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Post by epeanymous on Nov 26, 2014 22:20:33 GMT
I teach criminal law, and we cover rape law. I always show them the Antioch guidelines, which were the guidelines that university developed years ago for consensual sexual activity and required consent at every stage of activity. The sexual assault policy is actually longer than this, but the part pertinent to consent reads like this:
CONSENT Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct. The following are clarifying points: • Consent must be obtained each and every time there is sexual activity. • All parties must have a clear and accurate understanding of the sexual activity. • The person who initiates sexual conduct is responsible for verbally asking for the “consent’’ of the individual(s) involved. • The person with whom sexual conduct is initiated must verbally express “consent” or lack of “consent’’ • Each new level of sexual activity requires consent. • Use of agreed upon forms of communication such as gestures or safe words is acceptable but must be discussed and verbally agreed to by all parties before sexual activity occurs. • Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dancefloor is not consent for further sexual activity). • In order for “consent” to be valid, all parties must have unimpaired judgment and a shared understanding of the nature of the act to which they are consenting, including the use of safer sex practices. • A person cannot give consent while sleeping. • Silence conveys a lack of consent. • At any and all times when time consent is withdrawn or not explicitly agreed to, the sexual activity must stop immediately. • All parties must disclose personal risk factors and known STIs.
I present it to help anchor a conversation about what consent is in criminal law, whose burden it is to show consent, etc. One thing I think is interesting is that, as the years go by (I have been teaching this class for eleven or twelve years now), the students think that asking for and receiving explicit verbal consent is less of a weird or unrealistic idea. They seem to be more comfortable talking to their partners about what they do and do not want, and seem to think it is less of a mood-killer to make sure everyone is on board for sex. I am not sure what underlies that shift, but I do think it is worth noting (although I have no idea if that is just a shift that I am seeing or if it is actually representative of the changing attitudes of young people).
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Post by M~ on Nov 26, 2014 22:26:34 GMT
It's funny this topic was brought up. One of the judges and I were discussing this very issue not so long ago. We both agreed that if we ever represented anyone famous, BEFORE our client took anyone "backstage," "to their room," "anywhere they would be in private with an individual," we would be there with a notary public requiring the person to affirm under penalty of perjury that they were not in any way incapacitated or forced to be there, sign a waiver of liability and a "consent to have sex form," force our client to wear a condom, and immediately enter the room and dispose of said condom (I insisted on this due to my child support background and the many "I picked the full condom from the garbage and impregnated myself" cases).
If I were a celebrity, I wouldn't go anywhere without a group of lawyers shadowing me. Honestly, it's getting to the point where "regular people" should require an explicit affirmation of consent to have sex.
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theshyone
Pearl Clutcher
Posts: 3,458
Jun 26, 2014 12:50:12 GMT
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Post by theshyone on Nov 26, 2014 22:29:07 GMT
I'm confused about the whole thing. From Trudeau's announcement to these latest details, I feel like there's something important missing but I don't know what it is. It's just... weird. 
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Deleted
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Aug 18, 2025 21:55:07 GMT
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Post by Deleted on Nov 26, 2014 22:30:32 GMT
If a person is not able to say no or to be responsible for their actions (sexual or not) due to being intoxicated, are they going to have any better judgment when being asked to "sign" or communicate consent in any way? Can't they later argue that they only signed consent BECAUSE they were so intoxicated?
It's hard because hindsight after the hangover isn't the same as what is happening while intoxicated and I am not so sure people want to be personally responsible (of either gender) when intoxicated. Regrets occur and then it can become a rape charge, especially if parents, friends, etc find out. It's hard to know sometimes one's word against another. Only two people in the room....especially when both agreed to go back to said room. Sometimes I think the rules to protect yourself (which I wish we didn't have to consider) are the way to go..... and I try to teach my children that and personal responsibility and to be smart. To try not to put yourself in a bad spot (by getting too intoxicated, etc).
There are plenty of times that even trying to protect yourself doesn't keep you out of a situation but you have to do the best you can! (raising my hand with personal experience of an assault by a stranger)
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Post by heartcat on Nov 26, 2014 22:31:46 GMT
Thanks for sharing your thoughts.
I do agree that if someone is 'unable' to give consent to sex, for any reason, that that is a different thing than the story I had originally heard and not what I had been thinking of for the OP.
My understanding is that they were peers, politicians representing different parties, and that that it was not a case of the male being in any position of authority over her.
I see there is a link posted, so I will check that out to see if it provides more information.
I am sorry for any woman who has ever been sexually assaulted, that is beyond reprehensible.
I have to wonder whether 'he' gave explicit consent for her to have sex with him?
I do think that someone should be able to say 'no'. I think someone should not be put in a position where they could be coerced, or feel afraid to say 'no'. I think that if someone is 'unable' to say 'no' for any reason, because they are incapacitated, etc. then that should be considered lack of consent.
But if someone is 'able' to say no, and just doesn't, and participates in a sexual act (as opposed to have one physically forced on them) then I think it is reasonable that a partner would assume they were willing.
I fully support laws to prevent people from being used, abused and taken advantage of. But I do not like the idea of removing any and all responsibility from people. If she was forcibly assaulted, or incapacitated in some way and unable to give permission, then I think she should just say so. But to say someone didn't say 'yes' when they also didn't say 'no' and could have, seems to go above protecting them and not quite in what I would imagine is the 'spirit' of any such laws.
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Post by delilahtwo on Nov 26, 2014 23:00:11 GMT
But the notion of affirmative consent also protects the man. Does it protect the man or does it put a higher burden on the man? I don't think that question is even worth asking. I think it protects the man. Period. Does it put a higher burden on him? Maybe but maybe that's ok. Historically the higher burden has always been put on women when it comes to sex. Men can shoulder this one and perhaps they should. If they don't get affirmative consent, they are leaving themselves open to accusations so they are protecting themselves. Is it a bit of work for them to do that? Sure. Does that matter? No.
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Post by myshelly on Nov 26, 2014 23:03:14 GMT
Does it protect the man or does it put a higher burden on the man? I don't think that question is even worth asking. Could you be any more condescending or bitchy?
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Deleted
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Aug 18, 2025 21:55:07 GMT
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Post by Deleted on Nov 26, 2014 23:33:49 GMT
My other thought is that consent can change at any time. At what point does "consent" protect? At what point does "no" come into play? To me "no" comes into play at any point, so any consent could be useless.
again trying to teach my kids to be smart and to be very very careful about who they choose to be intimate with....and to be of strong will/opinion.
True story - D [HASH]2's roommate dated a kid in HS and for the 1st year of college. The roommates parents allowed the young man to move into their home before she graduated AND he came to visit and stayed overnight (in a twin bed) with the roomie. One weekend I took D [HASH]2 back to school and we went up to her room to get something and the door was locked and the roomie came to the door wearing almost nothing. Fine, but it only took D [HASH]2 and I a few moments to realize that we had "woken them up from a nap". This roomie later told D [HASH]2 she felt pressured to be intimate with him. They had been dating for more than a year when they broke up. Now she claims some or all of the sex was not consensual, really?
That attitude and storyline doesn't help those who have truly been a victim of non-consensual sex. Luckily she is not a roommate this year!
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Post by penny on Nov 27, 2014 3:32:48 GMT
I think "no means no" has confused people about what consent really means... Like epeanymous wrote, consent has to be given... It really should be "only yes means yes"...
Not sure if this is the same story that's in our papers here, but in Canada (Ottawa), there are politicians involved in much the same thing... In their case, "hotel room" doesn't mean a typical hotel room - these are politicians that live elsewhere in the country try and have a second home in the city... Some have an apartment, some have those long term hotel suites with kitchens etc... In our case, the politician's "hotel room" was actually his rented apartment in a hotel and not just a room with a bed... Going to his "hotel room" didn't mean she was going to be in a bedroom - there are living spaces, a kitchen, etc, so a very typical home like setting... Also, in our story, she queried if a male going back to the assailant's "hotel room" would be questioned about his judgement, or if it would be seen as what it was in her case - friends/coworkers having a drink and finishing their conversation...
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Post by brina on Nov 27, 2014 3:53:29 GMT
Does it protect the man or does it put a higher burden on the man? I don't think that question is even worth asking. I think it protects the man. Period. Does it put a higher burden on him? Maybe but maybe that's ok. Historically the higher burden has always been put on women when it comes to sex. Men can shoulder this one and perhaps they should. If they don't get affirmative consent, they are leaving themselves open to accusations so they are protecting themselves. Is it a bit of work for them to do that? Sure. Does that matter? No. It is worth asking if once the consent is given the man than needs to determine/decide whether the woman was sober enough to consent. And if they were both drinking, how are his decision making skills in the situation. If they are both equally intoxicated how can we legally say that he is responsible for determining that she could not give consent, but she is not responsible for her own actions? I have always struggled with the fact that if a woman is in a bar and gets drunk then decides to drive home and gets into an accident she is considered responsible. She can be arrested for DUI and if somebody was injured or killed more serious charges. However, if she decides to walk home with a guy and engage in sexual activity she can claim the next morning that she was not responsible for her actions and decide that she was raped.
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Post by delilahtwo on Nov 27, 2014 7:03:21 GMT
I really don't know what the best answer is. But always putting the higher burden on the woman isn't right either. Very very often if a woman accuses a man of rape and it wasn't a stranger, the woman is usually questioned. Was it really rape. Are you sure you didn't lead him on. What did you expect would happen if you went to his hotel room. Don't drink too much and have your decision making capability not be good. Don't put yourself in a bad situation. Women are often not believed. We seem to think as a society that women are frequently being vindictive bitches and accusing men falsely of rape.
That's why I don't think the question is worth asking. Why shouldn't we start putting higher expectations on men? these comments I made in the first paragraph, let's look at it in regards to men. Are you sure sex was consensual. Are you sure you didn't pressure her into it. Don't invite a woman to your hotel room. Don't drink too much and try to initiate sex as you may not make good decisions. Don't put yourself in a situation where someone could accuse you of rape.
I don't think the comments in my second paragraph are out of line for men if the ones in the first paragraph are not out of line for women.
Men rape women. It is under reported by a lot. Most rapes are by someone the woman knows. I think there are less false accusations than our society perceives.
Hope I'm making sense.
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