Affirmative Consent

[Craig Arko]

It's really a no win situation. But in the end, presumption of innocence is a really good idea and it has to apply without discrimination, or it becomes just another piece of paper waiting to be bought.

 

I live about a mile from the Mpls. campus of the U of M, and my wife is a student there. I worry about all kinds of violence against women. But a solution, if any, can't involve giving up the good ideas of civilization on the off chance it might slow down the bad. Otherwise I will guaranty it will come back to bite the very people it's supposed to be helping.

[diehardtwinsfan]

Interesting discussion.  My 20 cents...

 

1)  I think education emphasizing the idea of mutual consent is smart in that it's forcing people to think about some things they haven't really thought about.  It can probably eliminate some misunderstanding that happens in sexual encounters, and I think that's a good thing.  There's a lot of gap in education and I think the more of that we do the better it is for everyone.

 

2)  Lowering burdens of proof??? Really?  That's a real real real bad thing.  Just as an innocent person's life can be ruined in a rape, so an innocent person's life be ruined with a false accusation, and I do not buy the idea that they are rare as there is plenty evidence that this is not the case (whether it's accurate or not is a different discussion, but it does exist).  Regardless of which, in this country, by the standard of law that we have in place, the accused is presumed innocent until proven otherwise and the act of accusation is bad enough for a lot of innocent people.  Nothing good will come from this.  It's simply another form of McCarthyism.  Levi is right here.  Go after the real criminals (both the rapists and those who falsely accuse) and tar and feather them.  By the way, I really wonder if this is going to prevent unreported rapes from being reported anyways.  That's a side issue here, but I think the reasons for rape being unreported stem from greater issues than just the legal hassle.  I know of one unreported rape when I was in college (interestingly enough, it was a guy raping another guy which hasn't been brought up here).  It wasn't reported due to it being embarrassing, none of which changes with informed consent.  If the concern is reporting it, then perhaps we should address why it is that these crimes are not being reported.

 

3)  Two people getting drunk and doing something that one of them ultimately regrets is not rape.  Nor should it ever be called that.  It's a learning experience.  Allowing someone to turn the walk of shame into an accusation of rape really will cause a lot of worse issues down the road.  The real education here is about what happens when you have a bit too much to drink and end up shacking up with someone who you would otherwise not sleep with.  That can be addressed with education, and the real moral is that when you go drinking, be smart about it.  Likewise, these are kids, not trained professionals, and asking them to assess how much someone had to drink and determine whether it nullifies consent is a rather dangerous and very unrealistic precedent. If people are getting someone drunk so that they can rape them, there will be forensic evidence that would be admissible if the victim reports it.   

[TheLeviathan]

 

It's really a no win situation. But in the end, presumption of innocence is a really good idea and it has to apply without discrimination, or it becomes just another piece of paper waiting to be bought.

I live about a mile from the Mpls. campus of the U of M, and my wife is a student there. I worry about all kinds of violence against women. But a solution, if any, can't involve giving up the good ideas of civilization on the off chance it might slow down the bad. Otherwise I will guaranty it will come back to bite the very people it's supposed to be helping.

 

Well said.

[PseudoSABR]

I think everyone should read the actual bill:

 

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 67386 is added to the Education Code, to read:
67386. (a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
( The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
( The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
© The complainant was unable to communicate due to a mental or physical condition.
( In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:
(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.
(2) Initial response by the institution’s personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.
(3) Response to stranger and nonstranger sexual assault.
(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.
(5) Contacting and interviewing the accused.
(6) Seeking the identification and location of witnesses.
(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.
(8) Participation of victim advocates and other supporting people.
(9) Investigating allegations that alcohol or drugs were involved in the incident.
(10) Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.
(11) The role of the institutional staff supervision.
(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.
(13) Procedures for confidential reporting by victims and third parties.
© In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, and legal assistance, and including resources for the accused.
(d) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution’s policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.
(e) Outreach programming shall be included as part of every incoming student’s orientation.

[TheLeviathan]

The law mandates the schools to enact those rules and enforce them.  Which leads to this problem:

 

Harvard Law School professor Janet Halley, who teaches feminist legal theory. Halley said the notion that universities play investigator, prosecutor, judge, jury and executioner is “fundamentally not due process.”

 

 

Especially given that universities have a vested interest in their public profile to appear to be following through.  It's an incredibly stacked deck against anyone accused.  

 

This quote is money too:

In fact, asked in June, the bill’s principal co-author, Assemblywoman Bonnie Lowenthal, D-Long Beach, had no clue how one could prove they received affirmative consent.

“Your guess is as good as mine,” Lowenthal told the San Gabriel Valley Tribune. “I think it’s a legal issue. Like any legal issue, that goes to court.”

 

 

Except...we're not in a legal situation.  You gave the power and responsibility to a university tribunal, not a court of law.

 

Unless that is the plan down the line.  At which point we are fundamentally undermining one of the core beliefs of our justice system and our civilization.

[Bark's Lounge]

Wow, this is an icky sticky thread topic. Instinctively, I would side with the victim (woman in most cases), but as we all know, a good amount of men and women both have ticks, clicks and some unpleasant things going on with their mental state.

 

I believe the best preventive measure going forward is to have the parents of the soon to be college students talk to them about this grotesque situation and advise them not to put themselves in a precarious position (better said than done).

 

Maybe with college orientation, the college can have a seminar on this subject, and give the students tools on how to avoid this kind of situation. I say this with the assumption that these crimes mostly happen when alcohol is entered into the equation.

 

If a group of women or men are going to a beer bust or house party, maybe they would be best advised to have one or two of their group stay sober and be an overseer of their friends and try their best to prevent their comrades from putting themselves in a compromising situation.

 

Other than that, this is kind of a cluster **** situation - there are definitely no perfect answers to the equation, and this doesn't include random rapes on a campus walking from one place to another.

[Squirrel]

I know that Pseudo asked for some female perspective, but I'm wary to put a toe in the water. I haven't read everything about this particular issue of how universities are 'prosecuting' these cases; nor have a thoroughly read this thread. While I'm not sure this is the best way to go about this, I think it's something to try. My feeling on the legal system in general as it pertains to rape, does not stand on the side of the victim, ever. The legal system as it currently is, as it pertains to rape, sets up the victim to be a victim all over again. Innocent until proven guilty, beyond a reasonable doubt. Reasonable doubt. Bad for rape cases. All any defense has to do is attack the character of the victim … he/she was stupid, he/she was dressed inappropriately, he/she was drunk, he/she is promiscuous, he/she is responsible for putting her/himself in such a position in the first place. It's really quite despicable when you think about it. The victim is responsible for being raped. And juries buy it. Hell, society buys it. Think about it. Being drunk is not an invitation to be taken advantage. Dressing provocatively is not asking for it. Being physically involved with someone is not permission for intercourse. So if this law puts the onus of responsibility on the rapist, then, good, it should, in my opinion. Oh, and to be clear, I don't put 'degrees' on rape. Whether it's someone who is a rapist by nature or nurture, it's still rape when there is no consent or ability to consent. Yes, there are cases when an individual falsely accuses. While, unfortunately, I wouldn't call it rare, I wouldn't call it anywhere close in numbers to actualities of rape cases. There have been a couple of well-publicized instances of false accusation, and it's despicable and I think there should be very stiff penalties for that. All it does is give someone ammunition to say 'I know someone who did that, it happens all the time' when the number of rape cases far, far, far, far exceeds false accusations. And my personal opinion on rape in general … I'd rather be murdered than raped. Thank God neither has happened to me, but I know enough to know that would be my choice. Rape is that despicable.

 

Please don't attempt to argue or debate this with me. It's not something I want to debate with any of you. I've given you an opinion … asked for … and I'm done. You can debate theory and due process and precedence all you want, but don't forget the subject or the victims in this. 

[TheLeviathan]

You don't have to answer OLTF, but I'm curious - if it was codified that during a rape trial any discussion of the victim's actions or character were outlawed as arguments - would that help in your mind?  (I guess that's an open question to anyone too)

 

I'm just curious about ways to protect victims and prosecute the scum bags that do this without re-writing our justice system.

[diehardtwinsfan]

 

You don't have to answer OLTF, but I'm curious - if it was codified that during a rape trial any discussion of the victim's actions or character were outlawed as arguments - would that help in your mind?  (I guess that's an open question to anyone too)

 

I'm just curious about ways to protect victims and prosecute the scum bags that do this without re-writing our justice system.

 

This is probably a better option.  Personally, I fail to see how sexual history/promiscuity (with maybe the exception of a person who has a history of accusing people of rape) should factor into any rape trial.  I don't care of the victim was a slut, two timer, or whatever.  It really doesn't matter.  No is no, regardless of poor decisions that they've made.  Forensic evidence should be able to clear up most of that anyways.  Why it cannot primarily rest on concrete evidence is beyond me.

 

My greater concern though is making sure the law is upheld so that innocent people aren't ruined by it. 

[DaveW]

Very sticky subject and I don't know enough about the bill to comment on it, at first glance it seems like some attempt at an "easy" fix to a serious and complicated problem, typically those don't go over too well.

 

 

[Mike Sixel]

was talking about this with my 17 year old son, who is about to start college.....he is aware that he needs to be careful, but is quite worried at the presumption of guilt that seems to be implied here.

 

The U of M just tabled this, correct, while they work this out.....

[formerly33]

I think there are two generally accepted "sides" on this subject that tend to go at it hammer and tongs. Both agree that there needs to be an end to rape, but they have completely different theories as to how to stop it. One believes in teaching "how to avoid getting raped," while the other goes with the approach of "don't rape."

 

Both are right … and yet both are wrong.

 

Of course awareness is an important thing, but it's not going to put an end to rape. Rapists don't care that what they're doing is wrong. They're going to do it to anyone, no matter what's going on. And while I haven't really done much study on this (nor have I read the whole thread on here), I'm pretty sure that drunk sex can't be classified as rape. Yikes.

 

I've heard of plenty of cases of "provoked rape" where the victim did nothing wrong, in my humble opinion. And I've heard of plenty of cases of rape where the victim did nothing wrong, even in the world's opinion. So awareness obviously isn't going to do the trick. I may be an extremist, but the idea of just teaching how to avoid it really ticks me off. And when I say "really" ... that's an understatement.

 

And then of course it's all fine and dandy to teach not to rape, but again, rapists don't care. Anybody who rapes somebody has to know what they're doing is wrong, but that doesn't stop them. Teaching them not to rape isn't going to stop that. That's not something that anybody needs to be taught to know. Anyone with a brain in their head can figure it out for themselves.

 

So in my humble opinion, how about scrapping both theories and crack down on punishment. Stop making excuses for the aggressor and stop acting like it's the victims' fault because it's not. I don't care if someone is dressed or even behaving provocatively - this is something that NOBODY should ever have to go through. There are countless people of both gender and any age who never tell that they've been raped because they're afraid of people being mean to them. And then there are those who do tell and suffer more from doing so than the person who abused them. It's a perverted system that needs to be changed.

 

So quit teaching "how to avoid getting raped." Quit teaching "don't rape." Teach "bad choices result in bad consequences." Maybe that'll make the brainless, potential rapist think before they act … and if they don't, well, they'll suffer the consequences - no if, and, or but about it. And quit with the nonsense of ganging up on the victim. Anyone who acts like that obviously doesn't know what they're going through, so they can get of their high horse and quit judging lest they be judged.

[Turd Furgeson]

Rape is one of the most serious crimes and at the same time one of the most difficult crimes to prove. It's incredibly psychologically damaging and that makes it difficult for victims to come forward to the police right away, which would provide them their best chance to prosecute the guilty party(ies). 

 

From my understanding, rape occurs far more often than false rape allegations do. Rapes often go unreported because they are difficult to prove, victims are shamed by their peers and in the end it means reliving that painful experience often without reaching a conviction. Rape is a serious problem. 

 

Is this the best solution? I really don't know. Some people will get hurt by a change like this, but what about the potential for this to empower many actual rape victims to come forward knowing that at least some measure of justice can be served? I get it, seeing people wrongfully accused of a crime is heartbreaking to me, but you have to protect rape victims too somehow. I'm not sure there is a clean solution to this problem. 

[TheLeviathan]

I guess I don't see how a presumption of guilt changes things for people coming forward. What has to change for that is how we allow defense lawyers to treat victims in criminal trials, that would seem to be far more effective.

[ashbury]

I guess I don't see how a presumption of guilt changes things for people coming forward.

Is presumption of guilt really what's being proposed? My understanding is that presumption of innocence is to be replaced with preponderance of evidence. But I could be wrong.

[Brock Beauchamp]

I have so many thoughts on this, which is why I've refrained from commenting for so long.

 

Ultimately, this is a cure for the symptom, not the disease. I understand why tackling the disease is such an undertaking that we instead default to a cure for the symptom but in the end, it solves very little.

 

The problem here is societal. We're completely ****ed up about sex, empowerment, and gender roles. From a young age, girls are taught to withhold sex. Inversely, boys are taught to pursue it, often aggressively. Sex isn't treated as something both parties want and should pursue maturely, it's treated as a tug-of-war between the sexes and because one sex is naturally more physically powerful and has been ingrained with the idea that it should be attained at any cost, we get a lot of unnecessary rape situations.

 

It's so ****ed up and it's so ingrained in our culture that I can't even begin to unravel how to fix it or even how we got to this point (but I like to blame the Puritans as often as possible so I'll go with that excuse). What I do know is that this isn't a real solution to a huge problem women face on a daily basis. It's a band-aid on a limb that has been severed.

[TheLeviathan]

Is presumption of guilt really what's being proposed? My understanding is that presumption of innocence is to be replaced with preponderance of evidence. But I could be wrong.

That's the method, yes, but the actual methods are effectively to reverse the assumption. The inquiry starts with "Can you prove you had consent" rather than "Can it be proven you didn't".

[ashbury]

That's the method, yes

Then that's the method I support, at least at the moment.

 

Add language to clarify that it does not mean guilty until proven innocent, if it's felt to be needed, so that we're all on board with it, and so that court challenges will go in the direction that the framers of the law intend.

[Craig Arko]

The system I'd want is one which also removes presumption of guilt from the victim, and allows a case to proceed following the rules of evidence, rather than inquisitional dogma.

[TheLeviathan]

 

Then that's the method I support, at least at the moment.

 

Add language to clarify that it does not mean guilty until proven innocent, if it's felt to be needed, so that we're all on board with it, and so that court challenges will go in the direction that the framers of the law intend.

 

I don't mind a rape claim in a university setting using preponderance of evidence.  Afterall, we're not talking about judges and lawyers here - we're talking about some person hired to handle these matters investigating them.  What credentials they have to do so is completely unknown to me, but let's be clear that we're not talking about a court here.

 

We're talking about a tribunal appointed by a college that will effectively be assuming the accused is guilty.  There are high stakes, for a variety of reasons, for universities to appear to be tough in these situations.  In some ways that's good, but it is much like other "tough on crime" methods in that it likely hangs justice out to dry in the name of appearances.

 

Crako said it well, we can continue to act with a presumption of innocence on the accused.  What we need is to make sure the accuser is never put on trial and we review real evidence.  That's the real issue.