« Caption Contest | Main | Valuable Perspective on False Rape Accusations »

October 01, 2014

Wednesday Inflammatory Debate Topic

From time to time, the Editorial Staff have a tradition of throwing out what we only half-jokingly refer to as "inflammatory debate topics". Often we do this as a means of testing a position or stance we have always pretty much assumed was valid on the merits. That doesn't mean we've already decided to reject the position, nor does it necessarily mean we've already decided what we think. The outcome is not decided ahead of time - hence, the debate: an opportunity to hear what you all think and critically examine our position to see how well it holds up to closer inspection.

Today's debate question reached out and grabbed us (WITHOUT AFFIRMATIVE CONSENT, MIND YOU!!!!) whilst we perused an article on California's new affirmative consent law for colleges and universities receiving government funding. The point we wish to examine is this one, taken from the law:

The California bill, SB 967, makes clear that silence, a lack of resistance or consent given under the influence of alcohol and/or drugs does not equal consent to sexual activity.

“Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time,” the bill states. “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.”

The inflammatory debate question is, "As a standard of behavior, which part of this do you think is wrong?" To help focus the discussion, let's break the standard down into its constituent parts:

1. Do you believe that "silence, lack of resistance, or consent given under the influence of alcohol and/or drugs" ought to be viewed as sufficient evidence of consent?

This is a harder question than it may seem at first. First of all, there are both legal and moral duties involved (and they're not necessarily the same). It may help to separate your responses into the legal duty/moral duty framework. Here, the Blog Princess will happily climb out on the limb of bloggy bloviation and provide a preliminary, not terribly well thought out response that you are encouraged to rebut:

Is silence consent? Not necessarily. It depends on the context.

Is lack of physical resistance consent? Not necessarily. It depends on the context.

Has a person who is clearly drunk/drugged/asleep consented to sex by virtue of being incapacitated/unconscious? Absolutely not.

We strongly suspect the answers here will depend to some extent on whether one happens to be male or female. Over the years, we've often heard men argue that women have a duty to forcibly and physically fight off unwanted advances. In other words, when a woman claims to have been raped, she'd better be able to show physical injuries consistent with a physical struggle: bruises, scratches, broken fingernails, perhaps a black eye or a split lip. Quite possibly, broken bones or choke marks around the neck or tearing in places we don't like thinking about. That's what we're talking about when we say "forcible", and in the strict sense a man who physically forces himself upon a silent, unresisting, or unconscious woman cannot really be said to have used force. He may have intimidated or coerced her, but those are distinct from physical force. They leave no convenient evidence behind, and thus are almost impossible to prove in a court of law.

As a moral matter, we have no trouble whatsoever declaring that an adult - male or female - who assumes in all cases that silent, lack of physical resistance, or incapacity equate to consent is acting wrongly. Note the qualifier: in all cases.

We realize this will be an unpopular opinion, but we believe that a woman who seduces a man who is struggling mightily to resist for whatever reason (but does not verbally object or physically fight her off) is acting at least somewhat coercively and - in our opinion - wrongly. Having sex isn't like having another helping of chips and pico de gallo during happy hour. It's a profoundly moral decision with serious ethical and real world consequences, even though popular culture and a sizeable part of both the right and left like to pretend sex is an act of no more moment than deciding which TV show to watch. It's not "entertainment" and it's not risk free because you're not interacting with an electronic device. There's another human being involved.

So to us, expecting people to exert themselves enough to reasonably ascertain that the other person actually wants to have sex (as opposed to being afraid/confused/ashamed) doesn't seem like a terribly high bar, morally speaking. We don't have any trouble whatsoever saying we think that's a reasonable moral duty, especially when the two people involved are strangers or don't know each other well. The duty of care increases when two people don't know each other and decreases the closer they are.

But we're talking about moral rather than legal duties. There are a great number of acts we would unhesitatingly condemn, yet don't think the law should declare to be criminal. Has the CA law "criminalized" them? No, clearly not, because no criminal charges will be filed by colleges or universities and no one will go to jail. Other consequences, some quite serious, will flow from a determination that sexual assault (whatever that means this week) has occurred, but it's not accurate to say that this law criminalizes anything.

What this law concerns is colleges and universities making rules governing the behavior of students who attend CA postsecondary schools. There are no criminal penalties involved.

This is not a trivial point. What we're asking here is, "As a standard of behavior (leaving aside for the moment the reasonableness of the penalties thereuntoappertaining), is it unreasonable/unjust to make a rule saying that silence alone, lack of physical resistance alone, or unconsciousness/incapacity alone will not be considered to be sufficient evidence of consent to sex"?

Framed and limited that way, we would have to say, "No, no, and no." But "framed and limited that way" presents only a small part of the total picture.

2. On to the second part of the standard:

Can consent be revoked during sex? Dear God, I hope so. A man or woman who consents to be kissed does not necessarily consent to any act that hurts, disgusts, or upsets them. If they aren't enjoying themselves, either partner gets to walk away. The oft-cited, "Just let me finish" is utter rubbish given that "finishing" is an act of which we are all capable all by ourselves. You don't get to force the other person to participate in the manner you prefer.

If a person has sex with another person once, have they lost the right ever to refuse sex with that person again? Again, the suggestion is preposterous.

The conclusion we can't help coming to is that - taken in isolation - the standard of behavior posed by the CA affirmative consent law is not only quite reasonable but consistent with what we would expect from anyone old enough to have sex. It's not inherently discriminatory or anti-male (though it will almost undoubtedly disparately impact men). Depending on how it's worded and implemented, it will very likely be misused, and we're already on record as saying we think there are very strong cases to be made that one-way application of the "intoxication invalidates consent" standard is a clear violation of Title IX's prohibition on sex-based discrimination in higher ed.

The main concern we have is that what appears on the surface to be a fairly reasonable standard of behavior will be twisted into an excuse for either shifting the traditional burden of proof from accuser to accused or impermissibly using Title IX (the purpose of which is to ban sexually discriminatory policies in higher ed) to violate - pun fully intended - both the spirit and the letter of Title IX.

We oppose this administration's ill advised meddling in the running of postsecondary institutions. But in all the outrage overthe supposed "epidemic" of false rape accusations (more on that in another post), an important point is being missed. It's this: there is (and should be) a difference between policies set by colleges and universities that govern student behavior and the standards that govern criminal law. Surely we don't want to put universities in the position of saying to their students, "Yes, Student X is causing all kinds of problems on campus, but we lack the ability to discipline, suspend, or expel him or her unless/until he or she is convicted in court of a criminal offense"?

What the administration (and now, California) is doing is clearly not the right response but the ongoing conflation of criminal law and civil policy and rule making troubles us greatly.

Is there a reasonable middle ground? If so, where does it lie? And where does assumption of the risks of casual/drunken come in - on both sides?

Posted by Cassandra at October 1, 2014 07:48 AM

Trackback Pings

TrackBack URL for this entry:
http://www.villainouscompany.com/mt/mt-tb.cgi/5316

Comments

Well, I'll start off.

1) Morally, you should not be having sex with someone you would not trust with your life. Because that's exactly what you are doing. Whether it's pregnancy, accusations of criminal assault, or something else, you are putting a hell of a lot of your future life into the hands of the other person. You don't build that kind of trust over a couple hours at a bar or frat house. And you sure as hell don't do it by plying your sexual conquest with alcohol to lower their inhibitions while you remain sober. You're just asking for trouble. Don't be surprised when it answers.

If you clear that hurdle, a lot of the other concerns (though not all and for forever) go by the wayside because you already know they won't act inappropriately towards you. I don't have to worry about the LG making a false rape accusation because I already know she's not the kind of person who would do that.

2) I've got no problem with Universities setting standards for behavior and enforcing them themselves even up to expulsion. But I wouldn't put Assault, Theft or Murder under "not living up to university behavioral standards". They are crimes, not "behaviors disruptive of the campus". Complaints of sexual assault need to be elevated to the police, not to a university committee. Sexual assault is a crime worthy of police involvment. If the university sets a policy that all students being investigated for criminal acts were temporarily suspended pending final adjudication, I'd be fine with it.

But to say that the guy under investigation for assault with a deadly weapon (off campus against a non-student) can stay (because it's not a University problem), but the guy who had a drunken frat party hookup has to GTFO right now, seems backwards.

Posted by: Yu-Ain Gonnano at October 1, 2014 12:56 PM

...I wouldn't put Assault, Theft or Murder under "not living up to university behavioral standards". They are crimes, not "behaviors disruptive of the campus". Complaints of sexual assault need to be elevated to the police, not to a university committee. Sexual assault is a crime worthy of police involvment. If the university sets a policy that all students being investigated for criminal acts were temporarily suspended pending final adjudication, I'd be fine with it.

Me too, but I suspect a lot of folks wouldn't.

You've neatly identified the disconnect I see between (on the one hand) saying rape should be handled by police and (on the otter heiny) complaining that students have been suspended without a criminal conviction.

If it's serious enough to be handled by the police, it's serious enough to cause the school to be concerned about the safety of others students.

...to say that the guy under investigation for assault with a deadly weapon (off campus against a non-student) can stay (because it's not a University problem), but the guy who had a drunken frat party hookup has to GTFO right now, seems backwards.

Couldn't agree more. What's really bizarre here is that the entire reason for pressuring schools to "do something" about sexual assault is that so few of these cases would go forward even if the student went to the police. We're expecting school administrators to do a better job of dealing with these cases than we do police/the courts, and that's just nuts.

Posted by: Cass at October 1, 2014 01:15 PM

One more comment on this, because I think it's an interesting point:

Morally, you should not be having sex with someone you would not trust with your life. Because that's exactly what you are doing. Whether it's pregnancy, accusations of criminal assault, or something else, you are putting a hell of a lot of your future life into the hands of the other person. You don't build that kind of trust over a couple hours at a bar or frat house. And you sure as hell don't do it by plying your sexual conquest with alcohol to lower their inhibitions while you remain sober. You're just asking for trouble. Don't be surprised when it answers.

Unsurprisingly, I agree. But it's an observation that applies outside the moral sphere: if you're trusting this person with you're life, your trusting them with your life regardless of morality, simply by having sex with them. It think it's as much a practical as a moral concern.

Posted by: Cass at October 1, 2014 01:20 PM

But it's an observation that applies outside the moral sphere: if you're trusting this person with you're life, your trusting them with your life regardless of morality, simply by having sex with them.

I'm not sure what you mean.

To say that if you're trusting someone with your life, you are trusting them with your life seems tautology.

To say that by having sex with someone you are trusting them with your life whether you realize it or not is why I say that you have a moral duty to do so first.

Posted by: Yu-Ain Gonnano at October 1, 2014 01:38 PM

Me too, but I suspect a lot of folks wouldn't.

I think more would be than you think. I think it's the lack of consistency that gets them in trouble. If every other accusation requires a conviction first, then why is accusation different.

I see that phenomonon a lot. The IRS wouldn't be in nearly as much hot water if *every* 501c4 applicant got the same intrusive and massive questionaire and took 3 years to receive approval. It would still be absurd, but it would have been a minor policy discussion, not full blown congressional investigations.

Posted by: Yu-Ain Gonnano at October 1, 2014 01:50 PM

To say that by having sex with someone you are trusting them with your life whether you realize it or not is why I say that you have a moral duty to do so first.

I think what I'm saying is that I think that even leaving the morality of casual sex out of it, as a practical matter you're taking a big risk.

Maybe I tend to think of moral duties as primarily being owed to others (that may not be the correct way to think of it, as I can imagine moral duties I have to my conscience, but the basis of those duties is usually some vague notion of not harming others). So self preservation isn't normally what I'd describe as a moral duty, unless that encompasses not getting yourself into bad situations that other people will have to exert themselves to help you out of?

Posted by: Cass at October 1, 2014 02:00 PM

I think more would be than you think. I think it's the lack of consistency that gets them in trouble. If every other accusation requires a conviction first, then why is [a rape] accusation different.

That's the interesting thing though: schools will suspend/expel students for plagiarism (theft/unauthorized use of intellectual property) without a criminal conviction. Any they'll suspend/expel students for things that aren't even crimes.

Here's a list of suspension offenses for UCA:

•Possession of a firearm on campus. All firearms are prohibited, even if they are for hunting purposes. Students found to be in possession of a firearm are subject to a minimum three (3) year suspension.
•Possession or use of hard drugs or a significant quantity of marijuana.
•Burglary or theft of property.
•Significant damage to property.
•Sexual assault and other serious sex offenses.
•Aggravated assault or battery.
•Making a threat of serious physical violence
•False reporting of an emergency such as false fire alarm and bomb threat.
•Repeated violations of university policy.

I wonder how many of them require a criminal conviction first?

Posted by: Cass at October 1, 2014 02:12 PM

schools will suspend/expel students for plagiarism (theft/unauthorized use of intellectual property) without a criminal conviction. Any they'll suspend/expel students for things that aren't even crimes.

And I don't really have a problem with that. The same with cheating on exams. Not a crime, but if you do it enough times I think you should still be kicked out.

But generally speaking the more trivial the offense, the less scrutiny should be needed and the less severe the punishment. Parents don't need a trial court to convict to put their children in the corner.

But the stigma of sexual assault is, in and of itself, far beyond that of "being expelled" for plagiarism (as well it should). My father was expelled from college at age 19 over a wrongful accusation of cheating. And while he does harbor a grudge about that to this day, pretty much the only people who know, know because he told them. The same can't be said about sexual assault claims. That kind of stuff tends to follow you.

Handing out the punishment of that stigma is where I think the severity reaches beyond that of a university committee.

Rape is such a heinous crime, and deserves such severe punishment that a college committee is not the proper place nor has the proper means to handle it.

They can't do it justice.

Posted by: Yu-Ain Gonnano at October 1, 2014 03:30 PM

Maybe I tend to think of moral duties as primarily being owed to others

I tend to think of morality as that which you should or should not do even if nobody knew, noticed or cared.

Even stealing a penny from Bill Gates is wrong, even if you could get away with it, even though Gates would hardly notice nor care and could hardly be said to have been harmed by it: Thou shalt not steal.

Posted by: Yu-Ain Gonnano at October 1, 2014 03:40 PM

I can't think of many standards that can be written carefully enough to make it safe to let an outside party intervene in private sexual relations, that won't at the same time make the intimate relationship between sexual partners awfully fraught. What we're trying to do may be self-defeating: in a perfect world, the idea is that casual strangers could have safe sex, without any formal restrictions or intrusive institutions, while maintaining a complex set of standards about how controversies will be resolved if they later publicly disagree about exactly what happened between them in private.

It's easy to agree that an appropriate moral standard is never to force sex on a woman, not even if she's drunk, and not even if she's agreed to sex before, and a person who's worth knowing will err on the side of considering her possible feelings if she's not being very clear for some reason, especially if they barely know each other and there's a lot of room for error. But then if you turn to standards by which outsiders will intervene, even if they're only a college administration who may decide to expel the young man (and not a justice system that may go so far as to imprison him), the waters get decidedly murkier.

There's a reason we used to have such strict rules about chaperonage and publicly sanctioned marriage. The need is reduced now that we have birth control and young men are (usually) raised to believe they have no right to prey on any young woman who happens to have put herself in a vulnerable position temporarily, but we haven't completely eliminated the underlying problem. The fact remains that young women who want to be free to decide whether they can be alone with men are going to face an irreducible risk that unpleasant things will happen that they'll have a hard time proving. If there's videotape and a clear case, I say string the guy up, but if it's a swearing match and the circumstances are ambiguous, we're making a terrible mistake trying to apply rules of private behavior that are almost impossible for a man to disprove the breach of.

Of course the young woman is always entitled to ditch a man who proves to be a creep, and to let her opinion of him be well-known. One hopes her family and friends find her credible enough to take her side in ostracizing him, too.

As for the man who's falsely accused, the right advice may be like what I've heard given to person who have been slandered: live so that no one would believe it of you. It doesn't always prevent miscarriages of justice, but it helps. A swaggering Lothario probably should have a harder time batting away the accusations of a young woman who claims to have been wronged in private.

Posted by: Texan99 at October 1, 2014 07:08 PM

I can't think of many standards that can be written carefully enough to make it safe to let an outside party intervene in private sexual relations, that won't at the same time make the intimate relationship between sexual partners awfully fraught.

Is that really what's happening here, though? So long as private persons are in accord, the law never comes into it at all. It's when someone decides they have been wronged that we see disputes.

What we're trying to do may be self-defeating: in a perfect world, the idea is that casual strangers could have safe sex, without any formal restrictions or intrusive institutions, while maintaining a complex set of standards about how controversies will be resolved if they later publicly disagree about exactly what happened between them in private.

Well, yes and no. I totally agree that having the right rule is never going to make all casual sex safe or free from misunderstandings. The best such rules can do is:

1. Codify and promote a sort of societal or community standard, which is precisely the sort of thing most conservatives usually support.

2. Give people who feel they've been treated wrongly (and the people they accuse) a structured framework to resolve their disputes. And that's a worthy goal. Even better if everyone understands the framework going in to a private encounter. They know how society feels and what the potential consequences wrt to society might be.

It should go without saying that that framework needs to be even handed. That's where the current "intoxication absolves women (but not men) of responsibility for their decisions/actions" formulation is just plain wrong. I worry a lot less about such rules making casual sex "fraught". Most people could stand to be more fraught, or simply decent, responsible, thoughtful. :p I don't stay awake nights worrying that the kind of person who has casual sex a lot will suddenly become so afraid of legal repercussions that they'll actually have to *think* before acting :p I really don't.

I don't recognize any beautiful/natural right to risk-and-consequence-free casual sex. I don't say that because I'm above that sort of thing, but because I understand that casual sex is inherently risky. That so many people seem determined to blind themselves to the personal risks (as well as the possible damage to others) is sort of mind-boggling and definitely not a good thing.

There's a reason we used to have such strict rules about chaperonage and publicly sanctioned marriage. The need is reduced now that we have birth control and young men are (usually) raised to belithey have no right to prey on any young woman who happens to have put herself in a vulnerable position temporar, but we haven't completely eliminated the underlying problem. The fact remains that young women who want to be free to decide whether they can be alone with men are going to face an irreducible risk that unpleasant things will happen that they'll have a hard time proving.

And young men who think they have some kind of natural right to have sex with people they don't know and can't trust frequently (sans risk) are facing a significant risk of Unintended Bad Consequences. I can't quite summon up the requisite degree of sympathy. The risks aren't equal, still. They never will be because... biology.

If moving around the country every year or so taught me anything, it's that we exist within a social matrix. If you want to be an outlaw, go for it. But if you want the benefits of society, you're going to have to make some compromises on your wonderful and unique individuality. Whining about those consequences makes very little sense. Figure out how/where you want to fit in, any then pay the bill.

But the idea that you have some right to be in the matrix and get the benefits while thumbing your nose at it doesn't sit right with me. I know that's not what you're saying, Tex. I'm just laying out what I believe.

Posted by: Cass at October 1, 2014 08:11 PM

"So long as private persons are in accord, the law never comes into it at all. It's when someone decides they have been wronged that we see disputes."--Sure, but by the same token the law never even comes into effect except in those cases, so those are the only ones we have to concern ourselves with--and that's exactly when the law doesn't work well.

I haven't any sympathy for young men who think they can have sex without consequences, either, or young women for that matter. It's just that these laws seem to be aimed at trying to have both worlds: consequence-free sex and lots of bad consequences for sex that breaks rules. The problem is that the law won't need to be applied by third parties unless the two most involved can't agree publicly on what happened privately--which, again, is exactly when the law breaks down.

If we don't want to have to videotape every sexual exploit, or have a chaperone present to witness it, we're going to have the problem that men and women will report differently on what happened in private, and the rest of us--lacking physical evidence--will have great difficulty in sorting it out. I for one really don't want to expand the number of cases in which I'm expected to figure out who gave consent in private, with no witnesses, and who didn't. It's hard enough already. I don't see how codifying what we knew already, which is that consent isn't real unless it's competent, really advances the ball. That's why we had marriage and, failing that, steady relationships. Once it becomes a hook-up culture, it's going to be hopeless trying to figure out who consented in private.

Posted by: Texan99 at October 2, 2014 12:22 AM

Sure, but by the same token the law never even comes into effect except in those cases, so those are the only ones we have to concern ourselves with--and that's exactly when the law doesn't work well.

"The law" generically? Or this law? I think we're probably in basic agreement that no law, however well intentioned or crafted, is going to "solve" this problem. It's like slaying gnats with a sledgehammer. But laws can impact outcomes. Some laws (think of a law that simply decreed, "The woman's always right no matter what", or "No man can ever be found guilty of rape no matter what he does") would arguably make things much worse.

Though I don't believe *this* law to be well crafted (or even a good idea), I *do* think there is value in - as you say - codifying what we already know for two reasons:

1. We don't all already know it. Surveys of boys and young men these days are finding that some of them have pretty twisted notions of what they have a right to expect of women during sex. Their parents don't teach them any better, and other sources are teaching them much worse.

2. I have always believed that one of the functions of law is to formalize and advertise the consensus of societies on various issues. Once that happens, most people internalize that consensus. Of course some don't, which is why we have criminal law, police, and jails.

I've seen male commenters on conservative sites and even here a few times say that they don't think anything short of forcible rape should be addressed by the legal system. That's not an unreasonable position, given the evidentiary problems we're seeing now. It's also a position that is probably - at least in part - shaped by current rape laws. It seems right b/c it's what we've always known and lived by, even though it leaves a great many instances of deplorable behavior unaddressed.

But laws are often a mix of the practical and the ideal. This law seems to be mostly driven by ideal with no balancing counterweight in f practicality :p

I don't see how codifying what we knew already, which is that consent isn't real unless it's competent, really advances the ball.

I think that's an oversimplification of what this particular law attempts to do, though. I see it in three parts:

1. (least obvious of all, and hardest to enforce/practice in real life) Silence or lack of physical resistance does not necessarily mean consent. In contract law, there's a similar notion: when an offer is made, silence ordinarily isn't construed by courts as agreement to be bound by the contract.

Now there are a fair number of men who really think that if a woman doesn't actively tell them to pound sand when they approach her (or even push them away physically), she's interested/fair game. When I was younger, I really hated running into guys like that because they would literally refuse to leave you alone until you forcefully told them to go away. A fair number of guys are still raised to believe that persistence will win a woman over... eventually, or just often enough to make the tactic worth the effort. This is a major theme in a lot of what is euphemistically called men's "entertainment". So it's not surprising that some men view "no" as coquettishness or playing hard to get.

2. (most obvious) A person who's unconscious can't consent. This is your "duh- who doesn't know that?" point.

3. (obvious to almost all women but not all men) Prior consent or consent to a lesser degree of contact doesn't wave the right to future refusals. Again, this is one I hear a lot of guys suggesting they disagree with. I agree that prior consent presents a credibility problem in a he said/she said situation, but NOT that prior consent means perpetual consent.

If I consent to kiss a man, I'm not necessarily consenting to a 3 way involving fancy toys and bondage gear. If a couple are in the middle of sex and one of them isn't enjoying it, either should have the right to say, "Enough - I don't want to do this anymore". For whatever reason, really. And if you used to date someone, that doesn't mean it's reasonable to assume you will always consent to have sex with them for all eternity.

I really don't think 2 of the 3 are obvious to everyone. To me they are, but the commentary I've seen on conservative sites alone (and the lack of argument from other commenters) leads me to believe they're not at all "things we all know/agree with".

Whether or not it's wise to put this into a law... well, I'm not convinced. The problem, as you note, lies in creating an unenforceable law that may well do more harm than good, or which has to "teeth" to it (and consequently, leads people to believe that society doesn't *really* believe/care about the standard).

Posted by: Cass at October 2, 2014 06:20 AM

'"The law" generically? Or this law?'--I meant this law particularly.

As I say, I don't mind the codification into law of what should have been obvious already, but sadly perhaps was not. I just think it's a hopeless task to use a law to solve problems that are by definition private. It's as if we thought we could keep dragging them into public, but keep them private at the same time.

Posted by: Texan99 at October 2, 2014 12:38 PM