The Massive Civil Liberties Problem With "Affirmative Consent"
TheFire.org's Joseph Cohen gets it -- in his piece about New York's push to pass a campus sexual assault bill:
The most troubling aspect is the bill's mandate that colleges and universities adopt policies requiring that students accused of sexual assault prove that they obtained the affirmative consent of their partners. No one disputes that consent is required for sexual interactions to be lawful. But an affirmative consent standard will result in judicial procedures that focus less on whether the individuals involved actually consented to the sexual activity and more on whether they can prove it.Providing evidence that proves parties reached agreement is straightforward when it comes to interactions governed by contract or other legal documentation. That proof, however, is usually absent when it comes to sexual activity. (BDSM, prostitution, and other contractual agreements about sex may be exceptions.) So when considering sexual activity between college students, if someone is accused of failing to obtain affirmative consent for sex, he or she is unlikely to be able to produce any evidence suggesting that he or she did, in fact, receive consent. What evidence would be sufficient to establish that consent had been freely given, and is that evidence likely to exist? In practical terms, this means that the accused is presumed guilty and is unlikely to be able to prove his or her innocence.
Oh, and by the way, "Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act."
While that statement would be uncontroversial in a system where the accuser was required to prove the lack of consent, when the accused bears the responsibility of proving consent, as is the case under this law, that language in essence is a requirement that the accused be able to prove repeated agreements to engage in each separate act.
There's more:
Another disappointing aspect of the "bill of rights" is a provision that allows reporting students to have the right to "be free from any suggestion that the reporting individual is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid the violations." This is certainly an appropriate instruction to provide to first responders, so as not to chill victims from bringing forward meritorious claims. But this bill doesn't say who must avoid suggesting that a reporting individual is at fault. Does a student witness violate this rule if he or she tells an investigator that the reporting student initiated the sexual activity, or should have consumed less alcohol? If so, the provision seriously distorts the fact-finding process--and arguably raises First Amendment concerns, to boot.But perhaps the most counterproductive provision in the bill of rights is the one that leaves the decision as to whether to disclose a crime or violation in the hands of the reporting student. While complainants should always maintain agency over whether they want to cooperate with a law enforcement investigation, it is dangerous to leave law enforcement in the dark about serious accusations of violent behavior--not least because, if the charge is true, the victim may be under pressure from the perpetrator to keep the police out of it. And let's not forget that if most sexual assaults are committed by a handful of repeat offenders, as data suggests, the failure to report meritorious claims of sexual assault to the police increases the risk of future assaults.
In sum, this legislation is an unwelcome development for people who believe in fundamental fairness--one that doubles down on the failed policy of steering sexual assault complaints away from law enforcement and into amateur campus tribunals that are ill-equipped to handle such serious matters. New York's approach will probably not reduce the prevalence of sexual assault on campus, but it will likely lead to more unjust punishments.
wtf is with the focus on college campuses? Sexual assault can be a problem anywhere. Are college women somehow more at risk, more desirable? Hah.
Continuous, enthusiastic consent actually sounds like a porn movie. Is that the standard now?
Canvasback at June 26, 2015 2:10 AM
Given these rules (thus far) only apply to students attending the same institution the solution is simple.
Dont have sex with students. Hit on townies, and if you do wind up hooking up with a student file charges against her immediately claiming she lied about her student status and you could not consent to having sex with her due to that lie.
Child supposrt rules and life time alimony werent relaxed until they hurt women.
Legislators didnt care about lifetime sex offender status for teenagers until girls started getting charged.
Exceptions might be made for women with a STEM major - but I wouldnt even risk that
lujlp at June 26, 2015 2:23 AM
Also get them to sign a consent form and film it
lujlp at June 26, 2015 2:24 AM
This is major sign that Americans do not have enough to do otherwise, so they meddle with laws - all the time imagining that THEY will never be affected.
Radwaste at June 26, 2015 2:33 AM
Correct me if I'm wrong, but don't these laws legally obligate men to behave in a way that women find a turn off?
Put another way, fucking her like she may want to be fucked is criminal?
Trust at June 26, 2015 2:43 AM
Put another way, fucking her like she may want to be fucked is criminal?
Yep!
Amy Alkon at June 26, 2015 5:12 AM
"fucking her like she may want to be fucked"
We already have seen that these girls don't know what they want until they have done it, talked to their friends about it, thought about it some more, discussed it w/their local "men are rapists" group, thought some more to see how their self-esteem is doing, and then file a charge just in case.
Damn.
I thought giving 'em an orgasm was hard, but this is beyond the capabilities of even someone as experienced as myself. (But Sir, she came more times than I did!)
Those poor boys. (sarcasm)
Bob in Texas at June 26, 2015 5:46 AM
I saw an article within the last week or two about some legal geniuses who want to abstract "affirmative consent" laws to the population at large.
I'll be checking out the online hookers, err...I'm sorry, escorts.
I R A Darth Aggie at June 26, 2015 6:14 AM
I think it's so cute how the media people are always soooooo careful to describe these laws in gender-neutral terms. We all know what the real intent is.
Cousin Dave at June 26, 2015 6:41 AM
I thought Liberals wanted to keep the government out of our bedrooms.
Bill O Rights at June 26, 2015 7:52 AM
This is basically what the system has become:
https://twitter.com/MMAHistory1/status/614433735815999488
Amy Alkon at June 26, 2015 8:04 AM
"I thought Liberals wanted to keep the government out of our bedrooms."
This has been coming for a long time. Tyrannies always wind up putting restrictions on sex and coupling. They may promise a libertine society when they're fighting to get into power, but once they have power consolidated, the hammer comes down.
It gives Libertarians a new opportunity to define themselves: "We don't want government in the boardroom or the bedroom!"
Cousin Dave at June 26, 2015 8:58 AM
"I thought Liberals wanted to keep the government out of our bedrooms."
Nope. The American public is notoriously schizophrenic.
This is the same group that champions "free speech" - when it agrees with them - and shouts it down if it does not.
It complains about "pork" in government, then rewards its Congressmen for bringing it.
It condemns sexuality in public and in church, but picks up the latest Cosmo because it has tips on how to get your guy off.
It clamors for "equal" pay and rights for women, but says nothing about the draft.
It calls cops criminals, and the neighbors criminal when it turns out they want to defend themselves.
It objects to a patrol car speeding on the street, then complains because police don't arrive quickly enough.
It objects to surveillance cameras as a violation of privacy, and insists they be on the lapel of every police officer in the nation.
It thinks that abortion and drugs are nasty - until they need them.
It thinks that barring Asians from colleges in favor of blacks isn't racist - when the criteria are only about race.
I think humans are unsuited for a life of technology and the resulting comfort. If we aren't miserable, we make it happen.
Radwaste at June 26, 2015 9:57 AM
I think humans are unsuited for a life of technology and the resulting comfort. If we aren't miserable, we make it happen.
So...we're living in the Matrix?
I R A Darth Aggie at June 26, 2015 12:26 PM
IRADA, you'll note that in that flick, Agent Smith informed us that initially, the humans were provided every luxury - and they died, "Entire... crops were lost."
It's not synthetic, but it is every bit programmed. Absent real competition, Man invents it.
That's why we call people who play with a ball "heroes".
Radwaste at June 26, 2015 3:02 PM
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