California Debates 'yes Means Yes' Sex Assault Law
California is considering making it mandatory for colleges and universities that receive public funding to set a standard that defines clearly what consent is; this standard is to help when investigating rape cases on campus.
My answer:
No.
Consent is nebulous and contested and trying to micromanage it legally is not wise.
Currently most US states require proof of force or a threat of force (California Debates 'Yes Means Yes' Sex Assault Law) - which is at least reasonably objective. Requiring panels to judge consent through "vague cues and body language will open the door for more lawsuits".
Another issue is that consent is not a straightforward state. Besides yes and no there is also... maybe. This intermediate state (or, perhaps, spectrum of states) is often ignored (III. Wanting and Not Wanting Sex: The Missing Discourse of Ambivalence). Sometimes women aren't enthusiastic about sex until it has already started (Why women go off sex: What happened when 100 couples kept a candid diary about their bedroom antics) - mandating that an unequivocal yes be necessary for sex to begin would make many people sadder.
Even if one is committed to the stance that only yes should mean yes, one might shift from yes to maybe to no (or vice versa, or any combination thereof). Not just once, but multiple times during a session of sexual activity. Would one therefore have to initiate sex, pause, then re-initiate it? This is a recipe for severe awkwardness and broken rhythmns.
Yet another problem is that the requirement for a "affirmative consent standard" flies in the face of what people actually do (Sexual Consent in Heterosexual Relationships: Attitudes and Behaviours of University Students): different people have different understands of what signifies consent (the only thing people agree on is that no means no). If you believe that your partner is affirmatively consenting and have sex but your partner thinks he is being neutral or ambivalent, are you guilty of rape? Indeed, an "affirmative consent standard" might worsen the problem of rape: as we saw earlier, today people agree that no means no - however if tomorrow some people think that maybe means no, then there's going to be more miscommunication; in order for no to really mean no, only no should mean no - eliding maybe into no weakens the force of a no.
An "affirmative consent standard" would also worsen people's sex lives. As perthe previously mentioned study, 65% of respondents believed that "verbally asking for sexual consent" (necessary to protect oneself from a charge of rape) was "awkward" and significantly, those who had had sex were more negative about the necessity of formally obtaining verbal consent than virgins, presumably as they knew how things worked and saw how it'd hinder the sexual experience.
Furthermore, the text of the draft bill (SB-967 Student safety: sexual assault.), as of 13th August suggests that one needs "an affirmative consent standard" which is "affirmative, conscious, and voluntary agreement to engage in sexual activity". Since this "affirmative consent" has to be "ongoing" and "can be revoked at any time", both parties presumably have to continually monitor the other for signs of "ongoing" consent instead of concentrating on getting it on. If the other party goes silent (contemplating his credit card bill, perhaps, or maybe just tired - or even enjoying the action in silence), one would presumably have to stop. At least if someone says no, at least that is a somewhat objective sign that there is a withdrawal of consent. Having to anxiously monitor one's partner continuously for signs of ongoing consent is not just un-sexy - it is also very tiring (and potentially dangerous if one misinterprets signs).
In addition, consent is not valid, among other reasons, if the other party is "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".
So if both parties are drunk, technically both are raping each other.
In reality, of course, if this is a heterosexual sexual encounter the man will be the one accused of rape.
Given that a not-insignificant number of sexual encounters take place due to alcohol (or, indeed, drugs), this risks opening up a minefield of legal confusion and lawsuits.
In conclusion, this is a disturbing step towards governmental regulation of the bedrooom and individual's sex lives - which is also unnecessary; a better solution to the issue of rape would be to stick to no meaning no (even if no sometimes means yes: Do women sometimes say no when they mean ... [J Pers Soc Psychol. 1988]) and educating everyone about the need to communicate and respect rejection of sexual activity (i.e. no-s).
One of the measures of social progress has been the human individual's increased autonomy in choosing his or her own partner based on personal preferences as against the claims of family, property, and convention. Seen in this light, the attempt to legislate 'communicative sex' as the new norm for legal consent, like the attempt to closely regulate sexual relations in school and workplace, is a throwback to the days of excessive state regulation of the private sphere, the days that gave us prohibitions against interracial marriage and sodomy. It is but one more step into the past, now brought to us by feminism as it claims to be leading us into a better future.
Heterophobia: Sexual Harassment and the Future of Feminism / Daphne Patai
A form one should sign every 3 minutes when having sex
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California Debates 'yes Means Yes' Sex Assault Law
""It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms," the newspaper said. Some fear navigating the murky waters of consent spells trouble for universities. "Frequently these cases involve two individuals, both of whom maybe were under the influence of alcohol or drugs, and it can be very tricky to ascertain whether consent was obtained," said Ada Meloy, general counsel of the American Council on Education, which represents college presidents... John F. Banzhaf III, a George Washington University's Law School professor, believes having university disciplinary panels interpret vague cues and body language will open the door for more lawsuits. The legal definition of rape in most states means the perpetrator used force or the threat of force against the victim, but the California legislation could set the stage in which both parties could accuse each other of sexual assault, he said. "This bill would very, very radically change the definition of rape," he said."
And now we are legislating "enthusiastic consent"
A Campus Dilemma: Sure, 'No' Means 'No,' But Exactly What Means 'Yes'?
"Carefully crafted legal definitions are one thing, Gerberg says, "but knowing what that actually means in their life on a Friday or Saturday night is different." A clear definition is critical not only to educate students, but also for the adjudication process. Just ask Djuna Perkins, a former prosecutor who now consults with colleges as an investigator of complaints and is the one left trying to sort through the murky question of whether a student's actions amounted to a nonverbal "yes." "The fact of the matter is that consent is very tricky, and you're getting into minutiae of what happened in a particular event," she says. "It will sometimes boil down to details like who turned who around, or [whether] she lifted up her body so [another student] could pull down her pants. "There have been plenty of cases that I've done when the accused student says, 'What do you mean? [The accuser] was moaning with pleasure. He was raising his body, clutching my back, exhibiting all signs that sounded like this was a pleasurable event.' " Perkins says schools are being asked to define consent more narrowly than even most state criminal laws do. And the stakes couldn't be higher; those who get it wrong risk not only lawsuits and bad press, but also the loss of federal funding. The federal government is already investigating at least 55 schools for complaints that they're too soft on sexual assault. "Some [schools] feel like they want to throw up their hands," Perkins says. "I know of colleges who are trying to revise their policies literally every summer. In this climate, I don't think there's a single school out there that really, truly feels like it's under control."
Comments: "Some consenting women are incredibly uncomfortable with expressing verbal consent, in many cases thinking it would make them "slutty"."
"If a person can't consent because they are afraid of what people might think then they are not mature enough to have sex."
