Thoughts On Affirmative Consent and the Campus
I don’t have firm views on the new California standards for consent on college campuses. We should see how they work and if they’re effective. But, particularly in light of Jon Chait’s essay, I did want to emphasize a few points about the affirmative consent standard.
- Affirmative consent does not mean only verbal consent. Chait doesn’t make this mistake, but it does seem to come up in some critiques of affirmative consent — Freddie de Boer’s, for example. I do agree that a standard of consent that required verbal consent for every sex act would be silly and unworkable. But the California standard does not in fact require this. I don’t know about the proposed Columbia standard, but the New York piece Freddie cites simply asserts that consent must be verbal without backing this up with an explicit evidence from the text. Consent does not necessarily have to be verbal to be unambiguous. For this reason, I don’t agree with Ezra Klein that the California law is an “extreme” law perhaps justified by an extreme problem, and I think the alleged ambiguity of consent is vastly overstated. Jessica Valenti is excellent on this point.
- An affirmative consent standard does not logically require any particular form of due process. There are some real potential due process problems when campuses try to enforce sexual assault and misconduct guidelines (although, for reasons I’ll get to in a second, I think they are sometimes overstated.) I agree, for example, if an appeals process is warranted the appeal cannot be heard by the person who issued the original judgment. But it’s important to keep these questions distinct. A traditional consent standard can be enforced with inadequate due process; an affirmative standard can be enforced while granting appropriate due process rights.
- What process is due is contingent on the nature of the penalty. It’s true, as far as it goes, that the crisis of sexual assault on campus does not justify an illberal abandonment of due process rights. But it’s also important to remember that what process is due varies considerably depending on the potential consequences. (You have a right to be provided with counsel at a criminal trial, but not at traffic court.) This is particularly important in this context, because the penalties that universities can mete out are generally pretty limited. The process that is due to someone facing a 15-year prison term is not the same as the process due to someone facing a one-year suspension is not the same as the process due to someone who is asked to leave a university dormitory. A regulation that can result in severe sanctions should be narrowly drawn even at this risk of producing significant false negatives, but a student handbook can require more of its students in their sexual practices than the absolute plausible legal minimum. Students facing severe sanctions should have the opportunity to meaningfully contest charges against them, but nothing in the California law prevents this.
It’s this last point — the relatively small stakes involved here — that I think make the California law worth trying. It may be possible, although I very much doubt it for the reasons previously discussed, that the standard will prove unworkable and produce too many false positives. It may be — and this is somewhat more likely — that the change in standards will prove ineffectual, not providing any additional protection against sexual assault in practice. It will ultimately be an empirical question. But the idea that even in principle “don’t think like a sexual predator” is an excessive burden on students is entirely implausible to me, and I won’t assume that the new standards will fail in either direction ex ante.
Scott, I’ve been refraining from saying anything substantive on these posts because I don’t think I have anything valuable to say, but this is an excellent post.
Harrumph. Great post.
Thanks all.
Indeed.
Indeed.
And if I’d needed any further reason to accept the arguments for affirmative consent, the fact that Freddie de Boer criticizes it would have put me over the top, and then some.
+1
Moral panics do frequently lead to bad rules, and it’s easy to demagogue opposition to these rules as indifference to the underlying crime. I’m glad to see pieces like the one by Chait, because it’s precisely in circumstances like this that we need to remember things like proportionality and due process. The other path is the one that leads to recovered-memory convictions of sexual abuse and more worse criminal penalties for crack than for powder cocaine, to give two examples.
Being kicked out of college is not small stakes, and more to the point there will be enormous pressure to create blacklists – how could your university dare to admit a predator expelled from elsewhere! Employers need to know that someone was expelled for this! Why aren’t there criminal penalties? Without an active consideration of due process, the chain doesn’t end.
Not that I think we should be ignoring due process, but where’s the due process problem in making “sexual assault without affirmative consent” a crime, let alone the standard for administration punishment?
And as for proportionality, a person’s getting expelled for sexual assault. No problem. The only difference is the standard for sexual assault, i.e., what the school must find to expel a student. Why is sexual assault without consent worthy of criminal punishment, but sexual assault without affirmative consent disproportionately punished by expulsion? I can’t think of any answer to that that isn’t either (a) there’s no problem here, or (b) men are just a little rapey, women need to deal with it.
Well, to start with, sex without consent is a serious crime. The legal system has not historically required affirmative consent, so it’s a very basic change in the underlying rules. We distinguish between “manslaughter” and “murder”, for example, and there will be a tendency (as you did in your reply) to use the same words to describe two different things.
In principle, as for manslaughter, you can have different offenses with different punishments and different rules of evidence. But you actually have to have working rules that follow due process, or you end up convicting innocent people. And these changes are being pushed through the system in a panic mode.
The legal system requires affirmative consent in the case of every other crime I can think of, so I fail to see why bringing sexual assault in-line with everything else is such a major change.
That depends on what you mean; there is a boundary between innocent until proven guilty and guilty until proven innocent, for example.
Implied consent is certainly a well-established legal norm for many cases (e.g. I don’t tell a cashier that I consent to pay for something every time that I do pay for something.)
I’m not sure how that’s germane? Standards of proof are standards of proof. I fail to see how raising the standard of consent to sexual assault to the same level as that of non-sexual assault makes people “guilty until proven innocent.”
Implied consent would, I think absolutely meet the standard for affirmative consent as well; those are gonna be overlapping venn diagrams.
Your cashier analogy is, I think, somewhat inapt. A better analogy would be someone who walks out of the store with a load of unpaid-for merchandise and than is shocked- shocked!- when they’re done for shoplifting. After all, they weren’t tackled on their way out the door, and there aren’t armed guards patrolling the aisles telling every customer that all merchandise must be paid for, so clearly it is just there for all to take.
Yes. Murc has handled this nicely but the “implied consent” thing w/r/t the cashier is just weird. Because in real life it cuts completely the other way. When you hand your credit card over to the cashier to pay for your goods you are implying consent only to the payment for the goods you are purchasing. The Cashier doesn’t have the right (nor the store) to take your nonverbal gesture of handing over the card as agreeing to let the cashier or the store loot your bank account for more than the value of the goods you are purchasing. Even with implied consent there are limits to how far consent goes and for what.
Another useful analogy would be a restaurant adding a tip to a credit card where none was written in (and there was no published service charge/mandatory tip policy), and defending themselves with “the customer didn’t explicitly complain that the service or food was poor!”
I don’t even know what “implied consent” is supposed to have to do with anything beyond being some sort of strawman that a woman could, I don’t know, rip her own clothes off, hold you down and ride you to oblivion but if she doesn’t say the magic words, it’s technically rape.
But of course, getting rid of “magic words” is pretty much the whole point of affirmative consent, changing the standard from a default assumption of consent (“did she say no, and in just the right way?”) to a default assumption that consent must be given.
Exactly. The earlier parallel to trespass was apt. The majority rule regarding battery is another example: the “offensive” element of contact is an element of the prima facie case, and consent is a defense, as well.
Until relatively recently the legal system considered marriage to be permanent consent. Fixing the brokenness around how the legal system treated rape within marriage was also a very basic change in the underlying rules. And yet, we managed to do it without the sky falling down.
Right. We’re in the midst of the very slow, long-term process of shifting our culture and laws from reflecting the premise that that women’s bodies are men’s property to the premise that women’s bodies are women’s property. The existing standards reflect the incompleteness of that process.
“Until relatively recently the legal system considered marriage to be permanent consent. ”
Until recently the legal system considered being black or hispanic or American Indian to be consent, as well as intoxication, state of dress, low social class, and many times also lack of resistance unto death or serious injury.
And besides that, who gives a fucking shit? “Oh noes, rapists are going to have such a hard time adjusting to a law that makes it easier to prosecute them for rape!!!” The fuck is the problem supposed to be here?
It isn’t. Really, it isn’t. Consent is almost always an affirmative defense that must be proven by the defendant. It’s actually kind of rare for lack of consent to be an element of the crime, as it is with sexual assault. And NONE OF THAT is a process issue. It could be an unreasonable punishment given the crime proven, but it’s not a process issue.
That’s why I’m asking you what’s the due process issue here? Where is the defendant lacking some fundamental process right?
The Due Process problem doesn’t lie with Affirmative Consent, it lies with the Preponderance of the Evidence rule introduced by the Dept of Ed. If you’re going to lessen the evidentiary standard then you need to lessen the penalty, otherwise you’ll end up having innocent kids suspended or expelled for what is 10s of 1,000s of dollars. I think the standard should’ve remained Clear & Convincing b/cs if you’re going expel someone why not do it on Clear & Convincing evidence?
If that’s the issue, why is everyone whining about affirmative consent? Chait doesn’t mention burden of proof at all IIRC.
Hell if I know. Maybe Chait doesn’t understand the law. Maybe b/cs he doesn’t follow Arnie Duncan. No clue, ask them.
The New Republic has a thoughtful discussion of it.
Judith Grossman concurs.
Sure, the penalty should match the evidentiary standard. Although I imagine most would prefer suspension or expulsion to jail time.
One problem I see is what happens if a person is punished for sexual assault on campus and than you have a prosecutor who wants to use the findings of the campus body as evidence against that person in criminal proceedings. If the due process standards of campus investigation are less than those of a criminal investigation than you could end up creating a due process problem in the criminal proceedings. Are the results of campus investigations into sexual assault admissible in criminal proceedings based on the same facts?
I think the findings of a campus investigation would be hearsay.
And possibly protected by the Buckley Amendment.
“One problem I see is what happens if a person is punished for sexual assault on campus and than you have a prosecutor who wants to use the findings of the campus body as evidence against that person in criminal proceedings. If the due process standards of campus investigation are less than those of a criminal investigation than you could end up creating a due process problem in the criminal proceedings. Are the results of campus investigations into sexual assault admissible in criminal proceedings based on the same facts?”
IANAL, but you might want to look into the use of civil outcomes as evidence.
The findings of the campus investigation won’t be admissible , but facts gathered in the investigation might be, including admissions by the perpetrator. This would create an incentive not to admit fault in a disciplinary hearing.
At the same time, the legal system deals with this issue all the time — if you admit in the course of a wrongful death lawsuit about a car crash that you were driving drunk at the time, there’s nothing to stop a prosecutor from charging you with an OWI homicide based on your admission, (assuming the statute of limitations hasn’t run, etc.)
Well, but usually it deals with them by delaying the civil or administrative proceeding until the criminal action is complete. This doesn’t really help the victim much. A freshman could wait her entire 4 years of college for the criminal case to wind through the system.
I think a better result would be to make the administrative remedy confidential.
“Well, but usually it deals with them by delaying the civil or administrative proceeding until the criminal action is complete. ”
So?
So the rapee has to attend classes/live in a dorm with her rapist for four years. Also, other people have to, at some personal risk.
Even conceding for the sake of argument only that a measurable percentage of alleged rapists are innocent, that’s not a reasonable situation.
I think that’s the strength of both Chait’s piece and Scott’s post. We cannot allow the pursuit of an inarguable social good to alter the structure of police and judicial power to the point where it becomes warped to an unacceptable degree. That’s what unsettles me about Klein’s comments, that extreme problems justify extreme measures. Trampling on somebody’s due process rights, regardless of how unsympathetic the person or cause may be, is the very definition of illiberalism. We wouldn’t accept it for issues like the rights of murder suspects or other unsavory defendants, NSA wiretapping and surveillance, or any number of issues, and we can’t accept it here.
That’s not to say that essential matters of both acculturation and legislation can’t play a role, they obviously can, and the former can certainly help speed along the latter so that over time the once-tolerated becomes intolerable. Codifying certain simple, limited, and legally unambiguous behaviors into law do not represent some totalistic intrusion into people’s sex lives. The more disreputable opponents of such standards seem to want to equate a woman’s right to non-verbally communicate sexual consent with a man’s (or woman’s) right to force themselves on an unwilling party.
I think Chait’s piece is best read in conjuntion with his earlier posts on the topic, which were…not good. He basically started it out with “this change is going to mean that a lot of nice, well meaning rapists are going to be prosecuted where they otherwise wouldn’t have been.” Chait really isn’t doing anything beyond defending the subset of rapists who claim they just couldn’t tell that their victim really didn’t want to have sex with them.
Given that part of the point of the OP is that affirmative consent and due process are different topics, I don’t understand why you jumped immediately to talking about due process. As Scott points out, you can violate due process while using a traditional standard of consent or abide by it using affirmative consent.
If you think affirmative consent is a “bad rule” caused by
tons of people being raped and sexually assaultedmoral panic, then say that, and people can argue with you, but that’s not a due process concern.Moral panics can have real and serious problems at their root. Child sexual abuse is horrible and real. So is rape (and the two are obviously related.) Crack cocaine really did devastate inner city communities and destroy a lot of lives. So did heroin.
The problem comes when you transition to the “what should be done” stage. And if you do that quickly and uncritically (that’s the “panic” part), you run the serious danger of ending up doing more harm than good in the service of a noble goal.
The chances that a moral panic benefitting rape victims will run riot over–say–the rights of frat boys, football players, and other campus high status players is basically zero.
I pop up on Winston threads because it’s *not* zero. Regardless of Winston’s actual guilt or innocence, there really *has* been a moral panic at the expense of primarily black players who are abusing their bodies for free. Far too many people think that Winston or anyone else in his position (if they are black) do not deserve due process because of extensive and murky obstruction of justice (behavior that Winston has no control over, anyways), even though whatever actual obstruction has low material impacts on the ability to prosecute the case, which was alway hampered by the start from the accuser herself.
It’s completely absurd just how credulous people have been of utterly unethical reporting by ESPN, NYTimes, etc (remember that rape counselor doing that privacy violating reveal all in the Times?). It’s also been crazy just how much people don’t remember what *real* rapey obstruction looks like, as with Roethlisberger and cop friends taking tapes, etc (which would have shown incident in question, rather than the unlikely reveal of a mickey droped in a drink), Taylor Lewan and his death threats, or Mettenberger having his mother cover for him as a UGA insider for what went down in Valdosta.
I swear, it’s like the whole Whitewater fiasco, in mini.
Far too many people think that Winston or anyone else in his position (if they are black) do not deserve due process
[cites omitted]
Oh really?
Do you really think people ever say it out straight? They just say “he had a gun”, “he was no angel” “I’ve got sources, and this situation was really bad”, and you’re expected to nod along to whatever extrajudicial action that has already happened. Why the fuck do you expect me to have a cite? This is what is inferred, and what I’m absolutely sick of is nominally progressive people allowing themselves to be spammed by the racists proffering non-racist labels for racially disparate process and impacts. And you know something? I would bet that at this point, many if not most black people are absolutely fed up with this. I’m not going to accept guilt as a reason to do process differently than how whites are. Because it’s extreme out there, whether that’s magnified by social media or not, a world where you can be shot more or less just because you’re in the wrong place at the wrong time, and some non-uniformed off duty officer (or just the neighborhood bully/crank) decide that you’re in the wrong for some reason you don’t even know.
And let’s be real here, if Jameis Winston was a normal student, and not a high profile black quarterback, there would be a process, and it would be over, with the privacy of all concerned respected. Not least of all, my concern is that you (among others) are studiously ignoring widely available evidence that the story doesn’t hang. If we don’t even have to have a consistent, reasonably logical narrative…in a world where we have the Innocence Project, what the fuck do you think it means for black defendents? That’s what a moral panic is. That’s why we have books written by writers who remembers, even though she was a small child, the things that are supposed to matter, and things and feelings that should matter.
I don’t really have a position on the California law. It mostly just matters how it’s enforced. It could have been somewhat enforced with the original law, and perhaps enforcement and justice will improve with the new wording. However, if the actors refuse to act on said wording…well rape and things of that matter has always required the good faith action of institutions. The moral panic comments? Those are what promps me to write.
At the end of the day Lemieux, because you’ll probably get this from other black people, I’m not going to give passes on this anymore. If Winston did rape the student, then of course, I’d want him punished according to the law. However, I am compelled to be completely deadly serious about process, because as you can see, shit has been getting real. Any hints of media witch hunts or blood libels, and I *will* push back.
As for Karate Bearfighter. Google is your friend, but then, I can give you a little start. Why, for example, are we just now talking about a Title IX *now*, when the incident and reporting happened in 2013? As far as I know, even with a determined university coverup, it doesn’t seem that easy to filibuster Title IX, given the nature of how Dept of Education and college interacts in the proceedings.
I don’t think citing a process in which the police and university went WAAAAAAY out of their way to cover up for the alleged rapist is quite the best case to be citing over concerns that alleged rapists will be unfarly punished without proper due process.
That’s a lot of words to say that you don’t in fact have any examples of people who think Winston should be denied due process.
Which has nothing to do with the alleged victim “hampering” the investigation.
In what way did the accuser hamper the investigation from the start? She immediately told a friend she had been raped and went to the ER for an exam.
Wait–isn’t the Winston case the one where the prosecutors and police bent over backwards to give all relevant information to Winston and his lawyers before even interviewing all the parties?Didn’t ESPN just do a story on how deeply the entire college and the police and investigators were in the tank for Winston and his roommate? There’s plenty of racism to go around here but Winston wasn’t accused because he was black and he wasn’t railroaded at all–let alone because he was black.
Edited to add: black women get raped too, you know. And they get raped by White football players. And kids too, if the Penn State case hasn’t slipped your mind. Black people are victims of the pro-player/pro-football bias of universities and local police departments.
Shah8 has prebutted you by declaring the New York Times’ and ESPN’s reporting on this case ‘unethical.’
Yeah, and Aimai, ask youself exactly how material it is? Does it *really* impact how easy it was to prosecute? Maybe it may make it easier to make a defense, but does it actually stop the prosecution when the defense has information a bit early?
Because oh hell yes, this has been really fucking racist, and I’m not letting you off that. Just because you can make molehills into mountains doesn’t give you cover.
And as far as your edit, fuck that. Do you really think I don’t read about that Oklahoma police officer raping women. How do you think he was allowed to rape so many black women. How the absolute fuckity fuck do you think white students rape minority women, or old white men raping little black boys happen? It cuts the same way as accusers or defendants. We don’t have the same access to the legal system, which in term views black people, especially men, as something to control, and not people with rights that any white man must respect. Go ahead, be willfully oblivious to what my actual concerns are.
” Maybe it may make it easier to make a defense, but does it actually stop the prosecution when the defense has information a bit early?”
Um…yeah.
Generally speaking, blacks and women get raw deals. That doesn’t tell us much of anything about guilt or innocence in particular cases.
Oh jesus, Brien, do you really think leaking a police report is particularly serious? The defense attorney gets a head start to control the narrative and interviews?
Dude, a grip. The defense attorney would already know what happened and what he needs to do. The material impact of the obstruction more or less was that Meggs could not trip up the witnesses, whether they were singing false or true. Meggs was never prevented from collecting actual evidence, or making do with what testimony he did actually get. Same with the slowness to retrieve video evidence at the bar.
Again, dude, the case was never going to live very long because Winston has affirmative defenses, and affirmative independent of whatever FSU admins did to smooth or cover stuff up.
I don’t really know what your actual concerns are. I’m too busy SMH with amazement that you think that the WInston case proves that anti black racism was at issue at all rather than a color blind pro football player/pro moneymaking corporation anti-woman agenda.
Could be he was accused b/cs he was black. White women have accused black men of being big, scary, rapists for over 400 yrs now. White women know that if they accuse a black man of rape they’re likely to find a sympathetic ear. Southern white women esp know this.
You’re right that we’re victims of rape at even higher rates than white women, and thats what makes this entire debate a fucking tragedy.
The Amiraults prolly disagree with you…Also, what makes you think that only high status players are accused of rapes?
To be fair to FDB, he’s quoting New York magazine when he conflates affirmative consent and verbal consent:
Which of course, is nonsense. [A says to B, “Let’s have sex.” B smiles and removes his pants & underwear. Affirmative, non-verbal consent; “unambiguous communication and mutual agreement”.]
Lest we err on the side of being too charitable to Freddie, it should be noted that this is pointed out to him in comments and it doesn’t go particularly well.
As Ampersand dryly notes: “It’s interesting that in the space of two comments you went from saying “you can consent without vocalizing is exactly the current norm” to implying that you don’t know what non-verbal consent could entail.”
To be fair to FDB, he’s quoting New York magazine when he conflates affirmative consent and verbal consent
So we agree?
I know, I know–do not click on the link and then give your reaction in a comment before reading to the end of the post!
I have never had sex without enthusiastic consent, but it was rather seldom verbal.
Are people seriously arguing that (some) men have so little experience of actual women who want to have sex with them that “enthusiastic non verbal consent” is completely unfamiliar to them? I’m not responding directly to anyone here I’m just thinking about it. Its shocking how quickly defenders of “man the seducer” of “the coy woman” become hysterical with the notion that helpless young men at college have absolutely zero way of grasping whether the woman they are with wants to have sex with him. That’s what it boils down to–they go from “men are sophisticated hunters of seemingly reluctant or coy virgins” to “men are helpless victims of inarticulate but vicious women who have sex with them and then complain that it was rape.” Its like they can’t even imagine that there are enthusiastic, consensual, relations between consenting and witting adults. Or that women are ever in relationships that they actively choose and pursue which include sexual gratification for both parties.
What I don’t entirely get is that the men who seem to think that you can’t ever tell if a woman wants to have sex with you OUGHT to be in favor, at least as a personal policy, of obtaining explicit verbal consent. I go back and forth (on the plausibility of discerning consent) – I’m a somewhat socially awkward person, and I don’t think I’ve ever had a problem figuring it out (a couple of times I failed to recognize that someone DID want to hook up, though), but there are some people out there who are really terrible at picking up those sorts of social cues; I would hope that they know that about themselves and adjust accordingly, but perhaps not.
(OTOH, it occurs to me that the first time I’ve slept with a person, I tend to seek out at least eye-contact level consent at each … escalation.) The real problem to me is alcohol; while there are people who obviously pass a point where they can’t honestly be understood to have consented to anything (unless you’re the kind of asshole who thinks being present and having drunk that much = consent), there are other problems.
For some reason I’m reminded of the recent horrible case of the woman who was shot to death for refusing to give the crazy man her phone number so he could date her. The guy pestered her all night and she gave him all the polite excuses that women are trained to give men: I’m so sorry but I’m dating someone, my fiancee is right here (look! I belong to a different man! I am not a free entity! Can’t pick you! So Sorry! Don’t take it personally!) and then he gets really pissed and pulls out a gun and shoots her and five other people.
There are a lot of MRA types who continually and publicly bemoan the fact that women “won’t tell us that they won’t date us” and “aren’t honest” and we “just want to know what they are really thinking” and we “don’t want polite lies or ambiguous statements.” But the reality that women actually face in their day to day interactions with men is that even meeting some guys eyes accidentally on the street or in an elevator can be seen as a signal for him to pursue you. How you dress, when you walk on the street–all these things can be taken as a non verbal gambit on your part to be accosted and asked for sex.
And the consequences for responding as he sees it ambiguously, or wrongly, or sharply, or bitchily, or indirectly can be fatal. To me the new “affirmative consent” standard is an attempt to force men to deal explicitly with women rather than pretending to read consent into actions. It shifts things from the inexplicit to the explicit because, frankly, men (ritual invocation here #notallmen) have proven over and over again that they are not mind readers and not always acting in good faith.
So you have to straight up proposition her “hey babe: wanna fuck with me right here, right now?” and deal with the consequences of her saying No or walking away or recoiling in horror because you are a boor. Or, you know, successfully initiate a strategy of sexy and attractive engagements which produce unambiguous enthusiastic consent like her taking your clothes off.
Indeed, I guess the proper implication of the disjunction in my first paragraph – if you think consent is hard to interpret, then you should be in favor of getting easily interpretable consent! – is that consciously or unconsciously, we’re talking about a group of men who aren’t, in the real world, terribly concerned about women’s consent. And it does seem, as you imply, to come with this baggage where the first “assent” (no matter how innocuous, or even how misinterpreted) is the only one necessary. I know that a smile doesn’t guarantee flirtation, or flirtation a date, or a date a kiss, or a kiss sex – you need to walk up each stair, so to speak. But some people really seem to have been programmed (or programmed themselves) to think that way. (And sometimes I suspect that fear of men thinking this way affects the way female friends behave towards me – the occasional too-stringent refusal to let me pick up the check if it’s just two of us, etc.; I know it’s not a date! but ok.)
The case you mention is indeed horrifying but I think it’s a slightly different thing. (Unless he thought she smiled at him and took that as the invitation for everything else he expected.) Her expressions of nonconsent – of noninterest – were entirely unambiguous; I’m inclined to think the murderer in that case was less a person who was (willfully, maliciously) misinterpreting her, and more a person who wanted what he wanted and wouldn’t accept the clearest no (because she worked up, in the reporting I read, to the clearest possible no). But I only read one story about the case, I think the day after it happened.
I think the point of my reference to the case is that from the woman’s point of view you can’t tell which of the men who approach you is not going to take no for an answer. Or is going to get angry because you gave a soft no, or didn’t give a hard enough no, or gave too hard a no. And the consequences for guessing wrong can be fatal.
Sure; too many guys seem to have very detailed expectations about how things are supposed to work, and of course a woman has no way of guessing who they’re talking to in that regard. I just think the killer in this case seems like a different kind (not, of course, that the victim could’ve known that).
What I don’t entirely get is that the men who seem to think that you can’t ever tell if a woman wants to have sex with you OUGHT to be in favor, at least as a personal policy, of obtaining explicit verbal consent.
Right. Obviously affirmative and clear consent doesn’t need to a verbal. HOWEVER! If you are legitimately unsure if your past sexual partners were, in fact, affirmative consenters, you should probably change your behavior to include a greater effort to acquire that certainty. If you don’t want to do that for fear it will lead to less sex, then, well, you’re not the kind of person who’s behavior we should be working to ensure the law accommodates.
Yes. “I’m not sure if she wanted to have sex with me. The next time I have sex I might be similarly unsure. But if I ask, then I might not get to have sex! Oh, this terrible life of uncertainty I’m going to lead.”
I do agree! However I disagree with Scott’s original claim:
I guess it depends on how broad a class we mean by sex acts and how detailed and reiterated a consent, but I don’t see the silliness or unworkability. “Do you want to have sex tonight?” “Yes” seems pretty easy to do…every day. Several times a day. It’s far less burdensome that e.g., discussing your sexual history or safe sex preferences. If one is going through a lot of one time or few time encounters, then I think at least for each partner is a pretty reasonable standard. It’s not a required standard, perhaps, but it’s not unreasonable. We should perhaps encourage it even if we don’t enforce it.
This isn’t abt ppl who’re unsure if they raped someone–rapists know they’ve raped someone. This is generally abt what happens when ppl are intoxicated and communicate poorly, or when ppl use poor judgment and maybe regret the decision they made the night b4.
i dunno. i think you’re leaving out whatever number of people think ‘no means yes unless i get maced’. also i think you’re edging into victim-blaming there at the end
‘no means yes unless i get maced’ is already a crime…& there’s nothing victim blaming abt saying intoxicated college kids make poor decisions, some of which they regret the next day. As we all know alcohol lowers inhibitions. Let’s be clear: I’m not saying drunk women invite rapists.
Not all of them, because they buy into the myth that the rapist is always a stranger jumping out of the bushes.
Even when I was in high school in Oklahoma in the 60s, when this sort of thing had some degree of reality, it was pretty easy to tell if they were interested.
Of course not. Marcotte has been particularly excellent for some time on relentlessly hammering the point that people just can’t understand the difference between consent and non-consent is ridiculous, most of all because it literally isn’t applied to any sort of human interaction other than sex.
In particular, this:
IS NOT A DUE PROCESS PROBLEM. It might trouble someone that “lack of affirmative consent” instead of “lack of consent” is the standard for rape or sexual assault. It’s also troubling that first-time possession of marijuana for sale can lead to a 20 year sentence. Neither is a due process issue. But if a state was worried about it, it could make “sexual contact without affirmative consent” a misdemeanor and avoid the whole issue.
Also, “ambiguity” is not affirmative consent, but it’s also not a lack of affirmative consent. It’s ambiguity. So if, for example, a man goes with a woman into her bedroom, and they start kissing, and one thing leads to another, and the woman takes her clothes off, grabs the man’s body and initiates sexual activity, it’s an ambiguous situation but almost certainly shows affirmative consent under the California standards.
What I think mostly troubles these critics is that it possible that a large number of young men are going to be held responsible for forcing sex on young women in compromised situations.
That’s a pretty deeply illiberal view. Liberals were able to defend Communists without being Communists, and they were able to defend the right of murderers to have fair trials without defending murder. I’d rather not see us become mirrors of the far right.
Wow. That’s the reddest red herring I’ve ever seen. As people have pointed out to you already several times this is not a due process issue. The rules of engagement may have changed but the process part has not.
If that’s true it isn’t a problem, agreed. The Shulevich article seems to make a pretty strong case that due process is a problem. And the cases that Chait was arguing against were cases where liberals were taking an “ends justify the means” approach – namely, that the rules were violating due process, but that it was OK because the problem was so serious.
this is not a due process issue.
Without disagreeing on the merits of the issue, I have to point out that “due process” often requires recognition of substantive rights.
Well, ok. Agreed.
But if we’re taking “due process” to mean “substantive due process” as the Supreme Court has applied it, we’d be better off saying it’s a fairness issue. Outside of pretty rarified legal circles, “due process” means you had a fair chance to present your case, your case was fairly heard and wasn’t handled arbitrarily, basically there were no shenanagins.
If Chait et el want to argue that this change is “fundamentally unfair,” let them. But to frame this as a “process” issue is simply wrong, IMHO.
Well, I respectfully insist on the correct formulation, because it’s a rightwingnut meme that the whole notion of “substantive due process (except as applied to guns) amounts to unconstitutional judicial activism. “Where in the Constitution is there a right to privacy?”
Hang on, I disagree with Marc on the merits — and I’ve generally agreed with DrDick, as far as I recall — but he did in fact state in plain English that most critics of these rules were just pro-rape, or, at least, opposed to legal consequences for rape.
I’m a bit concerned about people getting bounced out of the school that they paid $40k to attend, but if we trust schools to make that decision in cases of freakin’ academic misconduct, we should trust them here.
But the point about moral panics is a real one. Ask the citizens of Jordan, Minnesota, the subjects of the only punk rock song which probably should have been followed by a punk rock retraction. I don’t think we’re on the side of a moral panic yet — if anything, we’re erring too much on the wrong side — but it would behoove us, I think, to keep an eye open.
What I am saying is that these are people who do not actually understand the concept of consent. They subscribe to a “boys will be boys” mentality, assume women fake reluctance, and assert that if she did not actually say “no” or put up a fight, that it was not assault. They do not think that coerced sex, in the absence of direct physical assault, is rape.
Okay. Marc, too? Shah8?
If you think the process hasn’t changed then you’re woefully uninformed. The DoEd spent a lot of effort changing the process the last few years & Yale & Princeton & a lot of other schools can tell you abt it. When you go from a Clear & Convincing standard of proof to a Preponderance of the Evidence standard everything changes. Some percentage of ppl who would not have been found guilty under the CCE standard would be found guilty under the POE standard.
No, I think the doctor has a point. Let’s say that enthusiastic, non-verbal assent = active participation. Why would anyone object to the idea that you’ve might have a rape problem if the young woman wasn’t actively participating? The only conclusion is that they, or their friends and associates, are in the habit of doing just that.
Exactly!
You seem to be very confused about the issues here, either that or your reading comprehension sucks. While I fully endorse the rights of rapists to fair and impartial processes, I emphatically do not endorse their right to rape somebody and then claim thy did not know she did not want to be raped. If you are not sure, ask. This is not hard and I never had a problem with it.
It’s the “confused about the issues” thing. Or possibly the reading comprehension thing. I don’t believe it’s them agitating in favor of rape, though. Even Freddie de Boer is probably not pro-rapist.
Actually they are, but they do not think it is really rape and De Boring is a misogynist asshole.
When you have crappy “due process”, you get problems.
Changing to an “affirmative consent” standard would, perhaps, give you a DIFFERENT set of problems, but it’s not as if you didn’t have problems to begin with.
This.
Chait’s piece struck me as trying to slyly conflate university discipline and the criminal justice system in his critique, and I like that you point out that the penalties we are talking about don’t include going to jail or whatever.
I also think the point about non-verbal consent needs to be shouted from the rooftops a bit more. Invariably critics of the law seem to be imagining that you need explicit verbal consent for every button undone on a shirt.
California’s in the pocket of Big Zipper! Wake up, sheeple!
“…critics of the law seem to be imagining that you need explicit verbal consent for every button undone on a shirt.”
I hear you have to pay extra for that, on Hollywood Boulevard.
1. Scott, I think the issue is that the “affirmative consent” standard flips the burden of proof from the accuser to the accused, which is antithetical to Western norms of justice. It seems quite fair that someone who is accusing another of a crime or other misconduct must demonstrate evidence that the crime occurred. Under this standard, the accused must present evidence that the crime did not occur, which will often be almost impossible rendering him guilty upon accusation.
2. Although the final language of the California bill did not require verbal consent, the original draft did and was only taken out at the last minute, meaning that that was the original intent of the bill.
3. There is no evidence that there is an “epidemic” of sexual assaults on college campuses. The oft cited statistic that 1/5 of women in college will be sexually assaulted has been repeatedly debunked. Maybe there is in fact an epidemic, but I think we should be making policy based on evidence and not what is hyped by the media at any one time.
4. And finally, the “affirmative consent” standard operates under the assumption that all women who report sexual assault complaints are telling the truth. However, they may not be. I for one was accused of sexual assault when I was a freshman in college. I was assumed guilty despite the fact that we didn’t have sex, I was a virgin at the time, we only made out, and the interaction ended with her smiling as she left my dorm room. And Scott, she initiated the interaction by saying “Are you going to kiss me already?”(due, i assume, to my shyness around women at the time).
I was then immediately kicked out my dorm room the next day, told I was going to be kicked out of school, and was not told exactly what my accuser was alleging. I had dreamed of going to this school since the 7th grade and now I was about to get kicked out and tarred a rapist for the rest of my life, which would make it very hard to ever transfer to another university.
I’m not sure why they changed their decision, possibly the threat of litigation (my dad is an attorney), or because her story, whatever it was, was obvious bullshit, but they did still kick me out of housing, leaving my parents having to pay for off-campus housing on top of the dorm housing costs that the university refused to reimburse them for. And the cost of tuition at this private university had already forced my parents to take out a second mortgage.
Even years after that, girls I’ve dated have told me friends of theirs (who I had never met) had warned them that I was an accused rapist.
So in conclusion, accusing someone of sexual assault in college can easily ruin their life. It is not a small thing, at all. I was very luck indeed that it was not worse. But, remember, just because women bear the brunt of sexual assaults does not make them paragons of virtue. They are capable of lying for petty and/or vindictive reasons. I just don’t think its that hard of thing to ask for girls to say “no” if they don’t want to do something before they accuse a man of being a sexual predator.
You know what else can ruin someone’s life? Having to see someone every day in classes and on campus and in your dorm that raped you.
You know what empirically almost never ever happens? A woman lying about whether a man raped her. Almost no false reports ever name a specific person. Of those that do, an almost trivial amount actually end in conviction. Again, this doesn’t send them to jail, it just expels them from a dorm, or a university.
… how so?
As near as I can tell, all the affirmative consent standard does is bring things in-line with other violations that don’t involve sex. If I accuse someone of assaulting me (as in, non-sexual assault; a beat-down) they can’t get off the hook by simply saying that I didn’t fight them off effectively enough and they thought I was “into it.”
However, I still have to actually prove the assault took place. The accusation is not proof, I have to assemble sufficient evidence to convince a jury (or the state has to do so on my behalf) and that evidence still has to hit the “reasonable doubt” standard.
Now, as near as I can tell, all the affirmative consent standard does it bring sexual assault in line with other forms of assault, rather than allowing people the out of simply lying about there being consent. I don’t see how this is such a huge revolutionary move.
This.
I’m sorry that happened to you, but I have to say your last sentence is so, so wrong. Read the Mallory Ortberg piece linked in Scott’s last post. Or the case at the end of this piece. The problem (or a problem) with current standard for consent is that a woman can say “no” many times, but if the man keeps pushing and gets her to acquiesce it’s no longer seen as rape. And often women DO acquiesce out of fear for their own safety, since if a guy clearly has no interest in listening when you’ve already told him no a dozen times, who knows what he’s willing to do if you try to force the issue?
Seconded on compassion. However, your story says that your accuser flat out lied on several points of fact. As the child of an attorney, you should realize that if her plan was to lie about you, she almost certainly would have done it no matter if the law said affirmative consent or not.
People who make unjust accusations are abusive, just like rapists are.
Does affirmative consent mean that a guy has to stop asking? What’s the distinction you’re drawing? Are you under the impression that this standard would successfully distinguish consent from mere acquiescence? What is the categorical outward difference between acquiescence and affirmative consent, especially if the latter needn’t be verbally explicit? Again: categorical. Sure, you can paint a picture of something that is clearly mere acquiescence and clearly not affirmative consent. But that’s one hypothetical. The point of a rule is that it must deal with every shade of possible occurrence of either set, providing a systematic way to determine which set an occurrence falls into. What’s the outward distinction between acquiescence and affirmative consent? A smile?
Nice sexism there with your use of “men” vs “girls”.
[citation needed]
I would say that if you look at CDC numbers there is an epidemic of sexual assaults throughout society – one in six women will experience completed or attempted rape in their lifetime according to those numbers, as well as a nontrivial number of men – and my big concern with the current wave of activism is that by so heavily stressing the college context they are underplaying sexual assaults everywhere else.
This paragraph makes no sense. An accuser still has to demonstrate that a crime occurred under an affirmative consent standard (through witness and victim testimony, physical evidence, the same kinds of evidence that we use for every other crime). The accused just can’t use “well they didn’t say no so they must have wanted it” as a defense.
Given your own story, I would point out that an impatient “Are you going to kiss me already?” is affirmative consent to being kissed, so I don’t think affirmative consent was your problem there.
Oh, the part that I forgot to add! Actually, it can be a very hard thing for women, men, girls, boys, or anyone else to say “no”. For instance, literally freezing up and being unable to speak is not an uncommon response to a frightening or traumatic situation (for people of any gender). Sometimes people don’t say no because they have been threatened to get compliance, or fear other kinds of harm (e.g. the aggressor is your landlord and you’re afraid they will evict you, the aggressor is your boss who controls whether you have a job).
Tangentially related: For obvious reasons this keeps being characterized as a men-assaulting-women thing, but the high-profile case that is getting my university investigated by the government (both accuser and accused have claimed that the university botched aspects of the case) and has been all over the student paper is a case where both of the involved parties are men.
Yea thats really true. Btw I responded to your earlier message below. I’m not sure I replied to your response directly, but I meant to.
Can I just say that I don’t really believe this story? Its incredibly hard for a woman to bring rape charges even with a rape kit since the man can always insist that it was consensual. Colleges very rarely expel students for any infraction, much less force them off campus, absent some very serious showing of major physical damage to persons or property. IChrist a guy who was selling drugs broke down the door between his room and that of the women next door in a drunken fit and they barely suspended him for a semester in my college days. ‘ve been to college, I’ve lived in a college town my entire life, and I’ve followed the various rape cases in which college aged women have tried to pursue justice. The chances that this poster was kicked out of his dorm for nothing more than kissing a girl who initiated the contact and who “left smiling” i.e. happilly are less than zero. Maybe he roughed her up and she left sobbing but he recalls it as smiling but absent some amazing show of violence or a sociopathic level of deceit on her part (and some pretty fancy testimony) how likely is this story to be true?
I did see a recent true story of lies about sexual assault, however–it was embedded in one of the links earlier today about academic fraud. In the story the whistleblower was accused by two male graduate students, used as proxies by the fraudulent academic, of sexual harassment with a racist component. This was quickly proved to be a lie and the charges were dismissed. But I don’t see a lot of huffing and puffing about the propensity of male indian graduate students to lie about sexual assault.
Yeah, this seems highly unlikely.
Actually, I was. Yes, the university did put me up in a room by myself in a dorm across campus for 3 days while they adjudicated, but then after that 3 days, I was on my own.
So is your argument that in the event of, lets call it, “rape rape” that the accused rapist should be left on the same hall with his victim? So if one male roomate accuses the other male roomate of sexually assaulting him a la boys on the football team in NJ that the college should be forbidden from separating the two until the case has been adjudicated?
Aimai, It happened.
I’ve been trying to type out ‘boys are capable of lying for petty and/or vindictive reasons,’ but danged if it doesn’t keep autocorrecting to ‘boys will be boys.’
That automatic position w/r/t victims is part of the problem, no?
I know–I’m uncomfortable saying it but still. What are the odds? False accusations do happen–in fact I pointed to one in my own post. But the conclusion drawn from this particular false accusation is incorrect. The system worked–didn’t it? The girl, by Bren’s account, falsley accused him and her case was adjudicated and Bren was found not guilty and resumed his college career. He doesn’t say what happened to her and its unclear that she didn’t pay a penalty for bringing a false accusation. But at any rate the only bad thing that happened to him is that he ended up living off campus for a portion of the semester when he’d paid for his dorm room.
Yep. Not exactly the picture of poor boy whose life was ruined by some malicious lying succubus.
“Less than zero”?
You have an amazing amount of certainty abt an incident u didn’t witness. Must be cool to never 2nd guess yourself.
I agree that there is too much focus on the college environment as some unique hot bead of sexual violence and too little emphasis on sexual violence outside of college.
I don’t think that was sexist, but sure, I should have used women. I think the confusion was I was talking about a college situation so they’re all still kind of kids in a way.
Yes, I know I did not have that problem per se. The point I was trying to make was that a guy can find himself branded a rapist and have his life destroyed even when he did get affirmative consent, and even when there was no sex.
And I still believe I am right about the burden of proof. When you add a heightened consent standard with a preponderance of the evidence standard, it really does put the accused in a position where he must prove his innocence.
Oh–you are getting all your information from the Washington Examiner? Why didn’t you say so! Tht is certainly an unimpeachable source.
Uh… no. That’s not what a preponderance is, your bare assertions to the contrary not withstanding. The party pursuing the complaint still has to show that there is more evidence than not that the attack occurred.
Look, I know the preponderance thing is a fun MRA talking point because ‘burden of proof’ is a term of art which means you’ve got a lot more wiggle room when dealing with a your average asshole off the street to just misconstrue or outright lie about its meaning (it works less well when the comments regulary fill up with lawyers, fyi) but it only takes a teeny tiny look at the top of the page to notice this post is about affirmative consent, and that nobody mentioned burden of proof before you did, which is kind of a huge huge huge red flag that you’re not arguing in good faith.
How did the burden of proof become conflated with affirmative consent? MRAs and antifeminists deliberately muddying the waters?
On a side note I’m absolutely astonished that no one on either side has brought up Antioch College yet. Or perhaps that was just another bit of the 90s that I hallucinated.
Nope, I’m pretty sure I also remember that.
I was thinking I could totally play MRA Bingo with Bren’s comment and win. Thanks for taking it apart.
I think this woman lying about her experience with you is separate from the yes/no issue. She was out to get you, and shame on her. Your university was too quick to act without all the facts, and shame on them. Both should be ostracized for the rest of their existence.
But that wasn’t a yes/no issue. It was a lying/not lying issue.
Yes, how would the “affirmative consent” rule have changed what happened to Bren? He claims he had “affirmative consent” and also that “nothing happened because there was no penetration.” And he did have “affirmative consent” since he claims she said “kiss me already” and that the only thing they did was kiss. The problems he had came afterwards and would have been in no way affected by the consent rule. What he wants-and actually what he got–was a defense that looked something like “her clothes weren’t torn, there is no evidence of sexual contact, and so she’s lying. Nothing happened.” He had his due process and he wasn’t expelled–he was just removed from campus housing something that could well have happened for other reasons or adjacent reasons. I’m not seeing how “the system” failed Bren. Anyone can be accused falsely and this is America–anyone can sue anyone else at any time. The accusation really doesn’t make a difference here and the standards of proof didn’t make a difference.
I’d like to point out that I reviewed Bren’s story and it boils down to this:
Whatever happened between him and the girl he
was accused
was moved out of their shared living space temporarily
was found not to have been so culpable that he was disciplined *at all*
but was asked or had to move off campus and the college didn’t refund the remaining portion of his dorm rent
so his parents paid double for a brief period like the remainder of the semester.
Also: people who don’t know him personally, or did back then, still remember the accusation and gossip about it.
A similar horror story has never before been visited on any student, ever: no one has ever been forced out of their dorm for a portion of the semester without being reimbursed, no one has ever been gossiped about by strangers, no one has ever had rumors follow them about previous sexual encounters in college. And all of this can be classified as “ruining” brens life and also is because of faulty college due process issues.
I’m very uncomfortable with this “deal with it” vibe. Bren’s encounter isn’t really applicable with consent issues, but that doesn’t mean he should be just made to suck it up. Both offending parties- the student and the university- should be made appropriate pariahs….legally, socially, etc.
What did the university do wrong other than perhaps not reimburse his prorated room charge?
That.
And the accusing student should’ve been punished by up to and including expulsion.
We don’t know that she wasn’t punished or appropriately sanctioned. Bren doesn’t know. And the University did nothing wrong: they received a complaint and they acted on it appropriately. What is to sanction?
There are obvious and compelling policy reasons why we want to be really, really, really, really sure that a victim is lying before punishing him or her.
And the accusing student should’ve been punished by up to and including expulsion.
Not necessarily. The finding could have been that there was insufficient evidence her account was truthful to punish our narrator, but also insufficient evidence that her statement wasn’t truthful to punish her.
You could argue that since the university was (appropriately) erring on the side of caution and removing an accused offender from a dorm filled with female teenagers, it should have reimbursed his prorated room charge.
But other than that, yeah. It seems like everything worked exactly like it should if he’s telling the truth.
Yeah, I’ll fully concede that if this actually happened the college school should have reimbursed him for tuition that’s pretty much he extent of what they could have done.
It’s kind of like with the Duke lacrosse. While yes, large chunks of that were horrible and should not have been allowed to happen, the story ends with the innocents exonerated and the guilty parties punished. In the annals of stories of the falsely accused it is not exactly the worst.
Careful — I’m reliably informed that mentioning the Duke lacrosse rape hoax is not permitted on here.
http://media.tumblr.com/tumblr_lvggt91zri1qeaqak.jpg
I’ve got a kid in college right now,a nd we just finished paying for an expensive private highschool education. You’d think that highschools and colleges would be very punctilious about refunding money if your child is injured or can’t complete the semester or gets sick and needs an accommodation but you’d be wrong. Basically all these places require you, the paying parent, to purchase an insurance policy to cover situations in which your child can’t use all the stuff you are paying for. Colleges and highschools never refund money you’ve already paid. It has nothing to do with the rape charges or the unfairness of things. Try getting your dorm costs back after you were hit in the head and got a concussion in your sports event and you needed to go back home for treatment? Try being raped, forced to attend classes and dorm meetings with your rapist, and then needing to go home to get psychiatric care? The college will not refund your money because you had to withdraw or live elsewhere.
No, I get your point, which is why I said mine tentatively. I think it would be perfectly appropriate for a college to say that an “exonerated” accused offender is just too dangerous to have in a co-ed dorm, for both safety and liability reasons. (For the accused offender as well — you don’t know what friends the alleged victim is going to have that might come after the accused.)
I just think that it is arguable that this decision is more in the control of the university, as opposed to a scenario where someone gets sick or injured and can’t complete the term.
(I should note that Mrs. Denverite has served on her school’s disciplinary tribunal — only cheating and drugs/alcohol as far as I know — and when they suspend or expel a student, they always let them complete the term so they won’t have to cut a check. Obviously you can’t really do that if you’re concerned about safety.)
I assume that these are entirely different entitites and different rules apply. The police/admin functions who removed him from the dorm follow one set of rules and the dorm contract follows another. Universities are complex organizations and not particularly wedded to or capable of some kind of overarching “justice.” I’m surprised that anyone thinks they are. They are byzantine and archaic at the best of times.
‘Inverting the burden of proof’ was the big MRA talking point from the last debate over maybe actually doing something about campus assaults, and our friend appears to have forgotten that he is muddying the waters regarding affirmative consent rather than standards of proof.
No, actually bren says that all they did was “make out”, then follows with a complaint that seems to meant to be relevant to his story as well:
Best I can figure from this is that the girl in the story ‘failed’ to say “no,” that bren went ahead to some further level of making out (whatever that means…2nd base?), and yet somehow managed to convince her to smile before leaving despite the whole encounter having gone awry.
In bren’s last sentence – the one seeming to wish his partner had actually just said no to him – it suddenly seemed to make sense why the college punished him both rapidly, and without recompense. Notice, bren never actually said the accusal was false, did he?… Said it was “bullshit” and that some girls lie, but not that he was actually falsely accused.
Let’s not muddy the argument with this problematic story. Insofar as it is consistent, it is not pretty for bren’s reliability as a witness.
Citizen, I did nothing wrong. I can’t say that her specific accusation was false, because I was denied the right to know what the accusation was. I can say that I did not commit any form of sexual assault whatsoever.
As long as we’re comparing anecdata, a cousin of mine sexuality assaulted a girl in college, got expelled for it, got accepted to some kind of independent study-abroad program in Germany for the rest of the school year, was accepted into an equally prestigious university the following year, and now works for a nice little design company in California. All of this took place entirely within the campus security system, which didn’t make any attempt to give my cousin due process rights as they would have been applied if his accuser had gone to the police instead, but nobody “blacklisted” him, neither in the academic nor the business world, and honestly I think (hope) that he “learned his lesson”, so no harm done.
I’m all in favor of the California law and would very much like to see its kind spread, but what I haven’t seen much in commentary about it (pro or con) is discussions of the nature of sexual assailants. As I recall, most rapists are quite happy to admit to what they do provided you don’t use the word “rape”, and the overwhelming majority of them are serial rapists who repeatedly target vulnerable girls and women. Assuming that’s true, it takes a lot of the wind out of the sails of arguments about potentially life altering penalties for “ambiguous situations”.
One ambiguous situation, that can happen, especially between people who are drinking heavily (and maybe aren’t that good at it yet). But two or three ambiguous situations that the ladies involved feel compelled to report? That’s a pattern that due process should be able to identify without any ambiguity, and that seems like the biggest benefit of affirmative consent: smoking out the guys who genuinely don’t care about consent.
The issue of intoxication can be a more substantial problem when, as is the case here in Montana, you can not give legal consent if you are legally intoxicated. That said, I strongly support affirmative consent laws, which seems a very low threshold to me.
Right–it seems like a low threshold to me. I don’t even see what all the fuss is about.
Not to be too glib, but you could always just not have sex.
Right, anti-choice wingnuts?
What is the definition of legally intoxicated for these purposes?
Even if legally intoxicated is set at too low a threshold–one glass of wine with dinner, say–if we believe that this doesn’t incapacitate the woman as to consent what’s the problem? She consents and has sex and doesn’t report it later as a rape. Or she doesn’t consent, had the one glass of wine, and she reports the rape because it was non consensual. The idea that there are tons of women out there who are basically just lying in wait to have sex with a guy so that they can complain later it was rape just flies in the face of reality.
It’s frivolous fun, just like abortions.
Here in Montana, it is the same as for DUI (about 3 beers or a couple of glasses of wine in an hour), which seems a bit low to me. Someone who is obviously drunk is a different matter altogether.
I’m not a Montana lawyer, but as I read MCA 45-5-501 and 45-5-211, intoxication invalidates any purported “consent” if the victim was “incapacitated” meaning “unable to make a reasonable judgment as to the nature or the harmfulness of the conduct”.
I could be wrong, as IANAL, but my understanding is that “incapacitated” in this case means meeting the standard for DUI. At least that is what the university here was pushing in light a a settlement with the DOJ.
Ok, so 2 things. Sexuality is weird and will never be turned into some simple arithmetic. On the other hand, if a guy keeps in mind what would happen if the gal had a gun in her hand in deciding whether she wants to or not that is probably a pretty good test for knowing if she consents or not.
You could try only to have sex with people you know really well who are mentally and emotionally stable. But that might prevent a large proportion of young men from having sex at all or having sex when they want it. Surprisingly lots of people actually do with less sex than they want because they can’t find a willing partner. This is not just a masculine problem. Its only a “problem” for guys because of cultural notions that some years, especially the college years, should be full of sexual fun and frolic and the sowing of wild oats. Women, historically, have not had this freedom and also not had this sense of entitlement. Sexuality isn’t just weird–it has historically been extremely dangerous for women and especially for college age women in the hothouse world of the University.
I think the entire notion that men will get cockblocked by this new standard and that this is horrible–which, by the way, is already a rumor/sob story circulating in the manosphere–is itself a relic of the extreme sexism of these discussions. There are no women, in these stories, who would affirmatively like to have sex with these guys and for whom all this stuff is completely besides the point. The view of women in these stories is stuck back in the 1950’s with the women all needing to be seduced or cozened or tricked or drugged into an unwilling compliance. Post birth control why is that still thought to be the case? Mothers of boys in highschool will tell you–though this is as much a myth as anything–that the girls they know are more ready for sex than the boys and actively pursue the boys. Does this suddenly stop in college?
I was in an abusive relationship in college with a girl who, on one occasion, pressured me into sex that I was really not into having but never gave a blatant no. And why should I? We were in a relationship together, that was all she needed. (A terrible relationship, but a relationship.) Decade+ later and I still struggle with that wrong, internally.
I wish I dealt with more of a consent-first sexual paradigm back then, to know what I know now. That’s what’s fruitful to me about this shift, regardless of any legalities. It’s sometimes too easy to cheerily claim that “this helps everybody!,” but: this helps everybody.
I am very, very, sorry that this happened to you. I think the sexism of our society is pervasive and it can be very hard to be a guy and not want sex with person X when so much of your social world is pressuring you, and she may be pressuring you, to treat sex as no big deal. There’s a lot of pressure of different kinds on young men and women to have sex, to have sex right now with someone specific, or to attach to sexual relations a kind of permanence (or impermanence) that they don’t necessarily have for both parties. Its embarrassing to be a virgin, and it can be embarrassing and difficult to say no to people who pressure you into a relationship or into sex or both when it isn’t exactly what you want.
As someone with a similar story, I couldn’t agree more. This is a move towards better justice, but also a move toward changing our cultural expectations. A lot of people who should know better are acting like the mores and standards they were raised with are immutable facts of life.
Man, preach it.
(I know, right? It’s almost as though my sunny disposition drives them away.)
I want someone to explain how an affirmative consent standard could possibly lead to an innocent person going to prison in a way where the old standard does not.
1) you need a victim. If the person will testify that they consented no jury will convict.
2) In the mythical “set-up” scenario the “victim” could easily give affirmative consent and lie later. The old standard would be no help.
So please explain how it could go wrong.
Many of the Shulevich cases involved accusations from estranged ex-partners, gay and straight. Just as people don’t always tell the truth in nasty divorces, they don’t always tell the truth in nasty breakups.
To the extent that you shift the burden of proof you make all accusations – true and false – more difficult to counter. It’s not at all difficult to construct scenarios where this occurs; there are more than 20 cases, as per her article, where there is a highly credible example of precisely this outcome. Of course, what we don’t have is any sense of how often such outcomes occur. But you weren’t asking that; you were asking a question where there is absolutely an answer.
Yeah, but one of the reasons that people break up in the first place (have nasty divorces) is often that one party was violating the other’s boundaries, raping, or beating them. That’s why the break up happens. So you’d have to expect a high proportion of perfectly true accusations to be made at the point when the couple has broken up and there may be something at stake: assets,children, public vindication. But the pendulum has swung so far against women as accusers in these things, thanks to MRA agitation and a heavy working of the refs, that women who suspect their husbands are sexually abusing their children–women who may have left the marriage because of child abuse–are now counseled not even to bring it up during the divorce/custody hearings because of popular assumptions that people lie during divorces.
To the extent that you shift the burden of proof
This is nothing whatever to do with the burden of proof.
Can you go into more detail on the shifting of the burden of proof? I don’t see a shift here. You still end up with the same a said/b said dynamic. Only the script changes.
Instead of “B didn’t say no” it becomes “B said yes or did action x that shows B consented.”
Does that indicate a change in the burden of proof?
Like Scott, I have no firm views on the California standards, but in general, any litigator will tell you that by introducing a requirement that the accused show, in an administrative hearing, that the complainant did something “affirmatively” and “unambiguously,” you’ve effectively flipped the burden in cases where the basic facts aren’t in dispute, but reasonable people might interpret the facts differently. Yes, if the accused and the accuser tell sharply different stories about who did what and said what, the California test is irrelevant. And maybe that’s 99% of cases, who knows. But imagine the accuser and the accused agree they both were drunk, and that the accuser just said, “You shouldn’t do this, you have a girlfriend.” Under a traditional standard, it could be a close case if the accused said he thought the accuser was objecting in principle but not in fact; but the accused probably loses under the affirmative consent test.
If both people were drunk, the case never goes to trial because the prosecutor would have to prosecute both parties (you can’t give consent while drunk) and would look really fucking dumb.
I am looking, right now, at a news story about a prosecutor in Pennsylvania charging a 10-year-old as an adult.
I conclude that the fear of looking really fucking dumb is not sufficient to deter prosecutors from any course of conduct which they wish to pursue.
Without looking the news story up myself, I’m going to guess that the 10-year-old is not white.
You guessed wrong.
http://wnep.com/2014/10/13/10-year-old-boy-charged-with-homicide-of-90-year-old-woman/
Thanks for the link.
That’s a pretty fucked-up thing the kid did, but charging him as an adult is unjustifiable. Wasn’t Pennsylvania caught up in that scandal of judges sending juveniles away on slim pretexts for kickbacks from private penal institutions, or was that just New York State?
Actually, he’s white.
Edit: shoulda refreshed before posting.
Thanks for the link in any case.
introducing a requirement that the accused show, in an administrative hearing, that the complainant did something “affirmatively” and “unambiguously,”
You’ve shifted the burden of proof by the way you phrased your sentence. in the actual hearing, however, the party bringing the charges would have the burden of proving lack of consent.
It’s not necessarily shifting the burden, it’s broadening the class of cases where the facts will allow the prosecution to met that burden based on reasonable inferences- especially under the PPE standard that is likely to be applied in these cases. This means that it also broadens the class of cases that a reasonable prosecutor (or hearing officer) think they can bring even if they can’t prove it. I agree it is somewhat odd to say that a prosecutor will have to meet their burden to prove lack of affirmative consent.
But say the standard was “behaviors, statements, or expressions that a reasonable person would understand as manifestations of non-consent.” The victim testifies she added the last bit because she was scared and trying to find an excuse that she thought the guy would accept. I think the jury under a civil burden of proof can still find sexual assault under those facts and that standard.
[…] Jessica Valenti says it’s not going to make relationships that complicated. LGM looks at some legal issues. That blog also tackles another debate over […]
Murc, that’s a savvy take except … not. The Cal law isn’t about criminal cases and universities don’t have the discretion to say you were drunk, go away woman. They will have to decide what to do in hard cases. Not to say they will all be hard.
[…] Jessica Valenti says it’s not going to make relationships that complicated. LGM looks at some legal issues. That blog also tackles another debate over […]
Rea, under a preponderance standard and undisputed facts, the party with the stricter legal burden effectively has the burden of persuasion as well. The accuser doesn’t have to allege lack of consent per se, s/he can allege that the facts show a lack of affirmative, unambiguous consent. The accused then has to argue yes it was affirmative, no it wasn’t ambiguous. The Cal test really has no bite at all unless it puts the onus of persuasion on the accused when the basic facts are agreed but subject to interpretation. Which could be good!
So it seems like defenses of the standard mainly operate on 2 premises:
1. It’s fine if the stakes are very low (and we’re calling expulsion from college low stakes)
2. we don’t really have any idea what this standard really even is, so it’s likely to just end up being the status quo, so it’s fine.
(3. if you’re Ezra Klein: notwithstanding the above, the confusion that passage of this rule will create will create a climate of fear around sex in men at college, which would be Teh Awesome, so this law would be Teh Awesome).
It’s fine as far as it goes. It’s not much of a defense, though.