I wonder how you'd prove positive in any case because it seems like the whole thing usually is he said she said or he didn't say she didn't say
That's what makes me scared, is that an absence of reliable information leads to a guilty verdict rather than an innocent verdict
I should hope not.
In the absence of reliable information you aren't going to get a case together (legally I guess) anyway. The problem is that right now we can have 100 percent reliable information and still not get a case together.
It should be noted Canada also doesn't have any black men in prison for consensual oral sex, nor young people being thrown in the clink for "creating and distributing child pornography" of themselves because teens be teens
So you don't think that the Stubenville gang rapists should have been charged for producing child pornography of their own gang rape?
Jesus fuck.
What an uncharitable goddamn reading of an obvious meaning. Kids sexting shouldn't be charged for child porn. Fucking christ.
I think we can tick every one of those things on the list to a greater or lesser degree wrt this thread
Man, it's too bad we don't actually have the bill in question so we can read it for ourselves to find out if it actually does the things it's been accused of doing...
I think we can tick every one of those things on the list to a greater or lesser degree wrt this thread
Man, it's too bad we don't actually have the bill in question so we can read it for ourselves to find out if it actually does the things it's been accused of doing...
Oh my gosh that is 11ty billion pages long please quote it or something
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
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Apothe0sisHave you ever questioned the nature of your reality?Registered Userregular
So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?
So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?
This is a long answer question, but the short answer to it is basically that it creates an environment where people who have been assaulted don't have to substantiate that they refused. In the previous system, "Did you actually say no?" was a pretty standard question both from the police, and a very standard part of the defense of rapists in court.
The old model put the onus on the assaulted person.
The affirmative consent model puts the onus on the accused to substantiate that they had the accuser's consent, and to explain how. That has to hold up to scrutiny. This means under the affirmative consent model it is the accused who is scrutinized, not the accuser. The accuser is stating they did not consent, and that they either made this expressly or implicitly known to the accused or that they consented under duress (which is not really consent, under the law). The accused basically has to state that the accuser is lying (in the case of express refusal) or state how they did not understand the accuser's implicit lack of consent.
Under the old model, this implicit lack of consent and the accused's failure to understand it would be sufficient argument to create doubt and could result in a rapist going free.
Under the affirmative consent model, this implicit lack of consent and the accused's failure to understand it is not an excuse, because it is considered the responsibility of the person trying to initiate sexual conduct to obtain consent. If there was doubt or failure to understand an implicit lack of consent, that failure is considered the accused's, not the accuser's, to clarify.
Which is why I stress clarity and communication, people.
But then wouldn't teaching people that they can say no and that they ought to be sensitive to a no and when a rape gets reported to sit the accused down and grill them about whether or not the person refused in any way effect the same kind of result?
I mean, maybe not, I certainly don't know enough about psychology to say with any authority.
I think that some of the reticence here hasn't been from people who are necessarily worried about first kisses (though I recognize that this has been an issue for some), but rather that the only thing that an affirmative consent law allows for prosecution for which a well enforced no-means-no with a culture more open to sexuality doesn't is these silly cases.
I don't think that anyone is necessarily against changing our culture in the US to be one where communication happens more, and where people are more sensitive to the signals and cues of others but where people aren't afraid to say something. I think that nearly everyone wants there to be a cultural shift and for more rapes to be prosecuted. It seems like everyone thinks that a cultural shift like that is only going to make things better.
What has not be articulated to some people's satisfaction seems to be why specifically a well enforced affirmative consent is better than a well enforced no-means-no provided you have that open culture. Which rapes would not prosecuted by a no-means-no?
Every example seems to turn on some sort of coercion or use of force (or possibly threat of force). Those would be prosecuted under either legal standard, well enforced. So what cases require the affirmative consent law?
I think something else that is making the discussion confusing for some or frustrating is there is a lot of slipping back and forth between what ought to be prosecuted as rape in court, and what we ought to consider rape external to any legal framework. For example, I've never participated in a rape prosecution, though I was certainly raped once, and possibly many many times (depending on how we define this slippery implied consent in long term relationships).
Speaking of this implied consent, that seems to be another source of confusion and frustration. Because it's not clear what counts as consent for affirmative consent. When I say not clear, I do not mean that no one has articulated what the standard is, but rather, I'm not sure that some understand what sort of implied consent is okay. This has led to a lot of the responses about how rapists will just talk about the implied affirmatives that they got, rather than the implied non-negatives that they got. So it seems like affirmative consent doesn't help us there. If taken to solely back explicit consent, then affirmative consent is clear, but certainly not what anyone seems to be arguing here. Perhaps some elucidation of how implied consent is assessed or ought to be assessed under affirmative consent would be helpful.
I've largely been just reading this thread, as I don't really have a dog in this fight. Well, I do, I just don't know which one it is. Or if it's even represented so far. I think that there are some compelling arguments being made by many people, and these are just some of my observations from being as much of an outside observer as I can be.
Ok, so the main attraction of the change is that now even if we were somehow able to 100 verify every fact of a case it would still be extremely hard to prove that accused hadn't honestly and reasonably mistaken say drunken moaning for consent or frighten freezing up for playing coy or whatever.
With the new standard the defendant would have to show that it wasn't just reasonable to think consent was there they would also have to show it was clear and consciously given which is harder to mistake. Of course all the same standards of evidence and presumption of innocence and whatnot still applies.
Again, the idea isn't so much to stop people from doing stuff or change to culture (tho some people disagree) or even to bring a case that wouldn't have been illegal under the old definition (it's going to be impossible to prove anyway). It's to make easier to prosecute. (It's a Balancing act, economy, yadda yadda yadda)
So to bring you back to your own challenge - what's an example of a case in which this would come into play that would be successfully prosecuted under the affirmative consent model of consent, and but not the no-means-no model of consent?
Ok so how does changing the statute effect these things which are already illegal by the current statue for which you are justifying the new one?
Old law says that sex has to be consensual.
New law clarifies that consent has to be affirmative, voluntary, and conscious, for anyone who didn't understand it before.
"Affirmative" as opposed to "negative." Which means it's based on what she does, and not one what she didn't do.
Also, it doesn't require that the accused party provide any form of evidence or proof to back up the fact this actually happened. Which means the claims on how it shifts the burden are all bunk.
Which part of that do you disagree with?
Or do you have another excerpt of the law that you would like to discuss?
Remember the Obamacare debate, when Sarah Palin claimed that there were death panels? And then just to shut her up, Obama had to write a clarification saying this wouldn't happen. And then the right wing jumped on this and said, "Aha, this proves that there were death panels! Otherwise, why bother revising Obamacare?" Well this is pretty much the same deal. The purpose of Affirmative Consent law is to clarify the idea of consent to people who didn't understand what it meant (including people who worked in law enforcement). No one can actually point to anything that the law is doing wrong, so the only thing they can complain about is the fact that the clarification exists at all.
"Affirmative" as opposed to "negative." Which means it's based on what she does, and not one what she didn't do.
Also, it doesn't require that the accused party provide any form of evidence or proof to back up the fact this actually happened. Which means the claims on how it shifts the burden are all bunk.
I don't understand.
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?
So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?
This is a long answer question, but the short answer to it is basically that it creates an environment where people who have been assaulted don't have to substantiate that they refused. In the previous system, "Did you actually say no?" was a pretty standard question both from the police, and a very standard part of the defense of rapists in court.
The old model put the onus on the assaulted person.
The affirmative consent model puts the onus on the accused to substantiate that they had the accuser's consent, and to explain how. That has to hold up to scrutiny. This means under the affirmative consent model it is the accused who is scrutinized, not the accuser. The accuser is stating they did not consent, and that they either made this expressly or implicitly known to the accused or that they consented under duress (which is not really consent, under the law). The accused basically has to state that the accuser is lying (in the case of express refusal) or state how they did not understand the accuser's implicit lack of consent.
Under the old model, this implicit lack of consent and the accused's failure to understand it would be sufficient argument to create doubt and could result in a rapist going free.
Under the affirmative consent model, this implicit lack of consent and the accused's failure to understand it is not an excuse, because it is considered the responsibility of the person trying to initiate sexual conduct to obtain consent. If there was doubt or failure to understand an implicit lack of consent, that failure is considered the accused's, not the accuser's, to clarify.
Which is why I stress clarity and communication, people.
But then wouldn't teaching people that they can say no and that they ought to be sensitive to a no and when a rape gets reported to sit the accused down and grill them about whether or not the person refused in any way effect the same kind of result?
I mean, maybe not, I certainly don't know enough about psychology to say with any authority.
I think that some of the reticence here hasn't been from people who are necessarily worried about first kisses (though I recognize that this has been an issue for some), but rather that the only thing that an affirmative consent law allows for prosecution for which a well enforced no-means-no with a culture more open to sexuality doesn't is these silly cases.
I don't think that anyone is necessarily against changing our culture in the US to be one where communication happens more, and where people are more sensitive to the signals and cues of others but where people aren't afraid to say something. I think that nearly everyone wants there to be a cultural shift and for more rapes to be prosecuted. It seems like everyone thinks that a cultural shift like that is only going to make things better.
What has not be articulated to some people's satisfaction seems to be why specifically a well enforced affirmative consent is better than a well enforced no-means-no provided you have that open culture. Which rapes would not prosecuted by a no-means-no?
Every example seems to turn on some sort of coercion or use of force (or possibly threat of force). Those would be prosecuted under either legal standard, well enforced. So what cases require the affirmative consent law?
I think something else that is making the discussion confusing for some or frustrating is there is a lot of slipping back and forth between what ought to be prosecuted as rape in court, and what we ought to consider rape external to any legal framework. For example, I've never participated in a rape prosecution, though I was certainly raped once, and possibly many many times (depending on how we define this slippery implied consent in long term relationships).
Speaking of this implied consent, that seems to be another source of confusion and frustration. Because it's not clear what counts as consent for affirmative consent. When I say not clear, I do not mean that no one has articulated what the standard is, but rather, I'm not sure that some understand what sort of implied consent is okay. This has led to a lot of the responses about how rapists will just talk about the implied affirmatives that they got, rather than the implied non-negatives that they got. So it seems like affirmative consent doesn't help us there. If taken to solely back explicit consent, then affirmative consent is clear, but certainly not what anyone seems to be arguing here. Perhaps some elucidation of how implied consent is assessed or ought to be assessed under affirmative consent would be helpful.
I've largely been just reading this thread, as I don't really have a dog in this fight. Well, I do, I just don't know which one it is. Or if it's even represented so far. I think that there are some compelling arguments being made by many people, and these are just some of my observations from being as much of an outside observer as I can be.
Ok, so the main attraction of the change is that now even if we were somehow able to 100 verify every fact of a case it would still be extremely hard to prove that accused hadn't honestly and reasonably mistaken say drunken moaning for consent or frighten freezing up for playing coy or whatever.
With the new standard the defendant would have to show that it wasn't just reasonable to think consent was there they would also have to show it was clear and consciously given which is harder to mistake. Of course all the same standards of evidence and presumption of innocence and whatnot still applies.
Again, the idea isn't so much to stop people from doing stuff or change to culture (tho some people disagree) or even to bring a case that wouldn't have been illegal under the old definition (it's going to be impossible to prove anyway). It's to make easier to prosecute. (It's a Balancing act, economy, yadda yadda yadda)
So to bring you back to your own challenge - what's an example of a case in which this would come into play that would be successfully prosecuted under the affirmative consent model of consent, and but not the no-means-no model of consent?
The most basic one is a man is extremely drunk (as supported by a tox screen or whatever) and raped by a woman. Under the current standard the defense could say that he had a erection or was moaning or whatever and that the defendant reasonably and honestly thought that that indicated Consent even though it was physically impossible for consent to be given.
The new standard would force them to either give up that defense and dispute the tox screen or try to make the case that something that could reasonably be thought clear and consciously given could come out of someone that drunk which is much harder.
You can do the same with fear. A reasonable person could mistake fear induced compliance for consent (or at enough for reasonable doubt) but clear and conscious? Not as easy. That changes the defense from the accuser is sincere but didn't communicate well to the accuser is lying which places some extra explanatory burden on the defense. Not enough by its self of course but with some extra evidence it would preach.
the opposite of affirmative consent is not "what she didn't do", it is implied consent
but the implied consent doctrine also asserts that consent is obtained by actions that are done, not actions which are not done; those actions are the actions said to imply consent (as opposed to an express grant of consent)
the doctrine is not "she did not get up from the bed to leave, so she consented", it is "she got on the bed, and that action implied consent T+10 minutes later" (or, more classically, she consented to marriage, and so that action implied consent T+forever years later).
now this is an antiquated standard! but the whole point is to define what does or does not imply consent; you cannot handwave it away as obvious to a reasonable observer because it is not obvious.
now affirmative consent is not an express grant of consent, that's what is meant when it is clarified that SB967 will not require you to sign release forms continuously during a sex act
presumably it sits somewhere between implied and express consent
now legislative codes are a poor place to definitively characterize a constantly-evolving cultural communication standard, to be fair, so it is fine for a bill to say, well, okay, we'll just say that the relevant standard will be "reasonable" and leave it at that. Nonetheless, if the law is to mean something, it will have to empower some jurisprudential standard, so it is entirely fair to ask what that standard will be, even if it is not expressly characterized in the bill itself. Its presence is already invoked via words like "reasonable".
What are reasonable steps to ascertain affirmative consent, in this context? These are exact words from the text of the bill, incidentally.
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Apothe0sisHave you ever questioned the nature of your reality?Registered Userregular
So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?
So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?
This is a long answer question, but the short answer to it is basically that it creates an environment where people who have been assaulted don't have to substantiate that they refused. In the previous system, "Did you actually say no?" was a pretty standard question both from the police, and a very standard part of the defense of rapists in court.
The old model put the onus on the assaulted person.
The affirmative consent model puts the onus on the accused to substantiate that they had the accuser's consent, and to explain how. That has to hold up to scrutiny. This means under the affirmative consent model it is the accused who is scrutinized, not the accuser. The accuser is stating they did not consent, and that they either made this expressly or implicitly known to the accused or that they consented under duress (which is not really consent, under the law). The accused basically has to state that the accuser is lying (in the case of express refusal) or state how they did not understand the accuser's implicit lack of consent.
Under the old model, this implicit lack of consent and the accused's failure to understand it would be sufficient argument to create doubt and could result in a rapist going free.
Under the affirmative consent model, this implicit lack of consent and the accused's failure to understand it is not an excuse, because it is considered the responsibility of the person trying to initiate sexual conduct to obtain consent. If there was doubt or failure to understand an implicit lack of consent, that failure is considered the accused's, not the accuser's, to clarify.
Which is why I stress clarity and communication, people.
But then wouldn't teaching people that they can say no and that they ought to be sensitive to a no and when a rape gets reported to sit the accused down and grill them about whether or not the person refused in any way effect the same kind of result?
I mean, maybe not, I certainly don't know enough about psychology to say with any authority.
I think that some of the reticence here hasn't been from people who are necessarily worried about first kisses (though I recognize that this has been an issue for some), but rather that the only thing that an affirmative consent law allows for prosecution for which a well enforced no-means-no with a culture more open to sexuality doesn't is these silly cases.
I don't think that anyone is necessarily against changing our culture in the US to be one where communication happens more, and where people are more sensitive to the signals and cues of others but where people aren't afraid to say something. I think that nearly everyone wants there to be a cultural shift and for more rapes to be prosecuted. It seems like everyone thinks that a cultural shift like that is only going to make things better.
What has not be articulated to some people's satisfaction seems to be why specifically a well enforced affirmative consent is better than a well enforced no-means-no provided you have that open culture. Which rapes would not prosecuted by a no-means-no?
Every example seems to turn on some sort of coercion or use of force (or possibly threat of force). Those would be prosecuted under either legal standard, well enforced. So what cases require the affirmative consent law?
I think something else that is making the discussion confusing for some or frustrating is there is a lot of slipping back and forth between what ought to be prosecuted as rape in court, and what we ought to consider rape external to any legal framework. For example, I've never participated in a rape prosecution, though I was certainly raped once, and possibly many many times (depending on how we define this slippery implied consent in long term relationships).
Speaking of this implied consent, that seems to be another source of confusion and frustration. Because it's not clear what counts as consent for affirmative consent. When I say not clear, I do not mean that no one has articulated what the standard is, but rather, I'm not sure that some understand what sort of implied consent is okay. This has led to a lot of the responses about how rapists will just talk about the implied affirmatives that they got, rather than the implied non-negatives that they got. So it seems like affirmative consent doesn't help us there. If taken to solely back explicit consent, then affirmative consent is clear, but certainly not what anyone seems to be arguing here. Perhaps some elucidation of how implied consent is assessed or ought to be assessed under affirmative consent would be helpful.
I've largely been just reading this thread, as I don't really have a dog in this fight. Well, I do, I just don't know which one it is. Or if it's even represented so far. I think that there are some compelling arguments being made by many people, and these are just some of my observations from being as much of an outside observer as I can be.
Ok, so the main attraction of the change is that now even if we were somehow able to 100 verify every fact of a case it would still be extremely hard to prove that accused hadn't honestly and reasonably mistaken say drunken moaning for consent or frighten freezing up for playing coy or whatever.
With the new standard the defendant would have to show that it wasn't just reasonable to think consent was there they would also have to show it was clear and consciously given which is harder to mistake. Of course all the same standards of evidence and presumption of innocence and whatnot still applies.
Again, the idea isn't so much to stop people from doing stuff or change to culture (tho some people disagree) or even to bring a case that wouldn't have been illegal under the old definition (it's going to be impossible to prove anyway). It's to make easier to prosecute. (It's a Balancing act, economy, yadda yadda yadda)
So to bring you back to your own challenge - what's an example of a case in which this would come into play that would be successfully prosecuted under the affirmative consent model of consent, and but not the no-means-no model of consent?
The most basic one is a man is extremely drunk (as supported by a tox screen or whatever) and raped by a woman. Under the current standard the defense could say that he had a erection or was moaning or whatever and that the defendant reasonably and honestly thought that that indicated Consent even though it was physically impossible for consent to be given.
The new standard would force them to either give up that defense and dispute the tox screen or try to make the case that something that could reasonably be thought clear and consciously given could come out of someone that drunk which is much harder.
You can do the same with fear. A reasonable person could mistake fear induced compliance for consent (or at enough for reasonable doubt) but clear and conscious? Not as easy. That changes the defense from the accuser is sincere but didn't communicate well to the accuser is lying which places some extra explanatory burden on the defense. Not enough by its self of course but with some extra evidence it would preach.
As I understand it reasonable fear and intoxication exceeding the capacity to consent already present grounds for conviction regardless of whether affirmative consent models are used or not. Requiring extra explanatory burdens on the defence don't strike me as prima facie desirable goals under either example under the current level of detail.
the opposite of affirmative consent is not "what she didn't do", it is implied consent
but the implied consent doctrine also asserts that consent is obtained by actions that are done, not actions which are not done; those actions are the actions said to imply consent (as opposed to an express grant of consent)
the doctrine is not "she did not get up from the bed to leave, so she consented", it is "she got on the bed, and that action implied consent T+10 minutes later" (or, more classically, she consented to marriage, and so that action implied consent T+forever years later).
now this is an antiquated standard! but the whole point is to define what does or does not imply consent; you cannot handwave it away as obvious to a reasonable observer because it is not obvious.
So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?
So Matt, can you please explain how affirmative consent laws achieve this in a way that no-means-no standards of consent in principle or in practice do not?
This is a long answer question, but the short answer to it is basically that it creates an environment where people who have been assaulted don't have to substantiate that they refused. In the previous system, "Did you actually say no?" was a pretty standard question both from the police, and a very standard part of the defense of rapists in court.
The old model put the onus on the assaulted person.
The affirmative consent model puts the onus on the accused to substantiate that they had the accuser's consent, and to explain how. That has to hold up to scrutiny. This means under the affirmative consent model it is the accused who is scrutinized, not the accuser. The accuser is stating they did not consent, and that they either made this expressly or implicitly known to the accused or that they consented under duress (which is not really consent, under the law). The accused basically has to state that the accuser is lying (in the case of express refusal) or state how they did not understand the accuser's implicit lack of consent.
Under the old model, this implicit lack of consent and the accused's failure to understand it would be sufficient argument to create doubt and could result in a rapist going free.
Under the affirmative consent model, this implicit lack of consent and the accused's failure to understand it is not an excuse, because it is considered the responsibility of the person trying to initiate sexual conduct to obtain consent. If there was doubt or failure to understand an implicit lack of consent, that failure is considered the accused's, not the accuser's, to clarify.
Which is why I stress clarity and communication, people.
But then wouldn't teaching people that they can say no and that they ought to be sensitive to a no and when a rape gets reported to sit the accused down and grill them about whether or not the person refused in any way effect the same kind of result?
I mean, maybe not, I certainly don't know enough about psychology to say with any authority.
I think that some of the reticence here hasn't been from people who are necessarily worried about first kisses (though I recognize that this has been an issue for some), but rather that the only thing that an affirmative consent law allows for prosecution for which a well enforced no-means-no with a culture more open to sexuality doesn't is these silly cases.
I don't think that anyone is necessarily against changing our culture in the US to be one where communication happens more, and where people are more sensitive to the signals and cues of others but where people aren't afraid to say something. I think that nearly everyone wants there to be a cultural shift and for more rapes to be prosecuted. It seems like everyone thinks that a cultural shift like that is only going to make things better.
What has not be articulated to some people's satisfaction seems to be why specifically a well enforced affirmative consent is better than a well enforced no-means-no provided you have that open culture. Which rapes would not prosecuted by a no-means-no?
Every example seems to turn on some sort of coercion or use of force (or possibly threat of force). Those would be prosecuted under either legal standard, well enforced. So what cases require the affirmative consent law?
I think something else that is making the discussion confusing for some or frustrating is there is a lot of slipping back and forth between what ought to be prosecuted as rape in court, and what we ought to consider rape external to any legal framework. For example, I've never participated in a rape prosecution, though I was certainly raped once, and possibly many many times (depending on how we define this slippery implied consent in long term relationships).
Speaking of this implied consent, that seems to be another source of confusion and frustration. Because it's not clear what counts as consent for affirmative consent. When I say not clear, I do not mean that no one has articulated what the standard is, but rather, I'm not sure that some understand what sort of implied consent is okay. This has led to a lot of the responses about how rapists will just talk about the implied affirmatives that they got, rather than the implied non-negatives that they got. So it seems like affirmative consent doesn't help us there. If taken to solely back explicit consent, then affirmative consent is clear, but certainly not what anyone seems to be arguing here. Perhaps some elucidation of how implied consent is assessed or ought to be assessed under affirmative consent would be helpful.
I've largely been just reading this thread, as I don't really have a dog in this fight. Well, I do, I just don't know which one it is. Or if it's even represented so far. I think that there are some compelling arguments being made by many people, and these are just some of my observations from being as much of an outside observer as I can be.
Ok, so the main attraction of the change is that now even if we were somehow able to 100 verify every fact of a case it would still be extremely hard to prove that accused hadn't honestly and reasonably mistaken say drunken moaning for consent or frighten freezing up for playing coy or whatever.
With the new standard the defendant would have to show that it wasn't just reasonable to think consent was there they would also have to show it was clear and consciously given which is harder to mistake. Of course all the same standards of evidence and presumption of innocence and whatnot still applies.
Again, the idea isn't so much to stop people from doing stuff or change to culture (tho some people disagree) or even to bring a case that wouldn't have been illegal under the old definition (it's going to be impossible to prove anyway). It's to make easier to prosecute. (It's a Balancing act, economy, yadda yadda yadda)
So to bring you back to your own challenge - what's an example of a case in which this would come into play that would be successfully prosecuted under the affirmative consent model of consent, and but not the no-means-no model of consent?
The most basic one is a man is extremely drunk (as supported by a tox screen or whatever) and raped by a woman. Under the current standard the defense could say that he had a erection or was moaning or whatever and that the defendant reasonably and honestly thought that that indicated Consent even though it was physically impossible for consent to be given.
The new standard would force them to either give up that defense and dispute the tox screen or try to make the case that something that could reasonably be thought clear and consciously given could come out of someone that drunk which is much harder.
You can do the same with fear. A reasonable person could mistake fear induced compliance for consent (or at enough for reasonable doubt) but clear and conscious? Not as easy. That changes the defense from the accuser is sincere but didn't communicate well to the accuser is lying which places some extra explanatory burden on the defense. Not enough by its self of course but with some extra evidence it would preach.
As I understand it reasonable fear and intoxication exceeding the capacity to consent already present grounds for conviction regardless of whether affirmative consent models are used or not. Requiring extra explanatory burdens on the defence don't strike me as prima facie desirable goals under either example under the current level of detail.
1) yes but you can still use a mistake of fact defense and say that you had a reasonable and honest belief that they had consented.
2) personally I think that the second person being guilty is desirable but like I said balancing act.
now affirmative consent is not an express grant of consent, that's what is meant when it is clarified that SB967 will not require you to sign release forms continuously during a sex act
presumably it sits somewhere between implied and express consent
now legislative codes are a poor place to definitively characterize a constantly-evolving cultural communication standard, to be fair, so it is fine for a bill to say, well, okay, we'll just say that the relevant standard will be "reasonable" and leave it at that. Nonetheless, if the law is to mean something, it will have to empower some jurisprudential standard, so it is entirely fair to ask what that standard will be, even if it is not expressly characterized in the bill itself. Its presence is already invoked via words like "reasonable".
What are reasonable steps to ascertain affirmative consent, in this context? These are exact words from the text of the bill, incidentally.
I think that you have to show the unreasonableness to beyond a reasonable doubt but that part always confuses me.
But either way the accused still has the easier job here so just a very basic level of due diligence.
Can they stand under their own power?
Are they showing any sign of approval?
the opposite of affirmative consent is not "what she didn't do", it is implied consent
but the implied consent doctrine also asserts that consent is obtained by actions that are done, not actions which are not done; those actions are the actions said to imply consent (as opposed to an express grant of consent)
the doctrine is not "she did not get up from the bed to leave, so she consented", it is "she got on the bed, and that action implied consent T+10 minutes later" (or, more classically, she consented to marriage, and so that action implied consent T+forever years later).
now this is an antiquated standard! but the whole point is to define what does or does not imply consent; you cannot handwave it away as obvious to a reasonable observer because it is not obvious.
1) yes but you can still use a mistake of fact defense and say that you had a reasonable and honest belief that they had consented.
kind of. it would be up to a lawyer to guide a defendant to say this and prompt the defendant to emphasize acceptable grounds for this reasonable belief. In terms of the practical objective of obtaining convictions, nothing may substantially change, but it would still be a change in the social messaging generated by adversarial judicial process, and it is apparent that this is what activists feel to be causing substantive harm.
"Affirmative" as opposed to "negative." Which means it's based on what she does, and not one what she didn't do.
Also, it doesn't require that the accused party provide any form of evidence or proof to back up the fact this actually happened. Which means the claims on how it shifts the burden are all bunk.
I don't understand.
In formal debate, an affirmative position means you're challenging the status quo. A negative position means you're upholding the status quo.
The question is, what's the status quo regarding rape? There are two possibilities:
Standard 1: The status quo is that a woman automatically consents to having sex with you, unless she gives you an affirmative reason to believe she doesn't (i.e., shouting no, putting up a fight, etc.)
Standard 2: The status quo is that a woman does not automatically consent to having sex with you, unless she gives you an affirmative reason to believe she does (i.e., telling you how turned on she is, ripping off your clothes, climbing on top of you and taking charge, etc.).
The problem with the old law is that it was unclear if we should rely on #1 or #2. So you end up with situations where a group of teens gang rape a drunken minor and get a slap on the wrist, because they followed standard #1 and they insist she never said no. So now the law fixes the loophole and explains we have to use standard number #2. Which is pretty much the same standard we would use for any other form of ownership dispute.
Spaceman said that he "read the situation" in order to know that kissing his partner was okay. Reading the situation implies affirmative information, which is consistent with standard #2. It would not be consistent with standard #1, because under standard #1, consent is already assumed and there's no need to read much of anything.
However, here's the really important part: Standard #2 does not require any additional evidence compared to Standard #1. It says that you need affirmative consent, but it does not say that you need to maintain evidence that it actually occurred. Essentially, the burden of proof at the trial is the exact claim under both standards: You insist she consented, and she insists that she didn't.
Likewise, contrary to popular believe, it does not require specific forms of consent. It simply says it has to be based on something, rather than being based on nothing. Because under the old standard, you could say, "Well, she just went perfectly limp and was completely silent the whole time," and at least one juror would conclude that it definitely wasn't rape.
The only additional burden Standard #2 creates is during the act of intercourse itself. And only if the partner in question is basically playing dead and isn't saying or do anything to imply consent on their own.
Schrodinger on
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MrMisterJesus dying on the cross in pain? Morally better than us. One has to go "all in".Registered Userregular
I think we can tick every one of those things on the list to a greater or lesser degree wrt this thread
Man, it's too bad we don't actually have the bill in question so we can read it for ourselves to find out if it actually does the things it's been accused of doing...
1.a.1 carefully defines what "affirmative" does not mean but not what it does, and 1.a.2.B leaves it to jurisprudence to settle 'reasonable'
so I call this for Deboer
I thought DeBoer's article was somewhat unfair -- for all X, where X is a law or social movement, you'll have different people offering wildly different defenses of X and claiming vastly different scope for X. So it's not unusual that you have some people saying affirmative consent changes everything and some people saying it changes nothing.
Nonetheless, I find this repeated posting of the bill pretty silly, even on the assumption we are trying to confine our attention to this bill. Law is a specialized discipline. You can post the 14th Amendment all you like, but who knew 'equal protection' meant 'gay marriage' until Friday? As ronya is correctly pointing out here, the key terms are 'reasonable' and, in particular, 'affirmative.' 'Affirmative,' in particular, is not defined, and is also what seems to be the new concept differentiating this law (and movement behind the law) from previous regimes. What is 'affirmative' doing in this context? That's precisely what people have been arguing and/or scratching their heads over. So it is silly to just keep posting the law and pretending it's perfectly plain. It's not and that's the point.
the opposite of affirmative consent is not "what she didn't do", it is implied consent
but the implied consent doctrine also asserts that consent is obtained by actions that are done, not actions which are not done; those actions are the actions said to imply consent (as opposed to an express grant of consent)
the doctrine is not "she did not get up from the bed to leave, so she consented", it is "she got on the bed, and that action implied consent T+10 minutes later" (or, more classically, she consented to marriage, and so that action implied consent T+forever years later).
now this is an antiquated standard! but the whole point is to define what does or does not imply consent; you cannot handwave it away as obvious to a reasonable observer because it is not obvious.
1) yes but you can still use a mistake of fact defense and say that you had a reasonable and honest belief that they had consented.
kind of. it would be up to a lawyer to guide a defendant to say this and prompt the defendant to emphasize acceptable grounds for this reasonable belief. In terms of the practical objective of obtaining convictions, nothing may substantially change, but it would still be a change in the social messaging generated by adversarial judicial process, and it is apparent that this is what activists feel to be causing substantive harm.
I could see the clear part of the definition of consent being useful in the toolbox of a prosecutor in a intoxicated accuser case.
But it kinda forces opponents to worry that it won't work and the same time that they are worried about bad first dates ending in jail time.
One issue I feel like we touch on a lot in these threads is the whole "gray area." The sexual encounters that lie somewhere url=http://totalsororitymove.com/is-it-possible-that-there-is-something-in-between-consensual-sex-and-rape-and-that-it-happens-to-almost-every-girl-out-there/]between consensual sex and rape.[/url] This actually includes a pretty wide variety of encounters, from what I can tell. Encounters where both parties are too drunk to make good decisions. Encounters where one party gives explicit permission but still experiences the sex as violating and traumatizing. Encounters where consent isn't made explicitly clear one way or the other, but one or both parties end up regretting the encounter, etc.
I think that society in general is extremely unhelpful at dealing with these kinds of encounters. The only categories we provide to describe sexual encounters are "sex" or "rape". Neither of these categories are especially good at matching people's intuitions around gray areas. Many many people I know have stories like this It’s not rape, and I’m not saying it’s rape… but I thought I had to agree to sex if I wanted to be in a relationship. But I was too drunk to understand what was going on, and my partner didn’t know that and she wouldn’t have done anything if she knew but it still hurt. But I thought he would leave me if I didn’t do it. Complex situations riddled with feelings and uncertainties, and society only offers two choices: the sex was beautiful and loving and each side was a willing participant, or your partner is a rapist/victim and you/they should be thrown in prison and shunned forever and ever. Unsurprisingly, neither of these options particularly match the participants intuitions about what happened or what should happen in these gray area cases.
This nuance is, I believe, closely tied to the idea of compulsory sexuality: the idea that everyone should have frequent sex of socially approved varieties. “Virgin” continues to be used as an insult, particularly against men. Polyamorous, kinky, and sex-positive communities often have an unspoken expectation that everyone wants lots of sex. LGB people are often expected to “prove” their sexual orientation through having sex with people of the same sex or with an equal number of men and women. Even spaces usually considered sex-negative have this problem: Christian culture combines an emphasis on abstinence until marriage with pressure to have great sex with your spouse after marriage, sometimes progressing to the idea that refusing sex is a sin, and so on. Compulsory sexuality creates situations where people feel obligated for sex, and when combined with uncertainty often leads to the kind of sex that people disassociate from - the kind where they'll avoid explicitly saying yes or no (or even explicitly consent), but scrub themselves and feel horrible afterwards.
The feminist/SJ solution to this conundrum has largely been to try to push more and more of these gray areas explicitly into the monster category, and to seek more stringent punishments for those it deems to be monsters. That the label of "rapist" may not match the intuitions of either party is treated as a feature, not a bug. The idea seems to be that their intuitions about the encounter are wrong, that we need to re-educate society and teach people once and for all that any interaction with this kind of aforementioned gray area makes you either a monster or a victim. I think this is a well-intentioned belief, in general - the theory seems to be that these kinds of harsh punishments will encourage everyone to remove all gray areas from their sexual encounters, and society will proceed as normal except everyone will be really really sure of getting consent before proceeding with anything sexual at all.
But I think this solution has some issues, and some noticeable unintended consequences. . It seems to me to be very dangerous to place having sex with someone who has explicitly said no (ie: something that only a fairly small group of serial rapists do) into the same category as having sex with people who may be under the influence of society's compulsory norms around sexuality (ie: everyone.) While lumping these into a single category might make the latter seem more horrifying, it also normalizes the former. Likewise, this solution feels strikingly ableist - it's heavily predicated on the idea that social cues are always going to be clear and easy to pick up on, and to a lot of people in a lot of situations (say, autism-spectrum people) they are quite the opposite.
I think what's missing from the discussion is a real attempt to redraw the category boundaries - not to make rape less horrible, but to create greater distinctions across the gray areas and how best to deal with them. To build better language around consent and sexual assault in such a way that we can properly look at "stranger breaking into your house with a knife" and "drunken sex with unclear consent" as different situations that require fundamentally different societal remedies. The kind of gray-area case that could be caught by an affirmative consent law (but not a conventional rape law) doesn't strike me as something that is best solved by decades in prison, but without better categorization around these topics we're forced to classify those involved as deserving either decades in prison or nothing. Arguing that the obvious answer is 'sex' or 'rape' seems to ignore the fundamental issues with our categorization scheme around these issues, and also ends up ignoring all of the obvious cases where applying one category or the other will cause obvious harm and injustice to both sides.
Legislating the type of intercourse you have is super weird and scary
But what is still fuzzy is how do you say something happened and not expect to have to prove it - unless the other party is expected to have an airtight recount of events that makes it obvious what you say is impossible. And then you'd have to prove it.
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
It's like if someone said we should stop suicides and you replied "Oh, you want Hitler to keep going then?!"
Most people would say "reduce" suicide, not stop them entirely. And if they did say "stop," then the easiest counter example would be euthanasia.
Hitler would probably be a bad example, because lots of people would have probably preferred that he be captured in order to suffer.
Here's the thing: People in this thread keep confusing potentially illegal with always illegal.
The OP complains that holding hands is potentially a crime. As it should be! It's not hard to imagine a scenario where a child molester tries to grab a child by the hand, and then says "We were just holding hands, perfectly innocent!" But that's definitely not the same as claiming it should always be illegal, which is the strawman tackled by the OP.
Likewise, I don't believe that all cases of children self-distributing child pornography should result in jail time. But some of those cases certainly should, such as the Stubenville case. Override's complaint wasn't in the number of teenagers being locked up. His complaint was that teenagers can get locked up period.
Also the social cues of consent are borderline subliminal, because people are puritanic dummies who can't bring themselves to go around saying "I want sex.". Couldn't a variety of actions be considered consent, like a variety of actions are considered assault? Like, punching someone in the junk can be considered both if they're into that, and how's a court going to understand?
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Legislating the type of intercourse you have is super weird and scary
But what is still fuzzy is how do you say something happened and not expect to have to prove it - unless the other party is expected to have an airtight recount of events that makes it obvious what you say is impossible. And then you'd have to prove it.
Again, you're assuming cold blooded serial rapist.
As opposed to "dumb teenager who doesn't understand that what he's doing is wrong."
Why did the Stubenville rapists distribute video of themselves committing gang rape? Because they didn't realize that gang rape was wrong.
In cases like this, the person doesn't have to "prove" that consent occurred. And he'll probably have no qualms with lying. But if he's too dumb to figure out that distributing video himself gang raping a passed out girl is a bad idea, then he's probably too dumb to make up a lie that sounds consistent and believable. Again, this doesn't apply to the cold blooded social path.
How is this different from the old system? Because under the old system, they wouldn't have to lie most of the time. All he would have to say was, "I assumed she was into it," and the idiot would be so full of his own self-delusion that he would probably believe it. He also wouldn't need a reason to believe it beyond "she never said no." Under the new system, that's no longer good enough, and his self-delusion can bite him in the ass.
In the real world, the vast majority of criminals are dumb.
It's like if someone said we should stop suicides and you replied "Oh, you want Hitler to keep going then?!"
Most people would say "reduce" suicide, not stop them entirely. And if they did say "stop," then the easiest counter example would be euthanasia.
Hitler would probably be a bad example, because lots of people would have probably preferred that he be captured in order to suffer.
Here's the thing: People in this thread keep confusing potentially illegal with always illegal.
The OP complains that holding hands is potentially a crime. As it should be! It's not hard to imagine a scenario where a child molester tries to grab a child by the hand, and then says "We were just holding hands, perfectly innocent!" But that's definitely not the same as claiming it should always be illegal, which is the strawman tackled by the OP.
Likewise, I don't believe that all cases of children self-distributing child pornography should result in jail time. But some of those cases certainly should, such as the Stubenville case. Override's complaint wasn't in the number of teenagers being locked up. His complaint was that teenagers can get locked up period.
Note that Override talks about consensual acts in the first part of the sentence. There is nothing to suggest any defense of non-consensual acts. Override is defending kids who get locked up for sending naked selfies and you think Override is defending a group of gangrapists photographing their victim.
Either your incredibly misinterpreting Override or youre arguing in bad faith.
It's like if someone said we should stop suicides and you replied "Oh, you want Hitler to keep going then?!"
Most people would say "reduce" suicide, not stop them entirely. And if they did say "stop," then the easiest counter example would be euthanasia.
Hitler would probably be a bad example, because lots of people would have probably preferred that he be captured in order to suffer.
Here's the thing: People in this thread keep confusing potentially illegal with always illegal.
The OP complains that holding hands is potentially a crime. As it should be! It's not hard to imagine a scenario where a child molester tries to grab a child by the hand, and then says "We were just holding hands, perfectly innocent!" But that's definitely not the same as claiming it should always be illegal, which is the strawman tackled by the OP.
Likewise, I don't believe that all cases of children self-distributing child pornography should result in jail time. But some of those cases certainly should, such as the Stubenville case. Override's complaint wasn't in the number of teenagers being locked up. His complaint was that teenagers can get locked up period.
But this requires ambiguity and relying on the courts to be sensible. I think ambiguity in laws especially ones that carry heavy penalties are unhelpful, and I absolutely do not trust the courts and the Justice system to be sensible, reasonable, and selective in their implementation of the law. See the previous case of sexting teenagers.
You seem to be advocating for ambiguity and subjectivity in the law, looking to the Justice system to make the right call on when it is appropriate to exercise a specific law or not. I am opposed to this, because I do not trust the Justice system to make that call.
Indeed in the Stubenville case I will explicitly say they should not be prosecuted for child porn in that situation. I think laws should be specific and clear so they can not be interpreted in ridiculous and unhelpful ways. Even discounting any child porn charges, they still performed a rape which is a crime, they recorded and distributed the evidence of something which is a crime, and their doing so even sans child porn charges would I believe itself be a crime because of the nature of the recordings. Those are the crimes for which they should be accountable, and I think tacking on child porn charges is not necessary. I've never been a fan at taking every possible crime someone might have committed and throwing them all against them in the hopes that either you get the highest sentence possible or at least something will stick.
Did someone commit a crime yes/no. Can you prove it yes/no. Then punish them for it. In situations like this it always seems like people want other crimes to apply more broadly so that they can be made to apply to situations that are already expressly illegal. We make laws for specific reasons to combat specific problems, at least in the case of making activity or behavior criminal. We should try to be specific and restrained when doing so. Making a bunch of overly broad laws that be interpreted badly and overlap many times over is to my mind an unhelpful way of managing criminal behavior.
Capital is only the fruit of labor, and could never have existed if Labor had not first existed. Labor is superior to capital, and deserves much the higher consideration. - Lincoln
the steubenville case does partially implicate the uniquely American problem of having to be carefully explicit in criminal codes in order to limit the discretion of locally elected judges and prosecutors
It's like if someone said we should stop suicides and you replied "Oh, you want Hitler to keep going then?!"
Most people would say "reduce" suicide, not stop them entirely. And if they did say "stop," then the easiest counter example would be euthanasia.
Hitler would probably be a bad example, because lots of people would have probably preferred that he be captured in order to suffer.
Here's the thing: People in this thread keep confusing potentially illegal with always illegal.
The OP complains that holding hands is potentially a crime. As it should be! It's not hard to imagine a scenario where a child molester tries to grab a child by the hand, and then says "We were just holding hands, perfectly innocent!" But that's definitely not the same as claiming it should always be illegal, which is the strawman tackled by the OP.
Likewise, I don't believe that all cases of children self-distributing child pornography should result in jail time. But some of those cases certainly should, such as the Stubenville case. Override's complaint wasn't in the number of teenagers being locked up. His complaint was that teenagers can get locked up period.
Note that Override talks about consensual acts in the first part of the sentence. There is nothing to suggest any defense of non-consensual acts. Override is defending kids who get locked up for sending naked selfies and you think Override is defending a group of gangrapists photographing their victim.
Either your incredibly misinterpreting Override or youre arguing in bad faith.
EDIT: Or you're super fucking pedantic
1) Laws against sodomy are not based on consent, which never even enters the equation. Hence, you should normally assume that the people being jailed for that are consenting unless otherwise stated (if it was non-consenting, they would have been charged with rape).
2) Laws against child pornography are based on consent. Hence, most people would normally assume that child pornography is non-consensual unless otherwise specified.
3) The Stubenville rape case are one of the most prominent recent examples of teenagers being jailed for distribution of child pornography. I'm sure other examples have happened, but none that I can think of by name.
Legislating the type of intercourse you have is super weird and scary
But what is still fuzzy is how do you say something happened and not expect to have to prove it - unless the other party is expected to have an airtight recount of events that makes it obvious what you say is impossible. And then you'd have to prove it.
Again, you're assuming cold blooded serial rapist.
As opposed to "dumb teenager who doesn't understand that what he's doing is wrong."
Why did the Stubenville rapists distribute video of themselves committing gang rape? Because they didn't realize that gang rape was wrong.
In cases like this, the person doesn't have to "prove" that consent occurred. And he'll probably have no qualms with lying. But if he's too dumb to figure out that distributing video yourself gang raping a passed out girl is a bad idea, then he's probably too dumb to make up a lie that sounds consistent and believable. Again, this doesn't apply to the cold blooded social path.
How is this different from the old system? Because under the old system, they wouldn't have to lie most of the time. All he would have to say was, "I assumed she was into it," and the idiot would be so full of his own self-delusion that he would probably believe it. He also wouldn't need a reason to believe it beyond "she never said no." Under the new system, that's no longer good enough, and his self-delusion can bite him in the ass.
In the real world, the vast majority of criminals are dumb.
Can consent really be assumed of an unconscious person in the current system?
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Legislating the type of intercourse you have is super weird and scary
But what is still fuzzy is how do you say something happened and not expect to have to prove it - unless the other party is expected to have an airtight recount of events that makes it obvious what you say is impossible. And then you'd have to prove it.
Again, you're assuming cold blooded serial rapist.
As opposed to "dumb teenager who doesn't understand that what he's doing is wrong."
Why did the Stubenville rapists distribute video of themselves committing gang rape? Because they didn't realize that gang rape was wrong.
In cases like this, the person doesn't have to "prove" that consent occurred. And he'll probably have no qualms with lying. But if he's too dumb to figure out that distributing video yourself gang raping a passed out girl is a bad idea, then he's probably too dumb to make up a lie that sounds consistent and believable. Again, this doesn't apply to the cold blooded social path.
How is this different from the old system? Because under the old system, they wouldn't have to lie most of the time. All he would have to say was, "I assumed she was into it," and the idiot would be so full of his own self-delusion that he would probably believe it. He also wouldn't need a reason to believe it beyond "she never said no." Under the new system, that's no longer good enough, and his self-delusion can bite him in the ass.
In the real world, the vast majority of criminals are dumb.
Can consent really be assumed of an unconscious person in the current system?
Unless the girl was roofied, chances are she didn't go unconscious right away.
And that gives potential rapists a lot of leeway to work with. Get the girl liquored up, and then start groping her.
Oh, she isn't resisting? Well, she still hasn't officially passed out yet, so it must be because she's into him, and not because she's too drunk to fend him off.
Apothe0sisHave you ever questioned the nature of your reality?Registered Userregular
There was an article written by a woman who routinely got black out drunk that referenced another article about roofies and that it seems likely that most roofie experiences in fact aren't - does anyone remember either? The woman's article was linked a while ago in the D&D chat thread and culminated in her providing sex out of obligation to the concierge for returning her purse.
Legislating the type of intercourse you have is super weird and scary
But what is still fuzzy is how do you say something happened and not expect to have to prove it - unless the other party is expected to have an airtight recount of events that makes it obvious what you say is impossible. And then you'd have to prove it.
Again, you're assuming cold blooded serial rapist.
As opposed to "dumb teenager who doesn't understand that what he's doing is wrong."
Why did the Stubenville rapists distribute video of themselves committing gang rape? Because they didn't realize that gang rape was wrong.
In cases like this, the person doesn't have to "prove" that consent occurred. And he'll probably have no qualms with lying. But if he's too dumb to figure out that distributing video yourself gang raping a passed out girl is a bad idea, then he's probably too dumb to make up a lie that sounds consistent and believable. Again, this doesn't apply to the cold blooded social path.
How is this different from the old system? Because under the old system, they wouldn't have to lie most of the time. All he would have to say was, "I assumed she was into it," and the idiot would be so full of his own self-delusion that he would probably believe it. He also wouldn't need a reason to believe it beyond "she never said no." Under the new system, that's no longer good enough, and his self-delusion can bite him in the ass.
In the real world, the vast majority of criminals are dumb.
Can consent really be assumed of an unconscious person in the current system?
Unless the girl was roofied, chances are she didn't go unconscious right away.
And that gives potential rapists a lot of leeway to work with. Get the girl liquored up, and then start groping her.
Oh, she isn't resisting? Well, she still hasn't officially passed out yet, so it must be because she's into him, and not because she's too drunk to fend him off.
Plus how do you show that someone is passed out without pictures or something?
We can show someone is slobbering drunk but showing they can't say no or understand what is going to (and someone isn't capable of mistaking it)? Much more difficult.
the steubenville case does partially implicate the uniquely American problem of having to be carefully explicit in criminal codes in order to limit the discretion of locally elected judges and prosecutors
It's not just the judges and the prosecutors, though. It's the entire community.
Case in point:
Here's an example of a community that rallied around a 13 year old gang rape victim.
And by "rallied around," I mean "burned her house down after they tried to move to a different neighborhood to escape the constant harassment."
Posts
I should hope not.
In the absence of reliable information you aren't going to get a case together (legally I guess) anyway. The problem is that right now we can have 100 percent reliable information and still not get a case together.
Jesus fuck.
What an uncharitable goddamn reading of an obvious meaning. Kids sexting shouldn't be charged for child porn. Fucking christ.
Shitty Tumblr:lighthouse1138.tumblr.com
Man, it's too bad we don't actually have the bill in question so we can read it for ourselves to find out if it actually does the things it's been accused of doing...
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967
Nope.
1.a.1 carefully defines what "affirmative" does not mean but not what it does, and 1.a.2.B leaves it to jurisprudence to settle 'reasonable'
so I call this for Deboer
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Old law says that sex has to be consensual.
New law clarifies that consent has to be affirmative, voluntary, and conscious, for anyone who didn't understand it before.
"Affirmative" as opposed to "negative." Which means it's based on what she does, and not one what she didn't do.
Also, it doesn't require that the accused party provide any form of evidence or proof to back up the fact this actually happened. Which means the claims on how it shifts the burden are all bunk.
Which part of that do you disagree with?
Or do you have another excerpt of the law that you would like to discuss?
Remember the Obamacare debate, when Sarah Palin claimed that there were death panels? And then just to shut her up, Obama had to write a clarification saying this wouldn't happen. And then the right wing jumped on this and said, "Aha, this proves that there were death panels! Otherwise, why bother revising Obamacare?" Well this is pretty much the same deal. The purpose of Affirmative Consent law is to clarify the idea of consent to people who didn't understand what it meant (including people who worked in law enforcement). No one can actually point to anything that the law is doing wrong, so the only thing they can complain about is the fact that the clarification exists at all.
Shitty Tumblr:lighthouse1138.tumblr.com
I don't understand.
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
The most basic one is a man is extremely drunk (as supported by a tox screen or whatever) and raped by a woman. Under the current standard the defense could say that he had a erection or was moaning or whatever and that the defendant reasonably and honestly thought that that indicated Consent even though it was physically impossible for consent to be given.
The new standard would force them to either give up that defense and dispute the tox screen or try to make the case that something that could reasonably be thought clear and consciously given could come out of someone that drunk which is much harder.
You can do the same with fear. A reasonable person could mistake fear induced compliance for consent (or at enough for reasonable doubt) but clear and conscious? Not as easy. That changes the defense from the accuser is sincere but didn't communicate well to the accuser is lying which places some extra explanatory burden on the defense. Not enough by its self of course but with some extra evidence it would preach.
Override said that there shouldn't be cases where people are jailed for distributing child pornography of themselves.
I pointed to a very famous, very recent case relevant to this thread where they should be.
Sodomy laws are bad are bad in general. If Jeffrey Dahmer commits sodomy, he should be convicted of murder, not sodomy. Because sodomy laws are bad.
But Stubenville teenagers being charged with child pornography? Perfectly valid.
but the implied consent doctrine also asserts that consent is obtained by actions that are done, not actions which are not done; those actions are the actions said to imply consent (as opposed to an express grant of consent)
the doctrine is not "she did not get up from the bed to leave, so she consented", it is "she got on the bed, and that action implied consent T+10 minutes later" (or, more classically, she consented to marriage, and so that action implied consent T+forever years later).
now this is an antiquated standard! but the whole point is to define what does or does not imply consent; you cannot handwave it away as obvious to a reasonable observer because it is not obvious.
@Override was obviously refering to sexting not a gang-rape you freaking goose.
Shitty Tumblr:lighthouse1138.tumblr.com
Shitty Tumblr:lighthouse1138.tumblr.com
presumably it sits somewhere between implied and express consent
now legislative codes are a poor place to definitively characterize a constantly-evolving cultural communication standard, to be fair, so it is fine for a bill to say, well, okay, we'll just say that the relevant standard will be "reasonable" and leave it at that. Nonetheless, if the law is to mean something, it will have to empower some jurisprudential standard, so it is entirely fair to ask what that standard will be, even if it is not expressly characterized in the bill itself. Its presence is already invoked via words like "reasonable".
What are reasonable steps to ascertain affirmative consent, in this context? These are exact words from the text of the bill, incidentally.
As I understand it reasonable fear and intoxication exceeding the capacity to consent already present grounds for conviction regardless of whether affirmative consent models are used or not. Requiring extra explanatory burdens on the defence don't strike me as prima facie desirable goals under either example under the current level of detail.
1) yes but you can still use a mistake of fact defense and say that you had a reasonable and honest belief that they had consented.
2) personally I think that the second person being guilty is desirable but like I said balancing act.
I think that you have to show the unreasonableness to beyond a reasonable doubt but that part always confuses me.
But either way the accused still has the easier job here so just a very basic level of due diligence.
Can they stand under their own power?
Are they showing any sign of approval?
That sort of thing.
kind of. it would be up to a lawyer to guide a defendant to say this and prompt the defendant to emphasize acceptable grounds for this reasonable belief. In terms of the practical objective of obtaining convictions, nothing may substantially change, but it would still be a change in the social messaging generated by adversarial judicial process, and it is apparent that this is what activists feel to be causing substantive harm.
In formal debate, an affirmative position means you're challenging the status quo. A negative position means you're upholding the status quo.
The question is, what's the status quo regarding rape? There are two possibilities:
Standard 1: The status quo is that a woman automatically consents to having sex with you, unless she gives you an affirmative reason to believe she doesn't (i.e., shouting no, putting up a fight, etc.)
Standard 2: The status quo is that a woman does not automatically consent to having sex with you, unless she gives you an affirmative reason to believe she does (i.e., telling you how turned on she is, ripping off your clothes, climbing on top of you and taking charge, etc.).
The problem with the old law is that it was unclear if we should rely on #1 or #2. So you end up with situations where a group of teens gang rape a drunken minor and get a slap on the wrist, because they followed standard #1 and they insist she never said no. So now the law fixes the loophole and explains we have to use standard number #2. Which is pretty much the same standard we would use for any other form of ownership dispute.
Spaceman said that he "read the situation" in order to know that kissing his partner was okay. Reading the situation implies affirmative information, which is consistent with standard #2. It would not be consistent with standard #1, because under standard #1, consent is already assumed and there's no need to read much of anything.
However, here's the really important part: Standard #2 does not require any additional evidence compared to Standard #1. It says that you need affirmative consent, but it does not say that you need to maintain evidence that it actually occurred. Essentially, the burden of proof at the trial is the exact claim under both standards: You insist she consented, and she insists that she didn't.
Likewise, contrary to popular believe, it does not require specific forms of consent. It simply says it has to be based on something, rather than being based on nothing. Because under the old standard, you could say, "Well, she just went perfectly limp and was completely silent the whole time," and at least one juror would conclude that it definitely wasn't rape.
The only additional burden Standard #2 creates is during the act of intercourse itself. And only if the partner in question is basically playing dead and isn't saying or do anything to imply consent on their own.
I thought DeBoer's article was somewhat unfair -- for all X, where X is a law or social movement, you'll have different people offering wildly different defenses of X and claiming vastly different scope for X. So it's not unusual that you have some people saying affirmative consent changes everything and some people saying it changes nothing.
Nonetheless, I find this repeated posting of the bill pretty silly, even on the assumption we are trying to confine our attention to this bill. Law is a specialized discipline. You can post the 14th Amendment all you like, but who knew 'equal protection' meant 'gay marriage' until Friday? As ronya is correctly pointing out here, the key terms are 'reasonable' and, in particular, 'affirmative.' 'Affirmative,' in particular, is not defined, and is also what seems to be the new concept differentiating this law (and movement behind the law) from previous regimes. What is 'affirmative' doing in this context? That's precisely what people have been arguing and/or scratching their heads over. So it is silly to just keep posting the law and pretending it's perfectly plain. It's not and that's the point.
I could see the clear part of the definition of consent being useful in the toolbox of a prosecutor in a intoxicated accuser case.
But it kinda forces opponents to worry that it won't work and the same time that they are worried about bad first dates ending in jail time.
I think that society in general is extremely unhelpful at dealing with these kinds of encounters. The only categories we provide to describe sexual encounters are "sex" or "rape". Neither of these categories are especially good at matching people's intuitions around gray areas. Many many people I know have stories like this It’s not rape, and I’m not saying it’s rape… but I thought I had to agree to sex if I wanted to be in a relationship. But I was too drunk to understand what was going on, and my partner didn’t know that and she wouldn’t have done anything if she knew but it still hurt. But I thought he would leave me if I didn’t do it. Complex situations riddled with feelings and uncertainties, and society only offers two choices: the sex was beautiful and loving and each side was a willing participant, or your partner is a rapist/victim and you/they should be thrown in prison and shunned forever and ever. Unsurprisingly, neither of these options particularly match the participants intuitions about what happened or what should happen in these gray area cases.
This nuance is, I believe, closely tied to the idea of compulsory sexuality: the idea that everyone should have frequent sex of socially approved varieties. “Virgin” continues to be used as an insult, particularly against men. Polyamorous, kinky, and sex-positive communities often have an unspoken expectation that everyone wants lots of sex. LGB people are often expected to “prove” their sexual orientation through having sex with people of the same sex or with an equal number of men and women. Even spaces usually considered sex-negative have this problem: Christian culture combines an emphasis on abstinence until marriage with pressure to have great sex with your spouse after marriage, sometimes progressing to the idea that refusing sex is a sin, and so on. Compulsory sexuality creates situations where people feel obligated for sex, and when combined with uncertainty often leads to the kind of sex that people disassociate from - the kind where they'll avoid explicitly saying yes or no (or even explicitly consent), but scrub themselves and feel horrible afterwards.
The feminist/SJ solution to this conundrum has largely been to try to push more and more of these gray areas explicitly into the monster category, and to seek more stringent punishments for those it deems to be monsters. That the label of "rapist" may not match the intuitions of either party is treated as a feature, not a bug. The idea seems to be that their intuitions about the encounter are wrong, that we need to re-educate society and teach people once and for all that any interaction with this kind of aforementioned gray area makes you either a monster or a victim. I think this is a well-intentioned belief, in general - the theory seems to be that these kinds of harsh punishments will encourage everyone to remove all gray areas from their sexual encounters, and society will proceed as normal except everyone will be really really sure of getting consent before proceeding with anything sexual at all.
But I think this solution has some issues, and some noticeable unintended consequences. . It seems to me to be very dangerous to place having sex with someone who has explicitly said no (ie: something that only a fairly small group of serial rapists do) into the same category as having sex with people who may be under the influence of society's compulsory norms around sexuality (ie: everyone.) While lumping these into a single category might make the latter seem more horrifying, it also normalizes the former. Likewise, this solution feels strikingly ableist - it's heavily predicated on the idea that social cues are always going to be clear and easy to pick up on, and to a lot of people in a lot of situations (say, autism-spectrum people) they are quite the opposite.
I think what's missing from the discussion is a real attempt to redraw the category boundaries - not to make rape less horrible, but to create greater distinctions across the gray areas and how best to deal with them. To build better language around consent and sexual assault in such a way that we can properly look at "stranger breaking into your house with a knife" and "drunken sex with unclear consent" as different situations that require fundamentally different societal remedies. The kind of gray-area case that could be caught by an affirmative consent law (but not a conventional rape law) doesn't strike me as something that is best solved by decades in prison, but without better categorization around these topics we're forced to classify those involved as deserving either decades in prison or nothing. Arguing that the obvious answer is 'sex' or 'rape' seems to ignore the fundamental issues with our categorization scheme around these issues, and also ends up ignoring all of the obvious cases where applying one category or the other will cause obvious harm and injustice to both sides.
But what is still fuzzy is how do you say something happened and not expect to have to prove it - unless the other party is expected to have an airtight recount of events that makes it obvious what you say is impossible. And then you'd have to prove it.
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Most people would say "reduce" suicide, not stop them entirely. And if they did say "stop," then the easiest counter example would be euthanasia.
Hitler would probably be a bad example, because lots of people would have probably preferred that he be captured in order to suffer.
Here's the thing: People in this thread keep confusing potentially illegal with always illegal.
The OP complains that holding hands is potentially a crime. As it should be! It's not hard to imagine a scenario where a child molester tries to grab a child by the hand, and then says "We were just holding hands, perfectly innocent!" But that's definitely not the same as claiming it should always be illegal, which is the strawman tackled by the OP.
Likewise, I don't believe that all cases of children self-distributing child pornography should result in jail time. But some of those cases certainly should, such as the Stubenville case. Override's complaint wasn't in the number of teenagers being locked up. His complaint was that teenagers can get locked up period.
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
Again, you're assuming cold blooded serial rapist.
As opposed to "dumb teenager who doesn't understand that what he's doing is wrong."
Why did the Stubenville rapists distribute video of themselves committing gang rape? Because they didn't realize that gang rape was wrong.
In cases like this, the person doesn't have to "prove" that consent occurred. And he'll probably have no qualms with lying. But if he's too dumb to figure out that distributing video himself gang raping a passed out girl is a bad idea, then he's probably too dumb to make up a lie that sounds consistent and believable. Again, this doesn't apply to the cold blooded social path.
How is this different from the old system? Because under the old system, they wouldn't have to lie most of the time. All he would have to say was, "I assumed she was into it," and the idiot would be so full of his own self-delusion that he would probably believe it. He also wouldn't need a reason to believe it beyond "she never said no." Under the new system, that's no longer good enough, and his self-delusion can bite him in the ass.
In the real world, the vast majority of criminals are dumb.
Note that Override talks about consensual acts in the first part of the sentence. There is nothing to suggest any defense of non-consensual acts. Override is defending kids who get locked up for sending naked selfies and you think Override is defending a group of gangrapists photographing their victim.
Either your incredibly misinterpreting Override or youre arguing in bad faith.
EDIT: Or you're super fucking pedantic
Shitty Tumblr:lighthouse1138.tumblr.com
But this requires ambiguity and relying on the courts to be sensible. I think ambiguity in laws especially ones that carry heavy penalties are unhelpful, and I absolutely do not trust the courts and the Justice system to be sensible, reasonable, and selective in their implementation of the law. See the previous case of sexting teenagers.
You seem to be advocating for ambiguity and subjectivity in the law, looking to the Justice system to make the right call on when it is appropriate to exercise a specific law or not. I am opposed to this, because I do not trust the Justice system to make that call.
Indeed in the Stubenville case I will explicitly say they should not be prosecuted for child porn in that situation. I think laws should be specific and clear so they can not be interpreted in ridiculous and unhelpful ways. Even discounting any child porn charges, they still performed a rape which is a crime, they recorded and distributed the evidence of something which is a crime, and their doing so even sans child porn charges would I believe itself be a crime because of the nature of the recordings. Those are the crimes for which they should be accountable, and I think tacking on child porn charges is not necessary. I've never been a fan at taking every possible crime someone might have committed and throwing them all against them in the hopes that either you get the highest sentence possible or at least something will stick.
Did someone commit a crime yes/no. Can you prove it yes/no. Then punish them for it. In situations like this it always seems like people want other crimes to apply more broadly so that they can be made to apply to situations that are already expressly illegal. We make laws for specific reasons to combat specific problems, at least in the case of making activity or behavior criminal. We should try to be specific and restrained when doing so. Making a bunch of overly broad laws that be interpreted badly and overlap many times over is to my mind an unhelpful way of managing criminal behavior.
1) Laws against sodomy are not based on consent, which never even enters the equation. Hence, you should normally assume that the people being jailed for that are consenting unless otherwise stated (if it was non-consenting, they would have been charged with rape).
2) Laws against child pornography are based on consent. Hence, most people would normally assume that child pornography is non-consensual unless otherwise specified.
3) The Stubenville rape case are one of the most prominent recent examples of teenagers being jailed for distribution of child pornography. I'm sure other examples have happened, but none that I can think of by name.
Can consent really be assumed of an unconscious person in the current system?
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
but it does happen, and graphically illustrates the problem with ambiguity when defining rape in the criminal code
there are some more fun (?) thought experiments here
Unless the girl was roofied, chances are she didn't go unconscious right away.
And that gives potential rapists a lot of leeway to work with. Get the girl liquored up, and then start groping her.
Oh, she isn't resisting? Well, she still hasn't officially passed out yet, so it must be because she's into him, and not because she's too drunk to fend him off.
that first one doesn't seem like a very ambiguous case at all
Like goddamn Schrodinger. Man. Goddamn.
Shitty Tumblr:lighthouse1138.tumblr.com
Plus how do you show that someone is passed out without pictures or something?
We can show someone is slobbering drunk but showing they can't say no or understand what is going to (and someone isn't capable of mistaking it)? Much more difficult.
It's not just the judges and the prosecutors, though. It's the entire community.
Case in point:
Here's an example of a community that rallied around a 13 year old gang rape victim.
And by "rallied around," I mean "burned her house down after they tried to move to a different neighborhood to escape the constant harassment."
http://www.kansascity.com/news/special-reports/maryville/article329412/Nightmare-in-Maryville-Teens’-sexual-encounter-ignites-a-firestorm-against-family.html