Is affirmative consent before all sexual contact the best policy?

College Life
61

There are two questions here, it seems: What should count as consent in practice, and what should count as consent in policy?

In practice, I think that if someone gives overarching consent like that, it comes with accepting that the partner might do something he/she doesn’t like. But if the person trusts the partner with that kind of leeway, I assume it means he/she feels comfortable telling the partner to stop and believes that the partner will comply. In turn, if the partner agrees to be spontaneous, he/she is trusting that the partner who asked won’t turn on them and report them if they start to do something unwanted. If both parties trust each other to that extent, I think those kinds of consent are fine as long as both parties are coherent enough and comfortable enough to withdraw consent.

Do I think these phrases should legally be protected? If someone could claim about an accuser, that he/she gave prior consent to be spontaneous and he/she was fully capable of withdrawing consent during, and he/she was actively, “enthusiastically” participating (which isn’t just “responding” to the sex), then it shouldn’t be considered rape or assault. But if someone accuses you of rape and #2 and/or #3 didn’t hold, then #1 isn’t enough. Like I said, people can make their own perfectly legitimate rules about consent but the law can’t cover all of them; that’s why it has to capture the essence of consent enough that people can say, “He/she did this, and these criteria are fulfilled, so now I have consent.”

There are people who want to dominate or have an assertive partner, and such people don’t see anything wrong with someone doing certain things without explicit consent. And there are people who first and foremost want their bodily autonomy respected or want to know that they’re respecting the other person’s bodily autonomy. Such people would see someone doing anything without explicit consent as assault. So it’s fine if you prefer women of the Type 1 persuasion, since that’s the perspective you also share. But it’s always better to assume Type 2, since turning someone off/being turned off is better than assaulting/being assaulted.

62

I agree there are 2 types, and the stricter should be assumed until stated otherwise. As for overreaching, that is true if we interpret “anything” to really mean anything. Likely it means something not harmful, and reasonable, as long as the other can say no.

As for the courts ruling against a partner who says, “she said I did not have to ask first”: he could just have easily have denied the event occurred at all, and escaped that way. Why punish him for honesty? By the court ignoring their agreement, it is regulating their private sex life. Do you see a problem with courts regulating sex life? It used to be illegal for gays to have sex, and illegal for people to have certain types of sex that are now legal. Should lawmakers be allowed to go back to that too?

63

That’s what it should mean, but clearly this law is interpreting “anything” as anything. I want to doubt that the people making these laws actually believe them and practice them to the extent they’re demanding of students, but who knows?

In your scenario, he doesn’t get punished for honesty; he gets punished for the “crime” he honestly admits to. He could lie, but depending on whether there’s evidence or not, he could find himself caught in the lie. It’s always in someone’s best interests to lie rather than plea guilty to a crime if it isn’t a cut-and-dried case, but people still do out of remorse or to avoid a worse punishment.

Of course there’s a problem with courts regulating sex life. It could very well be the case that having sex without explicit consent will one day not be considered immoral (as was previously when “no means no” was the reigning paradigm) in the same way that homosexuality and specific kinds of sex are no longer considered immoral. The problem is that “She said she wanted to have sex with me, and she never told me to stop” and “She was drunk but she still said she wanted to have sex with me” are also prior agreements, but they ignore the fact that people change their minds from day to day, and even during the act, and that people can be coerced into having sex. The important thing is is there affirmative consent in the moment?

Saying that the person you’re having sex with needs to consent to the sex is not policing sex; otherwise, why is rape a crime? Saying that the person you’re having sex with needs to consent verbally, or at least ten times, or with phrases X, Y, and Z, etc. is regulating sex. The problem isn’t the concept of affirmative consent; it’s that the definition of affirmative consent is so rigid under the law.

64

Well I do agree with your last sentence, that the issue is “what is the definition of affirmative consent.” Many states now use the word consent in their law, but with no specification. Many spearheaders of affirmative consent use a definition that is very strict. My school just say “consent must be had at every stage and can be withdrawn at any time.”

I agree people can be coerced. But the fact they can should not shape policy in every situation. It should only shape it in the situation where coercion happened. The plaintiff should have to claim coercion occurred, under cross examination.

I read a version of my school’s policy a year ago, which said, “Sometimes someone will keep flattering a partner who is saying ‘no’, instead of ceasing to perform the actions provoking the ‘no’. Therefore, flattery is a form of coercion and against school policy.” It had many leaps in logic like that.

“Sometimes a person might be afraid to say no. Therefore in all cases, he must get a yes.” Can we agree that she should at least testify that she felt afraid, and say why? I say the fact she might feel afraid in some cases should not mean a guy is guilty in all cases even where there was no fear.

Same as “sometimes they might be angered by the action. Therefore, always ask first.” I think for him to be guilty, she must have actually been angered. One way to test that is if she continues to go on dates with him for a month before filing the charges. If she reports it right away, or avoids him a while and then reports it, I would see that as clear evidence of fear or anger. Continuing to date him indicates otherwise.

65

You mean that a person might be afraid to say “stop” or answer “no” without being asked first? Yes, if this was out of fear, she should testify and give all the information about the situation that she can. And yes, one case cannot be generalized to all others when the circumstances are different. But the rule for all cases protects those who are afraid and has no consequence towards those who aren’t afraid (if the rule is less strict about the definition of “yes”). I agree that there are other reasons for not saying “yes” verbally that the policies do not account for.

But what if the victim was in an emotionally abusive relationship and still loved the abuser, or was married/cohabitating and depended on him/her for financial support / had children together? Those are reasons two people might stay together despite rape/assault occurring. I agree that signs of fear or anger are a good indicator that someone is telling the truth when making an accusation. But I think all these alternative scenarios we keep bringing up show that we often can’t escape such situations needing to be looked at holistically. I wonder if there are ways to identify fear/anger after a hookup/possible assault for people not in relationships. Ways that don’t involve dragging in a whole bunch of witnesses, which fails to protect the anonymity of both parties.

66

The problem is, if the maximum penalty the school can give is expulsion, and that is what someone would likely face, and there are no witnesses in the bedroom, then I don’t see why someone would not lie or how they catch him lying. My fine would nail the rapist no matter what, every time. It would nail the innocent too, but they would survive a rare random fine. My proposal is just so much more efficient. It also removes the need for us to dig in and discuss right an wrong. The woman decides for herself if she was raped or assaulted, by her own standards. Guys are advised to ask if they want to be safe, but ultimately the woman decides whether to fine.

I’m also debating this on a conservative men’s forum. They don’t like my fine idea any more than you do. They say, “proof beyond a reasonable doubt”, and “no means no”. They say “yes means yes” trivializes rape.

So no one agrees with me.

67

We could ask him if he thinks he can prove his innocence to avoid the fine. We can ask her if she is willing to be questioned and do the trial to get him expelled. If both say no, then he gets the $500+ fine, and it is done. Next one is higher.

68

I think a trial makes sense if there are witness or physical evidence. The reason OCR says police are bad is because if a plaintiff changes her story, they might think she is lying. OCR argues a traumatized person tends to not have a straight story. The same is true of an accused person under stress. I’ve been questioned as a witness by police on 3 occasions, and all 3 times my memory slipped up. Fortunately they did not believe me and did not convict the wrong person. Then comes the question of, if someone admits to a crime that can’t be proven otherwise, then they clearly were not told the school rules, otherwise they would have lied.

I think a fine simplifies everything. It tells rapists that they will 100% for sure get a penalty that is proportional to income and goes up with repeat accusations. It also tells the innocent that their maximum risk is limited. It balances the muscle power difference. If a guy does not want to be fined, he should ask for permission at a time she will remember. It should be her call, not school definition makers call, as to whether consent was had and the fine given.

69

There are a lot of different scenarios and ethical questions going on within this whole subject, and maybe the reason people are disagreeing with you is that they’re focused on the principles of what you’re proposing.

On the liberal side, it seems like a great injustice to reduce rape/assault to the same level as littering or speeding in the justice system. And it sends the message that obtaining consent isn’t important. Its importance becomes reduced to protecting people from getting in trouble, and implies that it isn’t a big deal if you aren’t 100% sure you have some form of consent. The fine becomes a way to avoid discussions of right and wrong to satisfy both parties and/or save the investigators some work, and that’s not justice. And on the conservative side, it’s still wrong on principle to punish the innocent for something that wasn’t rape just to satisfy the victim, or to “concede” to his/her “decision” about whether or not he/she was raped/assaulted.

But I’ve been reading up on different perspectives on the issue since this conversation started (knowing nothing about how the law or justice system actually works in regards to these things). And I’m seeing that for the criminal justice system–which should have the maximum amount of resources and training, and no bias (ideally)–fines aren’t absent from the punishments for sexual crimes (many sites say that the penalties are jail time and/or a fine, but I’m not sure if the fine is ever the sole punishment). I’m also seeing that plea bargains are a frequent occurrence in these situations. And when the police system can’t find enough evidence to press charges, they tend to drop the whole case or put the burden on the victim to take civil action.

So looked at in the context of what actually occurs, you’re basically proposing that the university have a plea-bargain-type deal for students (and even in courts, I don’t think victims get a say in whether or not the accused can accept a plea deal). Either that or you’re proposing that the plea bargain for criminal cases should be reduced to fines (not exactly sure which one). Fines are consolation prizes, at best, for true victims. They aren’t a good way to deter true rapists, and they don’t help us catch liars. But I guess you have convinced me that a fine (or even some other penalty short of expulsion), while not ideal, would be appropriate within the context of the justice system. And it does help those who’ve been accused of rape in ways that are completely fabricated, as you’ve said. Still, the main solution for those technically are guilty based on technicalities in laws that are too strict (and/or vague) about consent is changing those policies.

So I do agree with you (unless I misinterpreted something). And more than that, there aren’t many people who both believe in affirmative consent (in the broader, not just verbal sense) and care about the victims of false accusations. And fewer still are proposing solutions. So, much respect.

70

I’m not saying we don’t question them both, especially the accused, to see how consent was obtained. I’m saying that if it does turn into a he said she said, and the probability of guilt is between 60-40 and 40-60, we fine all the accused in that case. Jail does not require 100% certainty; 70% is good enough.

A fine for littering or speeding is for when we caught them in the act. The fine for rape accusation is for accusation, not catching them in the act.

The fine is not a plea bargain. No guilty plea is needed to take the fine. It is just forced on the accused for failing to prove innocence by at least 60-40 certainty. The fine applies below preponderance of evidence.

I agree with you that most people who push for affirmative consent do not care about the falsely accused.They even come out and say so publicly. They invented the system for the purpose of convicting the accused, knowing that in most relationships, people will at some point tell the other they no longer need to ask, and that will let them be thrown in jail unless they lie.

It is not right to jail someone in a 51-49 case. That 1% is just an excuse to avoid evidence. There should be a clearly stated reason why someone’s story is more believable than the other, after the jury hears the whole story presented by both, before someone can get a higher penalty. Many guys are not allowed to present text message evidence, because the prosecution only wants an excuse to convict.

I think a $500 fine would discourage a poor person from raping, especially if it goes up next time, and both times are all but guaranteed. If they are middle class, the fine is higher, maybe $1000 - $1500.

The problem is, since it can’t be put to a vote, the conservatives will fight for proof beyond a reasonable doubt. Even if they get it, that does not mean they mean courts work that way. Jurors do a popularity contest and convict blacks without evidence all the time. Even poor whites will get convicted this way, or held indefinitely until they take a plea bargain. We do not have a right to a speedy trial because the constitution does not define what one is.

71

There is one way I can get my idea past. I have to put it on the ballot in my state and force schools to use my standard, or maybe even the state to use my standard. I might be able to get around “innocent till proven guilty” by stating that it is not a conviction, but just a pragmatic fine.

However, the sound bites will ignore what I said about 50-50 cases and just say it is intended for known cases. Also, I doubt I could even get enough signatures because people just fall into the 2 camps. They want female power, or male power. Neither side cares about ending rape. Not even the feminists.

72

Nobody’s going to vote for it because it’s illogical. A punitive fine * by the physically weaker person, * ** regardless of whether or not they are the victim, ** that can be applied to the innocent OR guilty? What the heck? It’d get laughed out of any brainstorming session in the universe and I can’t believe people on this thread have actually been taking it/you seriously. Do not try to get this rubbish passed into law.

73

I think I know how to sell my proposal to people faster:

Let juries decide penalties not only on the severity of the accusation, but also on each jurors estimate of the probability of guilt. Instead of having to agonize over innocent or guilty, no penalty or 10 years in prison, they should each be free to pick a pragmatic penalty they feel comfortable with. The judge should tell them, “If you are pretty unsure of guilt, maybe pick a fine that is high enough the innocent will survive the rare false conviction and not be overly in fear of such in the future, but such that the guilty will be deterred, knowing such a fine is all but guaranteed.” All cast their recommendations, which are placed in order, and the middle one prevails.

It is not a plea bargain, since no guilty plea is needed. We do not give someone a criminal record unless all 12 jurors agree it is warranted.

74

Also, I’m against judges and lawyers preventing evidence from being admitted on technicalities. If the cops search your house without a warrant, they should pay an inconvenience fee. If they find something that could easily be planted, they just confiscate it. The trial should be by grand jury, which has the right to decide for itself what is relevant or not. The judge will just read the laws and give each side an equal amount of time.

75

The reason our system is so messed up is rich people want loop holes for themselves. When the poor try to use the same loop holes, the police cut corners to get around them, making the process very non-democratic. Instead, I say let the rich pay to have wealthier jurors called. That is all they get.

76

Lol, bodangles bringing me back from the weird trail of ethical grey areas and mixed scenarios that I had wandered down…

Fines are better than straight-up, no-questions-asked expulsion in a system of guilty until proven innocent. That’s where I thought this whole thing was going: students are being expelled without due process for violations of laws that become absurdly technical; the system has become guilty until proven innocent. And in such a system, “physical strength” really has nothing to do with anything; it’s just the accused receiving the penalty.

We got past the whole “what is a better definition of affirmative consent” point of contention. So I guess the question now is, is “guilty until proven innocent” an accurate portrayal of the system when it comes to college-campus sexual crimes? If yes, and it should be changed, how should it be done in a way that avoids some of the problems that led to it being changed in the first place? People would reject the fine on the basis that it’s unfair to innocent people. But if this is a system of guilty until proven innocent, and the system shouldn’t be fixed or is too messed up and ingrained in the way American justice works to be fixed, then I don’t think arguing for a lesser punishment or a range of punishments is unreasonable.

But no, minor / “pragmatic” or not, a fine is a punishment. Either the accused is guilty until proven innocent, and if he/she fails to prove innocence, then he/she is assumed to be guilty. Or the accused is punished despite being considered “not guilty.”

Now this discussion is extending to “how do we fix the entire country’s justice system,” lol, and I wasn’t even educated or qualified enough to speak on the justice system of college campuses concerning sexual crimes.

77

@bodangles

Do you not see that it already is that way, only worse? Currently, an accuser of any size or shape can have someone expelled just on his or her word. No proof is needed. The definition on any campus is that if they are 50.01% certain that the accused is guilty, they must convict. The penalty is expulsion, not just a fine. Any reasonable person knows that 51% is the same as 50% in the human brain and just means his word against hers.

If you don’t like my fine, you should be very against the current preponderance of evidence standard used on campuses for expelling people.

78

If you find a broken body or a beat up car, you can feel pretty certain a crime at least occurred. We just don’t know who did it. Finding out who was where when is within police investigative technology.

Humans frequently have sex, a legal activity, and do so in the privacy of their bedrooms. We have laws against videotaping without consent. Unless you are always on camera 24-7, it is very difficult to prove or disprove a lack of consent. In boogie man park rape, an woman will get internal injuries. But in date rape, she is already aroused and so does not get the injuries when forced.

Unlike a murderer who does not know who may have witnessed him in the area, a rapists knows no one else was in the room and can pick a story that would even stand up against a grainy dark video or tape recorder. He can testify to all the details that happened but change one detail just enough. He knows the penalty for rape is so high that it is worth getting caught lying.

So, do we tell all the women they need proof, proof they can’t have, and let the rapists keep raping?
Do we expel the innocent, and sleep well at night by saying false accusations never or rarely happen?
Or do we give a fine?
The fine is only given to guys who we know were at least in the room alone with her. It is the full amount if there is DNA evidence, and if she waits long so we don’t even know if sex occurred, it is half or 1/3 as high at the 2 week point. Asking accusers to come forward sooner is not unreasonable when they have privacy and no risk.

79

Suppose someone kills someone and calls the police and says it was self defense. The police investigate and can’t find evidence either way. In most states, the killer goes completely free, unless he is of lower social status, and the dead’s family and friends raise enough hell or pressure against the mayor to get the guy charged.

What if instead we say that if you call us and say it is self defense and answer our questions and we can’t prove either way whether murder occurred, then 1 year in prison, with time given to sort out your life before the surrender date. Debts would be frozen and temporary foster care provided. If someone kills someone and does not report it, there will still be an investigation, but guilt could be assumed or at least a 5 year sentence.

This policy is similar to my fine idea.

80

“Fine idea,” oh my god.

That’s not justice. Punishing someone whether they’re innocent or guilty is NOT JUSTICE. Your idea wouldn’t even always punish the RIGHT PERSON, as OnMyWay has already gone over.