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<p>Which is probably a better legal term than incapacitated as it covers people with limited mental capabilities, However, for college students I think incapacitated is a clearer visual that people can understand in the context of sexual assault or rape. </p>
<p>^^ Agreed as a visual, but that train may have already left the station going in the wrong direction.</p>
<p>The term incapacitation seems to have been defined downwards to include conditions, which do not qualify as incapacitated at all. For example, I get this sense that saying “I was drinking a little bit” or “I was drunk” are now automatically translated into “I was incapacitated to some degree (mentally or physically or both) and could not make such decisions,” which are not even close to the same things, since all three are completely different legal states and physical states. </p>
<p>However, as soon as the word assault or rape is used, I believe many students and people advising students conflate all three states into meaning some level of incapacitation, which paints the picture of inability to exercise judgment over the entire situation.</p>
<p>Actually, Romani, Michigan has a much NARROWER definition of sexual assault against incapacitated persons than does California. I’ve quoted the relevant portion of the jury instruction below. You can find it on the Michigan Supreme Court’s website. Under Michigan law, for an act to be sexual assault against a drunk person who did not resist, the prosecutor would have to prove one of two things: (1) the prosecutor would have to prove that the victim was mentally incapacitated (ie unable to understand or control what he or she was doing) because of alcohol or drugs that the victim ingested WITHOUT THE VICTIM’S CONSENT. In other words, if the victim voluntarily ingested the alcohol, that provision does not apply. </p>
<p>Alternatively, the prosecutor must prove that the victim was “physically helpless,” (because of alcohol or something else), which is defined as “unconscious, asleep or physically unable to communicate” that he/she did not want to participate in the act.</p>
<p>Note also that the prosecutor must prove that the accused knew or should have known of the victim’s incapacitation.</p>
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<p>If you think this does not accurately state the law in Michigan, take it up with the Michigan Supreme Court, not with me. </p>
<p>“No means no” is a phrase specifically designed to counteract the idea that “well, she said no but REALLY she wanted it.” To the extent that it hasn’t worked because some people aren’t getting the message, we need to give the message more forcefully. To the extent that it hasn’t worked because some people are horrible rapists who don’t care about consent, there’s not much we can do about that aside from give safety tips to potential victims and punish the culprits when we can. None of this is a failure of the phrase.</p>
<p>The question I have is what this new law would be designed to protect us from. Whether or not it is smart to get drunk to the point of incapacity, I want my government to have laws protecting people from being sexually assaulted when incapable of giving or refusing consent. But why exactly would I need a law protecting me from having to say “no”? The idea that adults need to be protected from the awkwardness of having to speak up for themselves is infantilizing.</p>
<p>But really, I don’t think that’s the purpose behind this proposal. I think the purpose behind this proposal is to make it easier to get rape convictions by setting the bar so low that the bigger evidentiary issues cease to matter. And while it might, in fact, have that effect, the principle behind it is totally incoherent. We could also get more rape convictions if we made a law that anyone who hadn’t done ten jumping jacks before getting into bed with his partner was a rapist, too, but that wouldn’t be fair, and neither is this. </p>
<p>That being said, according to the article, non-verbal consent still counts as affirmative consent, so I’m not actually sure how this would really change the equation all that much. We’ll still be left with he-said she-said scenarios in which he says her behavior constituted consent and she says it didn’t. Alternatively, we’ll still be left with much less ambiguous cases in which colleges or prosecutors protect a star athlete or favorite son in spite of evidence. There are very few instances in which I can see affirmative consent, as it has been defined here, really coming into play.</p>
<p>Remember folks, we’re talking about a proposal in California that is meant to provide guidance to colleges. Although I agree that if it indeed becomes law, who is to say that the new standard/requirement won’t be imposed by prosecutors on the public at large?</p>
<p>^^ Exactly. And that is time to discuss it fully and openly and to possibly stop it if necessary, i.e., before it becomes a law. After something is law, it is way more difficult to effect meaningful change.</p>
<p>^^It’s only California and it applies only to colleges and universities including I think community colleges in California. But I did think it’s indicative of the brain-dead thinking that is permeating our governmental systems these days. </p>
<p>^^ Understood that it is just CA. But, that is for now. Too much follow the bandwagon going on to not think it could not easily spread to other states, especially in an election year. Some issues are better nipped in the bud.</p>
<p>Here is an article that touches on many points discussed here:</p>
<p><a href=“http://townhall.com/columnists/charlottehays/2014/08/15/affirmative-consent-laws-create-more-confusion-and-problems-than-they-would-solve-n1879017/page/full”>http://townhall.com/columnists/charlottehays/2014/08/15/affirmative-consent-laws-create-more-confusion-and-problems-than-they-would-solve-n1879017/page/full</a></p>
<p>The author points out, quite accurately in my view, that the law does NOT even define what affirmative consent actually is. Meaning that it is really defined between the two people involved. Therefore, it is no different that the disagreements in language interpretation, which exist now. </p>
<p>Pull quotes:</p>
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<p>yet…</p>
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<p>The scenario above really bugs me. I think what if I interview someone for a job in the company. I think she is great. I tell her she is hired. She is thrilled. We reach a deal, and we sign the contract. Then I change my mind for whatever reason. However, I do not find the courage or will to inform the new hire that I have changed my mind. As scheduled, she shows up to work the next day; takes her desk and works thru the day; I am silent all day; yet, I decide to charge her with trespassing after her first day. The way I see it, if I did that, it is just as wrong as the above scenario if the female gives consent, stays silent throughout, then charges rape a day or two or three later. There is something seriously wrong if that is allowed to occur under this law or any statue. </p>
<p>My dear State of CA tries to be ahead of the curve when it comes to legislating and codifying common sense. Maybe we just have less of this common sense and are in need of additional adult oversight, or maybe CA just likes to fight windmills.</p>
<p>We have Silicon Valley at our disposal. Maybe Facebook could include a new function where prior to each intimate or intended intimate encounter the participating or potentially participating parties declare online and to a legal body what their intentions are and that they are, as of the signing of this FB agreement - of sound mind and body. Of course, what happens if after signing the agreement they make a toast or a toke. Is the agreement then nullified? What if one of the parties determines the other has - oh let’s say - horrifically bad breath - and then decides eww…don’t want to do this. Are they then obligated to proceed because of the signed agreement? Would the agreement then be a contract which must be fulfilled? Oh the crazy loops of logic (or nonsense) one could traverse are endless. </p>
<p>Sorry, when one sees SILLY, one needs to point out the obvious.</p>
<p>Sigh…personally, I found it best to teach common sense and self preservation skills from the time they came home from the delivery ward.</p>
<p>maybe colleges should start a new ad campaign…</p>
<p>“send your daughters here, only 1 in 4 of them will be raped… by the way, we pay someone hundreds of thousands of dollars to run this rape factory”</p>
<p>is that the problem?</p>
<p>why is tax money going to support institutions where 25% of the students get raped?</p>
<p>^^ There is no data printed anywhere at anytime, which supports and validates that “1 in 4” females are raped in college. It is a disservice to all future college students who may read that, with the effect of bastardizing their view of college before they get there.</p>
<p>On a larger note, it does make it difficult to have a discussion when false statistics are used in support of any position. It is made doubly difficult when politicians repeat such stats to the uninformed, in order to advance certain advocacy memes. And in reality, it weakens the case of the advocacy groups using such stats, even if it seems helpful in the short-term. People do catch on.</p>
<p><a href=“One in Five? The White House's Questionable Sexual Assault Data”>http://www.forbes.com/sites/realspin/2014/05/07/one-in-five-the-white-houses-questionable-sexual-assault-data/</a></p>
<p>Pull-Quote:</p>
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<p>The statistics were quoted to be 1 in 6 when I was in college in the 1980s. The University made a very strong effort to get the message out to the male students that “no means NO”. So, rapes went up?</p>
<p>A higher number doesn’t mean rapes went up. It means that A- we’ve gotten better about getting students to report rapes and B- we better understand the extent of the problem. Rapes have actually gone down. </p>
<p>@frugaldoctor - Even 1-in-6 females being raped is not supported by any data either. Think about it. If 1-in-6 were actually raped, that is a crime wave of hellish proportions compared to any other crime. </p>
<p>Not sure what the other poster is saying because you are talking percentages, i.e., if the 1-in-4 were accurate then with same or more women in college the absolute number would have increased, not decreased.</p>
<p>It would be, at minimum, noteworthy to see an actual validated study that shows, using real controls and actual probability stats, that 1-in-4 or 1-in-6 or even 1-in-8 females are raped in college. And to be clear, this does not mean inappropriately touched, rubbed up against, or receiving an unwanted sexual advance, but actual physical rape. Should not be too hard to find 10 colleges and universities and support the statement in an unbiased way.</p>
<p>In general, nothing more useless than having a conversation with people who just make stuff up, especially with such a serious issue. (This is not meant at you @frugaldoctor because you were told that by your college. I understand you had no reason to doubt their figures.)</p>
<p>I read a really interesting statistic last week about how often males are raped by women Should affirmative consent work both ways? I notice that much of the conversation is about female victims, but why aren’t the male victims of concern? It’s not only in prison that males are victimized.</p>
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Right. So if it were true we would have to blame the pervasive culture of college campuses for that crime wave. </p>
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<p>These are five powerful operative words. I agree, if proved true then place the blame accordingly. However, just saying it does not make it true. There is rape on college campuses, just like in the rest of society, but accuracy is imperative to properly solve any problem in a meaningful way.</p>
<p>As to your previous post, yes, any crime laws should work both ways for males and females.</p>
<p>If Johnny and Susie were both falling down drunk and had sex while mentally incapable of consenting, who is to say it was JOhnny who was the rapist and not Susie? Or if Johnny was stewed and Susie wasn’t, she should certainly have her future destroyed with no due process just as Johnny would.</p>
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How about a marriage license?</p>
<p>I say this facetiously, but let’s face it: we have a situation in which immature people are free to drink and have sex without many restrictions, at least on many campuses. This does two things–it guarantees that there will be a substantial amount of sexual activity by people who have been drinking, and it also provides very good cover for sexual predators. The difficulty of disentangling those two things creates a large part of the discussion of this topic.</p>
<p>As for the affirmative consent law, its main effect will be to educate the predators on what lies to tell.</p>
<p>@zoosermom - It goes without saying that many situations are as gray as it gets. And that is the problem discussed in several threads re this issue, the effort to draw black and white lines of blame and conduct out of entire gray scenarios. </p>