[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).1 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,2 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.3
Sophia Katz, a young Canadian writer, wrote an essay describing how Stephen Tully Dierks,4 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.5
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.
- 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. [↩]
- Lisa Sendrow has chosen to publicly discuss her rape under her own name, in order to better help other rape victims. More information here. [↩]
- 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.” [↩]
- 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. [↩]
- 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. [↩]
Why we should talk more, but less about law.
http://www.stanforddaily.com/2014/10/23/lets-talk-about-sex/
Once more with feeling – she’s actually asking:
Cornell’s already at second base: next term: Dirty Talk 101 -319
http://cornellsun.com/blog/2014/10/23/sex-on-thursdays-why-we-should-all-say-yes-to-consent/
I’m only semi-ironic quoting this. I do think that universities have an obligation not only to scare people but to give them positive means of expressing their sexuality if they’re requiring them to do it in ways they may not be familiar with themselves.
JutGory:
But does it? If you look at the scenario Ampersand posted, it seems like the same standard is still in place – one in which it may be tactically advantageous for the accused to testify, but certainly not required.
I’m not even really arguing here. I’m confused. So many people seem so sure that this does away with our standard of evidence, but I’m totally not seeing it. It’s often the case that the accused needs to testify on their own behalf or risk conviction.
Since G&W is out of the thread, if you understand the claim, can you explain?
—Myca
Back up a minute.
Everyone agrees, I think that the “intentional standard” still exists. Right? No matter what the standard, if you can prove intentional violation of consent then you convict.
But if you want to think about rape law or evaluate rape laws, then the first thing you have to do is to remember the context that they come up. They don’t matter when everything goes WELL. As I tell my clients, if they want to build a million dollar house on a handshake they can feel free. Laws matter when things go BADLY, which is to say when a random third party has to sit there looking at two disagreeing people, and decide whether or not to punish one of them.
So when you think about laws you need to remember to think about facts, together with principles:
1) How do you define “rape?” This is not a trick question. I’ve seen people define it as “less than enthusiastic consent” and other people define it much more stringently, e.g. “sex intentionally obtained without consent by force, illegal or undue coercion, forced intoxication, or incapacitation.”
2) Whatever definition you use: what are some facts for distinguishing between true and not true? Specifically, what facts can you list that you WOULD expect to find in a true accusation of rape, but WOULD NOT expect to find in a false or inaccurate accusation of rape? (Remember: Since you’re considering it there is ALWAYS an accusation of rape and a denial, so those can’t be facts in the “difference” category.)
Obviously that has a lot to do with #1. That’s why #1 is first.
After all, if you use a relatively strict definition of rape then you would come up with a specific set of proposed facts. For example, you might expect that someone would believe at the time of the incident they were raped; you might expect that they would try as hard as possible to avoid it if they could do so safely; you would not expect them to fail to leave if it could be done safely and if they were capable of seizing the opportunity; you might expect them to protest if it was reasonably possible; etc. You would probably feel that way irrespective of whether or not you considered intent.
Therefore, if you use a strict definition of rape, then you would probably conclude the Swarthmore case NOT to be rape.
Similarly, if you use a very loose definition of “rape,” then you might include conduct in which someone did not experience the encounter as rape (or, as you might put it, “the victim did not even realize they were raped;”) you might not believe they had any obligation whatsoever to stop it; you might not find any questions appropriate regarding how/why/when they reported, etc. You would probably feel that way irrespective of whether you considered intent. Those folks would consider the Swarthmore case to be rape.
But whether you use a loose or strict definition of rape the point of #2 is to maintain consistency and credibility. If you’re the kind of person who thinks “failure to report for six weeks, absent some explanation, should be held against the accuser” then you’re arguing in favor of consideration of timing as a relevant fact and you should also agree that “quick reporting should be held against the accused.”
And of course, that works both ways: If you defend a long reporting time by saying “the length of time doesn’t matter because it’s unpredictable and irrelevant” then you’re arguing against the consideration of timing as a relevant fact and you should think twice before you argue for a conviction based on a speedy report.
The main problem is folks who argue that we should consider facts that support them… but when the facts run the other way they think that the facts don’t count. That is antithetical to the concept of objective laws, and objective enforcement. (Of course, if you don’t care about objectivity or consistency, it’s not antithetical at all.)
Yes, let’s back up.
Since you were backing out of the thread, I wasn’t going to push you on your repeated misstatements of my position. Since you’re still here, and since I’ve corrected you several times, if you want to keep posting here, please acknowledge that you’ve misstated my position.
I have assumed thus far that your misstatements are accidental.
As time goes on and you seem strangely resistant to correction and reluctant to apologize, I am becoming less sure of my assumption.
If two or three statements of my position were insufficient for you, you now have a fourth. Please acknowledge this, and preferably apologize.
—Myca
JennM, this is your second warning. If you don’t have anything constructive to contribute to the argument, then please just don’t post.
G&W, language like “I don’t know if you’re just pretending to be obtuse” is demeaning and should be avoided. Please dial it back a few notches.
Regarding this:
Myca has stated his support for expanded due profess for California college students facing college disciplinary procedures multiple times on this thread, including in a comment or two addressed directly to you. As such, I can understand why he’s feeling frustrated.
I think it would go a long way to smoothing this conflict over, if you’d acknowledge that he’s said that he’d support expanded due process. Would you do that?
Or, if you won’t do that – and you seemingly believe that such a request is unreasonable, although I don’t see why – can you explain specifically why you won’t do that?
I’m not ceasing to post in the thread. I’m backing out of interacting with you personally/directly in the thread. You should do the same.
After all, you and I are obviously not getting along here, and it is obviously distracting from the point, and the thread. Ideally both of us would be grown-up enough to acknowledge that and stop yammering at each other, while continuing to engage in what is otherwise an interesting discussion. It doesn’t seem that either of us is having this problem with anyone else.
G&W:
You’re free to choose not to reply to Myca, of course. But as far as I’m concerned as a moderator, it’s fine if Myca wants to continue responding to you (or not). Neither decision makes him less “grown-up.”
g&w,
You seem to be mostly addressing due process in your recent comments. Can we get beyond that if it is assumed that we all agree with you about due process? Although I can’t speak for others, I agree with you about due process and read everybody else who’s commented here as agreeing with you about due process at colleges and universities.
In answer to your facts/principles bullet 1 & 2, let’s assume that all parties are looking for consistency. How does this impact the pro or con position towards affirmative consent standards?
Can you explain to me what you mean when you say that affirmative consent creates a lower evidentiary standard? Is it just that you feel a defendant will be required to testify to mount a good defense or is there something else that I’m just completely missing.
Myca,
I will explain what I think about the standard of evidence (which I thi is a poor choice of wording), but it will not likely be until tomorrow.
However, in the meantime, indulge me if you will by considering this: would we not eliminate this problem by simply reinstituting the doctrine of in loco parentis? Bring that back, and wouldn’t we be free of this issue?
I am not saying I would be in favor of that, but I think the people complaining about the rape culture would have something new (or old, if you will) to complain about.
-Jut
I need to revise that, I think: as I’ve tried to answer this question (across multiple long-deleted drafts) I have concluded that is the wrong phrasing. (amusingly enough, if I was actually a lifelong rape-defense attorney I’d be having an easier time of it.) I think it has some distinct problems irrespective of due process but those really relate to things other than the evidentiary standard (which is really about “preponderance” any way you shake it.)
It’s about evidence but not about the evidentiary standard. I might describe it like this:
Rape is already an incredibly difficult crime to deal with, mostly because there is SO LITTLE objective or physical evidence that can actually demonstrate one side over the other. In a non-violent date rape kind of situation, we often see that there is literally no evidence beyond testimony and circumstances.
So that’s the problem we have already. But part of what this law does (among other things) is to take some of the things which normal people would want to use as evidence, and make them limited or fairly irrelevant to the case. Did she protest? Well, it’s not relevant if she didn’t, so that evidence doesn’t come in. Did she leave, rather than sleep in your bed until the morning? Again, that doesn’t seem like it would be relevant. Did you sleep together for the last month? That might matter (and would normally be a crucial issue) but it sounds like the law excludes it to some degree.Did you both consent earlier? Well, that’s nice but isn’t actually proof of ongoing consent. And so on.
Now, if this were happening in an otherwise evidence-rich environment it wouldn’t have the same marginal effect. But it is happening in a very evidence-restricted game already. And all of the evidentiary restrictions end up seeming to me like they are changing the burden of proof, though they’re technically not. That’s because they are one sided and almost amount to saying “___ isn’t relevant to DISPROVE rape, but ___ is relevant to PROVE rape.”
That seems almost to amount of a change in the burden of proof. Because under prior standards, “she got undressed and climbed into my bed with my roomie in the top bunk and stayed there while I got a condom and returned to bed and then we made out and then had sex. She never said no or anything, and she slept there overnight–on the outside, without leaving” would be a huge defense. But if you take out any prior consent and obligations to say no; if you assume her actions were 100% permissible; and if you focus only on affirmative consent you get
she got undressed and climbed into my bed with my roomie in the top bunk and stayed there while I got a condom and returned to bed and thenwe made out and then had sex. She never said no or anything,and she slept there overnight–on the outside, without leaving. And, whaddya know, there’s no affirmative consent testimony in there.I don’t think this necessarily makes sense but i’m trying.
Thanks, g&w, that really clarifies your position and makes the discussion a lot less frustrating for me.
Yes, thanks, G&W, that makes more sense of some of the things that you’ve said. And so now I have a question. Staying the with scenario in your comment, it would seem to me that a woman asking me to get a condom after we’ve been making out is a pretty strong statement of affirmative consent. I get that it might not be read as ongoing consent, if one takes a really—and to my mind absurdly—literal reading of “ongoing,” but just for the sake of this question, please set aside that kind of reading and all the absurdities of which we know college disciplinary boards are capable.
In addition to stating that “affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time,” the law also says this:
Granted that is horribly written and that it is written in the negative, but if I try to paraphrase 2.b, this is what I get: I cannot claim to believe I had affirmative consent if I did not also take reasonable steps, given what I knew at the time about what was going on between us, to make sure that my partner did indeed consent to the sexual activity in which we were engaging.
I realize that how I read this is separate from how it might be used against me if my partner decides to accuse me, but I want for the moment to stay with how I read it. Because if my partner makes out with me and asks me to get and put on a condom, it seems to me entirely reasonable to assume that that constitutes affirmative consent to have sex, and why would I then be required to check in again and again during the act? It would seem to me the only reason I would have to check in would be if my partner did something to suggest she had rescinded her original consent. To suggest otherwise, I think, is to suggest that she has no agency here or responsibility or accountability, which is problematic for a whole host of other reasons.
If that seems a reasonable reading to you—again, setting aside for the moment, college disciplinary boards, what might happen in an actual court case, etc.—my question is this: Are you arguing that the way this law is written will result in policies where my reasonable reading is more likely than not to be ignored or otherwise thrown out the window? Or are you arguing that affirmative consent as a standard will always lead to the problems you have been trying to articulate?
How do you define “rape?”
One way to define “rape” legally is to define it as sexual assault, or criminal sexual conduct. That removes a lot of the smog about ‘yeah, but it’s not rape rape’, and also serves to be clear about exactly what we are discussing: an physical violation, a type of sexual conduct that is not merely icky but is actually criminal.
Re the evidentiary standard, it’s flatly untrue that rape is some kind of unique crime where, unlike all others, all we’ve got is “testimony and circumstances”, whatever “circumstances” is supposed to mean. That is true of many other crimes (“Mugged? Of course I didn’t threaten Amp, I politely asked him if he’d lend me money for a cup of coffee!”), and it’s also true that physical evidence does not always create a bright dividing line, either; a rapist who uses a condom to minimize physical evidence is going to argue that his condom use is proof that it was consensual sex. We already have evidentiary systems meant to weigh and evaluate witnesses’ credibility, and which can manage criminal accusations based on conflicting testimony.
The real issue isn’t evidentiary standards, it’s a discussion of what subjectively constitutes consent. We used to have laws that said women had to ‘resist to the utmost’ or it wasn’t rape. How far away from those are we willing to move?
g&w: that is essentially what I was going to say. It does not change the standard of proof, but it changes what evidence is RELEVANT to the proof.
What I would add is that, by making certain common pieces of evidence IRRELEVANT (did you say “no,” etc.), it makes it much more difficult to cross-examine a victim (the constitutional right to confront witnesses), and thereby increases the likelihood that the accused will need to testify in his/her own defense (Fifth Amendment).
In essence, if affirmative consent literally requires a “she said,” he will be forced to testify in order for there to even be a “he said-she said.”
For instance, if the law REQUIRED (and, yes, this will be an exagerrated example) one to say “I want to have sex with you” in order for it not to be rape, the victim could testify, “I never said that. I said ‘I want to fuck you,’ but I never said ‘I want to have sex with you.'” Strategically (as Amp put it earlier), I have to have the accused testify so that he can say, “she said ‘I want to have sex with you.’ she said it 7 times in a row, emphasizing a different word each time she said it. It was very sexy.”
That is what I worry about: changing the law in such a way that the only way an accused can defend himself is by waiving his 5th Amendment right not to testify.
-Jut
“That is what I worry about: changing the law in such a way that the only way an accused can defend himself is by waiving his 5th Amendment right not to testify.”
I think that’s inevitable in the context of a college expulsion hearing for a date rape case. The 5th Amendment only works because of the heightened standard for a criminal conviction. Take that away and go with preponderance of the evidence, and the 5th Amendment is a dead letter.
There’s a lot of bad things we could say about the use of employers and colleges as de facto enforcers of rape and domestic violence law in substitution of just using the police and putting people in jail. But since we’re apparently going there no matter what any of us say, I think we’re going to have to accept that part of that is going to be an inquisitorial process that forces people to testify in their own defense, like it or not.
JutGory:
How does this differ from the current situation? The accuser can get on the stand now and say, “I said no,” and that has the same effect.
Richard Jeffrey Newman, I agree with your point generally, but not quite this bit:
I think this is the current no means no standard, and it doesn’t demean partners to say that they could have unexpected reactions, for example, and might begin to communicate less clearly than they had at the start of an encounter. I do think, however, that under a reasonable person standard, continuing to act in more or less the same way you’d been acting at the start of a consensual act would be reasonable nonverbal communication of ongoing consent. Am I picking a semantic argument here, or do we have a genuine point of disagreement?
Harlequin,
I think it’s semantics.
There’s something I’ve been confused about here regarding the mention of the fifth amendment. As far as I can tell, the amendment says that no one should be compelled to testify against himself or herself. How has that come to mean that no one should be required to treating on their own behalf when they have the necessary evidence for their own innocence?
Suppose a man is on trial for drug possession. In fact, the cop who arrested him planted the drugs on him. The only way the man can get his story out in court is to testify. Have his fifth amendment rights been violated?
Amp – I honestly don’t know if your question is meant as a rhetorical reply to my own query or whether you were continuing my line of thought. Regardless, my answer would be “I don’t know”.
Just to clarify, it seems to me that there’s a huge gap between “nor shall be compelled in any criminal case to be a witness against himself” to “it is a violation of one’s right to have a law that is likely to create situations in which testifying in one’s own defense is the best strategy”. I’m genuinely unsure whether there’s any history where the meaning of the amendment was extended in this fashion, for example by supreme court decisions (which a quick search and wikipedia skim found no evidence of but that doesn’t mean it hadn’t happened), or whether this is one of those cases where people are ignoring the last two words of the clause above with no justification beyond their personal ideology.
G&W, this claim makes much more sense than your previous one, and I see where you’re coming from. I think that part of the problem, then, is that some of what you’d like to be included as testimony is being specifically excluded because it has so often been used in the past to bad effect.
What I’d suggest yes-means-yes (YMY) does, though, is resolve the ambiguity. I’ve heard time and again in discussions like this, “how am I supposed to know I didn’t rape her? I mean, she didn’t say no, she didn’t resist, when I touched her she didn’t pull away, etc. I was acting in good faith!”
I do understand how frustrating that must be, but rather than make things worse, YMY makes them immeasurably better, in that they give the questioner an answer. If you want to be absolutely sure you’re not raping someone, get affirmative consent. Period. No ambiguity. Problem solved.
Now, of course, I’m ignoring the problem of false accusations for the purposes of this hypothetical, but YMY neither creates nor worsens that pre-existing problem.
RJN:
I’d agree, and I think that this is one of the weaknesses of the arguments the anti-yes-means-yes folks here are bringing up – even in their scenarios, which they’ve had the freedom to construct 100% from the ground up without having to worry about messy reality … the problem still doesn’t seem to be there.
How much less so in reality, then?
JutGory:
Sure, and that would be a very bad law. Since this law specifically includes nonverbal communication as part of affirmative consent, though, I don’t think we really need to be concerned about that.
And I mean, look, dumb overly-literal interpretations are dumb overly-literal interpretations. I don’t think it’s reasonable to be concerned that a ‘no-means-no’ standard legalizes rape of the mute or the exclusively-foreign-language-speaking either. Especially when non-verbal communication is explicitly included, as here.
Eytan Zweig:
It hasn’t, no matter how much some would like to pretend otherwise. It’s absolutely commonplace for criminal defendants to need to testify in their own defense so as to avoid conviction. The Fifth Amendment (or the part of the Fifth we’re discussing, in any case) means that you cannot be compelled to self-incriminate. It does not mean that if you exercise your constitutional right to refuse to testify on your own behalf you therefore will face no difficulties because of that choice.
—Myca
Myca – that last one wasn’t Harlequin, it was me (with some assistance from my phone’s auto-correct, which chose to turn “testifying” into “treating”)
Ahem. I don’t know what you’re talking about. I never quoted Harlequin. Pay no attention to the man behind the curtain.
Squirrel!
—Myca
Bits of anecdata:
Amp:
I had that case. Actually, he said the drugs were from a bystander and the cops pinned them on him. I told him, “if we go to trial you will have to testify and you will lose” (because he could not identify the supposed source of the drugs). There was no other way to fight the charge.
Fleeing the scene of an accident: She fled; it was dark; none of the witnesses saw who was driving and how many people were in the car; it was not her car. If she had testified, she would have to admit that she was the driver. However, the threat thatthe State might lose got them to drop the more serious charges. (Then, she does not show up for sentencing and she is currently on the lam.)
Disorderly Conduct: my guy gets punched in the face at a bar. Punchy gets charged with assault; my guy gets charged with Disorderly Conduct. I tell the prosecutor that my guy can’t testify against Punchy if he has charges pending against him. Charges are dropped against my guy and Punchy pleads guilty.
Disorderly Conduct: my guy is accused of groping a woman in public. Victim identifies one incident of groping. Victim’s co-worker supposedly witnessed it. Her statement mentioned multiple incidents of groping during that one event. Because the Victim and Witness are different enough, my guy may not need to testify.
So, it is not that I am saying that, because a Defendant may need to testify in a certain case to defend against a certain charge, his or her rights have been violated. But, it is something that needs to be looked at in every case.
If a law is such that one almost always will be required to testify to fight the charges, I feel uneasy about the law. It might be similar to the way someone would feel about that law (I don’t know if it is actually a law, but it is something that gets thrown around regularly) that says that, if a woman is charged with adultery, she cannot rebut the charge by claiming she was raped if her testimony is not corroborated by 4 male witnesses. That is a bit of an extreme example, but such laws strike me as unfair.
-Jut
Sure! But that was not actually my intended scenario. The difference is illustrative, though so let’s compare them:
The RJN patented “legal under both affirmative and non-affirmative consent” scenario:
[Scene: A and B in bed, both sober, making out.]
A: “Go get a condom!”
B: “OK!”
[B gets up and gets a condom. A stays in bed fiddling with the pillows.]
[B gets condom and returns to bed.]
[Sex ensues without further ado.]
The G&W patented “won’t pass the affirmative consent test” scenario:
[Scene: A and B in bed, both sober, making out.]
B: “I’m going to go get a condom!”
[B gets up and gets a condom. A stays in bed fiddling with the pillows.]
[B gets condom and returns to bed.]
[Sex ensues without further ado.]
So:
Your example is easy. Consent is obvious.
Mine is harder. I think A consented to sex because, A stayed in bed while B is gone to get a condom, and because A didn’t say/do anything at all in response to B’s statement or actions. And B, if B is a normal human, probably thinks the same thing.
Is this consent? Or is B a rapist? Because if there is affirmative consent there I don’t see it.
Eytan, I intended to continue your thought, not reply to it. I’m confident the answer is that it doesn’t impinge on his fifth amendment rights, in any way at all.
G&W, just to be clear, in your scenario A didn’t say or do anything at all to indicate consent? A just lay there without responding? And there wasn’t, for instance, a prior conversation in which A said “I really want you to fuck me while I just lie there like I’m comatose?”
I never said anything about comatose. Or what A said at some other time.
If you’d like, insert “A lay there making bedroom eyes and stretching sexily” or even “A lay there masturbating” while B was up getting a condom. Seems to me that’s the same outcome, legally speaking. In my example, the point is that B didn’t ask, and A didn’t affirmatively consent.
ETA: Did A apparently consent? Sure. If there’s a nude person in your bed who stares at you and poses sexily while waiting for you to get a condom, I think that most folks would conclude that they were interested. And that of course is the point, since those folks would have violated the law.
When you think about this, perhaps you can answer this as well:
if A claims nonconsent, wouldn’t you at least want to know why A didn’t say anything? Or why A didn’t leave the bed; get dressed; or anything else?
Someone else asked this, so Im responding separately to whoever it was.
I would suggest that if a court defined “affirmative” it would mean that it requires action (affirmation) by the consenting party, as opposed to inaction or acceptance.
I think that if a court were to define “ongoing,” it would mean “part of a continuous chain of uninterrupted events,” as distinguished from “prior.”
To illustrate consent which is affirmative and ongoing: If you say “let’s fuck,” they say “hell yeah,” and you both start getting undressed and proceeding to sex, you don’t need to keep stopping to check for consent.
To illustrate consent which is not: If you say “let’s fuck after dinner” and they say “hell yeah,” that doesn’t constitute ongoing affirmative consent. You have to ask again before you start your after dinner sex.
gin-and-whiskey- I’ve been told pretty clearly by supporters of affirmative consent laws that cases like the following are why they are needed:
A and B go back to A’s room together.
A and B get into bed together.
A and B make out.
A and B remove clothing.
A and B engage in mutual stimulation (oral, manual)
A believes that this is foreplay, and moves smoothly from that stage to penetration.
B did not believe this was foreplay, and thought that was going to be the end of it.
B reacts by having an inner panic attack that manifests itself as laying still and saying nothing.
I don’t know exactly how affirmative consent laws are intended to address this, since I’m hearing contradictory interpretations, and since most people interpreting it seem to be relying on their personal notions of consent and superimposing them over the law.
But my interpretation, which matches at least some of the rule’s supporters, is this: A had affirmative consent to the stimulation. But affirmative consent has to be ongoing. And he lacked affirmative consent to penetration. This illustrates why non verbal communication doesn’t count- even had he noticed B’s passivity and asked her what was wrong, his noticing her response to penetration would likely have occurred after penetration and therefore after rape had been completed. This is particularly true given the character of her response- it is not unreasonable to take longer to notice and interpret passivity than to notice and interpret someone saying, “no, not that.”
Other supporters, including some in this thread, might have a different view of that scenario. They seem to view affirmative consent more like… a license you give someone, and then they have it until you affirmatively take it away. I don’t think that’s a valid reading. It presumes that revoking affirmative consent requires an affirmative act, but “revoking” consent is a way of saying “no longer consenting,” and the whole point of the rule is that not-consenting isn’t supposed to require any action on the part of the non consenting party.
Someone might argue that this is true before any consent is given, but once it is, if it is being taken away, then an affirmative act is needed. I think the rule suggests that the thing that must be ongoing isn’t just consent, but the consent’s affirmative nature, which is specifically defined as not being silence or non resistance. Further, the “affirmative revocation” perspective presumes that “affirmative consent” is a clear license that spells out what is being consented to, and how far into the future that consent extends.
I can see how this could be harder than the situation we were discussing above, but, see, to me there is a difference between “fiddling with the pillows,” which could indicate discomfort with the situation, or hesitation, or something, and making bedroom eyes or some such thing. So, if the situation is exactly as you describe, and my partner does not respond in an obviously affirmative way, I would say, yes, I should check in to make sure that my partner really wants to have sex.
But let’s play this out a little further. So I go get the condom from my drawer. She’s fiddling with the pillow. When I get back to the bed, or wherever it is that we are going to have sex, a whole bunch of things need to happen before we are actually fucking, right? At the very least, I have to open the condom and put it on, but, also, presumably we have to get into position, along with whatever touching, stroking, kissing or whatever goes along with that. My point is that “sex ensues” elides a whole lot of action and interaction that provide context for understanding whether or not my partner affirmatively consented.
On the other hand, if I say I am going to get a condom and in response to that my partner starts posing sexily on the bed, or masturbating, or whatever, I don’t see how that is not a form of active consent no differently than in the scenario where she asks me to get it and put it on.
***
Also, in your scenario, if my partner does absolutely nothing—no words, no touch, body language—to indicate affirmative consent to the sex I clearly think we both want to have, if all she does is lay there more or less passively waiting for me to get down to business, so to speak, why should her nude presence in my bed in and of itself indicate consent to fucking? Why shouldn’t I be required to take reasonable steps to make sure she wants what I am thinking we both want?
***
I guess I still keep coming back to this:
As I said above, this seems to me be saying that I cannot claim to believe I had affirmative consent if I did not also take reasonable steps, given what I knew at the time about what was going on between us, to make sure that my partner did indeed consent to the sexual activity in which we were engaging.
It seems to me that you leave this part of the law out in much of what you say, and I am wondering, if I am right, why.
(Apologies if this comment got a little disjointed. I was interrupted twice while writing it.)
ETA: I posted the above after Patrick posted his comment, but his comment leads me to a question: So, given Patrick’s scenario, because I don’t at first recognize my partner’s passivity, I go ahead an penetrate her. (And I think he’s right that, human beings being what we are, and sex being what it is, it’s not unreasonable for this to happen even if I am proceeding entirely in good faith.) If, once I recognize it, I stop and say, “Hey, wait a minute, are you sure you’re okay with this?” and, when she says no, withdraw immediately, would I be guilty under a reading of the law as it is written?
I get that I would be guilty if, never noticing her passivity, etc., I go ahead and finish, because I think that would indicate, frankly, that I wasn’t paying much attention to her at all, but if the law is written such that it makes no allowances for self-correction after penetration, that does seem to me a potential problem.
Before I respond, RJN, can I ask you to engage in a very short thought experiment?
First, read both of my scenarios.
Then, answer the question “without more information, do I think A consented?”
Then read them again with a different question in mind: “without more information, do I think B deserves to be punished as a rapist?”
I am curious if they match or if you find–as I and other folks sometimes do–that you end up both feeling like A is right to be upset AND ALSO that B is right to stay out of prison.
G&W:
Sorry, but do you mean the variations on the your “patented scenario” or do you want me to read again the RJN and G&W “patented scenarios?”
I can’t speak for RJN, but for me the answers match in both cases (in the second case, the answers are “I don’t know” and “I don’t know”).
Note that there are cases in which I believe the answers could not match (for example, if A acted in a way which misled B into believing A affirmatively consented; this could be the case in the first scenario if A changed their mind while B was out but did not act in any way to inform B of this fact). But your second scenario is not such a case, it’s just not detailed enough to distinguish between cases where A was clearly consenting and cases where A was not consenting.
G&W:
Eytan wrote:
I agree with him and I get, I think, that this is precisely your point. What do you do, what do you want to be possible under the law, in situations where there isn’t enough information to make a clear determination? So let me say, then, that it’s not hard for me to imagine a situation in which A could very reasonably feel herself to have been violated in some way, but in which I don’t think B ought to go to jail. Miscommunication does happen, and I don’t think it’s wise to assume that every such case ought to be criminalized or whatever the equivalent term would be if we’re talking about something that happened on a college campus.
What was your reason for asking?
What
To go further into why the Fifth Amendment complaint is bogus, the Fifth explicitly and only protects against defendants being compelled to self-incriminate through testimony.
The limits on this are pretty tight. You can compel a defendant to self-incriminate through testimony if they’re offered immunity from prosecution. You can even compel a defendant to self-incriminate through testimony if they’re offered immunity from prosecution based on that testimony, but not immunity from prosecution in general.
Since what we’re discussing involves neither 1) compelling testimony or 2) self-incrimination, I call bullshit on the whole line of argument.
“It might be somewhat more advantageous for the accused to testify in their defense under this standard than under the old one” is weak tea as an objection, and has approximately zip to do with the Fifth Amendment.
—Myca
IN FACT, it involves the precise opposite: 1) chosen testimony in 2) self defense.
—Myca
I agree it’s not wise! Do you agree that what this law does–IOW, that the criminalization of miscommunication or misunderstanding is its intent and purpose?
Even if you ignore the false accusation issue (which I think is really understated here) the law is designed to push the “costs” of any miscommunication or misunderstanding onto the accused.
We have laws that do this sort of thing already, of course. In the landlord/tenant field, you often find statutes saying that “any questions of lease interpretation shall be interpreted in favor of the tenant;” in the contract field you find that “any questions of drafting shall be interpreted against the drafter;” and so on.
But those privileged/unprivileged statuses exist at the ONSET of the deal; they aren’t created AFTER the deal. This law takes a situation and assigns a special burden of proof to the accused, after the transaction, even though there’s no reason to think that the accused had that burden of proof at the onset of the encounter.
And also, this statute doesn’t really improve “communication,” because it only hits one side. That makes sense when all the communication is really coming from one side, of course, but that isn’t the case where. We expect landlords to be more knowledgeable than tenants, and we expect that landlords will be the drafters of the lease, so we write the laws to deal with that imbalance. We expect attorneys to be better at writing contracts than laypeople, and we expect that they’ll be the ones writing them, so we write the laws to deal with that imbalance, etc.
But of course there is not an inherent imbalance between men and women, and we can’t write a gender-differential law which would be constitutional. It seems to me that this is sort of an attempt to make an end run around that problem.
Here’s a great example of the sort of thing which would make the law more equitable, and which would encourage communication from both sides: Allow for counterclaims. In other words, the other party can file a complaint for the same interaction, alleging that YOU failed to obtain affirmative consent for everything YOU did. If you want to be able to file a complaint against your partner, you had better toe the line yourself.
I don’t seriously think that would be a good solution, but as a thought experiment it’s useful. Think about the claims which are made, and run them through the test. If (as some folks claim) the bad acts are committed mostly by one side and aren’t mutual, then this wouldn’t actually cause much of a problem. If (as some folks claim) the timing of reporting is irrelevant to the actual claim, this won’t be a problem. If (as some folks claim) people don’t lie when they make claims, and people don’t use accusations as power/bargaining tools, then this won’t cause an issue. If (as some folks claim) we are capable of making these judgments at a tribunal, we shouldn’t have problems there.
Now, in my mind the results would approach the ridiculous: this law already criminalizes a lot of normal conduct, and you’d merely double the number of claims. But then I’d be arguing from “this is stupid” grounds and not “this is likely to be really unfair” grounds.
Is this in some way disallowed by the current law?
As far as I’m concerned, if both/all parties think the other one/s violated their consent, they should all be filing complaints.
I disagree. The law is intended to criminalize making assumptions of consent without attempting communication. If you took reasonable steps to communicate (not necessarily verbally), and got an honestly mistaken impression as a result, the law is not intended to criminalize your behaviour.
Which isn’t to say that the wording of the California Bill doesn’t have issues that mean that it will be applied to genuine cases of misunderstanding or miscommunication. But I don’t believe that that is either it’s intent or purpose, nor is it the intent or purpose of anyone who supports it.
Myca @ 235:
Yes, that is what we are talking about. Testifying as a Defendant in a criminal trial.
This is mumbo-jumbo. The Fifth Amendment says, “nor shall be compelled in any criminal case to be a witness against himself.” If you have immunity, your testimony is not likely to be in a criminal proceeding in which you are the Defendant (unless the prosecutor is a complete buffoon). In any case, that is not what we are talking about.
So, call bullshit all you want, it does not make your argument any stronger.
No, it serves to water down Fifth Amendment protections. I suspect that this is exactly what g&w was getting at when he raised his question. You would expect commenters here to be much in favor of constitutional protections, but is that different here, where you want to change a law that makes it riskier for a Defendant to assert his rights.
So, yes, Defendants choose to testify (under duress), just like they did in
.
So, just admit it: you favor changing the law in such a way that more Defendants will feel compelled to waive their Fifth Amendment rights. Sure, they don’t have to prove they are innocent; it is just that it will be so much easier for us to prove they are guilty because of the way we changed the law. But, they don’t have to testify if they don’t want to.
Now it is my turn to call bullshit!
-Jut
Jut, can you link to any actual cases in which a US Court has found that it is unconstitutional for a defendant at a criminal trial to be put into a position in which it is strategically advantageous – but not actually required – to testify on his/her own behalf? I very much doubt that any such cases exist, but I could be wrong.
Amp, I know of no such cases off the top of my head, but would submit that that misses the point.
There can be any number of instances where it can be strategically advantageous to waive your rights to gain some benefit or avoid some inconvenience (“Hey, let them search your car without a warrant. What’s the big deal if you got nothing to hide”). But, those rights are to push back the government and I bristle at anything that makes its job easier.
So, when you say, “not actually required,” that is too cute by half. You can be coerced, cajoled, and coaxed to do something, even if not actually required to do it. In the context of sexual relations, some would describe such tactics as “rape.”
Actual requirements are not my concern. De facto requirements, even if not de jure, concern me.
Does that distinction clarify my problem with this?
-Jut
Jut – you still don’t address the question of why you consider testifying to prove your innocence being a witness “against” oneself. I’ve been reading up on the fifth amendment, and that does not seem to be a standard reading of it – everyone agrees that it protects you from self incrimination, but nowhere outside this thread did I see it mention that it also protects you from being required to speak on your own behalf.
I’m somewhat skeptical, Jut, for three reasons:
1) If it is (or should be) unconstitutional to hold any criminal trial in which the defendant is pressured (for reasons of strategy) to testify on his/her own behalf, doesn’t that mean that a huge number of crimes are (or should be) unprosecutable? Like, any trial at all in which the defense attorney has decided it makes sense to have the defendant testify?
If we took your standard seriously, then we should never allow any witness who testifies about anything that only the witness and the defendant were in the room for, to testify. So, for instance, if Linus tells Charlie Brown in private “I’m going to rob that bank,” Charlie Brown’s testimony that Linus said that should not be admissible, since that would create enormous pressure on Linus to testify on his own behalf, to say “I never said that” or “I was just joking” or whatever.
2) You seem to be entirely ignoring that the fifth amendment provides protection against “self incrimination.” It does not provide protection against self-defense, such as testifying “I believed he was consenting because he grabbed my pants, eagerly undid my fly, looked up at me and grinned, and then placed my cock in his mouth.” That is not self-incrimination in any way at all, it’s self-defense.
Myca already pointed this out to you, but you hand-waved it away without making a single coherent argument as for why he’s wrong. You’re making up crap that is NOT in the Constitution in any way at all and pretending it’s there. Words have meaning. “Self-incriminate” has meaning, and you’re pretending it doesn’t.
3) I’ve never, ever seen this claim – that it’s a violation of fifth amendment rights for it to be advantageous strategically for a defendant at a criminal trial to testify on her/his own behalf – made about any crime other than rape. That’s a little telling, imo.
Amp,
I try not to chime in on just one point of a well reasoned, three-point comment lest I fall into the trap of nitpicking. But in this case, I think your second point is missing something important enough that I wanted to say something.
An accused student (whether innocent or guilty of sexual assault) may need to make statements that self-incriminate with respect to other rules violations in order to respond to charges of rape. Examples include:
-Underage drinking
-Providing alcohol to a minor
-Having guests in the dorm after hours (still a violation at some schools)
-Illegal drug use
In fact since many university policies already state explicitly that the sexual assualt standards at the university encompass actions that are not criminal, an accused student may be pressured to confess to a crime to avoid punishment for behavior that is not criminal. They may be discouraged from getting legal advice when making this decision.
If by “mumbo-jumbo” you mean “how case law surrounding the Fifth Amendment works,” then yes, I agree. Look up the difference between Transactional Immunity and Use Immunity, especially surrounding organized crime and conspiracy cases.
My point in bringing this up is that there is not a generalized “right not to testify.” There is a right not to be compelled to testify as a witness against yourself.
Both parts are necessary.
1) You can remove the first part: You can choose to testify against yourself.
2) You can remove the second part: You can be compelled to testify, but not against yourself.
Your argument, Jut, is essentially that if you remove both parts, and “choose to testify in your own defense,” it somehow falls afoul of the Fifth Amendment in a way that neither 1 nor 2 above does.
There is no case law, to my knowledge, that supports your rather bizarre and ahistorical claim.
—Myca
Fibi:
Good point, thanks.
But, again, this is the sort of conflict that could arise in all sorts of cases – maybe a student doesn’t want to admit that the alcohol in her room wasn’t hers but was left there by her legal-drinking-age after-hours guest, for example. There’s no reason to claim that a rule or law against rape violates the prohibition on being forced to give self-incriminating testimony while all the other rules don’t. (I’m not saying you’d disagree, just relating what you said to Jut’s argument.)
This is why people should be able to “take the fifth” without it being taken as a confession of guilt to whatever they’re charged with. And I’d certainly be in favor of college students facing disciplinary hearings having that right, the right to have legal counsel, etc.. But, again, I don’t see why this is a problem for laws against rape uniquely, rather than a general problem that comes from having rules or laws at all. (And, again, I’m not assuming you’d disagree!)
Jut writes:
I think there’s a big difference between speculating about the motives of people who aren’t in the conversation – for instance, if I write that such-and-such National Review writer or that the GOP policy seems to be motivated by X – versus speculating about the motives of the people you’re currently in conversation with. The first is pretty normal behavior, that everyone does, the second is incredibly rude behavior. (And I do try to avoid the second sort of behavior, btw).
Actually, the California law we’re talking about would not take away someone’s freedom (unless being kicked out of college is the same as being put behind bars) or brand anyone a criminal.
But yes, I am for all those things in criminal cases, and I’m glad you are too.
Do you really believe you know my mind better than I do? Wow.
You quote me saying “Changing the law is an important step, but it is only one step, not a whole marathon” and “But that belief would make a huge number of rapes – of sex without consent – legal. That’s not what any of us should want.” From this you conclude about my motivation:
Nope, that’s not my motive for wanting “Affirmative Consent” laws. And neither of those quotes refers to higher conviction rates.
As I wrote in the same paragraph you just quoted (but you seemingly did not read):
Certainly, if Affirmative Consent becomes criminal law, and the result is an upswing in guilty convictions of guilty rapists, that would be an improvement in some ways. (I actually have doubts about using the penal system at all except when absolutely unavoidable, but that’s an issue about justice in general, not an issue about rape in particular). But that is not what motivates me.
Why isn’t that my motivation? First of all, because I think such a big upswing is unlikely to occur as a result of passing this law. Second of all, because I have real doubts about whether our current penal system actually is the right approach for seeking justice, both for rape and for other crimes. And third of all, because the real grand prize isn’t to convict more rapists, but to make fewer rapes happen in the first place. That’s the goal that motivates me, and I think that Affirmative Consent laws are part – but not all – of making that happen.
But seriously, dude: You don’t know my motives better than I do.
Don’t speculate about my motives, please – just discuss the issue. If you can’t manage to do that, I’ll ask you to step off this thread.
Why?
I ask because there seems to be two groups: One group contains the proponents of the law, who seem to be hoping/attempting that the law will produce “a big upswing in colleges punishing rapists.” That is basically why the law was drafted in the first place! The other group are folks like me and other civil liberties advocates: we also think that the law will produce a big upswing in convictions and we agree that those would obviously include some or many rapists, but we are concerned about both process and what we see as the collateral damage on everyone else.
On what basis do you think that won’t happen?
Let me propose that overall the support for this law is a balance. And that leads to a data problem.
From the “it’s good” proponents, it seems clearly to be driven by three things: (a) claims based on the 1 in 5 number, or whatever other similar number the proponents are using at that point; (b) claims about the low rates of reporting rapes; and (c) claims about low rates of convicting actual rapists. The proponents seem to admit that this law is a substantial change; they just think that it is a necessary change based on a, b, and c.
On the “it’s bad” side, it seems clearly to be relying on two basic claims: (d) that false accusations and miscarriages of justice are relatively minimal , i.e. 2%; and (e) that the process and punishment are reasonable. In this case the proponents of the law are claiming that (d) and (e) are minimal, and therefore that they won’t imbalance things.
Problem is, BEFORE people were talking about this ridiculous law, there weren’t a lot of folks who were really bothering to waste time pushing back or digging for facts.
I mean, sure: there were some people who spent time pointing out that the 2% figure was basically made up. Or who questioned how folks were simultaneously making claims about “reporting frequency” and “assault frequency” and “reports” which were mathematically impossible to reconcile. Or whatever.
But the Internet is a big thing and who really cared? I mean, whether or not 2% figure was accurate wasn’t really my main concern, nor anyone else’s.
But what has happened here from a political sense, is that they started with some factual claims and then, without a whole lot of serious digging from people other than the proponents, suddenly put them into a law. And now they’re trying to treat the law as the only topic of discussion and treat the claims as settled, although they are not.
This is a bit like taking you to a party and persuading you to agree that Stan Lee was the greatest comic writer ever, and that people should treat him with respect. You might agree (or not disagree) without really pushing too hard, or thinking about it much, because it simply isn’t that important to you, or because you generally think that Stan wrote good stuff, or for some other reason.
But then the next day you find out that I managed to pass a law which penalizes folks who toss out Stan Lee comics, and which mandates you to keep them safe, and you think “what the fuck? I don’t think THAT was what you were going for and that wasn’t the context I was using to agree about Stan.”
That is sort of where we are with the rape law.
I have to say that the more I read through this thread, the more confused I get. Not so much about what I think, but about what it is precisely that we are arguing about. Are we arguing about whether affirmative consent should ever be made the legal standard? Or we are arguing about whether the language of the California statute is problematic because it frames affirmative consent as the standard in ways that at least some people believe will have very serious unintended consequences?
If the former, then it seems to me, at the very least, that the conversation needs to take a step back from the legal questions and examine, for example, the heteronormative subtext that most of us—including me—have been following here. If we really want to have a conversation about what affirmative consent is and why it and not no-means-no should be the standard, then it seems to me we have also to be talking about dismantling the model of sexuality in which sex is something one person gets from another, which is the model within which no-means-no makes the most sense (the person being “gotten from” gets to set the boundaries).
If, on the other hand, what we’re really talking about is the language of the California statute, then I think it’s important to remember that the language of the statute does not represent any school’s specific policy. Rather, unless I have misread it entirely, it represents the policy elements that the state requires each school to have. So, to me, the question is whether those policy elements are defined in the statute such that the policies that emerge from them are more likely than not to be fair and equitable in their language. (Implementation is another, very serious issue.)
In keeping with this line of thinking, I want to point out that I don’t think any of the people opposing this statute has yet explained—unless I missed a post upthread somewhere—why 2b does not cover a lot of the concerns that people have been expressing.
Richard – I think I take some issue with this:
I don’t think I agree – or, more accurately, I agree that we should get away from a transactional model of sexuality, but I disagree that “no means no” makes more sense than “yes means yes” in any context, including the traditional heteronormative paradigm. I just don’t see why that would be the case; the discussion isn’t about who sets the boundaries, it’s about how to recognise the boundaries. “No means no” always addresses that problem only partially, regardless of how we view the sexual interaction.
I agree with you on this, and I think that this may have to do with G&W’s essential misunderstanding/misstatement of our position when it comes to “your side wants way more rape convictions.”
What I want is for it to be generally understood that “not resisting” isn’t the same thing as “consenting.”
—Myca
Eytan,
I agree. What I meant by “makes sense” was simply that no-means-no fits the stereotypical logic of the heteronormative, transactional model of sexuality, in which it is one person’s “task”—usually the man’s—to cross physical boundaries, while it is the other person’s “task”—usually the woman’s—to decide when and whether it is okay for him to cross them. I think that model, accepted uncritically, can make it harder to see why affirmative consent is a better way of talking about negotiating and recognizing boundaries, but I did not mean to imply that no-means-no is somehow “better” or more logical in that context than affirmative consent.
Absolutely. I also think that that it’s uncritical acceptance of this same model that leads so many to view an explicitly gender-neutral law as an attack on men.
—Myca
No.
The discussion NOW is about (a) what precisely is illegal and (b) what happens to people who are accused and (c) what happens to people who are adjudged to have violated the law.
Reducing that to broader moralistic questions is perfectly fine at the early stages of deciding what things you would like to deal with. There’s nothing inherently wrong with asking the question “can we use laws to deter revenge porn?” or “can we adjust rape laws in a way that will work out, and which will reduce rapes?” Ideally, of course, the question should consider “no, not really” as an option.
But after the initial steps, when it comes to reality you have to drop the broader philosophical and moralistic stuff in favor of a detailed and specific analysis of the effects. You have to constantly remember that you’re subjecting people to accusations based on rough matches for the law; finding them guilty based on what you define as illegal; deciding what evidence is relevant; and punishing them for doing what you have classified as illegal. If you lose track of those realities then you have lost track of the effects of your law.
So, for example, RJN is correct that “affirmative consent is a better way of talking about negotiating and recognizing boundaries,” but that does not mean, at all, that affirmative consent LAWS are a better way of CLARIFYING AND ENFORCING those boundaries–or, for that matter, that laws in general are the best way to make that type of social change at all.
To use an analogy, “politeness, respect, and lack of discrimination” are ideal ways of discourse between people as a rule, but that doesn’t mean we should make impoliteness, lack of respect, or personal discrimination illegal. Not that a lot of those same pro-affirmative-consent folks aren’t often trying, mind you.
Regarding gender neutrality: Most people who understand this stuff acknowledge that the law’s effects will mostly benefit women at the expense of men (as is the intent,) just as they acknowledge that facially-neutral laws barring racial discrimination will mostly benefit POC at the expense of whites (as is the intent.) That’s why opposition to certain rape laws is often framed by their proponents as as anti-woman or MRA; just like opposition to certain discrimination laws is often framed by their proponents as anti-POC or racist.
If that doesn’t make sense, look at the reverse: imagine that we are considering the elimination of all rape law. Such an act would be facially neutral (the same laws apply to all people, right?) but would certainly not be viewed through a neutral lens.
My apologies, G&W. Next time I respond to something Richard says, I’ll make sure I only say things that interest you.
G&W, quoting me, wrote:
I’m going to be lazy and quote Katha Pollitt, who says what I would have answer to that question, but says it better:
Philosophize all you want. I actually think it’s interesting to read, and to do.
But a lot of folks who talk about this topic (or similar ones) tend to confuse philosophizing about abstractions with turning those abstractions into reality. That is a mistake. That is how folks end up with bad laws. And frankly I’m not even sure that people REALIZE they’re making the mistake.
Distinguishing between those two things (and merging them to the degree possible) is what I am trained to do and is pretty much the entire basis of my professional career. There’s “what you want” and “what you put on paper and require;” and whether you are talking about contracts or criminal law, they ain’t the same.
People may think I’m being pointlessly picky. I’m not.
“Basically, affirmative consent means both partners have to express their wishes in a way that the other partner can grasp. ”
This is the absolute inversion of the truth. Affirmative consent is the denial of the idea that “both partners have to express their wishes in a way that the other partner can grasp.”
The absolute core of affirmative consent is not the idea that both partners must express their wishes, it is the idea that both partners have an affirmative duty to understandthe other’s wishes, even if those wishes are not expressed, and that the proper role of rape law is to police how well people accomplish this task.
There is nothing more fundamental to an affirmative consent law than the elimination of any duty to communicate your wishes.
Aaarargh.
Im not sure if you think that’s an argument, Amp.
First of all, it’s not an answer per se as much as it’s the opinion of a fellow proponent: the next followup question is “on what basis do you believe that Katha Pollit is right?”
But also, it doesn’t necessarily seem to do much to support the law. For example, Pollit confesses that:
Read in a reasonable fashion, this suggests that the people who are most often the perps and who Pollit thinks are more often violators will be…. unaffected.
Wait, what?
Are they changing the laws to deliberately go after the people who they don’t think are actually the main problem? To focus on people like the ones at Swarthmore?
Yes. Yes, they are. That’s because they are trying to use the laws to change our social view of interaction:
The use of the affirmative consent law as a means to foment broader social change on matters that aren’t really within the legal sphere (how we think of consent; how we communicate about sex; how women are viewed in general) is what might be called the “Ezra Klein” model, set out in this article and rightly skewered in multiple posts of which these are only two.
but in any case you might rightfully doubt the veracity of folks who push for an affirmative consent law because of the amazingly high rate of rape; and who seem to think that it won’t really do anything significant to stop it.
I don’t think you’re being pointlessly picky.
I do think you have a certain sort of critique that you enjoy making, and that you therefore look eagerly for chances to make it, and like most people looking for something you see it even in cases where it’s not there.
And I think you exaggerate the extent to which all people who are not lawyers are unaware of the (often very obvious) things you say, and it comes across as being a bit condescending, to tell you the truth.
I’m not sure you realize how obnoxious an opening like that is, Gin.
But of course, there were arguments in what I quoted. You asked me why I didn’t expect large changes in conviction rates (and the campus equivalent) from Affirmative Consent laws; the answer to your question is, because academics who study this have found that a change in sexual assault laws that isn’t fully bought into by the general population will be resisted by the people in the justice system (prosecutors will seek lesser charges, juries will seek reasons to acquit, etc).
(That doesn’t mean changing laws is pointless; it does mean that effectively changing laws is a long-term project that involves passing legislation but also involves changing how people understand rape and consent, not a quick fix that comes from passing one piece of legislation.)
A second argument was, that where affirmative consent laws have actually been tried in the real world, they have not had immediate large effects.
I’m a little dumbfounded that you didn’t spot these two arguments, both of which were very obvious, and obviously applicable to the specific question you asked that I was addressing.
Yes, it does. The immediate changes made by Affirmative Consent laws will be marginal, not revolutionary. This is what I’ve been saying all along.
Yes, my argument is that it’s intended to address cases like the cases I described and quoted at length in the original post. I’m not sure why this surprises you.
You don’t actually spell out an argument here. You imply that you think it’s ridiculous to go after the marginal case, rather than the central or majority case. But you don’t actually explicitly say that If that is what you mean, I’d respond: The fact that some people will lie under oath is not a problem that we can fix by changing laws, so trying to change the laws to try and fix that would be foolish. However, that doesn’t mean that making marginal but beneficial changes which could have an affect on less frequent, but still awful, cases, is the wrong thing to do. It’s a fallacy to suggest that only revolutionary changes are worth making. In practice, many worthwhile changes are marginal changes.
Finally, Ezra’s post was not at all the argument I’m making here. He was arguing that these laws are a big, radical change and that they’re worth it because the crisis is so large. That’s obviously not the argument I’m making. And as far as I can tell, the vast majority of proponents of the law aren’t making the arguments Ezra made, and quite a few proponents (me included) seemed to be appalled by Ezra’s post.
Amp to G&W, with the italics added by me:
I am familiar with the academic research into how juries react to changes in the statuory definition of rape. And I agree that if the criminal laws were changed now, juries would latch onto the clause about students have taken all reasonable steps to ascertain consent (discussed about 100 comments ago and quoted there). Having latched on, juries would make only the most marginal of changes.
But I’m not sure that it will generalize to the academic setting (I don’t think anyone knows for sure). Administrators have far more of a concern for the reputational impact of a case on the school than jurors do for the reputational impact on their cities. Most will try to be impartial, but I would suggest that every single school administrator would be excused from the jury pool due to an appearance of a conflict of interest if an accusation of sexual assualt by one of their students against another did find its way to criminal court.
The new reality facing schools is:
– A mandatory survey of the student body which includes the rate of sexual assaults on campus.
– Clery act reports on allegations formally made and referrals for disciplinary action.
I don’t think the outcomes of these referrals have to be released, even in the aggregate. But administrators must be aware that negative publicity in the event of a finding of non-responsible will be seen in light of the above.
I know that earlier in the thread you endorsed more due process rights for all students accused of serious offenses. In the absence of these it’s distinctly possible that the changes in the definition of affirmative consent will result in a much wider pool of students being found responsible for violations than the academic research on criminal statues would suggest. Alternatively we may see widely divergent reactions across different universities and colleges as some administrators move aggressively and others act as juries have when the statutory crimes were changed.
Since ‘affirmative consent’ is ‘communicating your wishes,’ I’m not sure how you could possibly be more wrong about this.
—Myca
This is probably the best discussion of the topic I’ve seen so far – and by-and-large civil. Interesting to read even without participating. That’s a big compliment, given the subject, I think!
So I’m asking again, two weeks after Danny & Mindy I’m still wondering: does the legal requirement of ascertaining ongoing affirmative consent for “sexual activity” require *prior* affirmative consent, as opposed to what Kate Harding and others, including here) are claiming? I would say it logically does based on the text of the law, and I have not yet read a literal interpretation that would contradict that point.
Has anyone reading and writing here?
Ampersand. I don’t want to tell you what you think, given all the nastiness in this thread. But
So you admit it’s a fix, but not a quick one.
So you admit there will be large changes, just not immediate ones.
Let me know if I’m mistaken, but that just looks like basic agreement and the use of a timelag to buy cover, rather than an actual counter-argument to g&ws suggestion that punishment will be a consequence of the law.
Since ‘affirmative consent’ is ‘communicating your wishes,’ I’m not sure how you could possibly be more wrong about this.
—Myca
The law doesn’t impose a duty to affirmatively consent. It doesn’t impose a duty to communicate whether you consent. It imposes a duty to ascertain whether you have affirmative consent, and explicitly states that a non consenting party need not speak or resist.
““Basically, affirmative consent means both partners have to express their wishes in a way that the other partner can grasp. ””
Explain to me how affirmative consent means that a non consenting party has to communicate their wishes.
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.
Patrick,
You are right as a matter of law that the legal duty is on each person to ascertain the other’s consent. But below is the Pollitt quote in context:
She goes out of her way to make clear that she is not talking about legal duties directly imposed by affirmative consent standards. And it’s not unusual for legal duties to beget unofficial requirements (i.e., for an “evolving understanding” to emerge). For example, hourly workers have no legal duty to keep track of their hours. Employers have the duty. It just so happens that every employer I know fulfills that duty by requiring hourly workers to fill out timesheets!
…grudgingly, I have to concede that you are correct. I was misled by her use of the phrase “affirmative consent” to refer both to the law and to the hypothetical evolved sexual ethic she believes the law will lead to.
Though if that’s the way this is to be played (advocate for a law, decline to defend it, instead argue sexual ethics that no one disagrees with), one might ask whether, if it is indeed fair to characterize New Jersey as an affirmative consent state, that evolved sexual ethic has developed in the past 22 years.
Patrick:
Which means that if you’re not sure if you have affirmative consent, if you have any doubt about how to interpret the non-verbal signals that are being sent your way, if you just want to cover your ass against all contingencies, you ask, directly, straightforwardly, for a simple yes or no answer. And if you don’t get one, or if you get one the sincerity of which you doubt, then you don’t move forward.
I’m not arguing there are no gray areas, but I don’t see how you can read the duty to ascertain whether or not you have affirmative consent as not also including a duty to ask directly if you’re not sure—which means a duty to express your own desires, even if your partner is unwilling to express hers or his.
To Someone:
I haven’t watched the episode of the Mindy Project that you are referring to. Nonetheless, based on your description upthread, I will try my best to meet your challenge and come up with a literal interpretation of the California Affirmative Consent Standard that would not allow for a finding that Danny violated the policy. This won’t be the only literal interpretation available, the most intuitive interpretation, nor the one that I expect most college administrators would adopt, especially if faced with publicity. However, it will be the kind of interpretation that judges have come up with in the past when the criminal statutes were changed faster than the social norms (as Amp and I discussed a few comments ago).
The Affirmative Consent “law” amends the California Education Code. Amp linked to the full text in the original post. If you follow the link, you will see that it defines the scope of conduct which must be covered under each college’s sexual assault policy by reference to the federal Clery Act.
The Clery Act, in turn, defines the “forcible sex offenses” that college policies must cover by reference to the FBI’s Uniform Crime Reporting system:
I don’t have a good link for the UCR because there were some recent changes to the UCR which essentially removed “against her will” and replaced it with “without consent” in each of the crimes. But the crimes in the UCR are rape, sodomy, sexual penetration by object (which would include a finger), and fondling.
Essentially the Clery Act already required* schools to have a sexual assault policy covering these four crimes. The California Act requires* these policies to use an Affirmative Consent standard.
*Required isn’t technically accurate since both legislatures are using the power of the purse to compel compliance but not legally requiring it.
Amp quoted the key paragraph of the California Bill in the original post:
As far as I know, California has not defined “sexual activity” anywhere. Presumably, it includes everything which would be covered by the mandated policies if there isn’t affirmative consent. Some schools may develop Sexual Assault Policies that are Antioch-like, essentially defining each step as a seperate “sexual activity.” However, I think there is room for a college to define “sexual activity” as more of a single-stage. Either we are engaged in sexual activity (with affirmative consent of all participants) or we aren’t. There aren’t different “levels” or “steps.” Persumably this hypothetical college could define “sexual activity” to encompass all of the crimes that must be covered by the policy (which includes fondling).
Based on your description of the TV episode, it appears that Danny had Mindy’s affirmative consent (and vice versa) to engage in “sexual activity” [he was fondling her and she was communicating consent nonverbally]. While she affirmatively consented to “sexual activity” Danny did something she didn’t like so she revoked her consent. He noticed and he stopped. Since the “sexual activity” stopped as soon as the consent was revoked it was “ongoing throughout.” Hence he is not in violation of the Sexual Assault Policy.
As I said at the beginning. This isn’t the most intuitive interpretation. It’s probably not what the bill’s sponsors intended. I would be surprised if it was uniformly adopted by all colleges covered by the new policy. Essentially any college adopting this interpretation would be saying that once “sexual activity” begins it reverts to more of a No Means No than a Yes Means Yes.
Patrick:
By changing the default assumption to (or clarifying that the default assumption is) is a lack of consent, affirmative consent creates a situation in which the wishes of your partner are always communicated.
If your partner says yes or indicates a yes nonverbally, your partner consents.
If your partner says no or does not indicate an answer, your partner does not consent.
You can stop worrying about “well what if they really consent but don’t communicate it,” the same way you wouldn’t worry about “well what if my partner says no but means yes?” If your partner does not communicate yes, don’t fuck them.
This differs from the previous state of affairs in that many people took a “lack of no” to mean “yes,” and acted on that, raping their partners.
Quoting Law Professor Sherry Colb, who teaches teaches courses in constitutional criminal procedure and evidence at Cornell, in her Justia article Making Sense of “Yes Means Yes,” she says:
…and…
—Myca
Fibi,
thanks for your reply – yes, you’re right that a reading of “sexual activity” as entailing all possible activities after initially affirmative consent would allow for your interpretation. However, that’s exactly what that Good2Go app did and was instantly called a “rapist’s tool” and pulled from the Apple Store after a couple of days for some policy violation they came up with to avoid the PR desaster of keeping it in there longer. So, yes, I’d agree with you that that is a theoretically possible reading of the law, however not one that – and I agree again – is what the sponsor’s had and the proponents of the law have in mind.
It also doesn’t seem to allow for what I’d call the “kissing exception” (wrt the ultra violent “consent porn” clip explaining sexy affirmative consent by grabbing, kissing, *then* checking in) – unless that would not be considered “fondling” under the legislation you referenced. But even if it weren’t, the same question would arise at the first aspect of interaction that would be considered “sexual activity”, say “second base”/touching breasts. Logically, I’d still say that having ongoing affirmative consent requires prior affirmative consent, and, again, probably verbally affirmative consent since everything else will likely not be deemed a reasonable effort to ascertain consent under this law.
So, bizarrely, that, what most proponents of the law seem to believe it should say – step by step approach, good communication – is logically ruled out by the only interpretation of the law that would allow to not convict Danny as a rapist – which you outlined above.
Somewhat tangential but I think related to the main issue at hand: this Seattle Times news article seems to suggest that shifting the burden of proof onto a rape defendant was, indeed, the point of “years of work undertaken to properly refocus our rape law.” (The state’s Supreme Court ruled “the state cannot put the burden on rape defendants to prove that an alleged victim consented,” overturning prior rulings.)
This sounds like the right ruling. The burden ought to always be on the prosecution to prove their case, and I’m glad that Affirmative Consent doesn’t change that.
—Myca
@ballgame, that interpretation is certainly what you suggest, but not what the article suggests. As is pretty clear from your link, the burden of proof to show “forcible compulsion” was always on the prosecution. Shifting “consent” to an affirmative defense (with a burden of a preponderance of the evidence, not reasonable doubt) was intended to prevent the problem of making the trial about the accuser’s reputation or actions, i.e., was s/he a ‘good’ rape victim, rather than whether the defendant’s conduct violated the law.
Even the defendant’s attorney doesn’t seem to think this was a check on a Sinister Feminist Conspiracy to implement a Mackinnonite lower standard of proof for sexual assault:
don’t think there’s any concern we’re going back to the dark days of rape prosecution,” he said. “This doesn’t change much. It just clarifies for jurors who has the burden of proof and who doesn’t. Outside this one area of law, that’s the way things are always done.”
The opinions are available here:
http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=883416MAJ
To add to what Mythago wrote, a bit… Ballgame writes:
Ballgame is quoting, there, from the dissent, written by Justice Susan Owens. Here’s the quote in its original context:
(Emphasis added by me.)
It seems to me that almost any affirmative defense that the law makes available to defendants, could be semantically reframed as “this is putting the burden on the defense.” But surely it can’t be good for defendants to remove all affirmative defenses that could be semantically reframed that way?
Ampersand,
sorry, but when lack of consent is sufficient for convicting someone of rape (as opposed to forcible compulsion), it absolutely makes sense to demand for the state to prove lack of consent. It actually requires this shift.
Someone – lack of consent is already sufficient to send someone to jail for rape, even without affirmative consent laws. And at the moment, prosecutors must convince juries that there was indeed a lack of consent. Not sure how affirmative consent would affect that at all.
@SomeOne, did you read the article?
SomeOne:
But of course lack of consent isn’t sufficient, by itself. You also have to prove sexual penetration (variously defined depending upon jurisdiction) and a culpable state of mind (“mens rea”, variously defined depending upon jurisdiction, but often “knowingly”).
The State has to prove those things, AND the lack of consent. The defense may choose to concede some of them, like the fact that sexual penetration occurred. If they do, they have then shifted the battleground to the other elements of the crime which the State must prove, like mens rea or lack of consent. But they have not changed the burden of proof, nor the standard. It’s called an affirmative defense, and there’s nothing nefarious about it. The tactic is used routinely in many kinds of criminal cases:
Murder and assault:
“Yes, I shot him, but he was actively trying to kill me at the time.” [ETA: Note that this defense also invokes the doctrine of competing harms; in this case, EVERY element of the charged offense is true, but the defense is arguing that the act was the only reasonable way to attempt to prevent a more egregious outcome.]
Trespass:
“Yes, I was in the house, but his daughter, who lives there, invited me in.”
Theft:
“Yes, I took the money out of her purse… right after she said to me, ‘Take the money for the groceries out of my purse.'”
Even if the defense chooses an affirmative defense (and often it’s absolutely the correct tactic, for many reasons, one of which is credibility with the judge or jury) the State still has to prove each and every element beyond a reasonable doubt.
And an affirmative consent law doesn’t change that fact. It merely redefines one of the elements of the crime such that the defense can no longer use “but they lay there like a log and never made the least protest” as an affirmative defense. NOW, the affirmative defense is, “But they said/signalled ‘yes'”.
And the defense doesn’t even have to prove it. They just have to introduce enough evidence to get the trier of fact to suspect that it might be so: reasonable doubt as to one of the elements.
Grace
Legally, no. Functionally, yes. that’s what all the fuss is about.
In a typical non violent rape case, people are neither disputing identity or the fact of sexual interaction. They are disputing consent. So a “normal” rape trial without this law would go like this:
State/Accuser: “We believe that John Doe raped Rachel Roe.”
John Doe: “No, I didn’t. We just slept together.”
State/Accuser: [Puts on a trial, proving that John Doe failed to obtain consent or proving that John Doe otherwise violated consent. The standard is “beyond a reasonable doubt” if it’s a criminal case, and “preponderance” if it’s a civil case. The standard applies to every element, which means that in a criminal case the State has to prove non-consent beyond a reasonable doubt.]
The switch to an affirmative defense would, in theory, go like this:
State/Accuser: “We believe that John Doe raped Rachel Roe.”
John Doe: “No, I didn’t. We just slept together.”
State/Accuser: “Well, the issue of consent is no longer an element of the crime. It’s now an affirmative defense. So given that you’re acknowledging the sexual interaction but claiming she consented, the burden is on YOU to prove consent. We don’t have to “prove lack of consent” any more; that’s on you.”
The State/Accuser continues: “..which is to say: the old thing where we had to admit evidence? And where you could choose to submit competing evidence, or could sit tight and just attack ours? And where a failure on our part to submit enough evidence would be a win for you?
That’s gone. Or more accurately, it’s reversed. We don’t have to admit any evidence opposed to consent if we don’t want to, other than as a defense to what you plan to say. We have the right just to sit there and attack YOUR evidence, if we want. If you don’t submit enough proof about consent, see ya later jailbird.
Oh, and by the way: that’s now a preponderance standard. So not only do you have to prove it, but you have to prove it as “more likely than not.” And as you may have noticed from the prior history of rape trials, proving these sort of things is really a bitch. I mean sure, it’s one thing to manage to put “reasonable doubt” in someone’s head, but even the preponderance cases have a relatively low plaintiff success rate.
Which is weird, right? I mean, you’d think that when we asking “should we be convicting more people of rape?” we would use, as a potential benchmark, things like “what percentage of civil cases on the preponderance standard end up in plaintiff verdicts.” But instead we have decided that the prior system was basically unfair, so we’re just going to run it in reverse. Any resemblance to the prior unfair system is accidental. Sort of.
Good luck!
On the decision by the Supreme Court of the State of Washington (linked above by Mythago) which changed the state’s approach to affirmative defenses of consent when a defendant is charged with rape in the second degree, I think the best way to understand the impact is to look at the model jury instructions for the State of Washington that existed before this decision (they will now be modified).
Although the case at hand was actually a bench trial held in juvenile court, the impact of the change in precedent will be manifested through changes to these instructions.
The decision makes it clear that the defendant was convicted of rape in the second degree by forcible cumpulsion. If there had been a jury, one of the juror instructions would have been the definition of rape in the second degree:
In addition to an instruction defining sexual intercourse, there would also be a standard instruction on forcible cumpulsion:
The final instruction would take this form:
Finally, an affirmative defense instruction on consent would be included:
The Supreme Court of the State of Washington found that it is not plausible that a jury would properly find forcible cumpulsion beyond a reasonable doubt (i.e., “we believe beyond a reasonable doubt that the defendant threatened the victim and she was in fear of physical injury”) while retaining doubts as to whether “at the time of the sexual intercourse there were words or conduct indicating freely given agreement” (emphasis mine).
During litigation the State apparently provided some hypothetical situations in which both of these facts could be true. However, the court dismisses them as not convincing without detailing them. I can’t think of any convincing hypotheticals myself.
If there are no true positives, then all positives are false positives. And the potential for the affirmative consent instruction to confuse a jury is fairly obvious. In fact, if you follow the link to the pattern instruction on the affirmative consent defense, the comment below includes:
A few extra comments (for good measure):
Washington State has something pretty close to an affirmative consent standard (quoted above); this decision probably would have come out differently if they had a broader definition of consent that didn’t require consent to be “freely given.”
This particular case was a bench trial by a juvenile court judge. His decision stated that he found the forcible cumpulsion beyond reasonable doubt and non-consent to be more probably true than not because that was the legal standard when he decided the case. I would hope a judge is less likely to be confused than the average juror and the defendant will promptly be convicted again (after all, if the victim was in fear of physical injury she didn’t “indicate freely given agreement.”)
Apropos of the generic discussions of process; the question “what happens when both are drunk?;” and the question “how do colleges react when people try to file a counterclaim?” I offer the latest Title IX filing against Occidental (PDF):
http://d28htnjz2elwuj.cloudfront.net/wp-content/uploads/2014/10/Title-IX-Complaint-by-John-Doe-Against-Occidental-College.pdf
gin&whiskey,
is that the case in which the title IX officer of the school declared publicly in the hearing, if both woman and man are equally drunk and both are considered initiating, the man is still responsible?
No, I don’t think so.
ETA: Not “I don’t think that would happen,” but “I don’t think that is this case in particular.”
Someone: it was Duke where that happened; the testimony wasn’t from a title IX officer, but from the Assistant Vice President of Student Affairs and the Dean of Students (one person with a long title), Sue Wasiolek.
A few points about Occidental.
1. That’s a horrible case, and one that shows the dangers of not having strong due process protections for accused students. But it doesn’t say anything about Affirmative Consent rules, because Occidental doesn’t have Affirmative Consent rules.
2. In fact, this case shows just the opposite; it shows that if a powerful administrator decides to railroad a student, and the school’s due process rules are easily brushed aside, lack of Affirmative Consent standards will not protect him.
3. This case is not typical of rape cases in the university; rather, it is famous because it is an exceptionally appalling case. And I hope John Doe wins and the college is forced to pay him through the nose.
4. But John Doe is not the only Occidental Student claiming rights were violated by the college in sexual assault cases. If we’re trying to get a general impression of how colleges treat rape claims by looking at Occidental, we should also consider the 52 people who have signed on to a federal civil rights complaint saying that Occidental “deliberately discouraged victims from reporting sexual assaults, misled students about their rights during campus investigations, retaliated against whistle-blowers, and handed down minor punishment to known assailants who in some cases allegedly struck again,” as well as “cases of retaliation by college officials to survivors of sexual assault or activists.” Somehow, the many people I’ve seen cite the appalling John Doe case never also cite the appalling 52 other cases.
(In one case a student the college determined had committed rape was “punished” by being made to write a five-page book report.)
5. For comparison’s sake, NPR says that “several dozen” male students claiming to have been railroaded on sexual assault charges are suing nationwide. That’s the highest estimate of any article I found. If that’s accurate, than the numbers of allegedly railroaded students suing in the entire country is roughly the same as the number of sexually assaulted students claiming their cases were covered up at Occidental College alone.
6. It appears that after bad publicity over dozens of cases of Occidental mistreating alleged rape victims, the college overreacted and put the whole thing in the charge of the most radical anti-rape professor it could find. That professor then completely blew it by railroading John Doe. That’s bad, but I don’t buy your implication that it’s typical.
This is… a somewhat different reading of things than I have.
Those represent
a) students who believe they have a claim at all;
b) who manage to find a lawyer on contingency (or whose parents can afford one);
c) where the lawyer is competent to bring a complex legal title 9 claim against a school;
d) in a jurisdiction where the school can’t basically escape on “discretion” grounds;
e) who can develop or produce sufficient proof to make the case even viable (proving bias or discrimination is exceedingly difficult to do); and
f) who are willing to do so irrespective of the possibility of the Streisand Effect.
These cases started very recently and there’s certainly a groundswell of them. And almost all of them are systemic in nature. And almost all of them are, as a rule, entirely ignored by the feminists who are pushing for “more, more,” in the sexual assault conviction issues.
More to the point, this demonstrates the extraordinary danger of determining “fair process” by a set of RESULTS. And the whole recent push w/r/t college sexual assault depends at heart on a claim that we “should be convicting more people.” Not “we should be looking more closely;” not “we should be investigating more thoroughly;” not “for all cases that don’t seem exceptionally nasty we should look into negotiating prosecutorial immunity with the state so we can start deposing everyone under oath;” and so on. What they are looking for is CONVICTIONS. And when you go into it with that attitude, then it is really unsurprising when you end up with people that focus on the end results over the process.