Sex Without A Notarized Document Of Consent Is Teetering On Becoming A Thing Of The Past
Of course, even a notarized document doesn't protect you, as the person you're having sex with could say they withdrew consent mid-act, and you don't have proof that you had consent to continue.
In short, this proposed new law is how to fuck any man over -- because it's mostly men who will get ensnared by the revision that's being proposed, moving over "affirmative consent" from college campuses to the rest of the adult world.
Samantha Harris blogs for theFIRE.org:
In just a few days, the American Bar Association will consider whether to adopt a resolution urging state legislatures to adopt a criminal-law definition of consent similar to the "affirmative consent" standard increasingly popular on college campuses. Given the ABA's reputation and influence, it would be disastrous for due process if this resolution were to pass.Here is the resolution (emphasis added):
RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.By making sex presumptively nonconsensual unless and until someone can produce evidence of consent, affirmative consent standards effectively shift the burden of proof to accused parties to prove themselves innocent.
From The College Fix's Greg Piper on the guilty until proven innocent tack of this resolution and some of the groups that oppose it on that count:
Among the groups opposing the resolution is the National Association of Criminal Defense Lawyers, which says it would prove an offense occurred "merely upon evidence of a sex act with nothing more."The resolution shifts the burden of proof to the accused for each act, undefined, within a larger sexual encounter, and "assumes guilt in the absence of any evidence regarding consent," the association wrote last month.
"This radical change in the law would violate the Due Process Clause of the Fifth and
Fourteenth Amendments and the Presumption of Innocence," the group argues. "The resolution will often force the defendant to testify in order to present evidence that consent was expressed."
An essential bit from the NACDL link:
1. Burden-Shifting in Violation of Due Process and Presumption of Innocence: NACDL opposes ABA Resolution 114 because it shifts the burden of proof by requiring an accused person to prove affirmative consent to each sexual act rather than requiring the prosecution to prove lack of consent. The resolution assumes guilt in the absence of any evidence regarding consent. This radical change in the law would violate the Due Process Clause of the Fifth and Fourteenth Amendments and the Presumption of Innocence. It offends fundamental and well-established notions of justice.
From Sam Harris's excellent piece at FIRE:
Affirmative consent standards are already common in campus disciplinary proceedings. On campus, not only has affirmative consent proven confusing, but the state of due process and fair procedure is so bad that over the past eight years, more than 500 accused students have filed lawsuits alleging that they were not afforded even the most basic procedural protections before being found responsible for sexual misconduct. As high as the stakes are on campus -- where students found responsible face the loss of educational and job opportunities as well as permanent stigma -- they are higher still in the criminal context, where those found guilty face imprisonment.We hope that the ABA's House of Delegates will reject this resolution as a grave threat to the due process rights of those accused of one of society's most serious crimes.
This is what happens when somebody just doesn't have shit ta do: they make it up.
There are laws against adultery, Federal laws about felons & guns, immigration laws... they don't count. Some of them have laws requiring the imprisonment of those who conspire to violate them.
We don't care.
The best way to break your country is to enact laws people won't, then can't, obey.
We've been here for awhile, and I guess is that the authors of such crap, full of themselves as "expert", have no idea whatsoever about this.
Radwaste at August 7, 2019 1:49 AM
Nearly to old to take it personally (and will only be spending time with women old enough to know better), but it seems really likely that this is really going to go anywhere and interfere with people's lives for a long time.
Libby had a story in his book of someone who wanted to put a number on ever handgun bullet to help identify shooters. He handed the guy a round and asked, "Where?"
How will cops and prosecutors be seriously enthused enough to pursue such things? Why will juries want to adjudicate?
Relax, ain't gonna happen.
Crid at August 7, 2019 4:10 AM
How will cops and prosecutors be seriously enthused enough to pursue such things?
I can see the cops being unenthused about having to police such matters.
But prosecutors? they'll love this. We can go to trial, and you'll face a long stretch in the pokey, or you can take this nifty little plea deal and get out in under 5 years. What'll it be? you really want to risk 20 years?
I R A Darth Aggie at August 7, 2019 8:04 AM
The fastest way to end a romantic encounter is to ask for affirmative consent. Sexual desire is hidden in most people who may be uncertain about the sex act until they get into it following foreplay. This is true even for married couples. You simply don't ask your wife if she wants to screw. She will almost always say no and procreation would simply stop. So these people have no idea how actual sexual interaction works.
Given accounts I have seen, even when the girl has been an enthusiastic participant (taking her own clothes off for example) she can later change her mind and claim she "wasn't really" into it so it was assault (usually after he dumped her).
If you don't want to do it, don't. Virtually all guys will stop if you say stop and will take you home. The fact that you are lonely or sad and want him to spend the night is not an excuse if you really didn't want sex. Spending the night sure looks like "yes" to a guy. Also, please stop getting drunk with strangers. Bad shit happens.
cc at August 7, 2019 8:22 AM
From Sam Harris's excellent piece at FIRE:
_____________________________________________
Um, you mean Samantha Harris. No point in confusing the two. (You DO remember who Sam Harris is, don't you?)
And, unfortunately, HE wasn't thinking half as clearly as you would expect when he mentioned rape in "Letter to a Christian Nation." That is, he unwittingly put rape on the same level as stealing food when you're starving to death. You don't have to be a doctor to know how wrong that is.
lenona at August 7, 2019 11:35 AM
The ABA has been a feminist-infested, converged SJW cesspool for a long time. When they call to solicit membership, I enjoy telling them that you could not pay me to be a member.
BTW, Lenona, "rape" under the "affirmative consent" lynch law would be put in just about the same league as stealing food when you're starving. After all, if someone (male or female) can't even be bothered to offer any verbal, much less physical, resistance to being "raped", how serious could it be?
Jay R at August 7, 2019 12:21 PM
Two other effects likely to arise from this ...
1. Courts will need to allow a more intrusive interrogation of plaintiffs to determine the likelihood that their behavior a/o utterances could be construed as affirmation for a recognizable transition a/o stage of intimacy. This could be a return to the 'bad old days' of sexual assault examination - 'were you asking for it?"
2. Sexual Assault will likely come to be perceived as a less severe crime than it is currently. It will no longer be defined exclusively as a crime of coercion and violence but increasingly one of misjudgment and miscommunication.
melmo at August 7, 2019 1:54 PM
Jay R:
If you find a sober female stranger alone in a room at a party, and you're taller and heavier and you pin her against a wall, you can't assume that she's consenting just because she doesn't fight or scream (AND doesn't respond positively). Hint: If you can understand why often, even the average man freezes up in a dangerous situation when he knows he's seriously outnumbered, you can understand her non-reaction. How can she be sure you won't try to throttle her when she doesn't even know your name?
I have to say I don't understand what you said about the "same league." My point was that we have plenty of sympathy for a defendant who was just trying to fend off death, even if it involved stealing. When it's NOT a life or death situation (or even a lack of money), of course we don't have any sympathy for someone who steals food. The same lack of sympathy should apply to rapists. (Besides, many who have studied the subject will tell you that plenty of convicted rapists had wives or girlfriends. They just hate hearing the word "no" in any context.)
lenona at August 7, 2019 5:00 PM
"Courts will need to allow a more intrusive interrogation of plaintiffs to determine the likelihood that their behavior a/o utterances could be construed as affirmation for a recognizable transition a/o stage of intimacy. This could be a return to the 'bad old days' of sexual assault examination - 'were you asking for it?'"
I don't think so, for this reason: The plaintiff can claim to have withdrawn consent at any point. That makes everything that happened before that inoperative, and the whole thing becomes rape. All the plaintiff has to do is demonstrate that they did indeed have sex, and then make a statement that at some point consent was withdrawn, and that is prima facie. Since the withdrawing of consent doesn't have to be either verbal or physical, there is no defense against it.
Cousin Dave at August 8, 2019 6:17 AM
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