Is affirmative consent before all sexual contact the best policy?

College Life
41

A few republicans proposed 2 bills, the Fair Campus Act and the Safe Campus Act, which offer some extra fairness.

The problem is one of them requires police involvement, which could scare some victims from coming forward if their state does not have privacy rules.

Both bills state the defendant may only be prosecuted if the conduct committed breaks the law of that state. While that may be OK in several states, there are a few states whose rules are pretty unfair to victims. For that reason, neither bill is getting any cosponsors.

I wish the republicans would allow for a sliding scale of infractions, where minor infractions carry minor penalties and major infractions carry major penalties. Picking just 1 place to draw the line makes the issue so partisan.

42

[qoute]
People get fined for what? Speeding tickets? Littering? Loitering? A fine might be so survivable that it’s a poor deterrent for a rapist.

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For a random guy jumping out of the bushes at a very attractive women, you are right: $500 would not deter. However, in that situation, I would put outdoors sex with a stranger well above 51%. Just because it is his word against hers does not put it at 50%. We also look at the location and details. The fine is for people who are about equally attractive, annd

43

my post got cut off:
[qoute]
People get fined for what? Speeding tickets? Littering? Loitering? A fine might be so survivable that it’s a poor deterrent for a rapist.

[/quote]

For a random guy jumping out of the bushes at a very attractive women, you are right: $500 would not deter. However, in that situation, I would put outdoors sex with a stranger well above 51%. Just because it is his word against hers does not put it at 50%. We also look at the location and details. The fine is for people who are about equally attractive, and who one person trusted enough to take home with her. Within that subset of the population, I think the fine would deter.

44

Also, as for making the whole campus safer by eliminating someone at 51%, eliminating both would be follow. If only the accused is eliminated, then students will fear being accused. That does not make campus safer if people can be knocked out easily by false accusation. Rape is not the only form of damage to people.

45

True, and I think that efforts need to be taken to change that sense of fear and reassure victims that their claims will not be dismissed outright, they will be safe, and their privacy will be protected.

Oh, I was using examples of crimes that required fines, which also happened to be outdoor crimes. But my point was that a mere fine equates rape with some of these lesser crimes legally, which also has an impact on how it is perceived socially. I wasn’t talking about outdoors sex specifically, but I agree that it would be hard for a rapist to justify.

Wait, what does attractiveness have to do with it? And a rapist could seem like a nice, normal person, so I don’t think trust should have to do with it. I wish there were criteria where we could say, “Okay, the accused has no record. He doesn’t look creepy, and the accuser went on three uneventful dates with him before, so he’s only 51% likely to have raped.” But there’s a risk of rape in literally every sexual encounter.

I agree with all of these statements. The policy at your school sounds very unethical, as is the whole notion of the contract or the idea of affirmative consent being taken that literally by administration. Didn’t anyone ever think that no one is so legalistic when it comes to sex in the real world? Also, have students who have been expelled ever tried to take legal action against the school, given that these are only university policies?

Despite our disagreements, the serious ramifications of being falsely accused of rape, sexual assault, child abuse, and other crimes, but especially those that society says only monsters can commit, is not lost on me. False accusations hurt the accused in ways that they can never recover from, in the sense of tangible things lost, and psychologically. They also make it less likely for true victims to report. Society’s reflex is to place the blame on someone immediately–either focusing on how many accused are guilty, or how many accusers lie–and acting accordingly, and it often leads to people being wronged.

46

I think we are getting pretty close to agreeing.

I never said the penalty for rape should be a fine.
I said if we are so unsure that we put it close to 50-50, even 51%, then that is when we fine the accused to just be safe. The innocent will survive the rare fine, but the guilty will get hit every time they rape.

If we know they are guilty, we send them to prison.

If we think the odds are twice as likely as not, then the fine doubles or triples. The reason I said outdoors sex gets a higher fine is it is much easier for a rapist to get someone outdoors. It is harder to win a woman’s trust so she takes him home. Same thing if she drank a lot but is still able to make decisions. The fine goes a bit higher.

I’m very pragmatic with probabilities. And the guy’s record does not get touched. The names would be kept private from the public. We only publish his name if we know beyond a reasonable doubt. If 3:1, then higher fine still, and probably an expulsion at that point, but not on his record. At 3:1 he would just be told nicely to leave, and pay the fine.

47

Instead of requiring affirmative consent, we should just advise it, and let the women have men fined if they both don’t do a good job of observation and fail to ask. They will learn to ask if they are not sure, and the rare false accusation will be survivable. The penalty does not go up unless he ignores some form of no. Even then, we must be 60% sure for the fine to go up.

48

We should teach women that if he does something she did not want or like, then he should have asked her or read her better. He won’t get expelled unless it is a blatant violation (such as causing injury or ignoring some form of no), but she can have him fined an amount she thinks is fair, up to $500 (for poor students, higher for the rich), if we have a convincing reason to believe sexual contact occurred, accidentally or on purpose.

Proving contact occurred is much easier than proving there was consent. If we only know they were in the same room alone for a while, and it is his word against hers on the contact, then the fine is reduced to $200 for the average poor student (higher for the rich). She will also at that point know he is a total liar and really give a bad review to her friends, whereas if he had admitted to the contact, he could have at least saved face as meaning well, perhaps.

Also, the longer she waits, the lower the fine. It is at maximum if she comes forward within 72 hours, then drops off over the next weeks, unless there is evidence it was blatant. However, if multiple women give the same accusation, then that combined could lead to suspension or expulsion, again with no record unless we have enough proof.

49

Yeah, fixing the police would be nice. They need to stress that no charges would be filed against her unless they are very sure of her guilt. Otherwise, and inconsistent story should just exonerate him. And they need to keep their names private. Only the convicted should have their names public. People should not have their names reported for being arrested, ideally.

50

If the penalty for rape isn’t a fine, then shouldn’t the guilty be punished more severely the second time? How many times can a person find himself/herself in a 50-50 grey-area rape situation?

Also, I would think that it would be harder for a rapist to get someone outdoors where there are witnesses, cameras, etc. Said rapist would also leave more signs such as torn clothes, bruises, etc. Wouldn’t it just be easier to meet up with someone on Tinder or Grindr or whatever and take them somewhere? Most people would want to meet up somewhere public on a first date, but some people will go home with someone or get in a car with someone they don’t know very well. I’m pretty sure the majority of rapes / assaults don’t occur outdoors.

I see that you like probabilities. But how do we measure how likely it was that someone committed a crime? And what is your standard for “beyond a reasonable doubt?” If by 3:1 you mean a 75% chance that he did it, I would think that’s sufficiently likely to convict someone.

Why does the woman get to have the man fined if both of them are doing the wrong thing?

And how would people “learn to ask?” I can easily imagine a scenario in which two people start to have sex and one partner gets so caught up in the moment that he/she doesn’t even think about whether the other person is still consenting. He/she isn’t unsure; he/she isn’t even thinking about it. Many people have very fixed ideas about how sex is supposed to go, and it’s not easy to get people to take a step back and check in before or during something that’s supposed to be “spontaneous.” My school has awareness events and educational activities concerning sexual consent, but while many people listen and internalize what is said, many don’t.

The testimonies of multiple random victims aren’t enough proof? And if the administration was certain enough about the crime to suspend or expel, shouldn’t they also be certain enough to put it on the accused’s record?

51

While brief violation of a physically strong victim is a worthy crime to fight, my first priority is to defend the weak against forced sex acts and fear. That is why I propose that women can fine men in 50-50 cases, whereas men must show some evidence, as must women in cases where fear was not a factor.

Absent other suspicious details, I think accusations from 3 people he definitely took home is enough to expel. Each accusation should have an increasing fine. If he is accused again after transferring, and by someone we know he took home, then that would result in the record marking.

If we want people to involve the authorities, it is important that the plaintiffs be protected by a higher standard of evidence than the defendants. Otherwise, we never see the trail of independent accusations.

Campuses need cameras. My campus has none, and that bothers me. $5 per student, 30,000 students, means we could have 300 $500 cameras around campus to make students safer. A circular memory accessed only after reports would keep the privacy people happy. Then don’t publish how long the memory is, so we can ask people where they were under penalty of perjury.

My concern with 50-50 is that seems by definition to be one person’s word against the other’s. Before we suspend or expel someone, it would be nice to find a few other suspicious details. No matter how important it is to remove rapists from campus, male students will be in fear all the time if they know that anyone can have them expelled just on their word. That would create a hostile environment for them. As for “gender neutral”, we all know 99% of those convicted are male.

As for affirmative consent, we need to define just how much detail is needed. If a guy asks to touch a certain area, and she says yes, can he be convicted because he was not more detailed? No matter how detailed he is about how he will touch it or exactly where on that part, a tribunal could ask how specific he was and determine it was not specific enough. There is no limit. There comes a point where the responsibility must go to the party asked to specify what is not OK. I think that point comes very early if the asker can be penalized.

Rather than use expulsion to enforce affirmative consent between people who are clearly interested in each other, I think the fine should be used there. If the weaker party is not happy with the level of consent, she may fine him. The fine covers uncertain ignoring of “no”, and certain not getting enough affirmative consent. Expulsion is for more blatant acts, such as grabbing classmates without asking, or ignoring a “no” from a partner. I do not think a weaker partner should be expelled ever for failing to get affirmative consent except for inserting a pen. Weaker people are not a danger to campus, but should still be fined for annoying others.

52

I think certain types of sex should carry higher fines in 50-50 cases, just because women are less likely to consent to those, making it more suspicious. However, specifying which types could be argued as no longer gender neutral. Idealism gets in the way of practicality. Insertion without a condom is one example, though people would say that discriminates against men. If she is not on the pill when he does that, all the more suspicious.

Another problem with not being able to face one’s accuser is how is the guy supposed to know his girlfriend actually accused him? He is ordered to answer questions about very personal stuff without ever being told face to face by her that she is definitely accusing him. The Violence Against Women Act states that the state must prosecute violent people even if the victim does not want to prosecute. While I see the merits, I think that can allow too much power to the prosecution to intrude into the lives of 2 people.

53

I also think the number of independent accusations needed to fine, suspend, expel, then mark, should depend on the severity of the accusation. Certain types of assaults are worse than others and thus more dangerous the to community of true, whereas less harmful ones warrant giving giving the accused more benefit of the doubt.

I also find it disturbing that we ask the accused how they got consent, knowing that either they will lie, or they were not taught the rules. There is no other reason to ask. From the You-Tube interviews I’ve seen, it seems women are taught affirmative consent during orientation, but men are not. They should all be taught equally.

Another disturbing fact is that if asked about a sex event with a partner from 2 months ago, if a guy does not remember it play by play, he is guilty. I can’t even remember what I ate for dinner 2 nights ago. I have nothing against no statute of limitations as long as there is proof. But if the defendant must testify, asking for any detail past a week is unreasonable, unless he just hooked up with 1 person at a party and therefore should remember it since there were no or few others.

54

And what about non-male/female relationships? Or relationships where you can’t gauge who’s stronger just by looking at them? This policy sounds a little sexist, and if it’s important to protect males from fear of legal action being taken against them on the basis of protecting the “weaker” party, that should extend to fines too. If a fine is such a small punishment, wouldn’t it just be better to err on the side of caution and charge the accused regardless of gender? This is going off the premise that a male being raped is somehow a different experience emotionally, which isn’t true…

True, I don’t think it needs to be as detailed as in between every kiss or asking if one can move his/her hand two inches. I think if both parties are “reasonably sober,” obtaining consent before major jumps in sexual interaction is reasonable. I imagine that it’s okay, once given consent, to do the same thing twice in a row or something non-sexual like stroke someone’s hair unless told otherwise. But I think many people naturally have a sense of “levels” of intimacy (e.g. the whole “bases” metaphor), and which kinds of new touch might raise an objection if done without asking. I don’t think the recipient has a responsibility to vocalize an objection; both parties should be paying attention to each other’s body language, and if someone truly isn’t interested, it would show.

I think that “affirmative consent” is very intuitive for many people, especially those in healthy, communicative relationships. It’s just hard to define for legal purposes. And socially, it seems like a lot of unnecessary effort for people who expect an objection to come in the form of a “No.”

“Clearly interested,” as in the parties aren’t mad at each other? Such that one wouldn’t want to report the other for rape or assault? Or somehow want to stay together despite facing off in a legal battle? Or do you mean lack of consent for people in relationships? Because rape definitely happens in such relationships as well. Also, rape isn’t a mere “annoyance,” and it doesn’t become a non-criminal act if the “stronger” person could have fought back. And if drugs or alcohol were involved, that could easily put a weaker person in a position of power over others.

That’s weird. At my school, all students are taught about consent, and there are periodic sexual assault awareness events on campus. That also rules out all the male-male couples. If “men” are the people who are not obtaining affirmative consent, they should be the ones educated on it. But in places where the laws are written in some student conduct handbook or something and distributed to students, they are expected to know and follow them. “Not knowing” that sharing past exams is considered an ethics violation won’t fly.

55

We seem to agree on the amount of asking needed on average. I think asking before insertion is always required unless someone says the other need not ask next time. I think many people want intimacy and to feel desired. When someone always asks questions like a stranger, it makes it feel like a stranger, or like a doctor exam, not the intimate experience they want.

Do you believe people have a right to set their own rules, telling a partner that in the future, he need not ask, or he need ask very specifically? I think school rules should just be a default until a particular couple sets their own rules. And, under those circumstances, consent withdrawn would have to be stated somehow unless there is a reason believe fear deterred the statement.

You and I disagree on the importance of fear and force. I agree a weaker person can force a stronger person, but the court would have to believe it happened based on testimony. Absent the testimony, I would only apply the guaranteed fine in the case of a weaker accuser. A weak male could drug an athletic female, but the drug would make the difference.

Your school teaches everyone regularly. Many do not. Many just have a policy, respond to complaints, and quietly get the guy off campus to make the accuser happy and not scare the other students. That is why I’m trying to open more discussion about the new rules on CollegeConfidential. There should be more threads discussing this.

56

I still wonder how some tribunals would interpret affirmative consent if a guy asked permission to kiss once and read body language from there onward. What if she did like it at the time, but later wanted to use a technicality from the past to get revenge for a messy breakup? The tribunal might ask how get got consent for subsequent kisses and find him responsible. Schools need to specify the rules better so students know exactly what they are.

All this is great for avoiding a few misunderstandings. But rapists will still lie. My guaranteed fine is a good start until there is a testimony trail to get them further.

Once nice thing about affirmative consent is it lets people know early on whether someone is deviating from a rule. The downside is it could invade people’s rights to expression, unless there is a clause that couples may make their own ongoing rules until revoked.

57

I once dated a woman and was too afraid to kiss her. Finally on the 3rd date, she made the move for me. She kissed me on the lips without asking for permission. I liked it. According to the rules of many colleges, she sexually assaulted me, even if I liked it. They don’t have a statute of limitations. If she has returned to school somewhere, I could go to that school, report it, and they would investigate it. If she admitted to it, she could be suspended. I think that is so wrong.

We should teach that people should ask, and that if a touch is not welcome, they can ask for the person to be penalized. However, we should also teach that if the touch was welcomed, that it is not sexual assault. It must be both unwelcome and unasked for. Also, the penalty for not asking should be lower than the penalty for ignoring a no.

58

I agree that rape is not just an annoyance. However, you lump everything you define as rape into one equal category. Clearly some actions bother some people more than others.

Suppose a guy and girl are kissing, and she has her arms around him. He places his hands on her hips and gets a smile. She kisses him more. Then he places his hands on her butt. Please tell me you think that is a lessor offense than 99% of sexual assaults, and merits are far lesser penalty if prosecuted.

Also, if a woman hugs her boyfriend, should she always have to ask permission first? I’ve seen guys ask for hugs, and women ask for them or tell me to hug them. I think people enjoy the intimacy of a partner who just hugs them instead of always treating them with the same formalness one treats a stranger, always asking.

59

Sure, people have the right to set their own rules. But in many of your scenarios, the girlfriend suddenly turns on the boyfriend regardless of what their agreement had been. So how would administration verify what consent was obtained, unless an agreement was written out or recorded? Even then, I don’t think it will work out if someone tries to use past consent as an excuse for not asking, or if someone claims that they were given an overarching consent to have sex with the partner whenever he/she is drunk, for example.

I disagree that asking for consent is alienating. Asking someone how they feel, do they like that, can I do this, etc. shows respect and compassion. Plus, the passive party can always say things like, I like that, can you do this, keep doing that, and that’s consent too. I don’t know what kinds of dialogue people have in the bedroom, but I wouldn’t consider that out of the ordinary at all.

Believe it happened based on the accused’s testimony? I would think that the accused’s testimony wouldn’t be absent unless the court didn’t consider it at all. And it’s not just about force or being drugged; stronger parties can be pressured into having sex. Especially if it’s a “stronger” man and a “weaker” woman, many male victims don’t fight back out of fear of being accused of abuse or assault.

You’re right. I do think that if universities want to enforce this policy to such an extreme degree, they need to be very specific about how often to ask, what questions and answers are acceptable, how specific, etc. That’s the only way they can be transparent and not trap innocent people due to the vagueness of the policies. It will hopefully also show the administration how intensely they’re trying to police sex.

I agree that a touch that was consented to non-verbally isn’t sexual assault. But the wrongness of your getting her suspended comes only if 1. you lied about liking the kiss (as in, you didn’t consent) or 2. if the policy dictated that the “yes” must be verbal, which I don’t think is reasonable considering that administration accepts nonverbal forms of “no.” But again, the problem with accepting nonverbal consent is that the vagueness in legislation could lead to a whole lot of assault happening due to one person misinterpreting another’s body language.

60

So, if someone says to the other, “You don’t need to ask me every time. Please surprise me next time,” they are not allowed to? They have to tell them, “no, rules are rules”?

What if during an act, someone asks their partner to please stop asking and just do what they want? Does the other partner have to keep asking? I’m OK with asking my partner if that is what she wants, but if she kept asking me after I asked her to just act, I would find that a turnoff. I like a woman who dominates.