Bob continue to act like friends and occasionally go out to dinner. But three weeks later, after Bob and Sue get in a fight over tipping a waiter, Bob files trespassing charges against Sue.
At trial, Sue says “I’ve been doing this for ages. I’ve gotten explicit permission before but I didn’t see the need to do so right now. We’re best friends; we do this to each other in each others’ houses, all the time. Sometimes Bob comes down and sometimes not. Same for me; I had every reason to think this was fine. Besides, if Bob wanted me to leave he could just have told me.”
Sue continues “More to the point, this has nothing to do with consent at the time I was there. If Bob actually didn’t consent then he should have told me to go, or called the cops, or filed these charges the next day. Can’t you see that he is just using this to screw me over? I mean hell, if I had known that I would be getting sued now I could have obtained consent; the fact that Bob and I didn’t exchange texts each time is as much his fault as mine.”
At trial, Bob says “it isn’t MY job to tell Sue NOT to come in. It’s her job to always obtain affirmative consent before doing anything in my house. Perhaps I’ve said OK before but I did not consent to have her in my living room. She had no right to assume I would say yes this time, irrespective of the fact that she’s done it many times in the past and that it’s been OK. The law says that you can’t hold it against me that I didn’t say no. And the law says that prior permission should never by itself be assumed to grant present permission.
As for the other part: Are you accusing me of filing a false report? Only 2% of trespassing victims lie about trespassing; I’m not lying. The fact that I delayed reporting can’t be held against me, either. Now that I think of it, I guess I felt too uncomfortable to tell Sue to leave at the time. Also, I didn’t realize until weeks later that what she did was actually illegal. The fight was just a coincidence. The fact that I let a ton of other friends come in is irrelevant. the fact that I might have done this in Sue’s living room just clouds the issue; I’m not the one on trial here. I don’t have to prove that I DIDN’T consent; she has to prove that affirmatively DID. And when she failed to get affirmative consent… well, even if it turns out that I’m not telling the truth (though of course I am,) I guess that was just the risk she took.”
This exactly.
Different issue. Perhaps I wasn’t clear.
If you think you treat rape the same as, say, theft (or fraud or anything else) then that’s an easy answer.
If you treat rape differently, then by all means explain why you think that’s OK.
But in neither case should folks rely on legal hypotheticals for non-rape to demonstrate why the laws for rape are OK. This is what I mean.
“SomeOne – No, you just keep reading into the law things that are not in it. I have not seen the show, but based on the description of it I’ve read online:
A – Mindy (affirmatively) consented to sexual activity.
B – Within this context, Danny attempted an act which she was not happy with.
C – At that point, she revoked the consent.
D – Once consent was revoked, Danny ceased the sexual activity.
Assuming I am correct about the content of the scene, everything Danny did was within the parameters described by the law. Note that at no point does the law require that the partners establish a list of approved sexual activities as part of “affirmative consent”, and I’m really not sure why you think it does.”
I’m pretty sure this is completely wrong. I think its supposed to go more like this:
A – Mindy (affirmatively) consented to [some] sexual activity.
B – Within this context, Danny attempted [sexual penetration], an act Mindy to which Mindy did not consent.
C – At that point, she [froze up].
D – Once [Danny recognized her cessation of affirmative consent, he withdrew].
E – [Danny had a legal obligation to obtain affirmative consent. He did not obtain affirmative consent to sexual penetration, but performed it anyway. Danny is a rapist.]
Your scenario is the same reasoning used to justify having sex with someone who’s passively laying there and not objecting (that reasoning being something like, “she consented to the initiation of sexual contact so until she says stop I can keep going”), except for one small change- you think people should pay more attention to body language. I’m pretty sure statements like “it is the responsibility of each person involved” or “affirmative consent must be ongoing” exist to disclaim you’re point of view.
TLDR- I’m pretty sure affirmative consent does NOT mean engaging in penetration because your partner was really into the heavy petting, and then withdrawing when you realize they didn’t want you to do that. I’m pretty sure affirmative consent means that it is your responsibility to be certain they consent to the penetration before you do it, not after. That why it says “ongoing basis.”
That’s not a “small change” – it’s the crucial change. Or, more accurately, it’s not just about body language. It’s about any reasonable (to use the language of the law) signal that consent is, in fact, continuing.
If, upon Danny initiating anal sex, Mindy stopped responding and just lay there and waiting for him to stop, and he continued, that’s a lack of affirmative consent. That’s not what happened in the show (to my understanding).
Can you point to where the law says that consent has to be given *before* you do anything? It has to be ongoing *while* you do anything. That is not the same thing.
The fact is, that despite people insisting to the contrary here and elsewhere, “affirmative consent” is not all that different from “no means no”, *except* in situations where one party is being passive and/or unresponsive. In any situation where both parties are actively engaged in the process, either positively or negatively, the two standards converge.
SomeOne:
Let’s look at Kate Harding’s description again:
Thwarted attempt. I haven’t seen the show, but as described, he started to initiate and she said no before penetration occurred. Which goes back to my point about transitions: there was a moment when his intent was clear, but before the act was actually begun, and that was where the activity stopped. It stopped because she said no, but equally, under this law, he could have stopped if he noticed she froze, or made a bad noise, or something.
What is the “crime” you are talking about in the case of rape? To help, I have given multiple options for punishment. Which people should, as you put it, “do the time?”
Note that there are TWO ALMOST-IDENTICAL LISTS. The first list is the “omniscient” list. The second list is the “factual” list. Try to answer both.
OMNISCIENCE. This is the list that people usually use. This is the wrong way to think about it. Using terms where you know someone is guilty tends to bias you. Using terms like “victim” or “rapist” or “rape” tends to bias you, since those terms are the conclusion and not the process.
-Forcing sex with someone who is actively opposed to it.
-Having sex with someone who is obviously unable to consent, i.e. they are unconscious, drooling, etc.
-Having sex when you are sober and your date is drunk, when you honestly think they’re OK to consent. You find out later (at the hearing) that they maintain otherwise.
-Having sex with someone who (for whatever reason including your own drunken state) you believe is consenting, when in reality they are substantially impaired. Does not include any force or illegal coercion. Very common in college, also called the “two drunk people” problem.
-Being sober and believing, on some reasonable basis, that you have at least grudging consent to initiate sexual activity. But you don’t ask and they don’t tell you either way (or object)… and it turns out later they were not actually consenting.
-Obtaining grudging and/or unhappy consent by asking someone multiple times in the face of a no (“Pleeeeeease? Pretty please?”;) bargaining for trades (“I’ll take you dinner later!”) or using negotiating terms that are within normal human behavior (“I don’t want to date you;” “I will not like you;” “I’ll tell my friends that you’re a prude;” etc.)
Which of those folks get punished?
Does that seem obvious? Well, try this one:
FACTUAL: This is the right list to use. If you’re reading the list and thinking “how can I tell if this is rape or not?” that is sort of the point. Of course, you can add to the list that there’s (a) someone saying that they were raped; and (b) someone saying that they had consensual sex. All you have, besides that, are these facts.
-Testimony or evidence that the victim actively opposed and did not consent to sex.
-Testimony or evidence that someone had sex with a person who was obviously entirely unable to consent, i.e. they were unconscious, drooling, etc.
-Testimony or evidence that two people appeared to be having consensual sex; that one of them was very drunk; and the one of them was more sober (but still, perhaps, somewhat drunk.)
-Testimony that two people, both of them apparently very drunk, were having what appeared (at the time) to be fully consensual sex.
-Testimony from a person who has recently ended an ongoing sexual/dating relationship, that one of the prior sexual encounters was rape. No proof is offered of any coercion or force. No proof is offered of affirmative consent.
-Testimony that someone had sex after obtaining prior, sober, affirmative, grudging/unhappy consent of the “oh fine if it will get you to leave me alone” variety. The accuser claims that the consent was not “real” because it was “grudging” or “unhappy.”
I understand that that is what you would like me to have said, but since that is EXPLICITLY AND DELIBERATELY not what I said, I find myself wondering whether you intend to discuss this in anything approaching good faith. If so, changing my words so you can argue against the things I did not say is an inauspicious start.
I am telling you (and I would like you to listen carefully) that there are friends that I have given explicit permission to enter my home at any point. I have offered blanket (and deliberately blanket) consent to those friends. There are also friends I have invited over several times that I have not given explicit and blanket consent to.
If one of the the first set of friends came into my home while I was not home/asleep/etc, it would not be trespassing. If one of the second set did, it would be.
The same is true of any manner of things.
I swear, G&W, you ask whether we would apply the same calculus to other crimes that we apply to rape, fall just short of calling us all stinking hypocrites, and when there is an overwhelming, resounding chorus of YES, including examples of how we already do this, you fall all over yourself complaining that they’re not the same thing. Just cut it out.
The affirmative consent standard does not solve the problem of people on either side lying about consent, and I don’t think anyone has claimed that it does.This problem existed before the Affirmative Consent standard, and it will exist after it. A solution does not have to solve all possible issues in order to be useful.
—Myca
You had a bad analogy. I changed it to be better. You and other proponents seem to want to talk about the good parts of the law (“see! it bars trespassing!”) and I don’t see that as especially helpful, since we don’t actually DISAGREE on whether you should be able to bar trespassers, or whether trespassing is bad, or whether sex without consent is a wonderful thing, and so on.
We disagree about where the border of enforcement should be. And how it should be enforced, and proven. And, perhaps, what incentives that gives to everyone.
So if you want to talk about the actual debate, you may as well use a hypothetical which addresses the issues at hand, right?
Myca,
I think g&w’s response was in good faith (and was actually pretty good).
Assuming everything you said was true (just so you are clear that I am not questioning it), the sex/rape analogy would be: “Hey, if you are ever horny or want to get it on, I am game.” That would seem to imply that you have given affirmative consent to sex for the indefinite future. So, after 10 times of having sex where there was actual but not affirmative consent, said person has sex with you when you are passed out. Then, you complain that you could not have consented and that you were raped.
I think g&w took your analogy, fairly translated it to the rape topic, and showed (at least in my view) why it was not a very good analogy. Affirmative consent laws, it would seem, would apply to every instance of sexual behavior.
-Jut
Are you rescinding your question about whether your opponents on this issue want to treat rape differently than other types of crime? If so, you may want to actually say that. Right now, it looks like you’re having it both ways and using whichever argument (what other crimes would you treat like affirmative consent vs affirmative consent is about sex, we should only talk about sex).
What it comes down to with you, specifically, is that your opponents find your arguments (when we can determine what they are) unconvincing and you find your opponents arguments unconvincing. Since this isn’t actually a debate bound by rules of law, your attempts to game the debate are ineffective and distracting.
For example, this is the “omnipotent” form of argument:
Which is, no offense, really atrocious way to analyze the effects of a law, since the whole point is that we DON’T know who is guilty until we’re done. But your argument starts from the outset of knowing who is guilty–that evil second set.
As a result, not only does it elude the actual problems with the law (since the omniscience argument conveniently convicts all guilt and avoids all innocents) but it also moots the argument for the changes: hell, since we know who is guilty we don’t really need a new law anyway. Or much of a trial. Take the accused and rope ’em up, right?
But I don’t think that is, actually, how you feel.
which is to say:
Should we evaluate drug laws based on the assumption that we know who is guilty, and that they will be fairly enforced? IIRC, folks here don’t think so. Do we think (inaccurately) that accusers “don’t lie” in civil situations, including, say, requests for restraining orders? IIRC, most people here recognize that hazard. Should we generally restrict the abilities of criminal defendants to raise protests by classifying large hunks of actually relevant information as inadmissible or less relevant? IIRC, folks here don’t think so in general. Should we decide that stand your ground laws have no moral hazard; that they won’t potentially increase shootings? IIRC that isn’t what folks here think.
Shall I continue?
Oh, here’s a good one: Is the “1 in 5” statistic that has driven this and other similar laws more or less accurate than the statistics and predictions which drove, say, crack sentencing? Are the proponents of this law more, or less, biased than the people who imposed crack sentencing laws? Are the people who will enforce this law more, or less, biased than the federal judiciary?
“Hypocrite” is perhaps too strong a word, which is why I didn’t use it. “Selectively perceiving the benefits of your position” or perhaps “unintentionally inconsistent” is better.
No, but it creates much more moral hazard; makes false accusations far easier; and is likely to lead to many more. It is also way, way, harder to prove a defense, which is contrary to our general sense of innocence. It simply trades off a lot of Type 1 and Type 2 errors, without reducing them overall, and arguably increasing them.
Lying liars gonna lie. Sure. So what?
It has to improve things overall.
You folks like to talk about how it will make things better for accusers who are actual rape victims and how it will make things worse for defendants who are actual rapists. that is a benefit.
But you also need to talk about how it will affect things for accusers who are NOT actual victims, and defendants who are NOT actual rapists. And I don’t see a lot of that here, which doesn’t seem to match what normally happens when we talk about other, non-rape, defendants and laws and cases.
Yes: I know, I know, you can think of a situation with other laws. But you’re looking at it the wrong way.
Can you think of an unjust or unrealistic situation with other laws? With this law? How do you address those in each case? Seems to me that with other laws y’all are pretty focused on the unjust or unrealistic outcome; here y’all are pretty OK with it if you admit it exists at all.
“Can you point to where the law says that consent has to be given *before* you do anything? It has to be ongoing *while* you do anything. That is not the same thing.”
I don’t even know what to say. Penetrating, and then finding out that penetration wasn’t welcome, and then withdrawing, still leaves a window of time when you’re penetrating someone who doesn’t want you to.
There is presently an “I had no mens rea to commit rape because I reasonably believed she was consenting to the penetration, and ceased penetration once I realized I was wrong” defense to rape. How that is compatible with a law imposing an affirmative obligation on all parties to ensure they have affirmative consent on an ongoing basis is anyone’s guess, since it would seem to be a clear failure to uphold the stated affirmative obligation.
I doubt you’ll believe this, but to some degree this has to do with expertise. I’m basing my conclusions on a career of thinking about this stuff. It’s not as if I started thinking about “potential negative consequences of laws” for the first time when this thread came up.
It seems pretty obvious to me that you are treating rape differently, but the ways in which you are doing so are very hard to point out. Like a TON of other lawyers who also spend a lot of time thinking about this stuff, I am struggling to explain it coherently, and explain why some of your arguments are wrong, in a way that makes sense and which does not require writing a freakin’ book. But some of the problems really are “small but collectively largein number and therefore importance” or “relevant but highly complex” and explaining them well is very hard.
It does not always work. That is why I have not written a published book.
I don’t agree with G&W, but I don’t think he’s trying to game the debate; I think, maybe, he’s just not being clear about what he means by “disagree[ing] about where the border of enforcement should be.” If you take a look at the two lists he made above, which he (I think mis) labeled “omniscient” and “factual,” the distinction it appears to me that he is trying to draw is between the kind of example we use to create the categories we want to talk about and what that example might look like from the perspective of real people actually in a courtroom trying to prosecute/defend/reach a verdict concerning an actual charge.
He has made the same kind of distinction, I think, in other discussions here about rape, where he is very concerned with the semantics of how we talk about rape and how that, from his perspective, impinges (or not) on questions of prosecution and defense.
G&W: What I would like to see is a clear and straightforward explanation of this. (Maybe it’s upthread somewhere and I missed it. If so, I apologize. Or if there links you can point me to, I’m happy to get that too.)
*How does the difference in the border of enforcement between yes-means-yes and no-means-no make a difference in the practical terms that I think you’re trying to talk about?
*What do you see as the difference in standards of proof between those two ways of seeing things?
*What precisely do you mean by differences in how these two different rules/laws are enforced? What kinds of differences do you imagine?
*Incentives to whom for what?
I get, or at least I think I get, that these are important questions if we’re talking about how to implement and enforce a yes-means-yes policy. (And given how notoriously inconsistent and downright bad colleges have been at handling this question, I agree that they are very important questions indeed. Because we should remember that we’re not talking about a criminal law here, but rather about a policy that colleges in California are required to have in order to get state aid.) What I don’t get is why they are any more or less problematic than the similar kinds of questions that were asked when no-means-no was implemented—other than the fact that they are new and different and, because they place the onus of responsibility on the person initiating sex, not a little discomforting to people who are not used to thinking about the initiation of sex in this way. (ETA: And I don’t mean by this to include you, G&W, in that category.)
Also ETA: I posted this, G&W, after you posted his response to Myca above. That begins to clarify some of your questions for me, though I still don’t agree with you overall. I wonder if you could, if you have the time, just choose one scenario and play it out.
Fair enough, g&w. Although, as Richard says, you have been really unclear about this. I can’t figure out when you’re talking about one thing and why you seem to skip over the other thing that you asked about.
To some extent, yes. At the moment, the scales are balanced in favor of rapists and against rape victims with, from the statistics I’ve seen, a very small number of false accusations that lead to trials, much less convictions. Affirmative consent looks like a law that would balance the scale between rapists and their victims significantly. It could also lead to a lot more trials and or convictions of the falsely accused. But, without trying it, how do we know if that will happen and to what extent?
Since false accusations are a tiny percentage of accusations, to the best of our knowledge, I’m not sure why that’s the major stumbling block to affirmative consent laws. It could become a reason to eliminate affirmative consent, but I don’t see how it is right now.
I guess I’m just unclear on how moving from “did she say no” to “did she say yes” is somehow equivalent to:
As Ampersand says in his original post, this is not a major change, and I am unconvinced that the no-means-no —> yes-means-yes change is large enough to justify 1/10th of the alarmism aimed at it.
Furthermore, since this change is being implemented in a very limited way among a very limited population, I think we’ll be well aware of whether it leads to an unacceptable upswing in false accusations long before there’s any meaningful debate about more widespread implementation.
—Myca
PS. To be clear, “things I do not agree with” include any of the bolded stuff, whether it’s in reference to rape, theft, assault, trespassing, etc.
@g&w I agree with what you’re saying about the problems with affirmative consent law. And “how do you justify this, given your pro-defendant stand on other issues?” was a good question. And the answers made for some of the more interesting parts of this discussion.
The appropriate response would’ve been “Thank you for sharing your view. I’m now going to consider your analogies (especially the trespasser analogy) as standalone arguments and explain why I think an affirmative consent law is flawed.” Which is what you did. But asking people to compare rape with other crimes, and then criticizing them for comparing rape with other crimes is a dick thing to do.
Please rescind your criticism, or make it clear that you weren’t really criticizing the argument and had merely come to the realization that rape isn’t comparable.
From long ago in this thread:
Wow does the sex we’re discussing not sound like fun! Are some men (mostly it’s men) so desperate as all that? We have that many losers in the population?
If you really cannot tell whether you are raping your partner or not maybe you ought to go find someone who is more into you than that.
I fully realize that this comment might not be all that useful.
Susan The question isn’t whether or not you should have sex with those who aren’t fully into it. The question is whether you should codify this into law, and how. At the risk of repeating myself – most people aren’t against this as a social norm; they’re opposed to making it a legal norm.
Somebody correct me if I’m wrong, but it seems like the effect this law will have (with the understanding that it is limited to determining university policy, at least right now and for the foreseeable future) will be to change the types of defenses that are available to defendants in rape cases that are already being (1) reported, (2) taken seriously by the police, and (3) successfully brought to trial.
Instead of preemptively declaring that sex without affirmative consent is rape, or changing anything about the definition of rape itself, the affirmative consent policy would simply remove the possibility that a defendant whose core defense is “the other person didn’t fight hard enough/say no enough times/say no loudly enough/continue to say no after being badgered for long enough/get up and leave when they have the chance, etc.” could successfully use that defense as “evidence” of consent. Which is what a large part of the text of the actual law is concerned with: which types of behaviors on the victim/accuser’s part will or will not constitute evidence of consent.
That line of defense already seems nonsensical to me, because those behaviors already do not constitute consent, morally but also legally; this law would just make sure that juries are not tricked into wrongly thinking that they do by barring defendants from deploying them in the first place.
You still have the problem of weighing both parties’ description of events in cases without physical evidence, of course. But to be clear – who’s to be believed when you have only each party’s word as to what happened is a problem for both prosecutors and defendants now, was a problem before this law passed, and will be a problem for many years to come. Despite that fact, it’s astonishing to me when reading about rape cases in the news how many defendants tell the truth about the experience – by which I mean their retelling and the accuser’s retelling match up very closely, once all the police interviewing has been done, so it seems safe to assume they’re both being honest about the details they agree on – and that description which they both give looks an awful lot like rape, but the defendant expects it to exonerate them, because it contains evidence of a lack of a strong “no” when really it should vindicate the accuser by evidencing a lack of a confirmed “yes.”
So it seems to me that the greatest impact this law and the resulting university policies will have will be on the number of alleged rapists who are ultimately convicted by their own testimony of lack-of-consent-establishing-behavior – as opposed to let off the hook by that very same testimony. Or in other words, this law seems to be aimed at reversing how the agreed-upon state of consent, present or absent, is interpreted and in whose favor. That’s all. (Or am I missing something?)
This could have a secondary effect of (3) making prosecutors more willing to bring rape cases to trial because a nonsensical avenue of defense that unfortunately does seem to work has been shut down; (2) making police more willing to listen to people who come forward with rape reports, at least preliminarily, because they have learned not to preemptively dismiss accusers who didn’t behave as model victims; and/or (1) making victims more likely to come forward with their reports because they have a stronger belief that they’ll be successful in bringing their rapists to justice.
I don’t really see how any stage of this process infringes on the rights of defendants who were wrongly accused. None of the behaviors cited in the text of the law are evidence of consent anyway, so for someone who did have their partner’s consent, being able to use those arguments would be a bad shorthand for the real argument that consent existed. It doesn’t seem reasonable to me to assume that there are a substantial number of cases where a defendant who had real consent would have absolutely no evidence of that consent to provide in their description of events: “my partner participated actively in the sex itself” would be adequate, wouldn’t it? Again, this law doesn’t address the problem of whose story to believe when the stories conflict, but it doesn’t seem to have any adverse effect on defendants in those cases; it seems not to affect the status quo ante at all. And the inclusion of alcohol impairment only barely seems to complicate this for me, since again, someone who is drunk but still able to participate actively in sex seems to be able to consent to me, whereas someone who is so drunk they cannot participate will not engage in any behaviors that resemble consent-establishing behaviors.
Unless you truly believe that there are huge numbers of people (and to be clear, most people assume that these people are women) who will deliberately remain completely passive during sex on the off chance that they might later need to file a false rape report regarding the event and it will be helpful to them later that their partner could have no possible evidence of consent to point to? Which seems… fundamentally misogynistic to me.
Well, in all fairness i AM trying to have conversations with multiple different people in a thread about a highly complex subject, all at the same time. but I agree it is a bit jerky.
Seems to me that with other laws y’all are pretty focused on the unjust or unrealistic outcome; here y’all are pretty OK with it if you admit it exists at all.
Just as a not-so-unimportant sidebar, which “small number” statistics do you use, and have you also read the studies which suggest that the # is not small?
also, do you believe the “1 in 5” number? Is that what you are using to justify your stance?
Without a doubt, more people who were actually rapists would be found innocent.
Is that a joke? I mean I can understand the concept that it’s an acceptable tradeoff, even though I disagree. But are you seriously suggesting that you can manage to convict more people, using a lower evidentiary standard, and increase accuracy?
Gosh, it would be nice to get away from an equation of consent and enjoyment.
Every person has an absolute right to consent to sex that they don’t enjoy for any reason. I can think of a half dozen good reasons off the top of my head but, more importantly, you don’t need a good reason to consent to sex because you are a sovereign person and you get to make your own choices about your body.
No one has a right to have sex with someone who doesn’t want to have sex with them, even if the unwilling partner has pleasurable sensations or response.
Fortunately this law is about consent, and not enjoyment.
“Into it” is not the issue. The issue is yes and no.
(Note that this parallels other crimes: you can steal from someone who is “into it,” for instance via a confidence scheme. That’s still criminal.)
1. There is some talk above about a woman “passively lying there”. That is how some or many women have sex, even if they are into it. That’s just how some women have sex.
2. I see a pretty callous attitude above about false accusations and about the “collateral damage” of sorting it out by a felony trial. Statistics are all over the place with regard to false accusations, no doubt reflecting the fact that everyone doing studies in that area has an agenda. Both the 2% people and the 60% people. It’s axiomatic to me, though, that if the proponents above went through a felony trial based on a false accusation themselves, they would probably develop a different attitude.
Ah. I see. There lies a crux of disagreement. I do not believe that affirmative consent is a lower evidentiary standard. It’s different, sure, but lower?
Yes. Lots of laws are well intentioned and yet poorly drafted. They often have consequences which aren’t apparent.
You don’t recognize those consequences by trying to find the good in the law. You recognize them by trying to find the bad: looking for results which are ridiculous or unjust or unreasonable; looking for definitions which can be misinterpreted; looking for changes in power dynamics which can have bad moral hazards, etc.
Doing it right means you have to have a “criminal defense attorney” hat. Then you step back and put it on and say “here I have an innocent man, and a lying accuser. What will happen to him? How can I protect him? What are the problems here?” I don’t see folks doing that–they only talk about it from the perspective of the judge or the victim’s advocate. That misses the point and unsurprisingly your results are skewed.
*How does the difference in the border of enforcement between yes-means-yes and no-means-no make a difference in the practical terms that I think you’re trying to talk about?
Many ways. One is that in a way it almost makes rape into an intent-neutral crime, in which you combine, at the extremes, “people who want to have sex without consent” and “people who inadvertently have sex without consent.” To my eyes that’s an incredibly major change (though I may not be explaining it well)–both because it is at odds with almost all of our criminal law, and because I personally think intent is incredibly related to culpability. Another is that it makes a lot of normal encounters potentially illegal, based on the subjective and retrospective feelings of one party. My experience suggests that almost always has a shitty outcome. Another is that the process in which this exists it makes it very easy to abuse the system: say what you will about the requirements for cross examination and public trials, one thing for sure is that they make it harder to lie. Generally colleges don’t have sworn testimony ; don’t investigate or punish false claims; and don’t even allow people to cross examine witnesses under oath. Any sort of formal punishment based on that BS seems antithetical to our social goals. And pushing for that based on unstated goals is equally scary. Riddle me this: What IS the “right” rate of conviction for rape cases?
Well, most obviously the defendant is more likely to have to testify than in a normal rape trial due to the 5th amendment. That’s because he has to prove something (affirmative consent) rather than merely to disprove/defend against intentional sex w/ lack of consent. Also he has to prove what she did/said, and cannot merely rely on proving what he himself did/said (since intent is now not so much of an issue.) Also, he cannot rely on circumstantial evidence as easily, since you can go into a room happy, come out of a room happy and sexually sated, but have failed to obtain affirmative consent.
Well, this rule is written for colleges, who are pretty notorious for fucking up due process. No confrontation rights; often no attorneys; no oath; no witness cross examination; and so on. As shown in some amusing-in-a-sad-way cases, colleges have “trained” their sexual assault advisors in such a way as to include, for example, thoughts that raising a rational defense and protesting innocence are, actually, evidence of guilt.
gtg to bed. more in a day or two.
Although it’s possible that I don’t understand the term “lower evidentiary standard”
I read your argument, g&w, as affirmative consent standards lead to more bad results than negative consent standards do within the college disciplinary systems.
Am I understanding that correctly?
G&W:
Thanks for that response. I need to digest it a little, but there is another piece of confusion for me in how you are talking about this: sometimes you are talking about how this standard might play out on a college campus and sometimes you appear to talking about it as a matter of criminal law. I can see how those two are/can be connected, but the logical progression from one to the other is not clear in your argument.
This is something I would like to hear more about. As I understand it, in our criminal justice system, the burden of proof is on the prosecution. The defendant, because he or she is innocent until proven guilty, doesn’t have to say a word. Have other people here thought this through? Does yes-means-yes shift that burden substantially in the way G&W is suggesting?
Richard Jeffrey Newman,
If it’s at a college, these are not criminal proceedings. In fact, they have been reduced in many cases to a “preponderance of the evidence” by the “Dear Colleague Letter”. “Preponderance of the evidence” is not the standard in criminal cases, and it even falls below the constitutional level (likewise with the inability to cross-examine witnesses and all the rest).
If you don’t get all of this, you may be in well over your head. I understand questions if you don’t understand anything here, but I get the drift – much more likely – that you think you understand everything and are acting as some kind of discussion facilitator. You can read up on criminal and constitutional law on the Internet.
Sorry, I’m sure some of that was me.
I like Pervocracy’s post on the topic (it’s called Real Consent, I’m getting a bit thwarted looking for the link on mobile). I think also, in the context of this discussion, it’s worth distinguishing enjoyment and active participation/encouragement for people looking for nonverbal signals, and also to emphasize that things can be communicated verbally if you think body language won’t do it (if you would rather not actively participate our encourage for whatever reason). Not sure how that fits into the legal framework, but as a matter of philosophy for discussion.
Iri:
Thank you for your insulting condescension, Iri. It definitely added something new to this conversation. You might try reading a little more carefully, though, since, based on this response and some of your other comments, you seem to have the same reading-comprehension struggles that some of my lower level college students do.
I was, if you read my comment in the context of G&W’s, asking him to clarify what he’s been saying, since he seems to be implying that the potential problems of enforcement on a college campus—which I referenced at least once in my comments above—will have their counterparts in a courtroom if such a policy ever does become criminal law, and since he is a lawyer with an expertise in those matters that I lack, I thought it worthwhile to ask him to explain what he’s thinking in more detail.
This is not my thread, but I am a moderator on this blog. Insult someone like that again, and I will make sure that you are no longer welcome in this conversation, if not on the blog itself.
Eytan-
Are you honestly claiming that you can have *ongoing* consent *throughout* the activity when you don’t have consent at the beginning of the activity. I’d draw you a venn diagram about how that cannot work, but since words have to suffice here, I’m just saying this: affirmative consent at the beginning of the activity (which, in turn, logically requires affirmative consent *prior* to the activity) is logically a subset of *ongoing consent* throughout the activity. You cannot have *ongoing consent* if you didn’t even had it at the beginning.
Without iri’s snark: I would suggest that if you don’t know about the way that college disciplinary boards work; or what standards/rules they can use; or how they can select their members; then you might not be especially able to reach a cogent conclusion on how this statute will affect things.
There’s a lot of stuff out there. You can read about colleges whose materials suggest that good, rational, defenses were markers of guilt. You can read about the colleges who discipline people and don’t retract it, even when the accuser ends up being criminally charged for a false accusation. There’s quite a few which allow anonymous reports. There’s a high number of them that don’t even have a right of confrontation (i.e. you don’t get to cross examine the complainant). Many of them don’t disclose the purported “evidence” to the defendant. And so on.
Here’s a random example. Did you know that sort of thing was even possible?
If you don’t follow that and know about what the process is, how can you opine on the problems of this law as applied to that process?
Of course, like I keep saying, even if you DO understand that process you still need to use the right framing. To use some language from david bernstein as an example,
I can’t give you every link. But Here’s one from Minding the Campus which contains a ton of interesting sub-links. And as an added benefit, most of these people are “authors writing well thought out posts at their leisure” and not “harassed solo attorneys knocking out comment responses without editing,” so you’ll probably find them somewhat easier to read.
At heart it comes down to who you choose to read. If you only
Just to be clear: I am well aware of the problems posed by college disciplinary boards, which is why I referenced that issue in one of my previous two comments. I will write more later.
Here’s kind of a nasty one showing amateurs imposing their own belief system and just generally playing games:
http://www.avoiceformalestudents.com/wp-content/uploads/2014/06/Drew-Sterrett-Complaint-against-University-of-Michigan-Ann-Arbor.pdf
Yeah, I read that one as well. It is, to put it mildly, quite something.
I mean, here’s a purported rape (a) between two friends; (b) in which a third, mutual, friend was WIDE AWAKE ON THE TOP BUNK sending a pissed off “you two are being too loud” message on his laptop; (c) who to all accounts keep on being friends for the remainder of the school year.
Actually, this one is sort of an interesting example for the “affirmative consent” fans.
Go read that, and insert the following facts as assumptions:
1) At some point after she got into bed, she consented to sex (probably when he got up to get a condom);
2) At some point after she consented to sex, she changed her mind (we don’t know this specifically, but can assume it since she raised a rape charge.)
3) At no point did she protest or say “no” loudly enough to be heard four feet away; physically resist in a manner which would produce any evidence (bute scratch, etc.); move out of bed to the floor (she was on the outside;) call for help or assistance; or suggest that she had to leave for other reasons (bathroom, etc.)
Now:
Under the affirmative consent standard, this guy is guilty as shit. Can we all agree on that? Because although we are going to assume that she consented once, as you can see there is no testimony regarding “ongoing affirmative consent” and I am not claiming there was in the hypo. When you combine a charge of rape with a lack of ongoing affirmative consent, that’s almost a done deal.
“Well,” you may say, “that’s as it should be.” We have a rape victim here, after all.
And perhaps you do (or not.) But does every rape accuser mean there’s a rapist? Which is to say: If a friend gets into your bed and starts making out and waits there while you get a condom and starts having sex with you and, after sex, sleeps the night through in your bed, rather than moving to the “mat for guests” on the floor or leaving the room (none of which seems to be disputed) then as a rule, you are not in the category referred to as “a rapist.” At least not in common parlance. Right?
Forget what SHE did. Focus on what HE did for a minute, because we usually actually punish people who do the wrong thing. At heart, one big due process issue is that if you were there at the scene–if you were in fact an omniscient god who liked to spy on people–then you should be able to figure out whether someone is committing an offense. And you should be able to do it pretty easily. If omnipotent you can’t figure it out without doing a lot of research (it turns out that somewhere in the box of old Playboy pinups Joe just bought, one of the models was 17) then generally speaking it’s not reasonable to punish folks (Joe is not what we would consider a child porn user or owner, and has no intent to be one.)
In this hypothetical, if I objectively analyze HIS behavior then I have a hard time concluding that he was guilty of anything, much less rape. Do you?
And if you also agree that his objective behavior basically tells you nothing, then what? Should her charges change things? If the main determinant of guilt or innocence is the charge of rape; and if the standard (as applied to the objective evidence) means that he becomes guilty when charged, don’t you see a problem?
That is, indeed, quite troubling. But is the problem here the affirmative consent standard or the lack of due process? Is the incompetent and/or biased investigation and determination the problem or is it the affirmative consent standard? You can already see where I’m headed with this comment.
Maybe I don’t understand what you’re trying to say, g&w. Can you try explaining why the affirmative consent standard is the (or a major) problem in this case? I have a hard time seeing how that standard affects the issue at all.
If we ignore the due process violations and the incompetent and/or biased investigation and determination and look only at the facts as presented in the suit, how does affirmative consent lead to the conclusion of sexual assault in any way that “no means no” doesn’t? The complainant claims she said, “No.” (The only possible difference would be if the complainant doesn’t say she said, “No,” and claims that her body language was clear that she wasn’t consenting. But that’s not what is alleged here.)
This case, if given due process and a competent, unbiased investigation is the all too cliched “He said/She said” incident. Whether the prevailing rule is “No means no” or “Yes means yes”, we end up at the same point without due process or a competent unbiased investigation.
To be clear, I’m saying that whether the standard is No-means-no or Affirmative Consent, we don’t have sufficient evidence to conclude that a sexual assault occurred.
But the main determinant of guilt or innocence in a competently done, unbiased investigation under affirmative consent is not the charge of rape. I see a clear problem with due process and the investigation, I don’t see a problem with the standard of consent. What am I missing in your analysis?
“Maybe I don’t understand what you’re trying to say, g&w. Can you try explaining why the affirmative consent standard is the (or a major) problem in this case? I have a hard time seeing how that standard affects the issue at all.”
Because under standard rape law, given the initial consent to and participation in sexual activity and the evidence that nothing audible or noticeable appears to have been done or said to indicate consent had ceased, we might infer that the guy did not know and could not have reasonably known that consent had ceased and therefore lacked the mens rea necessary to commit rape.
Under the affirmative consent standard he had an ongoing obligation to ensure that he had ongoing consent. The mens rea appears to have been modified to be an affirmative duty. Even if we conclude that his actions were reasonable under the circumstances, he has still failed to uphold his affirmative duty and is still guilty.
Now it’s possible that this isn’t what was intended by the affirmative consent rules. But it sure looks like it. And the fun thing about secret intentions not conveyed to those who need to interpret your communications is that the intended (non) recipient cannot be reasonably expected to act on them.
The college enforcement is the larger problem, sort of like children are the larger problem when comparing “machine gun ownership” and “machine gun ownership by young children.” And like machine gun ownership the statute itself carries some risk, though there are at least cogent arguments on both sides, which can’t easily be said for either college rape decisions or kids owning machine guns.
I was thinking a lot about this thread as I was driving into work today and it seems to me that there a bunch of things that keep getting conflated. Not that they are not related, but I do think it’s worth stating them separately, because, at least for me, it makes it easier to think about what’s being said.
1. There is, first, the reading of the text of the California bill itself. This is, clearly, contested territory, as there are at least two radically different readings that have been presented here and that are represented in the reading I’ve been doing. So, for example, in the case Iri linked to. I do not understand how asking the guy to put on a condom is not affirmative consent to sex, even if he doesn’t stop every few minutes to make sure she’s still okay with it. In other words, I think that reading “ongoing affirmative consent” to mean that he should have stopped every few minutes to make sure the consent was indeed ongoing is an absurd reading of the text of the law. That people can read it that way, for me, may be a problem with how the law is written; it is not a problem with the standard of affirmative consent per se. Others, obviously, disagree.
2. Connected to this: I think it’s important to note that the text in the bill is not the same thing as the text of the policy that any given California college is required to write. In other words—and I’m going to use NY schools just because I know their names better—it is entirely possible that Hofstra University, Adelphi University, Stony Brook University, Suffolk Community College, Nassau Community College, Farmingdale College, and all the other colleges that are on Long Island, not to mention the rest of New York State, each will have differently worded policies. This is problematic on its face, it seems to me, and, given how notoriously bad colleges are at doing this sort of thing—witness the case in Iri’s link—that is a cause for serious concern, though I also don’t think that is a problem with affirmative consent per se.
3. There is the problem represented by the fact that college’s are all too often pretty ill-equipped to deal with the kinds of issues of due process, etc. that are raised when investigating allegations of sexual assault. This is true now, with a no-means-no standard. The fact that it would be no different under a standard of affirmative consent is not surprising, but also not, in and of itself, a problem with affirmative consent itself.
4. There are issues like the one G&W pointed out up above, when he said that an affirmative consent standard would probably require a defendant to testify to attempt to prove he or she had affirmative consent. This is the one objection to an affirmative consent standard that I’ve heard that really makes me stop and think because it doesn’t matter which reading I give to the language of the law. If the practical result of affirmative consent—independently of the intent of the people who wrote the law—means that I, as a defendant, will likely have to testify to prove my innocence, then it does seem to me we have turned a central tenet of what it means to be innocent until proven guilty—that the burden of proof rests with the prosecution—on its head. And if this is true, and if I still support the use of an affirmative consent standard, then I do have seriously to wrestle with G&W’s question about whether and why I am treating rape differently from other crimes.
I had a little bit more, but I need to go teach.
I’m coming to the same conclusion as Richard here – the particular law in California seems to have problems, specifically in that it is too vague on what it means to have “ongoing affirmative consent”, and in that it seems to put the burden of enforcement on universities creating all sort of due process issues. So the question I have to Patrick and G&W is – if there was better written and implemented version of an affirmative consent law that does not pass the buck to universities but leaves it within the justice system, and that can only be interpreted in the way that I (and I believe also Amp, Richard, Jake, Myca among others) have been interpreting the standard – in other words:
– Is generally identical to current “no means no” standards, with the following modifications:
– It requires some measure of positive willingness to *initiate* sex, and does not accept passivity or lack of response as consent at that point
– It makes it clear that if someone is genuinely unsure if the other party is consenting, then the default assumption should be “no” rather than “yes”
– It makes it clear that both partners have the option of withdrawing consent (which needs to be communicated in a clear manner) and that at that point sexual activity must cease
If there were such a law that unambiguously does the above and no more, would you still object to it?
I’m still having trouble with the “guilty until proven innocent” feature. It would seem to be the case that the alleged victim has only to prove that there was sexual activity (which is certainly not criminal in itself!…or is it? keep reading!) and then the burden sifts to the defendant to prove consent.. So in an hypothetical case where all that has been shown is sexual activity the defendant is guilty of rape.
Is this guilt until proven innocent or is it the criminalization of sex per se? An assumption that all sex is rape until proven otherwise? Hard to tell but I’m uneasy with any of these.
Eytan, I like your list as a set of moral principles. I’m struggling with the idea of codifying them in law.
This seems good conceptually. I would withhold judgment on its legal codification until I see its exact wording, though.
I honestly don’t think this principle as worded could be codified into law. You’re criminalizing someone’s ‘uncertainty.’ And this is, I think, the crux of the issue. From a moral standpoint, if you’re unsure whether someone is consenting to sex, you definitely shouldn’t have sex with them. From an American legal standpoint, though, unless you’re sure someone is guilty, you definitely shouldn’t send them to jail. It seems like some on the YMY side want to change this by shifting to a, “We’re sure you weren’t sure, therefore you’re guilty!” approach … which comes across as an attempt at a kind of legalistic end run around the bedrock of reasonable doubt.
The law needs to focus on whether the potential victim gave consent, and this is where all the questions about ‘what counts,’ ‘how often,’ and ‘after the fact’ come into play.
In reverse order, consent ‘after the fact’ isn’t consent. Or, to put it another way, if Alan escalates with Trish, then checks in with her, and she says “No, I’m not good with you doing that,” it seems to me that the Alan has violated “the default assumption should be ‘no'” and would therefore be in legal jeopardy. (ETA: Indeed, the very act of ‘checking in’ after the fact seems to establish that Alan was, in fact, unsure of Trish’s consent, and in a way incriminates him more than if he hadn’t checked in!)
‘How often consent needs to be granted’ is AFAICT an inescapable ambiguity built into the concept of affirmative consent, particularly when married with the ‘what counts as consent’ concept. If you’re pushing Antioch (“only verbal consent counts; must be granted at each stage of escalation”), then you need to define each stage in the law. (Good god I hope we don’t get to that point!) Most here seem to be explicitly renouncing Antioch and pushing for a ‘reasonable physical communication’ standard, but many forms of physical communication have an element of ambiguity to them. (Above, I asked Harlequin if the signs of physical consent she alluded to — “relaxing, moving in, and/or smiling” — were all legally dispositive forms of affirmative consent in her view. She rather pointedly has not answered.)
(ETA #2: I would also add that most people don’t have sex using unambiguous YMY standards and are unlikely to start doing so at any point in the near future, so this concept is criminalizing the intimate behavior of millions of Americans.)
This seems fine.
Susan. The burden of proof doesn’t shift. Currently the prosecution/plaintiff has to prove sex + lack of consent, under the new law they’ll have to prove sex + lack of affirmative consent. This should be easier, as it’s broader, but there’s no change in the burden.
Gin and whiskey has a point that preventing the burden being met on the balance of probabilities given restrictions on things like cross examinations and representation isn’t always going to be easy. But that’s separate from who has the burden.
Just in case my comment above was the source of Susan’s comment about “guilty until proven innocent”—since I realize I was not as clear as I could have been and that I think I actually wrote the opposite of what I meant: I did not mean to write that I think yes-means-yes shifts the burden of proof away from the prosecution, but rather that, if G&W is right, and that the practical result of affirmative consent is that an accused will have, actively, to prove his innocence, that we will have changed a central tenet of what I have always thought it meant to be innocent until proven guilty, i.e., that an accused person does not have to say anything in her or his own defense.
@Pete, to see if I understand you, if the defendant stands silent he could possibly be acquitted if the complainant cannot SHOW a lack of affirmative consent. Is this correct?
Wouldn’t this be rather difficult? How do I prove that someone did NOT say something? Would a simple assertion (long after the fact of course) by the victim that she did not affirmatively consent be enough? Doesn’t this rather shake out to a requirement that the defendant come up with proof of affirmative consent?
Eytan, let me try responding generally.
First, I am perfectly OK with the preponderance standard in tort cases.
Torts are a class of claims which, if you don’t know, include rape, sexual assault, and generic assault. Tort claims can be brought in a variety of courts, depending on the issue, and the standard for judgment is “more likely than not.” (Interestingly enough, many states classify the court based on damages. In Mass., if you are really going for facts and not money, you could, in theory, bring a $7499 tort claim for rape–in small claims court. You’d be heard by a magistrate, in a setting designed to permit pro se representation, and you’d get a judgment in a short time.)
I like restraining orders.
The court system also provides for restraining orders–which, although they seem “criminal” in nature, are also judged on a civil “more likely than not” standard.
I am OK–though on the borderline–with rape shield laws in criminal cases.
These laws protect accusers (it would be inaccurate to call them “victims” until you have a judgment) from being questioned about certain information. I don’t like the fact that they exclude potentially exculpatory evidence and I don’t necessarily agree that they are always applied correctly. But I agree they give some benefits and in any case I’ve moved on from that fight, which is long since past. Those are fine, too, at least in the criminal situation. I am not generally a fan of them in civil cases: I think that there are plenty of times where a judge should shield the accuser, but I don’t like the blanket nature of the laws.
I am very in favor of anything which increases accuracy.
There are a lot of ways to convict more defendants which DO convict more guilty people but which don’t have this sort of hazard. More police; more police training. More investigations; laws requiring the cops to pursue rapes farther down the chain. More testing, and faster testing, of rape kits. More court funding. More victim advocates to make it easier for victims to get through the system. More publicity of how to report something if it happens. More education on what is and is not legal, and where/how to report.
All these things are great.
I am very opposed to merely moving the “line of guilt” one way or the other, without some exceedingly good justification. I am also very opposed to setting up any laws (civil, criminal, or otherwise) which are, in my view, likely to lead to misuse of the laws. It isn’t that I can never agree to move the line, but it requires a very in-depth discussion of outcomes which hasn’t even started in this case.
I am VERY VERY opposed to having a different definition of rape for civil purposes than for criminal purposes, especially if the stated point of the civil definition is basically to “find more people guilty.” That seems to be starting at the wrong end of the escalator. And from a “remember your liberal roots” standpoint, don’t folks generally oppose the find-more-guilty tactics for other serious crimes like drugs and terrorism and whatnot?
If that didn’t answer your question, I’ll answer specifically.
Disagree.
Laws are supposed to be objective. Juries and judges are supposed to be objective. Things which are illegal should as a rule be objectively determinable as illegal. That’s pretty much a core requirement of a law, especially a criminal one.
So you must ask yourself, when evaluating a law, “what proportion of normal behavior is technically illegal?” Under the current laws, the answer is “not much at all;” under the proposed law the answer is “quite a bit.” And since you probably don’t intend to include me or my wife as violators, that means that the proposed definition is inaccurate or not objectively determinable. That’s a big problem. It either means that you are basing illegality only on reporting, or–as would be the case if you increased penalties for jaywalking or cigarette-butt littering–you are basing illegality on selective, random, enforcement. If 1 out of 100 technically-guilty rapists is reported and the determining factor is “how pissed is your ex” rather than “was your behavior more illegal than anyone else,” that is an unjust disparity.
I don’t agree, but won’t repeat what i just said ;)
And not to be pedantic, but I have a serious suggestion. Don’t think about what “should be.” That’s the easy road and it makes it too simple to pass over the issues without noticing them. Instead, since you’re thinking about laws, think about consequences. And write the questions that way, too.
So instead of saying
say
You may still come to the same conclusion-I won’t pretend to know your mind-but if you use that framing, it makes it less likely that you’ll end up missing a civil rights issue.
To the best of my knowledge this mostly exists already. And I don’t object to it in theory, though I suspect that “sexual activity must cease” means different things to different people. To many people in the throes of sexual activity, I suspect it means that they should “step down a level.” E.g. they should pull out if they were having sex, but not entirely stop touching someone unless they then say “…and get your hands off me;” and not get out of bed unless they then say “…and get the hell out of here.”
To the folks who draft laws like this, I suspect it means that a party who hears a protest should immediately jump back and get dressed and that anything else (such as saying “come on baby, just for a minute?”) is clearly rape.
Less so. But yes, I would probably object to it. The people who are proposing that type of law are pretty far down the credibility scale in my eyes, and I am even less inclined to trust their assurances regarding enforcement and meaning.
I don’t see the difference between the old laws and affirmative consent, as far as burden of proof goes.
In neither case, if we’re talking about courtroom standards, can a defendant be legally forced to testify against her or his will.
But in both cases, s/he might feel that it would be strategically disastrous not to testify.
So in the old system, an accuser might testify that the defendant held him (accuser) down against the accuser’s will and had sex, even though the accuser kept repeating “no! no! no!”
If the accuser’s testimony seemed credible, then the defendant might feel pressured to present evidence (i.e., testify) to rebut the accuser’s testimony. As a matter of practical strategy, it might be necessary for the defendant to testify. But LEGALLY, the defendant does not have to testify.
So how does that change under affirmative consent?
With affirmative consent, an accuser might testify that the defendant had sex with him, even though the accuser gave no indication whatsoever that he (accuser) wanted to have sex, and instead just lay there, frozen by hopelessness or fear or doubt, waiting for it to be over.
If the accuser’s testimony seemed credible, then the defendant might feel pressured to present evidence (i.e., testify) to rebut the accuser’s testimony. As a matter of practical strategy, it might be necessary for the defendant to testify. But LEGALLY, the defendant does not have to testify.
So no, I don’t see how affirmative consent forces the defendant to testify or present evidence on his own behalf, except in ways that are similar to how things already work under the status quo. What am I missing?
Not to be too cynical, but the widespread availability of the civil tort system is not often acknowledged by too many folks on that side. I don’t want to say that people literally don’t know about it, but when you read articles saying shit like “victims need college tribunals because they have no other avenue than criminal court” that is COMPLETELY UNTRUE and they damn well know it.
They can file a claim if they want. They can depose the defendant if they want. And in civil court, a “refusal to answer questions” CAN be held against you by the jury.
Did you know that?
Because you might reasonably say: “That’s odd. Are you saying that there’s an existing preponderance-of-evidence system, which provides for relief; which includes all forms of assault; which can give enforceable judgments; and in which people can raise those issues? What does the college system offer which the civil system does not?”
Simple: colleges hobble defendants rights in favor of accusers.
Colleges do not require the accuser to testify under oath.
Colleges do not generally permit cross examination of the accuser.
Colleges do not have subpoena powers (which defendants use to compel other witnesses to testify, or to get exculpatory documents/things from others.)
Colleges are not required to follow the rules of evidence, and can admit hearsay and propensity evidence. Which is an issue since that this type of evidence is considered to be so unreliable that it is excluded by default from all normal trials unless it fits within specific exceptions.
Colleges are not required to be legally consistent in the application of their rulings.
Colleges are not required to write a finding of facts and explanation of legal principles, and therefore their rulings and often not functionally appealable.
Colleges do not permit people to use counsel.
See a problem there?
Ballgame:
This is a problem that many other laws have run into; one solution found in both criminal and civil law is a “reasonable person” standard, which used to be called a “reasonable man” standard. In the case of a hypothetical Affirmative Consent law, we might instruct a jury that if a reasonable person, in the same situation as the defendant, would have understood that there was no basis for assuming consent, then that is enough to meet that aspect of the definition of rape. (There might be other aspects, of course.)
I don’t think “she rather pointedly has not answered” is a legitimate argument. There are many reasons not to answer arguments; I know from experience that you yourself don’t answer all arguments put to you.
Relaxing, smiling and moving in certainly could be indications of affirmative consent in some contexts, and I’d want Courts to take that into account. However, “in some contexts” doesn’t mean “in every possible context.” Example: If someone smiles and moves his or her lips towards mine in response to me leaning in for a kiss, that is affirmative consent. If someone gives a forced smile and moves in, in a manner that turns my attempt to kiss into a chaste hug or kiss on the cheek, then that’s not consent.
ballgame:
Gosh, it would be nice to get away from an equation of consent and enjoyment.
Every person has an absolute right to consent to sex that they don’t enjoy for any reason. I can think of a half dozen good reasons off the top of my head but, more importantly, you don’t need a good reason to consent to sex because you are a sovereign person and you get to make your own choices about your body.
iri:
There is some talk above about a woman “passively lying there”. That is how some or many women have sex, even if they are into it. That’s just how some women have sex.
Setting aside whether this is common behavior–okay, there are undoubtedly some people who prefer to have sex this way, or almost any way we can imagine having sex.
I’m not sure that anyone is conflating consent and enjoyment, though. These statement seems to be a result of applying the belief that the law requires constant checking in with the other person in the absence of a change in behavior to statements by people who do not believe this. The people here who are in favor of a legal affirmative consent standard seem to feel that there has to be some visible/audible change before consent is presumed revoked (and Eytan Zweig spelled that out); if your partner was actively participating and suddenly freezes, you should check in with them, but if that’s how they normally have sex, you don’t need to as long as they’ve indicated consent in some other way at the beginning (e.g. verbally or by moving into position to have sex) and have not made some other change that indicates lack of consent.
If I’m wrong and the above comments aren’t related to the belief that affirmative consent legally requires you to constantly check in: OK, fine, you can’t always rely on body language under an affirmative consent standard. If the person likes to lie there unresponsive during not only sex itself, but while you remove their clothing and arrange their limbs into a position to have sex, you do have to verbally ask them to have sex.
Wasn’t pointed–it’s just that you asked after I’d gone to bed on the day I was home sick from work and very active on this thread, and since the thread remained very active, I didn’t catch up until a point where I judged the conversation had moved on.
My response is mostly like Amp’s: if you’re not going to do verbal consent–and you don’t need to–then nonverbal cues count, both positive and negative. It’s not a list you can check off; “my partner moved in for a kiss, therefore I ignored that they were crying like somebody just killed their dog in front of them” is probably not going to be persuasive to the people doing the adjudicating. (You can of course tell someone you’re fine even though you’re crying–I’m just discussing here the case where there’s no verbal communication whatsoever.) But yes, I think clues like the ones I listed, as part of a holistic picture of the nonverbal communication that was happening, are a valid defense if someone accuses a person of rape because they didn’t obtain verbal consent.
Or, I should say, I think they should be under an affirmative consent standard. Whether or not it plays out that they are is down to this particular implementation of the law, which others are more qualified to talk about than me.
– Is generally identical to current “no means no” standards, with the following modifications:
– It requires some measure of positive willingness to *initiate* sex, and does not accept passivity or lack of response as consent at that point
What is “initiating” sex?
– It makes it clear that if someone is genuinely unsure if the other party is consenting, then the default assumption should be “no” rather than “yes”
I’m not sure I understand exactly what you mean in terms of what should or should not be criminalized.
“- It makes it clear that both partners have the option of withdrawing consent (which needs to be communicated in a clear manner) and that at that point sexual activity must cease”
This is already the case.
G&W – thanks for your detailed response. I have a very busy day today and don’t have time to respond carefully, and I’ve already demonstrated that when I write a quick response I end up not communicating very effectively, but I wanted you to know that I’m thinking of what you wrote and I hope to be able to answer quickly (though I will address a small part of it in my reply to Patrick below).
Quick answer to Patrick, though:
What should be criminalised is having sex with someone without their consent. Affirmative consent laws don’t change that. What they change is that they make “I had no indication that I didn’t have consent” into an invalid defense. It’s not enough that you don’t have indication for lack of consent – you have to have some sort of positive indication for the existence of consent. What that would mean is, unfortunately, always going to depend on the circumstances.
I don’t think that it’s reasonable to ask for a specific list of behaviours that can be deemed as criminal. A lot of laws involve an element of judgment. Off the top of my head – criminal negligence and child endangerment are both criminal, even though it’s not possible to give a clear, acontextual list of what constitutes either. Not saying that rape is identical to those two, just that it shares the specific property of some cases being very clear, while many cases being not nearly as straightforward. Trying to reduce it to “list all the behaviours that will be ok” is never going to work – but it already doesn’t work in a “no means no” standard.
Eytan-
would you be able to define a list of behaviours that cannot be deemed as criminal? As g&w reminded us, people must be able to tell with sufficient specificity whether something they’re doing or not doing is criminal or not.
In my opinion, everything short of ex-ante verbal consent to a clearly specified sexual activity would can not fulfil that requirement when consent must be affirmative. That, on the other hand, leaves us with the unsolvable problem of defining “sexual acts” for legal purposes.
So, basically, this is why affirmative consent is a bad, since impossible, legal standard, even before the due process aspects are taken into account.
I think your list in #157 is a – by and large – good standard to teach people for their sexual encounters. But it should, for all the problems mentioned, not be a law.
Apparently, the confusion is working, and people aren’t kissing each other anymore (as much as they used to)… also, apparently, at Stanford, non-verbal consent is not even legally acceptable.
http://www.stanforddaily.com/2014/10/17/full-moon-on-the-quads-affirmative-consent/
“What should be criminalised is having sex with someone without their consent. Affirmative consent laws don’t change that. What they change is that they make “I had no indication that I didn’t have consent” into an invalid defense. It’s not enough that you don’t have indication for lack of consent – you have to have some sort of positive indication for the existence of consent. What that would mean is, unfortunately, always going to depend on the circumstances.”
I get this.
There is a disconnect here because I don’t think the pro affirmative consent crowd understands how much of a change they are asking for, or what the other aspects of their movement are asking for, and how they interact. Lengthy digression incoming.
The status quo law in most regions does NOT criminalize “having sex with someone without their consent” in the same way that feminism conceptualizes those words.
What it generally does is look for things someone might do to overcome someone’s lack of consent, and issue punishments if they are found. Force, threats, creating a sense of reasonable fear, incapacitating someone, taking advantage of pre existing incapacitation, etc. It simply does not contemplate a scenario where party A has sex with party B, party B does not consent, but party A does not have to do anything whatsoever, not even create an amorphous impression of fear, in order to overcome party B’s lack of consent.[1] The status quo law would generally look at that and say something like, “what? in what way was this non consensual sex? party B knew they could have gotten up and walked away at any time. they didn’t, so they must have been ok with it.”
There is a movement within feminism to change that, and to make rape more of a strict liability offense in which an affirmative duty is imposed on each partner to know the other is consenting, and where criminal sanction enforces the need to get that right. That has some issues. But lets set them aside for a moment.
There is a separate movement within feminism (unlike the first which has been ignored outside of academia, this one has had significant success in court over the past few decades) that is very concerned about the sort of inferences jurors draw from the evidence put before them. It is a movement that believes that patriarchal norms, slut shaming, and other bad values are improperly influencing jury decisions, and which wants to use the rules of evidence to keep out information that will lead to jurors making these improper conclusions. For example, this perspective is concerned that juries presume that if a woman has sex with a man once, he can’t “really” rape her, because from a patriarchal perspective he’s already defiled her, so how can she be harmed if he does it again? So they want past sexual history with the defendant to be excluded from the trial.
There’s a lot to recommend this perspective… IF you are operating under status quo rape law. Using the past sexual history example, if the prosecution is accusing the defendant of force, or threats, or putting the victim in reasonable fear, saying that they had consensual sex the evening before is irrelevant. If it might induce the jury to draw foolish conclusions, it should be excluded just as any other irrelevant and potentially prejudicial piece of evidence should be excluded.
But if you are operating under what might vaguely be called the ethic of affirmative consent, these rules create significant problems. Why is it that I might walk up to my hypothetical wife and slip my hand under her skirt, but would never do the same to a stranger at a restaurant? I have a reasonable belief that my wife is ok with this, which I base in our past sexual history. If I get it wrong one day and she unexpectedly snaps at me, it makes more sense to say that I should update my understanding of what she’s ok with, than to say that I should feel that I violated a norm or law of affirmative consent.
There’s also a third push to adjust the law regarding intoxication to lower the standard from the historical norm in which someone has to be so drunk that they don’t understand what’s even happening, to where they just have to be drunk enough that they are doing things they otherwise would not do. It has also been partially successful, has been HUGELY successful in terms of affecting the social norms of liberal college kids, and also has some compatibility issues with the “rules of evidence” push.
So TLDR, I’d have to see it to know what I’d think.
[1] Actually, this concern is related to the reasons we criminalize statutory rape. So it would be more proper to say that the law does not contemplate this scenario in adults.
gin-and-whiskey wrote: “And perhaps you do (or not.) But does every rape accuser mean there’s a rapist?”
Have you read McKinnon, or commentaries on her? This is eerily similar to a quote I once in a textbook discussing Catherine McKinnon. “Perhaps you can have a rape without a rapist?” something like that. The idea stuck with me and inspired me to read a lot more about her views, in large part because in context this statement struck me as insane. I get a bit more of where it came from now, although… kinda disallows that perspective from being used in a criminal court where the whole purpose is to identify the rapist…
And wouldn’t the “status quo law” be justified in doing so? If there is *truly* nothing there that would impede any kind of externalisation of party B’s lack of consent, how is party B’s continued participation (and not get up and walk away would logically be participation here) not consent?
They clearly do. For unconsciousness and whatever interpretations of affirmative and voluntary end up being used, people can consent and testify they consented to sex but the sex be ruled illegal due to absence of the other elements.
Patrick – thanks for the detailed response. I’m afraid I’m still dealing with stuff in the non-internet based world that means I don’t have time to respond in detail, but I do appreciate the thought you gave to it.
Patriot Pete – If we are talking about what I (and most people arguing for affirmative consent here) believe to be a correct implenetation of affirmative consent, than that is not true; if there was (genuine, non-coerced) consent, then there was no rape, regardless of circumstances.
If we are talking about the actual California bill, then this is also not true. What has to be “voluntary and concious” is the consent, not the sexual act. In other words, if you give affirmative, voluntary consent while concious to have sex while unconcious, then the sex is not illegal according to the bill (not to mention that the California law requires that there be a “complainant”, which would not be true if both parties agree that there was consent).
“What has to be “voluntary and concious” is the consent, not the sexual act.”
But the consent has to be ongoing, which is at least presumably not possible if the person is unable to act voluntarily or consciously.
If one person is unconcious, then it is impossible for the other person to determine whether or not consent was ongoing, true. And according to affirmative consent, if someone cannot determine whether there is consent, then they are culpable if there wasn’t. So they are taking a real risk if the unconcious person later testifies that the consent was not ongoing. However, if the unconcious person testifies that consent was ongoing (which is the situation Patriot Pete described), then that would resolve the question.
I’m not saying that it is a good idea to have sex with an unconcious person under an affirmative consent law. But it’s worth noting that having sex with an unconcious person is already potentially illegal under the existing “no means no” standard, in exactly the situations where the unconcious person later says that had they been awake they would have objected – so affirmative consent does not actually change the standard here.
There will have to be a complainant for there to be a case. I’m not sure if the complainant will have to be the alleged victim. Some, but not all, of the text assumes this is the case. Certainly the key sections b mandating investigation and a1 defining the affirmative consent standard do not specify complainant=victim.
‘“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity… Affirmative consent must be ongoing throughout a sexual activity…‘
It’s not a matter of anyone’s subjective consent. It it’s not continuously affirmative, conscious and voluntary, it isn’t affirmative consent regardless of what they think about it or testify. I suppose they could use perjury to try and break the charge, but even that’s not guaranteed if there’s other evidence those conditions weren’t existing.
We’re probably at the end of this conversation, but it seems weird to support an affirmative consent in which there doesn’t have to be any affirmation. Seems to me that’s actually a consent standard.
Ampersand:
I don’t see this either. It’s entirely possible I’m missing something, so if one of the (many) people who talk about how this does away with our customary standard of evidence could explain, I’d appreciate it.
G & W:
Sure, I think all of that is bad. As Ampersand said in the post, and as I said in the first comment, I’d be in favor of a bill entitling students to legal defense and counsel in advance of any substantive administrative discipline.
That having been said, part of the reason colleges don’t have to meet the standards of criminal court is that they also can’t put you in fucking jail. They also can’t (to my knowledge) make an award like a civil court.
What they can do is expel you.
I sort of think of it like getting fired from a job. It’s the same sort of ‘level of bad’ to my mind. Either one can really screw your life up, but mostly it won’t.
We’ve previously established that you’re essentially in favor of an employer being able to fire an employee for any reason or no reason (with a few exceptions), and I’d assume that you would not be in favor of an employer having to hew to standards of criminal court before firing an employee for a complaint another employee lodged against him or her.
I also know how important consistency is to you.
So in this situation, would you say that you are “Selectively perceiving the benefits of your position” or being “unintentionally inconsistent?”
—Myca
US colleges do manage police forces which can and do jail people. This law will influence the deployment of the UCPD with its particularly celebrated history of civil rights violations. My employer can call the cops on me, but at least if they do I’ve equal standing as they’re not running the police department.
If you are arrested by the UCPD, however, none of the stuff G & W was talking about applies. At that point, it’s a criminal proceeding, in which criminal rules of evidence apply, just as if your employer called the cops on you. You don’t get put on ‘college trial’ and go to ‘college jail’, IOW. You get put on trial, and might go to jail. It’s the regular criminal justice system.
So what we’re discussing here is the protections the accused might or might not have in a non-criminal disciplinary proceeding, whether through their employer or their college.
—Myca
The “it’s just a college, so no need for due process” thing is a cop-out. It’s a formal hearing; resulting in a socially appalling label; with what functionally can be life-altering consequences that are quite similar to a civil judgment.
Is this a serious attempt at an analogy (in which case sorry, it’s a very bad one), or just an attempt at snark?
I’ll treat it as serious, at least for a paragraph: employees get paid; they don’t pay their employers. They can quit at will, to go to a different job. They don’t generally have any fallout when they are fired, much less publicity and disapproval. They are paid per day/hour for their service, as oppose dto making an investment which isn’t realized until fully complete. They also, usually, have fairly low-level relationships which are focused more on a specific service.
If you reeeeally wanted to stretch to an employer-student analogy then I guess I would look at some employees more like “students at an massively enrolled 4-hour online World History course” and, in the spirit of consistency, I would agree that the course provider could kick them out privately and refund their money, on relatively minimal evidence, with minimal or no process.
Are you implying that you think consistency requires either “no due process for students” or “full process for employees?” Are you saying, perish the thought, that you propose this to be what I think?
I would choose “amused.”
Since I have said explicitly the opposite twice in this thread, I’ll suggest that you are inventing opinions to argue against.
Again.
You might want to watch that.
I believe in due process when people are accused of things with potentially life-altering consequences like expulsion or firing. Do you?
The question is not whether there are difference between being a student and an employee. Of course there are. The question is whether the difference are such that we can throw due process out the window for the accused.
If “it’s just a college, so no need for due process” is a cop-out, how much more “it’s just a job, so no need for due process?” At least most college kids have parents they can move back in with if they’re expelled. The loss of a job can be crippling.
As I said, generally either being expelled or losing a job doesn’t lead to serious long term consequences, but it certainly can in either case. Community college and unemployment can only take you so far.
Really? You don’t think there’s fallout, publicity, or disapproval when someone is fired for sexual harassment or assault? I’d say it depends on the industry, of course, but I’d wager that in many cases a student would have a far easier time finding a new university than an employee would have finding a new job.
—Myca
BTW, do you have further explanation regarding the changing “standard of evidence” claim?
Myca, it’s easy to understand his position and there’s no conflict at all once you understand.
Gin-and-whiskey is an employer, so it would be personally inconvenient if it was hard to fire employees for no reason, but he’s also a defense attorney, so it would be personally inconvenient if it was more difficult to defend rapists using the she didn’t say no defense. You’re looking for consistency, when what you should be looking at is whether or not it is inconvenient for him personally.
Yes it does. Police forces can arrest on probable cause a *lower* standard than preponderance of evidence. People forces don’t require a hearing before arrest. Etc. The actual force will be mananged under the objectives of the law.
JennM, welcome. But please avoid attacking people personally, as your comment did. (Attacking their arguments is fine.)
Amp @ 106:
I will keep that in mind the next time you try to explain the views of conservatives, Republicans, Tea Partier’s, and MRAs.
You are damn right that any time the government wants to take away someone’s freedom or brand them a criminal, I am fucking passionate about making damn sure the Government can make its case. And, I do not want to make the Government’s job easier. Fourth, Fifth, Sixth and Eighth Amendments all the way, and proof beyond a reasonable doubt. Hell yeah, I am for it! Are you?
On the contrary, I think I nailed it! What have we been talking about for the last 80 comments? The burden of proof and the elements of affirmative consent. That is what the Department of Education’s Dear Colleague letter addresses (using a preponderance of evidence standard).
WHAT? Poppycock, Amp! I said this:
You said this:
And this:
You want higher conviction rates for rape. And, you want to do that by changing the law to make the description of the crime more accurate (at least from your point of view). Which is what I was talking about.
And, you an Myca have a question pending to g&w regarding hos affirmative consent changes the “standard of evidence.” Strategically, I think it does. And, by making it much more difficult to defend a claim without the Defendant’s testimony, it encroaches (directly or indirectly) on the Defendant’s Fifth Amendment rights. (But, I will give g&w a chance to respond before I elaborate.)
-Jut
Of course not, at least not with that definition. And neither do you, I expect.
Do you think that there should be due process for the people on this blog who might write about the Ferguson officer or about anyone else, who might potentially have life-altering consequences? I don’t, life-altering or not. Due process for telling your friends that Bobby is a rapist, even if it hurt him? No.
There are also differences between being a student and going on an Inuit whale hunt. Would you like to discuss due process there as well? Because the differences are so major as applied to the general “employees” in expectation, motivations, practice, etc. that it really makes little sense to treat this as helpful.
The point of analogies are to help us think about the subject at hand, not to digress into a question of “should at will employment generally cease across the country, and if so what else would we want to change in the employer-employee relationship?”
Although it pains me to even try to make a purse out of this sow’s ear, if you want a better analogy (still not an especially good one) then you might look at independent contractors. And as it turns out, when you’re looking at allegations of breach of contract (or firing someone for it) then there is absolutely a requirement for process, which I support.
But things are MUTUALLY different for at will employees. Your best retail employee who runs your highest priced and trickiest sales counter can stand up in the busiest time of Black Friday madness and scream “FUCK YOU ALL, I JUST GOT TEXTED AN OFFER FROM PRICE WATERHOUSE” and storm out, causing you to lose $50,000 of sales and five highly offended customers, and you (a) still owe her wages and (b) can’t sue for the $50k even though she could have saved you the loss by giving even 10 minutes of notice, much less a day and (c) certainly can’t make her come back to work. The fact that you can also fire her at will relates to that. Just as the fact that a union employee makes themselves less eligible for advancement based on personal merit, and may agree to work even on assignments they don’t like, relates to the increased process they DO have. Just as the fact that you can make your salaried employee work for 50 hours relates to the fact that you don’t get to cut her pay if she only works 36 hours. And so on.
Much of the time their subsequent employer does not know. There is certainly no legal obligation to tell them. There are generally no penalties for lying. It is almost never publicized. And even if you commit harassment–hell, even if you do something which costs your employer literally millions of dollars–it is their problem, not yours.
Moreover, there are a constantly rotating set of jobs available through the country. And also, you are paid through your day of termination.
I don’t know if you’re just pretending to be obtuse–I hope so–but that is not how academics work. if you get kicked out, you can’t just move somewhere else. You don’t generally get your $$ back. You don’t generally get any compensation for your lost investment. Not all of your stuff transfers. You may not be able to find anywhere to take you at all, since many places have limited or no transfer allowances and since they often are specifically selective on moral grounds. Also there is a high higher rate of data sharing. And since they are on specific schedules with lengthy application deadlines. Etc.
But in any case, this seems to be a meaningless side track, since it really affects your views on social justice, not process.
To put it differently: In a time of incredibly low unemployment, my views of required process to fire someone would not change. In my view, that’s sort of the point of how process works. However, yours would: it would be easier to get a new job, so as a result your argument would support less process. That suggests it isn’t a process argument at all.
Now, can we please stop getting side tracked into this atrocious analogy? I grok that you think we should radically reconfigure the concept of at will employment and I suppose I’d be willing to discuss it, but that is not the subject of THIS thread.
Wrong. I currently have no employees. I am an employee rights attorney, though. Oops.
Wrong again. I don’t do criminal defense beyond a DUI every year or so. Drat.
I do occasionally get involved in sexual assault cases or restraining orders. Unfortunately for your argument, 100% of my involvement has been representation of the victims (usually for free) after a referral from the local victim’s center. Double drat.
Also, “more difficult to defend” =/ “personally inconvenient.” Complex cases are fun. It is also how we get paid.
Man oh man, doesn’t it just SUCK when you set up some sort of great ad hominem zinger, and it all turns out to be wrong? I hate that.
Sorry Ampersand I just think that the holier than thou champion of the accused pose looks funny on someone who believes that its okay an employee can be fired for something they didn’t do. It’s like he believes in maximum protection except in the place most people spend most of their time.
I think you and Myca are missing something (OK, lots of things, but i’ll keep this reasonably short:)
You are the ones basically calling me a hypocrite, right?
And you’re the ones who also seem to believe, for what reasons only you you can say, that employment is a good analogy.
And you’re the ones who seem to be in favor of vastly expanded employee due process.
Great! So, does that mean you are also in favor of vastly expanded due process for rape cases, like they get in court? Or does your support for that hinge on whether or not I join the anti-at-will-employment crusaders?
JennM:
I agree with g&w that employment is a bad analogy, especially in the at-will scenario. To make the bad analogy better, you would have to talk about employment for a term. When you go to college, you typically are signing up for a two-year degree or a four-year degree, or something. This type of contract (and g&w the employment lawyer may provide better insight) cannot be terminated except “for cause” (a little simplistic, but gets closer to the sort of relationship you have with a school). So, if you have a four-year contract with an employer, maybe they could terminate you over an accusation of sexual harassment of a co-worker, but I would not expect that the employer would sit in judgment over the employee. The employer could take action, and the employee can challenge that, typically in Court under a breach of contract theory (or in arbitration if there is a union in place).
So, if you are going to use an employment analogy, I think a good and current example would be something like the Ray Rice case in the NFL. The NFL does not have the final word about whether he can play, and he can fight them if they are not abiding by the contract. And, that is specifically because he is NOT an at-will employee.
-Jut
“However, if the unconcious person testifies that consent was ongoing (which is the situation Patriot Pete described), then that would resolve the question.”
You might be right. But… I’m not 100% sure that an unconscious person is capable of “ongoing consent.”
There are different models of consent. In some, consent is like a chit you give someone, and until you communicate to them that you are taking it back, they have it. In others, consent is a mental state. One that an unconscious person would literally be unable to achieve. The modern trend in rape law is to use the latter system, but it isn’t consistently or universally used. Affirmative consent leans towards the second system. So I can see your point. But also… feel a bit nervous about it.
I can’t answer for JennM, only for myself, but before I answer this, I’d like for you to acknowledge, since you seem to be having quite a bit of trouble with your reading comprehension, that I’ve already said twice in this thread that I’m in favor of expanded protections for college students in disciplinary proceedings. I’d also like you to acknowledge that you keep (hopefully accidentally) misstating my position in this.
—Myca
AFAICT, it’s totally possible to consent to sex while unconscious / sleeping in an affirmative consent context? If, beforehand, you say to your partner “I want you to do [sexual act] to me while I’m asleep / to wake me up” and they say “OK I’m going to do that” then you’re good. Consent has been affirmed etc.
yrs–
–Ben
Myca, I don’t think I can continue engaging with you or Jenn politely, so instead I think I’ll adopt the RJN “looks like we have nothing further to say to each other” line, and decline to continue.
Very well. Since you seem unable to discuss my already-stated positions honestly, I’ll quote some of them for the good of the thread:
From Comment #1, in reference to the part of the post in which Ampersand says “California law should be amended to guarantee due process for accused students”
and
Then, in comment #181, in direct response to you:
So yes, as I’ve said before, I do favor expanded due process for students accused of rape (or, as Ampersand says, accused of anything). But, then, I think that due process is important across the board
I’m conflicted on whether those standards ought to be the same as standards of criminal court, though. Part of why civil court standards hew to a lower standard of evidence is that the penalties they assess aren’t as severe as those of criminal court. The penalties a college disciplinary board can assess are lower still.
As you point out, college disciplinary penalties can still be quite bad, and as I’ve pointed out, the penalties associated with losing your job or getting sued can be quite bad as well.
Out of respect for your bowing out, I’ll not continue arguing the employment point, but I did want to make my position re due process clear.
—Myca