Sunday

Affirmative Consent Law: "Invading Bodies" and Disputed Sex Acts

Judge Carol McCoy
"The judge found that the university unlawfully limited the plaintiff's right to cross-examine the primary witness against him, namely, the female student who had accused him of sexual assault. According to the university's procedures, a student who is accused of sexual assault does not cross-examine the complainant directly, but rather, submits his questions to the chair of the disciplinary panel that is conducting the hearing, who asks the questions on behalf of the accused. In this case, the accused student submitted 31 questions for possible cross-examination of the complainant, but the chair asked only 9 of them." 

          - Court Ruling on Affirmative Consent Case at UCSD

"Mr. Dixon did describe behaviors that he believed indicated [the female trainer's] affirmative consent during both incidents. He stated that he believed there was affirmative consent because she was "Lip biting, moaning, kissing me back on my neck type thing." He also stated that he believed she indicated affirmative consent by lying naked on the bed while he put on the condom."

          - Overturn of Affirmative Consent Conviction by Los Angeles Superior Court

"Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation..."

          - Boston Globe Article re Sexual Assault Policy at Harvard

"The UTC Chancellor improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation that he forcibly assaulted Ms. Morris. He made no finding that Ms. Morris did not consent, intertwined the definition in SOC 7 of sexual assault and sexual misconduct, and made no distinction as to which acts had occurred."

         - Judge Carol McCoy on Reversing An Affirmative Consent Conviction

"At every stage of every physical relationship, the “perpetrator” is at risk with no safe harbor of any type. If the initiator got positive agreement “sufficient to show affirmative permission” (Discussion Draft No. 2, Substantive Material, at 54) to initiate a kiss, the initiator is still at risk because the accuser can always counter by asserting, “I didn’t say you could kiss me that way.” If the initiator got positive agreement “sufficient to show affirmative permission” and did the kiss the right way, the initiator is still at risk with the next identical kiss because, “I didn’t say you could kiss me twice.” The draft acknowledges that its standard “requires the fact finder to focus on the existence of consent regarding each of the disputed sex acts.” Id. and Section 213.0(3)."

          - American Law Institute Members In Opposition to The Affirmative Consent Penal Code

"Here is a rich irony to chew on: At a time when women's political, social, physical, and especially economic powers are at a 10,000-year high, a movement to regulate sexual intercourse in this country is growing, fueled by the notion that contemporary women can't say "no."

          - Copulemus in Pace

"Grounding women’s emancipation, sexual and otherwise, on such a sweeping use of criminal punishment and civil incapacitation (e.g., expulsion from college with a transcript marking one as a sexual wrongdoer)  has led feminist reformers to take several stances typically thought to be hallmarks of social conservatism.  They are seeking social control through punitive and repressive deployments of state power.  They are criminalizing as a first rather than a last resort to achieving social change.  They are affirming indifference to the punishment of innocent conduct. They have moved well to the right of civil-liberties-oriented liberalism in their advocacy for swift and sure punishment unimpeded by due process restraints."

        - Janet Halley

Gloria Now an AC Proponent 
Let's cut to the chase with this issue of "affirmative consent" and the laws it has spawned now taking root in America and growing like unconstitutional weeds from the sex-negative feminist earth. But make no mistake, I'm a feminist, and have considered myself such for a long, long time. I choose sex when I wish. No one crawls into bed with me without my consent. Are you kidding? I am an independent and strong personality, and no one pushes me around. I've fought for women's rights. Having said this, I am not caving in to this new wave of intense, witch-pointing bullying on the part of certain "feminist" groups who are now on news programs and social media calling anyone and everyone a "rape apologist" or "anti-woman" or part of the "war on women" if they don't fully agree with the intent and legal mechanics of affirmative consent and those particular laws that have come into being (and threaten to generate) as a result.

One of affirmative consent's new and foremost spokespersons, Gloria Steinhem--who gives us the now standard marketing pitch for the woman-body-saving rule of "Yes Means Yes," better known as "affirmative consent"--hopes that it will counteract the ongoing "patriarchal" circumstance of "invading bodies." In other words, Gloria (and I am very disappointed by her), and her new affirmative consent associates, are attempting to cajole me into rethinking most of my entire sex life in terms of what they now view as criminal sexual assault. As Gloria says:
Until now, this has been the state of affairs in our nation’s laws on sexual assault. Invading bodies has been taken less seriously by the law than invading private property, even though body-invasion is far more traumatic. This has remained an unspoken bias of patriarchal law. After all, women were property until very recently. In some countries, they still are.
(just to jump in here for a second--you'll learn below that "invading bodies" is code for anything from a behavior as innocuous as a casual hand hold to full blown coitus thrusting)
Even in America, women’s human right to make decisions about their own bodies remains controversial, especially when it comes to sex and reproduction. Until [California passed SB 967], the prevailing standard has been “no means no.” If she says no (or, more liberally, indicates any resistance with her body), then the sex is seen as nonconsensual. That is, it’s rape. Under such a standard, the enormous gray area between “yes” and “no” is defined residually as “yes”: Unless one hears an explicit “no,” consent is implied. “Yes means yes” completely redefines that gray area. Silence is not consent; it is the absence of consent. Only an explicit “yes” can be considered consent.
The goddess has spoken. Only "an explicit yes" is consent. Gloria seems to see affirmative consent as this glorious new sexy thing (read the article until the end), and sure, it could be, just like at the end of Ulysses by Joyce. Yes, yes, yes, and yes, and yes!  But what is the dark side of affirmative consent?

What about the devil in the sexy details that Gloria isn't talking about?

Should I be traumatized now?
Let me ruminate: So all that sex I willingly had and encouraged, according to Gloria, wasn't consented to at all because I had not issued forth with an explicit "yes" after "yes" after "yes." I don't know whether to giggle or be traumatized. Should I be traumatized? Would that be politically correct? Come to think of it, who can't look back in time based on this new value thrust upon us by Gloria and the affirmative consent club and imagine scores and scores of sexual assaults or rapes taking place because we didn't say the word "yes" again and again and again. A new standard, a new viewpoint, a fresh way to be perpetually victimized. Whenever I didn't want sex I just said "no," but I didn't have to say no, as it turns out. I could have said nothing and my silence would have made all my partners into sex criminals.

Think about it, you guys. Just because we didn't say "no" to Bob or Frank ten years ago, just because we silently enjoyed the sex and participated in the act, as well as encouraged it with non-verbal communication, doesn't mean that we were not raped. We were! As of the advent of affirmative consent, we are all supplied with an indefinite amount of opportunities to conceive ourselves, past tense, as victims of sexual assault. Really, it's like having a buffet of sexual assault memory to choose from.
As of the advent of affirmative consent, we are all supplied with an indefinite amount of opportunities to conceive ourselves, past tense, as victims of sexual assault.
The ability for us to engage in such fuck-the-patriarchy or time-for-payback mind games are given special significance by the model sex crime penal code of Stephen Schulhofer of NYU law. Btw, Gloria's language of "invading bodies" above is very very close to the affirmative consent language used by Schulhofer to market and pitch his own version of affirmative consent law to anyone who will listen. Together with certain people in the American Law Institute, Schulhofer is pushing his version of a new America, one wherein "invading bodies" are exterminated by federal and state prison sentences, i.e., hard time behind bars for alleged perps, not to mention sex offender registration, ruined lives, etc. I've written about this perversion of law that turns every act of sex, and every sub-act thereof (including a cheek kiss or pat on the shoulder), into a potential sex crime.

However, Professor Schulhofer diverges from Gloria Steinem on the matter of consent equaling only an "explicit yes." He notes in his penal code--that will criminalize the sexual behavior of millions of Americans, not just college students--that consent can actually be given in non-verbal form. But he stops short of defining it. I wonder why? Seriously, is that fair to the thousands yet to be accused? Rather, he leaves it up to the defense attorney and prosecutor to debate in a court of law--or in a college student's case, he leaves it up to the members of college sex tribunal (the college student is routinely denied legal counsel, or counsel is prohibited from speech during the proceedings).

In effect then, Schulhofer's penal code, as well as affirmative consent law in California and New York, allows nonverbal consent to be whatever the alleged victim and prosecuting entity want it to be. Consider. The accused affirmative-consent sex criminal in college is effectively disallowed from defining nonverbal consent, even in the absence of a clear legal definition. Only his or her accusers have this privilege. To all intents and purposes, he or she is at the mercy of an utterly Kafkaesque circumstance. They can only present their viewpoint regarding what they believed to be consent while the sex crime tribunal at their college decides whether or not their perception of nonverbal consent will be allowed (who wants to take bets?). However, if the alleged victim counters at the time that XYZ behavior wasn't actually consent, in her mind, then the alleged perpetrator is theoretically left without a defense.
The accused affirmative-consent sex criminal in college is effectively disallowed from defining nonverbal consent, even in the absence of a clear legal definition. Only his or her accusers have this privilege. To all intents and purposes, he or she is at the mercy of an utterly Kafkaesque circumstance.
It is my belief, based on the evidence at hand, that the purpose of the college sex tribunal is to do one thing and one thing only: CONVICT. One might say the whole thing is rigged. But then again, doesn't it have to be? Given the reality of judging alleged sex crime perpetrators in order to find them "guilty" using affirmative consent standards forces the process to transmogrify into just the type of Kafkaesque circumstances now occurring in college sex tribunals. Negating constitutionally mandated due process is just one example. The recent court cases below speak to this very loudly.

Three recent court cases in Tennessee and California (UC San Diego and  summation / USC Decision) have vigorously overturned affirmative consent convictions and deemed the college sex tribunal process that props it to be unconstitutional. In fact, the process is so heavily biased towards the accused that it disallows (him) from even questioning the accuser (who sits behind a screen and won't take questions--ostensibly for the purpose of avoiding further trauma). Everyone gets to be automatically so traumatized in college sex tribunal hearings that the accused is effectively hamstrung and dependent on a hostile panel to communicate on his behalf. You would think the presumption of trauma would be tested by a psychological screening test or evaluation of some type by a professional prior to denying the accused his rights--after all, someone who has waited many weeks or several months before bothering to file a sex crime complaint until after she sees her ex-boyfriend with another woman isn't that likely to be so traumatized or capable of being induced to trauma that the accused must inevitably be denied his constitutional right to face his accuser.
One might say the whole thing is rigged. But then again, doesn't it have to be? Given the reality of judging alleged sex crime perpetrators in order to find them "guilty" using affirmative consent standards forces the process to transmogrify into just the type of Kafkaesque circumstance now occurring in college sex tribunals.
Also, btw, the accused under affirmative consent law is obligated to disprove the accusation(s) against him. Impossible, of course, and unconstitutional. But as we know, feminist law philosophy rejects law as infected with patriarchal bias and "unreasonable" from a feminist point of view that wishes to dethrone the patriarchal tyrants who wrote the law in the first place (I wonder if that applies to old divorce torts that favor the woman?).

Therefore, every feminist from Gloria to Eleanor Smeal and beyond is basically coming down against law as we know it. They want serious jail-time penal codes (see Schulhofer and Murphy at ALI) that provide sure and lasting punishment for the accused who must be deprived of "patriarchal" due process in order for their affirmative consent shredding machine to work properly.

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'Affirmative Consent' Will Make Rape Laws Worse ...

www.bloombergview.com/.../-affirmative-consent-will-make-rape-laws-...

'Affirmative Consent' Will Make Rape Laws Worse. Megan McArdle. 549 Jul 1, 2015 4:40 PM EDT. By Megan McArdle. a; A. The "tough on crime" posture is ...

California SB 967 makes 'affirmative consent' law - CNN.com

www.cnn.com/2014/09/03/.../affirmative-consent-school-policy/

CNN
Sep 3, 2014 - California SB 967 requires students to seek "affirmative consent" from partners at each stage of sexual activity. How does "yes means yes" ...

Affirmative Consent: Are Students Really Asking? - The New ...

www.nytimes.com/.../affirmative-consent-are-students...
The New York Times
Jul 28, 2015 - Affirmative consent is a knowing, voluntary and mutual decision among ... New York's law standardizes prevention and response policies and ...

Bill Text - SB-967 Student safety: sexual assault.

https://leginfo.legislature.ca.gov/.../billNavCli...

California State Legislature
Existing law requires the governing boards of each community college district, the ... anaffirmative consent standard in the determination of whether consent was ...

Cuomo Signs Affirmative Consent College Sexual Assault ...

www.huffingtonpost.com/.../cuomo-affirmative-con...

The Huffington Post
Cuomo Signs Affirmative Consent College Sexual Assault Bill Into Law. Reuters. Posted: 07/07/2015 2:03 pm EDT Updated: 07/08/2015 4:59 pm EDT. CUOMO ...

Affirmative Consent Laws (Yes Means Yes) State by State ...

affirmativeconsent.com/affirmative-consent-laws-state-by-state/

Affirmative Consent laws state by state. As state colleges and legislatures enact yes means yes and affirmative consent policy - we'll track it here.

What 'Affirmative Consent' Actually Means | ThinkProgress

thinkprogress.org/.../affirmative-consent-really-means/

ThinkProgress
Jun 25, 2014 - Affirmative consent isn't based on the idea that every sexual ... that California's proposed law isn't that groundbreaking on the collegiate level.

How Affirmative Consent Laws Criminalize Everyone

thefederalist.com/.../how-affirmative-consent-laws-criminalize-everyone/

Mar 30, 2015 - Affirmative consent laws trivialize sexual assault by turning nearly everyone who has ever dated into a sexual offender. For example, if a ...

An Appalling Case for Affirmative-Consent Laws - The Atlantic

www.theatlantic.com/...affirmative-consent-laws/381518/

The Atlantic
Oct 16, 2014 - They're also the value judgments that Ezra Klein invokes in his endorsement of a California law requiring affirmative consent for sex on the ...

The Affirmative Consent Standard & Rape / Sexual Assault ...

sgvnowproject.weebly.com/the-affirmative-consent-standard--rape--sexu...

The Affirmative Consent Standard - You Must Receive a Verbal "Yes" ... Presentation by Dr. Harry Brod, a leader in the pro-feminist men's movement .... that generatepositive, measurable outcomes in populations throughout the world.

What 'Affirmative Consent' Actually Means | ThinkProgress

thinkprogress.org/.../affirmative-consent-really-means/

ThinkProgress
Jun 25, 2014 - Affirmative consent isn't based on the idea that every sexual encounter is a rigid ... The current societal script on sex assumes that passivity and silence ... It's a state,” feminist writer Jaclyn Friedman, who wrote a book on ...

[PDF]“hands off”: sex, feminism, affirmative consent, and the law ...

weblaw.usc.edu/.../11_Subotnik_Final.pdf

USC Gould School of Law
by DAN SUBOTNIK - ‎Cited by 12 - ‎Related articles
See KATIE ROIPHE, THE MORNING AFTER: SEX, FEAR, AND FEMINISM ON .... and defendant adduced no positive evidence of consent, he could be con-.

Sex Is Serious | Boston Review

bostonreview.net/.../feminists-christians-sex-ethics-affirmative-consent-el...

Jan 12, 2015 - Christian conservatives and some feminists agree that sex must not come with .... But would feminist defenders of affirmative consent ethics say the same? ..... It could, however, have negative consequences, including ...

No, California's new affirmative consent law will not redefine ...

feministing.com/.../no-californias-new-affirmative-consent-la...

Feministing
Oct 7, 2014 - But feminist calls for changing norms around sex and consent ... left with is a concept of “negative consent”–an assumption that people are in a ...

Sex-Shaming: The Feminist Weapon of Choice to Silence ...

https://reason.com/.../sex-shaming-the-feminist-weapon-of-choic

Reason
Oct 10, 2014 - But what precisely got Joy's pretty pink "consent is sexy" panties knotted ... when one partner is reluctant and hasn't offered "affirmative consent.

Affirmative Consent As Legal Standard? | - Yes Means Yes

https://yesmeansyesblog.wordpress.com/.../affirmative-consent-as-legal-st...

Mar 19, 2010 - When feminists talk in moral terms about rape, many of us talk about ... I'm certainly not the first person to think that affirmative consent ought to work ......sex detracts from the positive impact that such a restructuring could have ...
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Doctor Brod makes up his own law and demands an explicit "Yes" from us all or else he's going to huff and puff and flunk us for the semester. "You can't trust body language. It's dangerous!"

10 comments:

  1. Anonymous3:56 PM

    An excellent piece from this source:

    http://libertyunyielding.com/2014/03/09/california-activists-seek-redefine-quiet-consensual-sex-rape/

    "Since most couples have engaged in sex without “verbal” consent, supporters of the bill are effectively redefining most people, and most happily-married couples, as rapists. By demanding verbal discussion before sex, they are also meddling in people’s sex lives in a prurient fashion.

    Requiring people to have verbal discussions before sex violates their constitutional privacy rights, under the logic of Supreme Court decisions such as Lawrence v. Texas (2003), which struck down Texas’s sodomy law, and federal appeals court decisions like Wilson v. Taylor (1984), which ruled that dating relationships are protected against unwarranted meddling by the Constitutional freedom of intimate association.

    It also serves no legitimate purpose, since even supporters of the bill, like Tara Culp-Ressler have on other occasions admitted that sexual violence is not the result of mixed signals: studies show that people who commit sexual violence are almost always aware that what they are doing is against the will of their victims, rather than the assault being the product of “blurred” communications.

    The “affirmative” consent requirement would not help rape victims or prevent rape, since rapists, who already lie about whether they have committed rape, will just lie and claim the victim said “yes” to sex. A person who lies about committing rape will also lie about the presence of “affirmative consent.”

    ReplyDelete
  2. This is an excellent overview from Cathy Young at Reason.Com:

    https://reason.com/archives/2014/07/01/affirmative-consent-the-sex-police-on-th


    "Still less reassuringly, Culp-Ressler points to the recent Yale memo that attempted to clarify the definition of nonconsensual sex with hypotheticals—some of which involved penalties for misreading minute cues. Thus, "Ansley" rebuffs "Devin's" attempt to escalate things during consensual petting, saying, "Not so fast—I'm not sure"; Devin backs off but tries again later, at which point Ansley makes no objection but "inches backward" and "lies still" during sex. (According to Yale officials, such a complaint would lead to a lengthy suspension or expulsion.) In a particularly absurd vignette, "Kai" starts to reciprocate a sexual act without looking to "Morgan" for a nod signaling a clear go-ahead—an offense deemed worthy of a reprimand, even if Kai stops immediately when Morgan asks.

    In the end, Culp-Ressler's argument boils down to this: A rule so murky that even its advocates aren't sure exactly what it means or how it will work, and which allows virtually any sexual encounter to be reclassified as a violation after the fact, is not a problem because people can be trusted not to abuse it. What could possibly go wrong?"

    The Yale Memo. Note, all the examples stage the man as the perp. No surprise here:

    http://big.assets.huffingtonpost.com/Sexual_Misconduct_Scenarios.pdf

    ReplyDelete
  3. Why would I take my clothes off and leap into bed with my partner if I wasn't keen on sex in the first place? Is it that simple? It can be. I neither want or need to "signal" consent for each and every damn stage or level or whatever you want to call it. I know what is coming. Why would I desire to re-signal an okay for the same behavior again and again and again? What a yawn and a turn off. Of course I don't do that, and I never will.

    If it were with a new partner who brought something uncomfortable or weird to the scene, I would say "No" quite clearly, and I've done that. I would not give consent, and certainly, not lie there like a frozen melon waiting for the knife. Who would? I don't understand that scenario of frozen helplessness. I don't know anyone like that, but I would highly recommend extensive therapy and perhaps medication for anyone who has that issue which is certainly unique.

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  4. There is one undercurrent of feminist politics in all of this. The near paranoid need for the male to "check in" continuously for a sign of "affirmative consent" (the nature of which is debatable) before advancing to another "stage" (which is never defined) makes the assumption that the female is rarely if ever the sexual aggressor (which isn't true), and that she is continuously prone to feel "violated" at any given juncture during the long trot from kissing to coitus (which isn't true for the vast majority of sexually normal human beings).

    ReplyDelete
  5. The feminist organizations and growing number of affiliates who are pushing affirmative consent on everyone are fishing for ammunition. The more potential instances of so-called sexual violence they can conjure, the more chances of adding statistics to the graph which will inevitably rise as more and more male students are pulled out of line for alleged infractions. Even a hand hold allegation becomes an act of sexual violence for purposes of inflating the numbers.

    The Sexual Assault Industrial Complex wins. More federal funding will be needed to alleviate the suffering of the ever expanding number of victims.

    One good way to end this would be for college males at Yale and Harvard, or other high profile schools with wealthy kids, to truthfully make allegations of affirmative consent infraction against females from influential families. It would be easy, given the many opportunities to play gotcha and rightfully reinterpret sexual behavior in the heat of the moment as lacking true affirmative consent. This will create a lot of press and threaten the schools with successful discrimination lawsuits if they refuse to academically prosecute the accused at a sex tribunal, just like they do the boys. A lot of crying, victimized girls on television cameras will greatly assist with bringing the walls of affirmative consent tumbling down. No one cares that much about boys getting slapped for sex infractions, we all know that. But just turn it around and see what will happen.

    The witch trials in Salem and elsewhere in Massachusetts didn't come to screeching halt until word leaked out that the governor's wife was going to be accused.

    ReplyDelete
  6. Anonymous9:48 AM

    Here is another. Same story.Mutual consent for sex for the period of dating, then once it ends, she runs to file a "rape"charge that would never be pursued in a court of law. School sets him up for a fall. He sues.

    http://www.masslive.com/news/worcester/index.ssf/2015/08/former_clark_university_studen.html

    ReplyDelete
  7. Thank Hera! Law profs from all across the country are turning against the unworkable and unfair tenets of affirmative consent. Schulhofer and his sex-negative legions will be defeated.

    Sorry, Katie Mac!

    http://www.saveservices.org/2016/02/pr-on-the-heels-of-judicial-reversal-law-professors-assail-affirmative-consent/

    "WASHINGTON / February 8, 2016 – Following a landmark legal decision last summer, law professors across the country are criticizing affirmative consent policies as ineffective, unfair to defendants, and harmful to women. SAVE calls on lawmakers to focus on proven rape control strategies such as enhancing campus security measures, reducing alcohol-related assaults, and involving criminal justice authorities.

    On August 4, 2015, judge Carol McCoy overturned a decision of the University of Tennessee at Chattanooga to expel a student on allegations of sexual assault. McCoy ruled the university’s affirmative consent standard “improperly shifted the burden of proof” because the “ability of an accused to prove the complaining party’s consent strains credulity and is illusory.” (1)

    Following the judicial reversal, legal experts began to express a range of concerns with the standard, including the policy’s unworkability, lack of effectiveness, curtailment of due process rights, wrongful convictions, constitutional problems, and broader social effects."

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  8. The verdict is in! The ALI has thumpingly rejected Schulhofer and Murphy's nightmare penal code!

    https://www.thefire.org/american-law-institute-rejects-affirmative-consent-standard-for-model-penal-code/

    ReplyDelete
  9. The verdict is in! The ALI has thumpingly rejected Schulhofer and Murphy's nightmare penal code!

    https://www.thefire.org/american-law-institute-rejects-affirmative-consent-standard-for-model-penal-code/

    ReplyDelete