Affirmative Consent

[TheLeviathan]

 

so, like, record consent on their phone or something? Will that work?

 

Yes, unless the partner is drunk, at which point having sex with them automatically becomes rape by these standards.  Even if he or she is requesting it.

 

Which then can get into all sorts of other problems.

[TheLeviathan]

 

I'm sure the accused's testimony would stand as evidence.  It would still be up to the fact-finders to determine whether they believe him.  This isn't really different from choosing whether to believe the victim who is accusing the person of rape.  It just shifts who needs to convince you.

 

Except the difference is our system is designed to prevent this from simply being a matter of choosing who you believe more.  

 

In this system, criminality is assumed and if all you can offer is your word - what possible hope do you have to clear your name?

 

Yes, proving crimes (especially rape) can be difficult.  Isn't that, at least partially, the point?

[PseudoSABR]

 

Again, how does one do that short of a verbal interaction?  You know, something impossible to prove happened unless you go around recording your every conversation?

 

The rubber meets the road here at some point.

Well, in the reverse, how do you prove that rape happened if there isn't physical evidence? Beyond the person's testimony? 

 

Indeed, the rubber does meet the road.

[Willihammer]

 

The recent revelation about Bill Cosby is just the most recent evidence that rape isn't so hard to find, if the accusers feel comfortable enough to bring their stories forward.

That's kinda the part I wonder about. I would hope in today's culture, nothing like what Cosby did would stand a chance at being kept a secret. I suspect most of the stuff that goes unreported on campus falls into the uncomfortable middle ground between beachside honeymoon sex and full blown rape. "Sexual misconduct" you might call it, where both parties share blame and alcohol is a big factor and where everyone's decisionmaking skills are severely impaired. It seems to me that this rule is designed to target that, but I could be wrong.

 

I doubt there is a whole lot of cut-and-dried rape going on on campus. Maybe I'm naive about that though.

[PseudoSABR]

 

Except the difference is our system is designed to prevent this from simply being a matter of choosing who you believe more.  

 

In this system, criminality is assumed and if all you can offer is your word - what possible hope do you have to clear your name?

 

Yes, proving crimes (especially rape) can be difficult.  Isn't that, at least partially, the point?

It is when we are talking about a CRIMINAL conviction.  For instance, the burden of suing some one for sexual assault, emotional harm, etc. is far easier in a civil proceeding. (Proof by a 'preponderance of evidence' as opposed to 'beyond a reasonable doubt') Here, where the potential punishment is getting kicked out of one school where the accused choose to be, there probably is even a lower threshold of proof.  

 

The nature of rape itself is what allows for a shifting of scrutiny, and i think an avoidance of presumption. I'll look at the Bill itself, but I don't think there is a presumption of guilt (not of criminality), rather there is no presumption of innocence, so the fact-finders wouldn't favor any party's interpretation of the facts.

[PseudoSABR]

 

That's kinda the part I wonder about. I would hope in today's culture, nothing like what Cosby did would stand a chance at being kept a secret. I suspect most of the stuff that goes unreported on campus falls into the uncomfortable middle ground between beachside honeymoon sex and full blown rape. "Sexual misconduct" you might call it, where both parties share blame and alcohol is a big factor and where everyone's decisionmaking skills are severely impaired. It seems to me that this rule is designed to target that, but I could be wrong.

 

I doubt there is a whole lot of cut-and-dried rape going on on campus. Maybe I'm naive about that though.

I think your hitting upon the crux.    Some people, including me believe: even when both parties are at fault, when "sexual misconduct" happens--given the nature of penetration--that is cut-and-dry rape.  Maybe not violent, god-awful, worse-case evil rape.  

 

But no doubt, many young women put themselves in really stupid situations, and too many young men take advantage of that situation.  I think that's rape.  And those men should be punished.    University's are fertile ground for people putting themselves in risky situations, because of that, we probably need to take unusual steps.

[TheLeviathan]

 

Well, in the reverse, how do you prove that rape happened if there isn't physical evidence? Beyond the person's testimony? 

 

Indeed, the rubber does meet the road.

 

I wouldn't flip our basic understanding of justice because you don't dissuade criminals by punishing innocents.  

 

On college campuses I would thoroughly instruct men and women on the dangers of drinking, including rape and a variety of other crimes.  I would severely punish fraternities for verified crimes and for other excesses.  I would have someone independent on the campus, tied with law enforcement, that would pursue allegations and investigate thoroughly.

 

There are probably a myriad of other ways that aren't coming to mind, but the idea behind this is flawed.  Yes, men need to know that anything other than consent is not consent.  That needs to be absolutely stressed.  This is something else entirely.

[Mike Sixel]

As we know from the Duke case.....being accused is a bad thing. ....it isn't so simple as just losing access to a school.

[TheLeviathan]

 

It is when we are talking about a CRIMINAL conviction.  For instance, the burden of suing some one for sexual assault, emotional harm, etc. is far easier in a civil proceeding. (Proof by a 'preponderance of evidence' as opposed to 'beyond a reasonable doubt') Here, where the potential punishment is getting kicked out of one school where the accused choose to be, there probably is even a lower threshold of proof.  

 

The nature of rape itself is what allows for a shifting of scrutiny, and i think an avoidance of presumption. I'll look at the Bill itself, but I don't think there is a presumption of guilt (not of criminality), rather there is no presumption of innocence, so the fact-finders wouldn't favor any party's interpretation of the facts.

 

No presumption of innocence and presumption of guilt are a distinction without a difference.  And, as the Harvard legal experts pointed out, in civil cases you get to have representation, to face your accusers, and all of the other extremely important components of our judicial system to maintain a fair hearing of the facts and testimonies.  That is not the case here.  

 

When you shift the onus of proof on to the accused it is a reversal of our current system.  This is made especially difficult to unprove when what you are talking about are largely verbal interactions.

 

I continue to be bothered by your insistence on arguing that the consequence is merely to be kicked out of school.  It is obviously much worse than that.

[PseudoSABR]

 

As we know from the Duke case.....being accused is a bad thing. ....it isn't so simple as just losing access to a school.

Not only was the accusation public, but I think charges were brought and later dropped.  I think that points to how our current system fails addressing the phenomenon of rape that meets the criminal burden of proof.  

 

The Duke case also points to that there's not much to be gained by false accusations other than a lot of drama.  

[TheLeviathan]

 

Not only was the accusation public, but I think charges were brought and later dropped.  I think that points to how our current system fails addressing the phenomenon of rape that meets the criminal burden of proof.  

 

The Duke case also points to that there's not much to be gained by false accusations other than a lot of drama.  

 

But much to be lost and much hardship to be caused for the accused when they are innocent.  That's the point you keep missing.

 

Since when is liberalism about punishing the innocent to alter the criminal?

[PseudoSABR]

 

No presumption of innocence and presumption of guilt are a distinction without a difference.  

False. The distinction is substantial: a: Making no presumption about guilt or innocence is not the same thing as b: making a presumption of guilt.   In the latter, you pre-decide a key element, and the former you make no such decision, and let the facts guide you.  

 

I'm making a distinction between the punishment and the consequences, noting that the punishment is nothing like the criminal punishment for rape.     As to what the consequences will be, it will matter whether the proceedings are made public? Will they be?

 

[TheLeviathan]

 

False. The distinction is substantial: a) Making no presumption about guilt or innocence is not the same thing as making a presumption of guilt.   In the latter, you pre-decide a key element, and the former you make no such decision, and let the facts guide you.  

 

I'm making a distinction between the punishment and the consequences, noting that the punishment is nothing like the criminal punishment for rape.     As to what the consequences will be, it will matter whether the proceedings are made public? Will they be?

 

Except, when the burden of proof goes to affirmative consent it quickly shifts if all that can be produced is rival testimony.  There is a guise of "let the facts guide us", but (and no one, not even those defending this are arguing what you are) the truth is that the accused has to prove themselves out of the accusation.  The no presumption thing ends as soon as the rubber hits the road.

 

I don't know as to the nature of the proceedings, but you have routinely stressed that all it will be is booted out of school.  The reasoning and the label why are far more damaging.

[Ultima Ratio]

 

The recent revelation about Bill Cosby is just the most recent evidence that rape isn't so hard to find, if the accusers feel comfortable enough to bring their stories forward.

I made it through college without raping anyone, in fact, I still haven't -- does this anecdote count too?

 

Here's another one:  In college I personally knew of two false reports of rape, and one was by a friend (at the time), but not after I found out she lied and was desperately seeking attention -- and loved getting the sympathy.  I excoriated her and never spoke with her since.  

 

I also am aware of true rapes as well.

 

Thus, there is little evidence that this is an epidemic, and why people want to believe this is beyond me (I have a hunch though) when the facts do not bear this out.

 

If you are raped, report it immediately and upon conviction, cut his member off and lock him up.  And if you're not, thank God, and never even joke that you were and rip some innocent person's life apart.

 

 

[PseudoSABR]

 

But much to be lost and much hardship to be caused for the accused when they are innocent.  That's the point you keep missing.

I'm not missing this point.   I think that 'hardship' is outweighed by the ineffectiveness of our current system to allow for actual rape victims to prove that they were raped.   

 

I'll ask it this way.  Is rape really so infrequent that we should worry more about the potential for people being falsely accused, and then later found guilty at a hearing where they could not prove the other person had consent and as a result they kicked out of school (and suffer other consequences)?   

 

I just don't think our current presumption of innocence standard is going to allow us to really remedy the situation.  None of the alternatives you've listed seem impactful given that presumption.  Maybe this isn't the right model, but I do think we need to examine what kind of proof is needed to establish rape on a university campus, where people are known to put themselves in risky situations. 

[jokin]

 

Not only was the accusation public, but I think charges were brought and later dropped.  I think that points to how our current system fails addressing the phenomenon of rape that meets the criminal burden of proof.  

 

The Duke case also points to that there's not much to be gained by false accusations other than a lot of drama.

 

The Duke case is not an isolated event. 

 

"Not much to be gained???"    The problem is the accuser needs to have a lot more to lose in making such scurrilous claims.   Virtually the entire Duke faculty in lock-step fashion assumed the worst- as is usually the case on hyper-radicalized campuses, notwithstanding the lack of veracity of the charges.   The damages done to the accused- in this particular case- and countless others- are far greater than just some poor kid having to switch schools.    Many other cases are overturned in court as soon as witnesses, emails and texts are shown that the accuser is daffy, lying, or both.   But the damage is already done, the faculty at the shool in question refuses to  apologize or disavow their underlying narrative on the "rape epidemic" on campuses.   (Innocent) iives are turned upside down reputations forever ruined, huge financial legal fees added to already-crushing tuition burdens, job opportunities completely lost for good.

[PseudoSABR]

 

Except, when the burden of proof goes to affirmative consent it quickly shifts if all that can be produced is rival testimony.  There is a guise of "let the facts guide us", but (and no one, not even those defending this are arguing what you are) the truth is that the accused has to prove themselves out of the accusation.  The no presumption thing ends as soon as the rubber hits the road.

 

I don't know as to the nature of the proceedings, but you have routinely stressed that all it will be is booted out of school.  The reasoning and the label why are far more damaging.

I don't know it work that way, that seems pretty cynical.   It's still up for the factfinders to decide who they believe--they would have to believe a person was lying about consent in order to find him guilty of rape.  I think the shifting of the burden is far more about taking it off of the victim, than it is about placing it on the accused. 

[Willihammer]

 

I think your hitting upon the crux.    Some people, including me believe: even when both parties are at fault, when "sexual misconduct" happens--given the nature of penetration--that is cut-and-dry rape.  Maybe not violent, god-awful, worse-case evil rape.  

 

But no doubt, many young women put themselves in really stupid situations, and too many young men take advantage of that situation.  I think that's rape.  And those men should be punished.    University's are fertile ground for people putting themselves in risky situations, because of that, we probably need to take unusual steps.

Maybe I'm an ******* but to me the youth and alcohol part of the encounter should factor. It shouldn't excuse from any consequences but I think that going to college, getting ****faced together and then doing dumb **** in the sack is a part of growing up. Obviously there are some actions where you have to bring down the hammer but the ethics definitely are clouded in a lot of cases, IMO. And its not like giving consent when under the influence is worth a damn anyway.

[PseudoSABR]

 

Maybe I'm an ******* but to me the youth and alcohol part of the encounter should factor. It shouldn't excuse from any consequences but I think that going to college, getting ****faced together and then doing dumb **** in the sack is a part of growing up. Obviously there are some actions where you have to bring down the hammer but the ethics definitely are clouded in a lot of cases, IMO. And its not like giving consent when under the influence is worth a damn anyway.

I think women have different experience of that phenomenon you call growing up.   Not everyone has the same reaction to unconsented sex, and we shouldn't minimize those that aren't fine with it.

[TheLeviathan]

 

I'll ask it this way.  Is rape really so infrequent that we should worry more about the potential for people being falsely accused, and then later found guilty at a hearing where they could not prove the other person had consent and as a result they kicked out of school (and suffer other consequences)?   

 

I just don't think our current presumption of innocence standard is going to allow us to really remedy the situation.  None of the alternatives you've listed seem impactful given that presumption.  Maybe this isn't the right model, but I do think we need to examine what kind of proof is needed to establish rape on a university campus, where people are known to put themselves in risky situations. 

 

You want to rethink proof standards and find ways to encourage rape victims to be more willing to report and see their way through charging a rapist?  I'm fine with that.  Let's attack that problem rather than take the "tough on crime" approach.  Hasn't that model failed enough to try and implement it AGAIN?

 

We can't change the nature of rape, but it's not the only crime where physical evidence can be difficult to find.  You're talking about a fundamental loosening of the burden of proof, which is an attack on the very nature of justice. 

 

I don't know it work that way, that seems pretty cynical. It's still up for the factfinders to decide who they believe--they would have to believe a person was lying about consent in order to find him guilty of rape.  I think the shifting of the burden is far more about taking it off of the victim, than it is about placing it on the accused.

 

 

If this is supposed to be as effective as you say and they DON'T largely believe the accuser, how exactly is this supposed to change a god damn thing?  You can't have it both ways.  If this is going to be effective at changing a mindset, it's going to have to be VERY uncomfortable for the accused.

 

To make this out to be some sort of objective matter either erodes at how earth shaking it's going to be or is just plain lying about the intention/execution of it.

[Mike Sixel]

 

Not only was the accusation public, but I think charges were brought and later dropped.  I think that points to how our current system fails addressing the phenomenon of rape that meets the criminal burden of proof.  

 

The Duke case also points to that there's not much to be gained by false accusations other than a lot of drama.  

 

And yet, it will happen again, just as, sadly, rape will.

 

I'd like the police, prosecutors, friends, and parents to stop protecting bad males because they are sons, football players, fraternity brothers, whatever. That's what we really need, is real, hard, prosecution.

[TheLeviathan]

 

And yet, it will happen again, just as, sadly, rape will.

 

I'd like the police, prosecutors, friends, and parents to stop protecting bad males because they are sons, football players, fraternity brothers, whatever. That's what we really need, is real, hard, prosecution.

 

And real care and concern for the victim to go with it.  We also need to fundamentally reteach what masculinity is all about.

[Mike Sixel]

Even fixing prosecution and the old boy network won't fix enough for me........I know too many women that were raped (one is too many, but you know what I mean). So, while holding people accountable would be a good first step, it isn't enough....

[PseudoSABR]

False accusations of rape already occur.  And unreported rape occurs.  And reported rape goes unconvicted.  I don't think hard prosecution will fix the latter.   

 

I understand the problems with the shifting the burden, but I do think for the special circumstance of universities removing the burden of proof off of the victims is a good thing.  I'm in favor of alternative ideas, but I don't think the system California is putting in place will necessarily have the outcome Levi predicts. 

[Ultima Ratio]

Be careful not to fall in love with the tyranny that gets you the results you want, because you'll soon find yourself as Robespierre did.

 

Upon the reign of terror: "It is time that equality bore its scythe above all heads. It is time to horrify all the conspirators. So legislators, place Terror on the order of the day! Let us be in revolution, because everywhere counter-revolution is being woven by our enemies. The blade of the law should hover over all the guilty."

[PseudoSABR]

 

 We also need to fundamentally reteach what masculinity is all about.

I'm all about that.  But that will take generations.  And is something that the state really can't implement in a way that our democracy would ever approve. 

[TheLeviathan]

 

I'm all about that.  But that will take generations.  And is something that the state really can't implement in a way that our democracy would ever approve. 

 

That's fine and I agree, but the this tactic "scare everyone so people act less like criminals" never works to reduce crime.  

[Willihammer]

 

I think women have different experience of that phenomenon you call growing up.   Not everyone has the same reaction to unconsented sex, and we shouldn't minimize those that aren't fine with it.

Unconscented sex? Yeah and I also favor polluting the aquifers and dumpster abortions. Honestly, do you want to talk realistically or just be self-righteous?

 

The truth is there is a huge sloppy middle class of sex that occurs all the time in colleges where consent is irrelevant due to the alcohol factor. All of these instances could be contorted as Criminal Sexual Conduct in the Third Degree, a felony punishable by up to 15 years prison for a first time offender. i mean, no wonder these girls don't come forward. Maybe if we did a better job acknowledging the nuance and fit the punishments more appropriately to the crimes, with consideration for youth and alcohol, we'd start to make some better headway. That's all I'm suggesting.

[PseudoSABR]

 

Unconscented sex? Yeah and I also favor polluting the aquifers and dumpster abortions. Honestly, do you want to talk realistically or just be self-righteous?

 

The truth is there is a huge sloppy middle class of sex that occurs all the time in colleges where consent is irrelevant due to the alcohol factor. All of these instances could be contorted as Criminal Sexual Conduct in the Third Degree, a felony punishable by up to 15 years prison for a first time offender. i mean, no wonder these girls don't come forward. Maybe if we did a better job acknowledging the nuance and fit the punishments more appropriately to the crimes, with consideration for youth and alcohol, we'd start to make some better headway. That's all I'm suggesting.

It certainly seemed like you were suggesting that the nuance was a right of passage,  not that you were advocating a distinction in punishment.  My apologies, but your post did seemed hedged with caveats that led me to that reading. (If you thought post was self-righteous, the pre-edited version was way worse).

 

 I do agree the law needs far more flexibility in fitting the punishment to the actual crime, and I agree there is some nuance there were the culpability of the transgressor might be somewhat mitigated.  Here, the punishment is expulsion which is far cry from the 15 years of imprisonment you note. 

[TheLeviathan]

Again - expulsion and a label of rapist.  The condemnation is infinitely more damaging than the punishment.