California adopts 'yes means yes' sex-assault rule
Source: AP
SACRAMENTO, Calif. (AP) — Gov. Jerry Brown announced Sunday that he has signed a bill that makes California the first in the nation to define when "yes means yes" and adopt requirements for colleges to follow when investigating sexual assault reports.
State lawmakers last month approved SB967 by Sen. Kevin de Leon, D-Los Angeles, as states and universities across the U.S. are under pressure to change how they handle rape allegations. Campus sexual assault victims and women's advocacy groups delivered petitions to Brown's office on Sept. 16 urging him to sign the bill.
De Leon has said the legislation will begin a paradigm shift in how college campuses in California prevent and investigate sexual assaults. Rather than using the refrain "no means no," the definition of consent under the bill requires "an affirmative, conscious and voluntary agreement to engage in sexual activity."
"Every student deserves a learning environment that is safe and healthy," De Leon said in a statement Sunday night. "The State of California will not allow schools to sweep rape cases under the rug. We've shifted the conversation regarding sexual assault to one of prevention, justice, and healing."
Read more: http://www.bigstory.ap.org/article/4753afde8741454b8cacc426677f41a1/california-adopts-yes-means-yes-sex-assault-rule
= new reply since forum marked as read
Highlight:
NoneDon't highlight anything
5 newestHighlight 5 most recent replies
yeoman6987
(14,449 posts)I think the no means no is better. So she says yes. And then says no. But then says yes. It is too easy for someone to say but the person said yes.
valerief
(53,235 posts)
alp227
(32,019 posts)There is no nuance to be had when it comes to consent. No ifs, ands, or buts.
Jim Lane
(11,175 posts)That consent, once given, can be revoked -- certainly, no argument there.
But was consent given in the first place? From the linked article:
There is obviously some nuance in whether a particular nonverbal action was consent to a particular level of sexual contact.
If, instead, the legislation specified that nonverbal consent is legally ineffective, that would eliminate a lot of the nuance, but would bring the law pretty far away from what people (nonrapist people) actually do.
ncjustice80
(948 posts)Jim Lane
(11,175 posts)This scenario seems unrealistic to me:
"May I kiss you?"
"May I stroke your hair?"
"May I kiss you again?"
"May I touch your clothed breast?"
"May I kiss you with my tongue entering your mouth a little bit?"
and so on.
Bear in mind that if a law sets a standard that's too far from people's expectations and practices, it's more likely to be ignored and violations are less likely to be punished.
Sheldon Cooper
(3,724 posts)
Ash_F
(5,861 posts)Compared to the real world where women get raped every day?
MosheFeingold
(3,051 posts)Say two people are drunk and they have sex, did they both commit rape? Or did jut the male?
I admire the intent, but the law seems a bit unworkable.
lunatica
(53,410 posts)If she/he says no then you simply stop. Who wants to have one-sided sex unless they're a rapist? It's a no brainer. And if she/he decides to then say yes, just make sure it's a yes. Or just stop and call it a day. No man needs to 'perform' on command.
gcomeau
(5,764 posts)Yeah...
"Under the bill, someone who is drunk... cannot grant consent."
So all cases of drunk sex are now legally classified as rape. Awesome. That's not going to turn out badly... noooooo... because obviously no college students are now EVER going to have sex while intoxicated!
Have these idiots writing this stuff ever been to a college?
alp227
(32,019 posts)I think America has reached the point where plying a romantic partner with alcohol before sex is what it is, predatory. If you can't score with someone sober, suck it up.
hack89
(39,171 posts)No plying, no predatory behavior, just two somewhat intoxicated people that decide they want sex. How is that rape?
alp227
(32,019 posts)Because they were drunk at the time, asnt consent under the influence is not fully informed/thought out, unless they planned their drunken encounter ahead of time.
hack89
(39,171 posts)would you expect this to be prosecuted?
alp227
(32,019 posts)Drunken hookups are not the innocent fun most people make them out to be. Often, predatory men use alcohol to lure their female prey. Of course, sexual assault can go all ways (same-sex our female-male too).
Calista241
(5,586 posts)Since the gov't rarely prosecutes two people for raping each other.
alp227
(32,019 posts)(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
kelly1mm
(4,733 posts)sexual assault when BOTH are drunk when they have sex (but otherwise consented). Since the fact of intoxication means you cannot legally consent, then even if you enthusiastically engage in sexual activity with another intoxicated person (who likewise cannot legally consent) then both would be guilty of sexual assault, no?
Ash_F
(5,861 posts)I read it as the person has to not even understand that what is going on. If both people are that drunk, they would not even be able to have sex.
kelly1mm
(4,733 posts)to sex? Would it be more intoxicated than what is used for DUI? .08% I believe?
I do not know the answer of how intoxicated is too intoxicated to give consent. If it is "passed out drunk" then you are of course correct that in that case it is highly unlikely that sex will take place if both are that intoxicated.
However, if it is closer to the DUI standard, then I would argue MANY people would lack the capacity to consent - men and women alike, who otherwise enthusiastically participate in sex.
Ash_F
(5,861 posts)https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967
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.
kelly1mm
(4,733 posts)that they could not understand the fact, nature, or extent of the sexual activity?
If so, then are they both guilty of sexual assault? Are they both victims of sexual assault?
Do you, in your opinion, think the definition that you cited above is less than what is commonly referred to as passed out drunk? I think anyone who tries to claim that someone who is passed out drunk can somehow consent to sex is a sick puppy.
If it is somewhere less than passed out drunk, can you give me your opinion of where that line would be? In common language please as I have read the definition posted several times already and it seems way too subjective to give any legal clarity.
Ash_F
(5,861 posts)"If it is somewhere less than passed out drunk"
Just before that, the person can be delirious, unable to communicate and have no motor control, but not 'passed out' yet. This is where the 'she didn't fight back hard enough' argument comes from that so many rapists get away with.
And no it is not possible for both people to be that drunk and have sex. At least one person has to have enough motor control and presence of mind to guide it in.
ncjustice80
(948 posts)Who has the societal power derived from the patriarchy? Therein lies your answer.
hack89
(39,171 posts)Ash_F
(5,861 posts)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.
That doesn't say "somewhat intoxicated".
hack89
(39,171 posts)the poster I was discussing the issue with thinks it is. I agree with you.
Ash_F
(5,861 posts)But a lot of the posters against this bill don't seem to get it either.
lrellok
(41 posts)temporarily or permanently impaired by mental and/or physical deficiency, disability, illness, or by the use of drugs to the extent he or she lacks sufficient understanding to make rational decisions or engage in responsible actions.
http://legal-dictionary.thefreedictionary.com/intoxication
A state in which a person's normal capacity to act or reason is inhibited by alcohol or drugs.
that is very similar language, though i am no legist. Is there a lawyer in the house?
Ash_F
(5,861 posts)
JoeyT
(6,785 posts)You really want to buy the truck, and afterward you realize I sold you a beat to shit old 90s model Silverado for a half a million dollars. Should that agreement remain valid? Even, or especially, if it's in writing?
Cause I got a bunch of liquor and a truck I really don't need. Kidding. 
gcomeau
(5,764 posts)...that completely valid principle is going to collide with the reality that hordes of college students are going to be getting drunk and having sex on a regular basis. Mostly intentionally.
Should akll of them be charged with rape now? Yes or no?
If yes, half the college age population of the state is heading for prison.
If no, who gets to decide when committing what is now the legal definition of rape in CA gets prosecuted and using what criteria if not the law?
alp227
(32,019 posts)Planning drunken hookups in advance?
College kids across the state regularly go out with every intention of getting drunk and hooking up.
They do not do so before first preparing written affidavits of sexual consent provided in advance of doing so, and they're not going to start.
alp227
(32,019 posts)By now, people oughta realize that anyone who targets drunken people for sex (as opposed to planning with their partners in advance) is a sexual predator.
You realize in most cases both parties will be drunk. So who gets prosecuted? Do we arrest them both for raping each other?
If neither party consents to sex, then both of them have committed rape. Being really, really drunk means you can't consent.
Btw, that was true independent of this new law.
So you are *seriously* proposing we arrest and jail every pair of people in the state who get drunk and have sex.
If you thought the war on drugs overcrowded the prisons... how clueless can you be???
jeff47
(26,549 posts)Which is not a beer or two. It's falling-down drunk.
And again, that's what the law said before this new law - if any party to the sex is incapacitated, having sex with them is rape.
Clueless, and horrifying, is believing that the only way people can have sex is to be so drunk they can't think straight.
And you will determine that well after the fact when any possible investigation of the event will be occurring HOW? Requiring everyone to take breathalyzers before they have sex and then keep the records for later just in case?
Are you guys incapable of giving any thought whatsoever to the practical realities of trying to implement and enforce this? Or do you just think laws are implemented in ideal vacuums of concept and principle?
Ash_F
(5,861 posts)Other times there are corroborating witnesses. Sometimes there is video.
Read about more cases and you will get it.
Not every rapist is a master criminal. Most are quite stupid.
gcomeau
(5,764 posts)...that we're talking about large portions of the cases having BOTH parties be simultaneously perp and victim according to this law. So how do you imaging that working exactly?
Ash_F
(5,861 posts)Please arm yourself by reading the actual text of the law before continuing this line of argument.
gcomeau
(5,764 posts)Ash_F
(5,861 posts)If you had, you would realize how dumb that post is. 
jeff47
(26,549 posts)where they try to determine what happened. Person A and Person B have sex. The next day, Person B says they were too drunk to give consent.
How do they figure out what happened? Why, they actually investigate the accusation instead of firmly planting their head up their ass talking about breathalyzers.
If several other people recount that person B was drinking a lot of alcohol, then they can conclude Person B was drunk. Or if it's early enough in the morning, person B's blood will still have the metabolites of alcohol, and measuring those can indicate how drunk they were. If the investigation can't find any evidence of drinking, then they can't conclude person B was drunk.
Yes. Considering your objections are moronic, you are not.
What was the law before this? What practical difference does this change actually make when prosecuting a rape case?
Answer: None. Before this law, non-consensual sex was rape. What's the only way you can ensure consent? Ask. What's the law now say? Ask. One partner drunk off their ass? They couldn't give consent before, and can not give consent now.
Doctor_J
(36,392 posts)kids have sex?
I don't see how this will work on a practical level.
OLDMADAM
(82 posts)Let me take it just a bit further, this is a unrealistic restriction that will have such unintended consequences as to chill the interaction between men and women.. I doubt it will ever get used, without getting struck down.. I understand the intent, but somethings are just stupid in the daylight..
lrellok
(41 posts)your obviously applying this to women as well, right?
kelly1mm
(4,733 posts)
JPnoodleman
(454 posts)I mean, if the issue is that drinking alcohol is bad and makes consent to sex impossible? Why not protect our youths with stronger constraints on alcohol? Why not simply restore prohibition if it is such a horrible social vice?
alp227
(32,019 posts)has NOTHING to do with drinking age.
JPnoodleman
(454 posts)See, all these drunken hookups and lack of knowledge about consent.
Why not raise the drinking AND age of consent to 26 or something so they can finish grad school without these things getting in the way.
Did you go to college? What happens when both parties are intoxicated? What happens when neither can make a rational decision but have consensual sex but the girl wakes up and feels regret due to what happens. What ever happened to the, it takes two to tango. Damn what ever happened to personal responsibility? So some girl gets drunk, has sex with a guy and it's his fault?
alp227
(32,019 posts)The woman for not resisting? What IS your argument here?
Do you not believe that sex without honest consent is rape?
Iamthetruth
(487 posts)Because who is to say what is honest consent if the judge and jury who convicts someone was not in the room at the time. It becomes a he said she said if the girl wants it to.
alp227
(32,019 posts)Are you seriously saying that just because sex has no consent doesn't mean the sex is rape?
And so what if the judge & jury weren't in the room? That's a creationist "were you there" BS argument. Might as well not prosecute all witnessless crimes.
Iamthetruth
(487 posts)What you want is for their to practically have a written contract before sex. I believe that just because the female may be drunk does not make it rape. So a person is supposed to carry around a breathalyzer with them, have the person blow the test before they have sex? What if they are both drunk, is it still the guys fault?
Nye Bevan
(25,406 posts)and both have regrets the next day and report the encounter, both would then be guilty of rape.
closeupready
(29,503 posts)for sex partners. It's as common as dirt.
reflection
(6,286 posts)I had a couple of drunken hookups in college, who didn't? But never once did I (or anyone I observed) stay completely sober while plying our desired mate with alcohol. I'm sure people have done it, but it's not that common. There has to be a point where common sense enters the picture when both parties are tying one on, because it's not only men that can rape.
roguevalley
(40,656 posts)fight her/his attacker saying they said yes?
RVN VET
(492 posts)the point is, if a girl is unconscious or only semi-conscious, she can't say no and she can't say yes. So that is one very clear protection the law provides.
And that may be the only situation the law really focuses on.
closeupready
(29,503 posts)is not a 'girl'. She is a woman.
RVN VET
(492 posts)but I'd be curious to see how many 18 year old females (nice, PC neutral word I think) would prefer to be referred to by the other noun.
For that matter, how many older -- even much older -- females would prefer it, even use it when referring to each other.
To quote a sage, let's be real here. The issue here is rape, not semantics. The law says that only "yes" means "yes." And the reasoning behind that is the notion of mature and reflective consent. Not "yes, if you only stop beating me," not "yes, if you promise not to publish my nude selfies," and certainly not a half drunken, half conscious grunt that a predator decides was close enough to a "yes" to make the rape "consensual."
Doctor_J
(36,392 posts)candelista
(1,986 posts)From the article: the definition of consent under the bill requires "an affirmative, conscious and voluntary agreement to engage in sexual activity."
A couple of witnesses to the agreement would probably be good, too.
Jim Lane
(11,175 posts)MosheFeingold
(3,051 posts)"No, it's not for pornhub. I just want to document that you consent and do not withdraw consent at any time."
Times like this make me happy to be an old man who had one wife (and one lover -- my wife) for 50+ years.
kelly1mm
(4,733 posts)Calista241
(5,586 posts)Does this mean i can't have sex with my wife after a party if we consume alcohol?
alp227
(32,019 posts)Unless you and your wife agreed in advance to have sex after drinks. It sounds tough. But if we are to enforce the idea that sex requires consent, it's a hard truth you gotta face.
Calista241
(5,586 posts)There is lots of sexual activity that takes place between married couples that doesn't meet that standard. Suppose one partner wakes the other one up with some amorous activity. Since the other partner was technically asleep when the activity started, consent wasn't given and that was rape according to this law.
In my earlier example, LOTS of communication takes place between married couples that isn't verbalized. Because nobody actually says "lets have sex", or has a written agreement, or whatever, then it's an sexual assault. Now, i know my wife is in full agreement with our activity, it's just that the idea that we've technically raped each other is disturbing to me. That is a ridiculous standard.
ncjustice80
(948 posts)Given that men hold societal power granted by the patriarchy, are generally larger and stronger, and have an innately higher alcohol tolerance, I feel it falls mostly on men to not engage in sex when a woman has consumed alcohol.
closeupready
(29,503 posts)candelista
(1,986 posts)alp227
(32,019 posts)"By getting married, the woman has consented to sex, and I don't think you can call it rape." --Right wing a-hole Phyllis Schlafly
Seriously. I'm not calling you a rape apologist, but your post is a bit disturbing. In my moral view, my right to be left alone outweighs another's right to be sexually aroused by me. Even in marriage or a relationship. Maybe we all have to re-evaluate our values. You do have the right to be disturbed by the consequences of sex without real consent.
delta17
(283 posts)Most married couples have other signals than "Dear, would you like to have intercourse?" Usually, both partners understand what is acceptable and what is not within the relationship.
alp227
(32,019 posts)As opposed to sexual partners in hookups.
delta17
(283 posts)They were specifically taking about married couples, and you compared them to Phylis Schlafy.
alp227
(32,019 posts)But I've calmed down a bit and retreated a bit. I get disturbed when people come up with excuses to avoid seeking consent for sex.
delta17
(283 posts)I understand where you are coming from.
candelista
(1,986 posts)You have to answer that question if you are going to define "rape" in these terms.
Can "clear, honest consent" be shown behaviorally? How? Or do words have to be used? What words? Be specific.
Snow Leopard
(348 posts)But I sure hope your version of totalitarianism never comes to pass
Calista241
(5,586 posts)Trying to legislate what goes on in people's bedrooms. I know sexual assault in a MAJOR problem, but this law doesn't seem like an appropriate solution to me.
When normal, law abiding couples are consistently in violation of the law, that is a dumb law. I mean, we're trying to regulate exactly when and under what conditions any two people can have sex. What's wrong with no means no?
ncjustice80
(948 posts)candelista
(1,986 posts)-1.
jeff47
(26,549 posts)And keep in mind "No means no" and sex education programs that emphasize consent have failed.
Man: She didn't say no!!
Woman: I was semiconscious. I tried to say no.
Man: Oh, well I didn't think that babbling was no. So I'm in the clear.
jamzrockz
(1,333 posts)written with the unconscious in mind. If that was the extent of the law, nobody would be complaining. He post you replied to talked about the law criminalizing something millions of couples do everyday. I hope you don't think millions of normal couples have sex with their unconscious partners cos that is not normal.
jeff47
(26,549 posts)So your argument is millions of couples get themselves so drunk before sex they are barely able to walk and incapable of consent?
Thank god I'm not married to you.
Anyway, feel free to propose your own solution, keeping in mind everything up to this point has failed. Or just outright say you think the rapes are a worthwhile price to pay instead of pretending couples incapacitate themselves all the time so that they can do a lousy job having sex.
jamzrockz
(1,333 posts)solutions other than recording everything that happened during an encounter on video and audio. Even the new law in California still leave the possibility for he said, she said. This just complicates the system with have now without making it any easier to capture rapists. It will probably create more criminals the same way the war on drugs created more drug criminals and our justice system could end of registering more rapists without reducing the rate of rape.
jeff47
(26,549 posts)or just say you think these rapes are an acceptable price.
Having sex with someone who could not give consent was already illegal. There is absolutely nothing newly illegal in this law. All the new law does is make it explicit that you have to get positive consent, instead of the old law that said consent was required.....which in practical terms means you had to get positive consent.
candelista
(1,986 posts)"No means no" is his solution. You replied that this criterion can be misused. But any criterion can be misused. And if "sex education programs that emphasize consent have failed," then "yes means yes" will fail too, because it is just a stronger and more stilted way of emphasizing consent.
jeff47
(26,549 posts)That a change in the law with zero practical effect will suddenly throw thousands of normal couples in prison. (Old law: Non-consensual sex was rape. How do you ensure you have consent? Ask. New law? Ask.)
If he, or you, want to claim this is a terrible law, then either propose an alternate solution or say you prefer the number of rapes currently occurring.
Calista241
(5,586 posts)the schools don't want to scare off future students by having to advertise a significant chance of being raped or a high crime rate. No means no is clear, it's understandable, and it should be easier to enforce. The solution to a failure to report rapes on campus is to punish schools that don't adequately investigate or report crimes. University police departments shouldn't be there to coddle students, overlook crime, and look the other way at these massive drunken parties.
A lack of enforcement is the problem here, not a lack of laws.
If your complaint is unconscious students can't consent, then pass a law about sex with unconscious people. If your complaint is that students lie about whether she said no, then those same people are probably going to lie about whether she said yes.
candelista
(1,986 posts)
The Stranger
(11,297 posts)The Warren Court had finally been able to get "authorities" out of the bedroom.
Now they're back.
Ash_F
(5,861 posts)Take 5 minutes and read this before you mindlessly rake your fingers across your keyboards.
https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967
candelista
(1,986 posts)The shysters that wrote this drivel say what consent is not, but they never say what it is.
Ash_F
(5,861 posts)
candelista
(1,986 posts)
So how is it shown? How MUST it be shown? Without that, you don't have a rule of behavior.Ash_F
(5,861 posts)That often comes down to the facts of case and the deliberation of the jury.
PS - It is useful if you have some sense.
candelista
(1,986 posts)It's the whole shebang: how does someone show consent? Does it require a written contract, an oral contract, behavioral criteria or what? You can say that "yes means yes," but what does the second "yes" mean? How do you say yes? Does someone have to ask, every time, "Can we have sex now?" so that the other person can explicitly say "yes"? Must a contract be filled out, signed and witnessed? Or are behavioral criteria enough? What behavioral criteria?
Ash_F
(5,861 posts)How I would interpret that first sentence is that could be verbal, or if both were partners actively engaging. Either could show consent.
But I would not apply that interpretation to any particular case before seeing all of the evidence.
Cases where the victim was unconscious or barely conscious are common. And the perp often gets away with it, despite admitting so.
My personal experience as a victims' advocate is that detectives and prosecutors will try hard to dodge working on cases, unless they have some kind of personal motivation to see it through. They are regularly pressured and rewarded by their bosses to keep the case backlog low and simply dropping cases saves a lot of time.
With university investigators, there is the opposing motivation to protect the university's reputation.
This law is about taking some commonly used excuses away from those investigators as well as the rapists.
MosheFeingold
(3,051 posts)What will happen is Republicans or other corrupt officials will use this against popular Democrats.
Law, in general, is a really blunt tool, and this kind of nebulous law will be abused. I saw it happen in the prosecutor's office all the time.
Ash_F
(5,861 posts)
You know, there are opportunities for you to volunteer with victims on this subject. It might sharpen your sense of reality.
MosheFeingold
(3,051 posts)I spent my entire life in public service.
As a soldier, I stopped Nazis. Shot a few. Captured prison guards who raped women in "work" camps.
As a cop, I arrested rapists and saved several victims from things you could not imagine.
As a prosecutor, I put them behind bars and worked directly with victims on rape task forces.
And as a lawyer for the DNC I helped many a quality person get into office and shaped the laws of this country.
I now volunteer and teach literacy to battered women as an old man.
Nebulous and feel-good stupid laws would not have made my tasks any easier.
Ash_F
(5,861 posts)tuhaybey
(76 posts)I don't get why schools are involved in "handling rape allegations" at all. It's a crime, not a violation of the student code of conduct. If a student cheats on a test, gets caught with a beer or fails to cite a source, send them to the student conduct committee so that they can get a strongly worded letter put in their file. If a student shoots somebody, stabs somebody or rapes somebody, send them to the police so that they can spend some time in prison.
Ash_F
(5,861 posts)This is still a meaningful step. Getting police to shape up around the country is more of a long term project.
Yeah, that's true. Might be easier in the short term to get universities, which at least have their hearts in the right place usually, to handle it better.
jamzrockz
(1,333 posts)I remember one of the cases where an alleged rapist was let off by the school committee and I read statement that the victim was worried that he was allowed to come back on campus, she instead wanted him to be dismissed. I was thinking to myself, if someone raped me, I wouldn't just want him to be expelled from campus, I would want him to spend some serious time in jail where he would not be able to rape another human being. If you just expelled the rapist, nothing will stop him from applying to the next school and continuing his crime.
Rape doesn't belong to the school's justice system. Its not fair to the victim, accused rapist and potential victims the rapist will be exposed to if hes not locked up for his crimes. They should instead enact a law that would stop all funding to schools that did not report rape cases to the police system. Instead we have this rubbish law to deal with.
hughee99
(16,113 posts)as it would still come down to the same "he said/she said" that creates a problem now, but it would seem to significant expand the instances where rape is prosecutable. I wonder how long it will take police and prosecutors to selectively enforce this law where some people get a pass and others (the kind that can't afford good lawyers) don't.
JPnoodleman
(454 posts)For example the University of Michigan holds as campus policy that such things as withholding sex and affection are forms of sexual violence. Granted not a California school but do such policies also exist on campus' within the state?
One big question is? Can one actually FOLLOW all of the laws and campus' policies when as a point of fact these policies and laws can't all be followed potentially? I mean what if your UC or CSU has a similar policy that refusing sex is sexual violence and ALSO the law says non-consensual sex is sexual violence?
More aptly, WHY are colleges so involved in student sex lives? Why is the government for that matter?
Sheldon Cooper
(3,724 posts)Can you provide the relevant policy?
Jim Lane
(11,175 posts)In this "Definitions" section, we find this language:
Examples of sexual violence include: discounting the partner's feelings regarding sex; criticizing the partner sexually; touching the partner sexually in inappropriate and uncomfortable ways; withholding sex and affection; always demanding sex; forcing partner to strip as a form of humiliation (maybe in front of children), to witness sexual acts, to participate in uncomfortable sex or sex after an episode of violence, to have sex with other people; and using objects and/or weapons to hurt during sex or threats to back up demands for sex.
The impression I get from this "umbrella" page is that the definition is part of a broader discussion of domestic abuse/domestic violence. That's defined in the relationship context:
(also from the "Definitions" section)
The policy, which is housed on the Human Resources section of the University's website, appears to be aimed at employees, not students:
(from "About Abuse")
My opinion: In some contexts, withholding sex is part of a pattern of emotional abuse, but I don't like calling it "sexual violence". There's a big difference between manipulating a person by withholding sex and manipulating him or her by pointing a gun.
Sheldon Cooper
(3,724 posts)I basically agree with your opinion, but to be honest, I would not consider withholding sex to be manipulation or emotionally abusive. No one is ever "entitled" to sex, so if your partner doesn't want to have sex with you, for whatever reason, that's your tough luck. I think that many people assume that being in a relationship somehow entitles them to regular sex, and that's just not true. This is not to say that withholding sex isn't emotionally painful, because it certainly can be - but that is a relationship problem, not a domestic violence issue. If there is an incompatibility in this area, and counseling doesn't fix it, then the recourse is to leave the relationship, not consider your partner to be abusive because they won't give you any.
WhoWoodaKnew
(847 posts)Last edited Tue Sep 30, 2014, 09:19 AM - Edit history (1)
Since, when I was dating a college senior after I graduated, she always would say things like "We've got to stop" or "No" or countless other things pretty much every time we had sex. It was a ritual. We dated for 4 years and almost got married. It was her way of letting me take responsibility for what was happening (that she wanted to happen). Once the sex actually started she was an animal. Of course she would have never filled charges against me because we were in love.
Now, had that happened as we were breaking up I can see where a vindictive person (she wasn't) could have used that against me.
JPnoodleman
(454 posts)One other thing about this law is the fact that its co-author has no idea how you would actually follow it.
http://www.presstelegram.com/government-and-politics/20140608/students-question-affirmative-consent-bill-designed-to-combat-sexual-assaults
When asked how an innocent person is to prove he or she indeed received consent, Lowenthal said, “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.”
I mean That is kind of frightening right? The makes of the law have no actual ideas as to what could possibly prove oneself innocent.
taught_me_patience
(5,477 posts)Would that imply consent? She's not making a direct affirmative "yes I want to have sex" statement, yet the question strongly implies to get a condom for sex. I've had several encounters where I took that question as the signal to start sex.
Xithras
(16,191 posts)It effectively creates two tiers of guilt for rape accusations in California. If a college student accuses another of rape, the accused could be cleared by the police (or even a jury) of guilt, but still be found guilty by a school under these standards.
That creates a situation where the accused could potentially sue the accuser for damages...and would likely WIN. If a woman files a rape complaint against a man and he's thrown out of school for it, but is later cleared by police, he will have all the legal proof he needs to not only show financial damages from her accusation, but to back up his assertion that he didn't actually do it. While the schools are indemnified from the suits because the expulsion would be mandated by law, there is no such protection in place for young women. The end result of this new law could be the creation of a situation that it even MORE harmful for young women, as they could end up being ordered to pay back millions of dollars in lost future earnings. The lawyer who was discussing it was pretty blunt with his criticism of the whole concept.
IMHO, the proper solution is also the simplest. If one student accuses another of rape, the school should suspend the accused and refund their current credits until the police and courts finish doing their jobs. If they are cleared, they can be readmitted without any real loss (other than time). If they aren't, they can be expelled permanently. School administrators, who have NO experience or education about criminal matters, should have no role in judging a students involvement in a crime.
Jim Lane
(11,175 posts)You write:
I disagree, for two reasons. First, a person generally isn't bound by results reached in a court proceeding to which he or she was not a party. In a criminal trial the accuser wouldn't be guaranteed notice and the opportunity to be heard (the basics of due process). She had no opportunity to present evidence, cross-examine the witnesses, etc. An incompetent or biased prosecutor might fail to win a conviction, which is unfortunate, but it doesn't preclude the accuser.
Second, in the specific case of using a criminal result to prove a point in a civil case, it operates only one way, precisely because of the different standards of proof. A criminal conviction establishes that the defendant was guilty beyond a reasonable doubt. A criminal acquittal does not establish that the defendant was innocent; it establishes only that the evidence at trial did not show him to be guilty beyond a reasonable doubt. In a civil trial, a jury could well conclude that the exact same evidence, while not showing guilt beyond a reasonable doubt, did show guilt by a preponderance of the evidence (the civil standard). That's not inconsistent.
Your suggested alternative is much too harsh on the accused. (Note: not "on the rapist" but "on the accused".) You write:
You're understating the harm to the innocent person who's suspended under these circumstances. The loss of time can be huge, even aside from the stigma. These consequences shouldn't be imposed merely on an accusation.
There's no perfect solution. Students shouldn't have their lives disrupted merely on the basis of one person's unsupported say-so. On the other hand, if the school always awaits the result of a criminal proceeding, some students will remain on campus and members in good standing of the university community even though their guilt is clear. The only way to avoid either of these unpleasant extremes is for the school to make some preliminary assessment of guilt or innocence, but I feel more comfortable with your position that school administrators should play no role in making those judgments.
Xithras
(16,191 posts)Currently, there is a single standard for rape in the state of California. While civil and criminal courts can come to different conclusions because of differing standards of evidence, they are both working off a single legal definition of rape. Both civil and criminal juries judge guilt based against that standard.
The new law changes that by creating an entirely new standard of rape that is not applicable in EITHER criminal or civil court, but is only available to school administrators for their own internal use. Under the new law, if a male college student gets affirmative consent to go to a young woman's dorm room and kiss her, and then gets affirmative consent to move on to third base, but the two get too involved in the otherwise consensual sex to stop and ask for affirmative consent before proceeding on to full sexual intercourse, he's committed rape according to the new guidelines and can be expelled. The problem is that the law only applies to the school, so no criminal or civil court is going to find him guilty of anything. The legal definition of rape, as it applies to all Californians, has not changed. Legally, he didn't commit a crime. It's not a matter of courts interpreting evidence differently, as already happens today, but of schools expelling students over behaviors that aren't actually illegal.
This exposes the accuser to potential civil liability. Because the word "rape" carries so many negative sexual connotations that can follow an accused rapist for years, it would be trivially easy for the young man in my example above to prove in civil court that he didn't actually commit any crime, as defined by law. If the young men can show that no crime was committed, and that he is suffering actual damages from the accusation, it becomes fairly simple to show a tort.
Jim Lane
(11,175 posts)First, in your example, it's not clear that either of them violated the policy. The law doesn't say expressly that "affirmative consent" must take the form of verbal consent. If there were multiple verbal consents up to third base, followed by conduct on the part of each participant that indicated willingness to go further, that could be deemed sufficient under the law. See my post #20 in this thread (and the follow-up, that at least one DUer thinks the law too lenient because it doesn't require verbal consent).
IIRC the law also doesn't say expressly that there are acceptable forms of nonverbal consent. There's apparently some legislative history to support that interpretation, but if that's what they meant, it would have been better to spell it out.
As for the potential liability of an accuser, a claim of defamation depends on the meaning to be given to the defendant's words. I can say that the Koch brothers are raping me if the context is clear that I'm using "rape" as a metaphor. (I'm not endorsing the metaphorical use but I've seen it used that way.) If the Kochs sued me for defamation, alleging that neither of them ever sexually penetrated me and that I was therefore lying about them, they would lose.
In your example, the student who brought an accusation under a school's policy would clearly be saying that the accused committed acts that violated the policy. If the accused committed acts that violated school policy but did not violate any criminal laws of the State of California, then both defendants win; in the criminal action against the man, he's acquitted, and in his civil action for defamation against his accuser, she wins.
I'm assuming that the tort you're citing is defamation. There is a tort for invasion of privacy but I can't imagine that an accused rapist would be able to prevail on an invasion of privacy claim against his accuser. Do you have some other tort in mind besides those two?
ETA: I thought of a couple other torts. Some jurisdictions allow an action for intentional infliction of emotional distress. That's obviously subject to huge abuse, though -- courts don't want to hear a parade of cases that amount to saying "he did something that made me unhappy." (DU all by itself could clog a court's docket.) Therefore, it's very, very narrowly limited. "After we hooked up at that party, her accusation against me made me unhappy" wouldn't begin to cut it unless the California standard differs radically from New York's. (Caveat: I'm a lawyer but licensed only in New York. I'm sure there are areas where California law is quite different but I really doubt that California courts would entertain a tort claim under those circumstances.)
The other tort I thought of is abuse of process. That's a common-law tort that depends on using the process of a court in an improper way. I don't think it would apply to proceedings before a university grievance committee or whatever entity hears complaints about violations of a school's sexual assault policy. Even if it does, an abuse of process claim would fail if the defendant (the person bringing the accusation of sexual assault under the school policy) wasn't making a false accusation, because the plaintiff (the person accused of sexual assault) had violated the school policy even if he didn't violate the criminal law.
