Affirmative Consent

[TheLeviathan]

If we have to subvert our most fundamental judicial concept to stop college rapes......wouldn't shuttering the university doors be a more palatable solution?

[Willihammer]

What is the judicial concept that would be subverted?

[TheLeviathan]

Innocent until proven guilty.

[diehardtwinsfan]

haven't really paid attention to this.  Someone want to give me a cliff's note version here?

[TheLeviathan]

http://www.cnn.com/2014/09/03/living/affirmative-consent-school-policy/

 

Essentially, if one is accused of rape they go before a "court" of sorts at the university wherein they must prove their sexual partner consented to it.

 

So it's essentially Klingon law.  Read what this clown has to say.  One of the authors of the bill in California, in response to the question: "How can an innocent person prove their innocence" said:

 

Your guess is a good as mine

 

 

[Willihammer]

I'm still confused. Won't this still boil down to a he said/she said? Or does it shift the burden of proof on to the man somehow?

[TheLeviathan]

It shifts the burden on to the accused.

[Willihammer]

Oh well the answer is easy then.

 

Webcam

[TheLeviathan]

 

Oh well the answer is easy then.

 

Webcam

 

Yup, effectively this law makes filmed sex a requirement to avoid being a rapist.

[PseudoSABR]

At first blush, it looks like a university discipline hearing where this burden and standard of proof has shifted. (And the law only applies to those receiving financial aid). In that case, the university is free to have a lower standard of proof of rape, and to put that burden on the accused.   It won't result in a conviction of an innocent person, but it could result in some people being falsely-accused getting kicked out of school.    And really which mindset are we worried about more, the one that falsely-accuses without consequence or the one that rapes without consequence? 

 

I don't think there's any risk of the criminal justice system picking up this standard--if they did, as Levi implied, it would violate our fundamental rights to be presumed innocent.  

[TheLeviathan]

 

And really which mindset do we want to punish more, the one that falsely-accuses without consequence or the one that rapes without consequence? 

 

Why the false dichotomy?  

 

Why can't we just punish rape rather than twisting the burden of proof?  Kicking a kid out of college and labeling them a rapist is going to dramatically effect their lives and it's unclear if this will even change anything.

 

Just because something has a noble purpose doesn't give it license to be ****ing stupid.  (And already there are laws that colleges have to establish these rules, so while it isn't directly the courts doing this, it's one giant step towards it)

[PseudoSABR]

Because university rapes are epidemic.   I'd be curious what some of our female board members think of the approach.   If our current system isn't working to keep female universities students free from rape, I think this kind of experimentation is appropriate.  If it results in far too many false-accusations-resulting-in-dismissal, the law can be changed.  No one's going to prison over this.    The typical criminal standards for the burden of proof work against rape victims (he said/she said), and in a special circumstance where many young women are at higher risk of rape such as a university campus, changing that standard makes a lot of sense to me, though not without risk.

 

Private institutions are free to set whatever standards they want when dismissing their members and employees; while universities are semi-public, students do choose to become a member of universities, so this isn't some blanket law that would apply to all young men. 

[TheLeviathan]

 

Because university rapes are epidemic.   I'd be curious what some of our female board members think of the approach.   If our current system isn't working to keep female universities students free from rape, I think this kind of experimentation is appropriate.  If it results in far too many false-accusations-resulting-in-dismissal, the law can be changed.  No one's going to prison over this.    The typical criminal standards for the burden of proof work against rape victims (he said/she said), and in a special circumstance where many young women are at higher risk of rape such as a university campus, changing that standard makes a lot of sense to me, though not without risk.

 

Private institutions are free to set whatever standards they want when dismissing their members and employees; while universities are semi-public, students do choose to become a member of universities, so this isn't some blanket law that would apply to all young men. 

 

There is no current system, it's been largely ignored.  That's the problem.  So rather than taking a more measured approach we decide to basically turn to Klingon law.  (Not to mention there are serious concerns with the evidence being cited that rape is an "epidemic")

 

We'll never know if these are false accusations because we've made it basically impossible for there to be proper evidence.  How would one even go about refuting a charge?  If you're accused, you're basically a rapist.

 

And just because no one is going to prison that makes it sufficient to potentially ruin the lives of teenagers and young adults in the name of "experimentation"?  Good lord. 

[PseudoSABR]

There's a hearing, there is due process, but yes the presumption is against the accused.   I seriously doubt every hearing would result in a finding of rape--that would be a broken, rubber stamp system, and if that would happen, the law will quickly be changed. 

 

Where the law will have an affect--hopefully--is how young men engage in sexual conduct.  Make sure you get consent, and make sure that you don't sleep with someone who could falsely accuse you.  (i.e. avoid one-night stands with strangers).   Women already have to worry about dating a person that could potentially rape them.  

 

I don't know if this system is appropriate, but I think 1) the injuries left by being falsely accused are smaller than that of being raped and 2) that the likelihood of being falsely accused is lower than the likelihood of rape.    

 

[TheLeviathan]

 

There's a hearing, there is due process, but yes the presumption is against the accused.   I seriously doubt every hearing would result in a finding of rape--that would be a broken, rubber stamp system, and if that would happen, the law will quickly be changed. 

 

Where the law will have an affect--hopefully--is how young men engage in sexual conduct.  Make sure you get consent, and make sure that you don't sleep with someone who could falsely accuse you.  (i.e. avoid one-night stands with strangers).   Women already have to worry about dating a person that could potentially rape them.  

 

I don't know if this system is appropriate, but I think 1) the injuries left by being falsely accused are smaller than that of being raped and 2) that the likelihood of being falsely accused is lower than the likelihood of rape.    

 

Rapists on campus already rape regardless of actual legal consequences, how is this going to change that?  All it will do is scare those people already conscious of wanting consent.

 

How would one even go about "proving" that their partner gave consent?  Short of video?  (Especially given many of these statutes claim anyone that has consumed alcohol, by definition, cannot give consent)

 

Your argument basically comes down to trying to regulate sexual conduct.  Is that a new liberal thing I wasn't aware of?  It's sounds like you and the abstinence only folks might be on the same page here.  Your justifications are borderline fascist.  

[Mike Sixel]

I don't like the after effect of being tossed out for being a rapist.......but isn't a college/university pretty much able to discriminate, other than against protected classes? Doesn't it kind of get to choose it's students?

 

So, is it the thrown out part that is wrong/bad/evil, or the effect of labeling someone a rapist that is the issue? Or both?

 

btw, I'm not a fan of this, but I'm also not 100% against it just yet.....and I have two sons early in their college careers, this is something they need to think about.....

[PseudoSABR]

 

Rapists on campus already rape regardless of actual legal consequences, how is this going to change that?  All it will do is scare those people already conscious of wanting consent.

Because the actual legal consequences can be subverted by the presumption of innocence.  This will totally change that, and enable actual rapists to get kicked out of school.  

 

"How would one even go about "proving" that their partner gave consent?  Short of video?  (Especially given many of these statutes claim anyone that has consumed alcohol, by definition, cannot give consent)"

 

I don't know what the standard of proof actually would be--I doubt it's beyond on a reasonable doubt.  Your assuming that fact-finders at the hearing wouldn't weigh testimony from witnesses, the victim and the accused, and choose to believe one over the other.   In criminal law, a rapist can escape conviction because a victim's testimony may not overcome the burden of reasonable doubt.   Likewise, if the accused is credible in asserting affirmative consent that may be enough.  This wouldn't be a court of law, and the proof would not need to be reach that level of scrutiny.

 

"Your argument basically comes down to trying to regulate sexual conduct.  Is that a new liberal thing I wasn't aware of?  It's sounds like you and the abstinence only folks might be on the same page here.  Your justifications are borderline fascist.  "

 

Fascist? Give me a break.  Your arguments are borderline sexist, totally dismissing the epidemic of rape before whining about the falsely accused.  If you want to have discussion about the issues please dispense with framing the discussion with terms like fascism and Klingon--it's weak and rude.  

[TheLeviathan]

 

I don't like the after effect of being tossed out for being a rapist.......but isn't a college/university pretty much able to discriminate, other than against protected classes? Doesn't it kind of get to choose it's students?

 

So, is it the thrown out part that is wrong/bad/evil, or the effect of labeling someone a rapist that is the issue? Or both?

 

btw, I'm not a fan of this, but I'm also not 100% against it just yet.....and I have two sons early in their college careers, this is something they need to think about.....

 

I agree mike, there needs to be a serious re-thinking of college sexual encounters.  Schools should start by holding more fraternities accountable and investigating charges, but this is overkill.

[Mike Sixel]

 

I agree mike, there needs to be a serious re-thinking of college sexual encounters.  Schools should start by holding more fraternities accountable and investigating charges, but this is overkill.

 

that we agree on. Waaaaaaaaay too much leeway for men on campus. I truly am baffled by it.

[TheLeviathan]

 

Because the actual legal consequences can be subverted by the presumption of innocence.  This will totally change that, and enable actual rapists to get kicked out of school.  

 

"How would one even go about "proving" that their partner gave consent?  Short of video?  (Especially given many of these statutes claim anyone that has consumed alcohol, by definition, cannot give consent)"

 

I don't know what the standard of proof actually would be--I doubt it's beyond on a reasonable doubt.  Your assuming that fact-finders at the hearing wouldn't weigh testimony from witnesses, the victim and the accused, and choose to believe one over the other.   In criminal law, a rapist can escape conviction because a victim's testimony may not overcome the burden of reasonable doubt.   Likewise, if the accused is credible in asserting affirmative consent that may be enough.  This wouldn't be a court of law, and the proof would not need to be reach that level of scrutiny.

 

"Your argument basically comes down to trying to regulate sexual conduct.  Is that a new liberal thing I wasn't aware of?  It's sounds like you and the abstinence only folks might be on the same page here.  Your justifications are borderline fascist.  "

 

Fascist? Give me a break.  Your arguments are borderline sexist, totally dismissing the epidemic of rape before whining about the falsely accused.  If you want to have discussion about the issues please dispense with framing the discussion with terms like fascism and Klingon--it's weak and rude.  

 

What's sexist is supposing women are so fundamentally bound to be victims that we have to remove the presumption of innocence to protect them.

 

I didn't "totally dismiss the epidemic" - I said the studies used to justify that claim have been pretty thoroughly debunked.  If an epidemic exists, we haven't had a valid study to conclude it.  (Two colleges with flawed methods is not exactly good scientific work)

 

The larger issue is that colleges are settings where rape is going to be more common, if for no other reason than the high propensity for alcohol consumption.  So it does need to be addressed, but arguing about the validity of creating laws to regulate sexual coupling is about as definitionaly fascist as I can possibly imagine. It's the same kind of logic "tough on crime" conservatives use when they want to throw people in jail for having a joint in their car.  "If we punish the **** out of enough people, even innocent ones, we'll win this fight"

 

That doesn't work.  And, on top of that, flippantly disregarding the fact that someone is basically labeled a racist because they can't "prove consent" is going to fundamentally damage innocent lives. 

[TheLeviathan]

 

that we agree on. Waaaaaaaaay too much leeway for men on campus. I truly am baffled by it.

 

The thing is, if this epidemic is true.....why do we need this?  Pursuit the ACTUAL rapists you can nail in the court of law and absolutely tar and feather them.  

 

Punishing innocent men and women doesn't scare criminals - that methodology has NEVER worked.

 

As for your earlier question - throwing them out is bad, but labeling them a racist with nothing more than testimony is a dangerous and, potentially, very damaging act.  

[Mike Sixel]

 

The thing is, if this epidemic is true.....why do we need this?  Pursuit the ACTUAL rapists you can nail in the court of law and absolutely tar and feather them.  

 

Punishing innocent men and women doesn't scare criminals - that methodology has NEVER worked.

 

As for your earlier question - throwing them out is bad, but labeling them a racist with nothing more than testimony is a dangerous and, potentially, very damaging act.  

 

Your auto correct made it "racist" too.....I had to edit my post twice. sigh.

 

I share your skepticism that this will stop actual rapists........

[TheLeviathan]

A good read on this.  

[Ultima Ratio]

 

Because university rapes are epidemic.   

 

And you know this how?  Rolling Stone?

[Ultima Ratio]

 

The thing is, if this epidemic is true.....why do we need this?  Pursuit the ACTUAL rapists you can nail in the court of law and absolutely tar and feather them.  

 

 

Bingo.

 

If rape is so rampant, it shouldn't be so hard to find ...you know... actual instances of rape without fictionalizing them. (even if/though rapes are underreported). 

[PseudoSABR]

I know anecdotal or subjective evidence won't sway anyone, but I personally know of women who would have had some recourse where they felt they had none.    I really hope some women weigh in.  

 

I think the demand to show proof that rape is an epidemic is bound within patriarchy itself.   The trouble about rape its often a he-said-she-said so it defies 'proof' even when it really happens.   Not all rape--especially date rape--involves forcible penetration that can be detected after the act.  

 

The problem isn't prosecution not "nailing" actual rapist. The problem is having enough evidence to overcome a reasonable doubt.   And when there isn't physical evidence, that gives prosecution very little to work with, especially if the victim was under the influence of drugs or alcohol.

 

IMHO, It's not at all fascist for a society to ask of men: MAKE SURE YOU GET CONSENT. 

 

And for dudes who don't want to get consent, well, they can choose not to go to universities.   Again, this is not criminal law that would broadly apply to anyone or would result in a criminal conviction.  

[Mike Sixel]

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

[ashbury]

Bingo.

 

If rape is so rampant, it shouldn't be so hard to find ...you know... actual instances of rape without fictionalizing them. (even if/though rapes are underreported). 

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.

[TheLeviathan]

 

IMHO, It's not at all fascist for a society to ask of men: MAKE SURE YOU GET CONSENT. 

 

 

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.

[PseudoSABR]

 

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

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.