"Affirmative Consent" Law to Address Campus Assaults

<p>We already have laws that outlaw sex with incapacitated partners who are incapable of consenting. I fully support those laws. And incapacitated doesn’t mean a little buzzed. </p>

<p>I tend to agree in theory </p>

<p>As I read this, if a man and woman get drunk together and have sex, they both would be guilty of sexual assault because neither one obtained a sober affirmative consent. Yeah, that makes sense.</p>

<p>Nope, you’ve got the standard wrong. Under California law, at least, the victim has to be so intoxicated that he/she is either (1) unconscious; or (2) physically not capable of resisting; or (3) so mentally out of it he or she cannot perceive what is happening. If both partners have reached this level of impairment, it would be impossible for them to have sex. That’s the whole point. So you don’t have to worry about your hypothetical.</p>

<p>In addition, in order for it to be sexual assault, the accused must know of the victim’s impairment or the circumstances must be such that the reasonably should have known of the victim’s impairment.</p>

<p>In short, we’re talking about a man who knows a woman has passed out and then has sex with her. In curious, Inquisitive, do you think men should be able to have sex with women who are passed out drunk on the floor? Do you really disagree with this? </p>

<p>If only it were that clear; then virtually no-one would disagree. Although I do expect there would be questions raised about exactly why all of these passed out women were lying around at parties or wherever.The fact is that most of the controversial cases do not include women who were unconscious at the time.</p>

<p>notelling,</p>

<p>Where in the world did you get the idea that I, or anyone else for that matter, would think men should be able to have sex with unconscious women? What a repulsive and repugnant idea. You could not possibly have reasonably gotten that from my post. </p>

<p>As for your “legal” analysis of the standard for affirmative consent, you are the one who has the standard wrong. Actually, you are quoting the wrong standard. My hypothetical was not about the standard for legal capacity to give consent, it was instead about the proposed requirement for obtaining affirmative consent prior to having sexual relations. In my hypothetical, the man and the woman both got drunk and had sex. There was no affirmative consent given or requested by either (presumably because they were both intoxicated–not to the level of being incapable of giving consent mind you, just so intoxicated that their inhibitions were diminished and they were thinking more about having sex than the legal consequences of doing so). </p>

<p>Sorry, Inquisitive, I thought you were replying to my post number 20 which referenced existing California law. My mistake. Please accept my apology.</p>

<p>This issue seems to be turning into a be careful what you wish for situation, which would be unfortunate for basic human relationships. </p>

<p>It was not more than just a few years ago that there was this mantra of keep the government out of the bedroom and that sexual orientation and sexual activity were no one else’s business. Kind of hard not to agree with that. Now, the cry is for the government to be regulating behavior in the bedroom in college. Very strange, as the argument of government out of bedroom seems to have been thrown by the wayside - next step, same stuff for adults off campus. Why not? These are legal adults on campus, so extending sexual interaction regulation to all adults is not far fetched. I know nothing in government, which tries to limit its reach. That would be an unfortunate outcome. I wonder more and more if people are really thinking far enough ahead for what they are asking.</p>

<p>Do we have an app for this yet?
Waivers, quit-claims, boiler plate contracts for sexual congress … possibilities are intriguing.</p>

<p>Good idea. Otherwise we just have a “He said. She said,” over whether she said yes. Put me down with those who fail to understand why colleges need a separate set of sex rules. What happens after graduation?</p>

<p>The app needs to have a sobriety test built in. Can’t forget that!</p>

<p>^^ After graduation? They (males and females) hit the real world and learn the hard way that not everything is color-by-number, and they get blindsided in multiple ways. </p>

<p>I completely agree with @poetgrl that “She did not say no” is not a valid defense. I would add that I am okay with it if it is a valid defense for any other crime. In all cases, it is obviously stupid.</p>

<p>I also do not understand the argument that we should not have government interference. Typically, a key role of government is to protect citizens from violence. Historically, this was one view that had bipartisan support.</p>

<p>Before the intervention of government into these types of situations, it was more likely that a raped woman’s family
would deal with reprisals against the perpetrator privately. This certainly reduced legal costs, and made justice a lot more swift, but I doubt that many of us want a return to that form of justice. </p>

<p>I understand that this may not be a great solution, but the colleges do have a responsibility to keep students safe and campus and to remove violent criminals from campus. </p>

<p>The liberals want to give everyone permission slips, and the conservatives want to give every student a loaded gun to carry. Personally, I prefer the former, but think that even the latter is better than the “ignore the problem or wink at it” solutions that have been in place until recently. What I find most offensive are the people who want to make rape impossible to prosecute, but also want to prevent young women from being able to protect themselves. </p>

<p>If you want government involved, then permission slips are okay. If you want government out of our lives, then students should be able to carry guns to protect themselves. By trying to have it both ways and offering no better solution, the maintain the status quo agenda that some people have becomes clear. </p>

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<p>A role of government is protecting from violence, yes. Agreed.</p>

<p>However, trying to regulate different interpretations of what was said, which then leads to one party saying violence occurred afterwards is vastly different. Most importantly, it is not protection.</p>

<p>Unfortunately, nothing here in the law will stop anything, as intended. All the law will do is shift the argument to whether particular words were said. One party will still say yes, and the other will say no. There is no proactive protection anywhere. It is all AFTER the fact.</p>

<p>If there is one positive outcome, it will be a lot more court cases. But, increased cases with more he said, she said for specific words spoken and specific acknowledgements change nothing UNLESS there is a recording of the conversation. </p>

<p>The end result is this law will give women a false sense of being protected, when they drink. There is no actual protection here at all.</p>

<p>I’m amused by the word “unambiguous” consent…sex is rarely “unambiguous” in action - unless it’s rape…oh wait we have criminal laws that cover that. So is having sex with someone passed out. And I totally agree awcntdb - this “law” changes nothing without some teeth, like written or videotaped consent. I think it’s already established that women now seem to want to be protected. It seems protected even from their own actions like crawling in bed with someone they don’t want to have sex with in a few national cases and generally because they drank too much, The law is clear that if a man commits forcible sex it’s rape so what is this all about - protection - that’s the only thing I can opine…why after fighting tooth and nail for thirty years for equal rights the young women now want protection I can’t fathom which is half my problem with all this going on. And awcntdb is correct this changes nothing about who said what without written or video proof. It’s a “law” without teeth, that is virtually unenforceable. Colleges are left to decide if a nod or an action is “consent” which is no different than yesterday.</p>

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<p>The colleges, the government, local authorities, the criminal justice system could go a long, long way to protecting kids on campuses by enforcing existing drinking laws whether or not you think the age is too high or not. There would be much more unnecessary sex by males and females if the kids weren’t drinking so much. We don’t need anyone to determine what constitutes happy sex, we need to slow down the epidemic of young naive people drinking themselves sh*t-faced and doing stupid things. You can’t regulate stupidity. </p>

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<p>Permission slips strike me, as just kicking the can down the road.</p>

<p>Permissions slips are fine, as long as the female cannot claim I was drunk when I signed the permission slip or pressed the yes button on the app. And it is also believed even the male says she was sober when she signed or pressed yes. But, we know this will never be the case.</p>

<p>See the problem here - a law can never regulate the human state of mind claimed to be in when an act was taken. </p>

<p>Until a law forces authorities to make sure males and females who are drinking, even just one drink, cannot hang out together, none of this will be solved by any law. You cannot give blanket permission to do something without also giving blanket permission for the good and bad things, which can happen. It is impossible to regulate bad consequences out of existence; it just is. </p>

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<p>I know it’s unpopular but this seems like the obvious answer to me to most of society’s woes. </p>

<p>Yes, let’s allow these drunk individuals to protect themselves with firearms. If the government won’t do it, we’ll do it ourselves!</p>

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<p>How about the simpler, much easier solution? How about do not do stupid things like drink and be alone anywhere at anytime with a guy and his friends, meaning any guy, even a boyfriend and his friends, simply because both the male and female judgements are impaired. Same goes for guys - do not be alone at anytime with a girl who has been drinking, period.</p>

<p>But, no. The above is just too logical. People want to give students open permission to do dumb stuff and then no responsibility if something bad happens when everyone is useless to themselves. Talk about a silly way to train kids - that their stupid, irresponsible behavior should have no bad consequences attached. Sorry, but outside of college, the world does not work that way. </p>

<p>Vlad that is just silly. Kids are having sex…sometimes happily, sometimes unhappily. Rape is rape. Drinking too much and having sex that you probably wouldn’t have had if you weren’t drinking is not a crime…it is stupidity. And that goes equally for men and women. Trying to legislate stupid sex on college campuses is ridiculous. College trying to figure out who was drunker or stupider is an exercise in futility. Does this law only cover campus housing in California (and lawns and anywhere else kids can figure out where to have sex)?</p>