California's Affirmative Consent law and some problems it will cause


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San Gabriel Valley Tribune July article

SGVT wrote:


A pair of friends at Cal State Long Beach said the bill seemed well-intentioned, but questioned how practical it is when it comes to ensuring consent throughout sex with their partners.

“I feel like their hearts are in the right place, but the implementation is a little too excessive,” said Henry Mu, a 24-year-old biology major. “Are there guidelines? Are we supposed to check every five minutes?”

The remark drew laughter from his friend and fellow 49er, Sue Tang.

“If you were to do that, it would definitely kill the vibe,” said Tang, 27.

SGVT wrote:
When asked how an innocent person is to prove he or she indeed received consent, (the bill's co-author Bonnie) Lowenthal said, “Your guess is as good as mine. I think it’s a legal issue. Like any legal issue, that goes to court.”

Lowenthal's basically saying "LOL NOT MY PROBLEM NAO! U FIXIT" Some more information on Lowenthal.

Foundation for Individual Rights in Education article

FIRE wrote:


Yesterday, California Governor Jerry Brown signed into law SB 967, a bill that will require California’s university and college students to obtain verifiable “affirmative consent” for sexual activity. As FIRE has pointed out here on The Torch, under this bill students must receive not just explicit consent to sexual activity but ongoing consent—although it is impossible to tell how often students must pause to receive explicit consent in order for their sexual activity to qualify as consensual.
FIRE wrote:


In practice, the bill will shift the burden of proof to the accused student—and supporters of the bill have openly praised it for doing so. Students, though, should be very worried about lawmakers and college administrators adopting the idea that accused students are essentially guilty until proven innocent.

TIME article

TIME wrote:


The gender ideology dominating academe denies that sex differences are rooted in biology and sees them instead as malleable fictions that can be revised at will. The assumption is that complaints and protests, enforced by sympathetic campus bureaucrats and government regulators, can and will fundamentally alter all men.

Vaguely worded legislation that slowly strips away due process is an excellent example of how "the road to Hell is paved with good intentions".

Stay safe, CA students. Be careful where you place your trust...or just film everything.


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Left unsaid here is that this only applies to administrative college actions, not to actual rape trials. No criminal penalties are at stake. That makes me a lot less concerned about shifting the burden of proof. It's not a criminal trial. That's where the whole "beyond a reasonable doubt" thing comes in.

The part about affirmative consent isn't going to change a thing practically, since 99.9% of the time it's going to be a "he said, she said" kind of thing anyway. It might go a little ways towards changing the culture, which would be a good thing.

And if you're going to film everything, be real sure you've got consent on film for doing that. And that she's not 17.


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thejeff wrote:
Left unsaid here is that this only applies to administrative college actions, not to actual rape trials. No criminal penalties are at stake. That makes me a lot less concerned about shifting the burden of proof. It's not a criminal trial. That's where the whole "beyond a reasonable doubt" thing comes in.

An accusation of sexual assault (let alone an accusation of rape) can ruin someone's career before it even begins. If someone's expelled from a college after a biased hearing, there's a good chance they won't get into other colleges if that knowledge follows them. This is in addition to wasting the accused student's time and money.

Above all, it's simply not right to do this to innocent students. False accusations should be punished just as severely whether they go to criminal courts or college disciplinary hearings.


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Necromancer wrote:
thejeff wrote:
Left unsaid here is that this only applies to administrative college actions, not to actual rape trials. No criminal penalties are at stake. That makes me a lot less concerned about shifting the burden of proof. It's not a criminal trial. That's where the whole "beyond a reasonable doubt" thing comes in.

An accusation of sexual assault (let alone an accusation of rape) can ruin someone's career before it even begins. If someone's expelled from a college after a biased hearing, there's a good chance they won't get into other colleges if that knowledge follows them. This is in addition to wasting the accused student's time and money.

Above all, it's simply not right to do this to innocent students. False accusations should be punished just as severely whether they go to criminal courts or college disciplinary hearings.

1) So can rape, even if the attacker is punished. Even the

2) Especially if the victim wants to remain in school and they have to remain in close contact (classes, dorm) with the attacker.

3) There is a long distance between not "guilty beyond a reasonable doubt" and "false accusation". What are your standards for punishing false accusations?

4) Of course it's not right to do it to innocent students. You'll notice they didn't change the standard to "Kick out anyone accused of rape."

There are so many things you can get thrown out of college for, with far less than a formal that requiring far more due process for rape than for many less serious things makes little sense.


Necromancer wrote:
False accusations should be punished just as severely whether they go to criminal courts or college disciplinary hearings.

Aye, it should be. I hate those two faced b!&$%es who fake it. It makes things so much harder for rape victims. The problem is, how do you go after them without putting rape victims who don't get a conviction in jeopardy of criminal charges? If you aren't incredibly careful, you'll make almost every rape victim too scared to speak up and report the assault, because doing so could result in jail time if there just isn't enough proof (and rape is incredibly difficult to prove).


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thejeff wrote:
It might go a little ways towards changing the culture, which would be a good thing.

I'm not sure. It seems to ignore the fact that consent is very often something communicated via body language rather than verbally. Two people are making out, somebody reaches for a belt buckle, the gesture is reciprocated, coitus ensues. To me, the fact that the gesture was reciprocates indicates consent. No need to legally require that the two stop and verbally agree as to the next course of action, and periodically reobtain verbal consent through the act. In fact, my initial response, as a female California college student, is to ask what the hell right the state has to tell me my method of communicating consent isn't valid. But no. I'm just a weak little girl, and I need a big strong man like Jerry Brown to govern my sexual choices, because I'm not capable of deciding how to communicate consent by myself. It comes off as kind of stupid. In fact, have fun enforcing it.


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Necromancer wrote:
thejeff wrote:
Left unsaid here is that this only applies to administrative college actions, not to actual rape trials. No criminal penalties are at stake. That makes me a lot less concerned about shifting the burden of proof. It's not a criminal trial. That's where the whole "beyond a reasonable doubt" thing comes in.

An accusation of sexual assault (let alone an accusation of rape) can ruin someone's career before it even begins. If someone's expelled from a college after a biased hearing, there's a good chance they won't get into other colleges if that knowledge follows them. This is in addition to wasting the accused student's time and money.

Above all, it's simply not right to do this to innocent students. False accusations should be punished just as severely whether they go to criminal courts or college disciplinary hearings.

Are you aware that often times women face social backlash that ruins THEIR careers just for reporting a rape? Even rapes that are real.


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I want to see statistics on false rapes. Don't just link them though, I want someone to explain to me how this is a BIGGER problem than say... the 60% of rapes that go unreported.

Story about women in the military who were fired for reporting that they were raped. These accusations were not proven false.

Teen attempts suicide after being bullied for reporting her rape.

A similar story, she was gangraped, they posted photos online and she tried to kill herself. It put her in a comma and eventually taken off life support.

Another teen who committed suicide after being bullied after her rape.

Three boys undress a passed out girl, rape her, photograph it. She committed suicide after the images were posted and she was bullied.

Woman raped at gunpoint, gets thrown in jail and fired from her job.

False accusations do happen, and I agree, they are tragic. The system does need to change though and I'm sure mistakes will be made. I won't take you seriously if you think that false accusations are the biggest problem involved with this topic though. The bigger problem is that very large numbers of rapists go free and even more are never even reported to the system.

Also, a major problem is bullying of rape victims. Even if their case isn't proven yet, there needs to be no bullying, or retaliation against them UNTIL a false accusation with intent is proven. One way to start is to stop perpetuating the myth that false accusations are a widespread problem.

This doesn't mean we automatically assume she's telling the truth and he's guilty. Rather, we should stop making assumptions about people who aren't us.


If someone rapes another, that is an individual doing a crime that hurts the victim. If someone makes a false accusation, and the victim gets punished for it, that is the STATE hurting the victim. Claiming these two cases are mostly the same thing by comparing the false positives and false negatives completely ignores the fact that a false accusation uses the state's powers to hurt someone else. This is a problem, because the state has so much power to hurt someone living there. At its most basic, it's a question of whether innocent people are safe from the state's coercive and punitive powers living somewhere. Whether enough rapists are punished for their crimes is a different matter, but in most Western legal systems, a lesser issue. You know, rather let ten criminals go free than punish one innocent?

False accusations are a widespread legal problem, because you can just not rape someone so as not to be punished for it, but you have no recourse when facing a false accusation. There is no course of action you can follow so as not to be accused and punished.


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Sissyl wrote:

If someone rapes another, that is an individual doing a crime that hurts the victim. If someone makes a false accusation, and the victim gets punished for it, that is the STATE hurting the victim. Claiming these two cases are mostly the same thing by comparing the false positives and false negatives completely ignores the fact that a false accusation uses the state's powers to hurt someone else. This is a problem, because the state has so much power to hurt someone living there. At its most basic, it's a question of whether innocent people are safe from the state's coercive and punitive powers living somewhere. Whether enough rapists are punished for their crimes is a different matter, but in most Western legal systems, a lesser issue. You know, rather let ten criminals go free than punish one innocent?

False accusations are a widespread legal problem, because you can just not rape someone so as not to be punished for it, but you have no recourse when facing a false accusation. There is no course of action you can follow so as not to be accused and punished.

It does not follow from your argument that "false accusations are a widespread legal problem". First you actually have to prove that they're widespread.

False accusations are a theoretical problem, but of course, so are false accusations of theft, assault and many other crimes. The exact same argument you made applies: It's the state doing the punishment and there is no course of action you can follow so as not to be accused and punished.

Except for there to actually be a widespread problem, you have to prove that false accusations are common and that the falsely accused are actually punished. All the research I've seen says that false reports of rape exist, but at roughly the same very low level as other crimes. Since rape is widely under reported and conviction rates are very low, I have a very hard time believing the biggest problem with rape is false accusations.


Because you don't see it as a problem that innocents are punished. It really is nothing new from you. Rape brings more problems than other crimes because the US has all these laws about registration as a sex offender. Please do not pretend otherwise. Further, it is not only possible but highly likely that there are false positives as well as false negatives in this context, as in all other similar situations. What the progressive leftists want to do is merely to shift those numbers to get more convictions - if this means innocents are punished, well, who cares?


Kelsey Arwen MacAilbert wrote:
thejeff wrote:
It might go a little ways towards changing the culture, which would be a good thing.
I'm not sure. It seems to ignore the fact that consent is very often something communicated via body language rather than verbally. Two people are making out, somebody reaches for a belt buckle, the gesture is reciprocated, coitus ensues. To me, the fact that the gesture was reciprocates indicates consent. No need to legally require that the two stop and verbally agree as to the next course of action, and periodically reobtain verbal consent through the act. In fact, my initial response, as a female California college student, is to ask what the hell right the state has to tell me my method of communicating consent isn't valid. But no. I'm just a weak little girl, and I need a big strong man like Jerry Brown to govern my sexual choices, because I'm not capable of deciding how to communicate consent by myself. It comes off as kind of stupid. In fact, have fun enforcing it.

In theory I agree. In practice, as a legal thing, it's not going to matter at all. It's only the change in culture that might matter.

No one is going to come and arrest your boyfriend because he accepted your non-verbal consent.
It's not even going to make a big difference in most legal cases, since the rapist can always just lie and in most cases there will be no other witnesses or evidence of the verbal agreement. (If you insist, the false accuser can also just lie.)

What it does do is make it clear that "She didn't say no" is not enough. Nor is "She said no, but I could tell she was really into it".


Sissyl wrote:
Because you don't see it as a problem that innocents are punished. It really is nothing new from you. Rape brings more problems than other crimes because the US has all these laws about registration as a sex offender. Please do not pretend otherwise. Further, it is not only possible but highly likely that there are false positives as well as false negatives in this context, as in all other similar situations. What the progressive leftists want to do is merely to shift those numbers to get more convictions - if this means innocents are punished, well, who cares?

I didn't say that. I certainly didn't mean that.

I said "If you think it's a widespread problem, you actually have to show that it's common, not just that it's a theoretical problem." As Irontruth said, the myth that false accusations are common actually helps rapists.

This new California law is about a college administrative procedure. There will be no convictions. No registration as sex offenders. No criminal punishments whatsoever. The worst punishment is being kicked out of school, which they can do with no more legal process for far smaller crimes - or even not crimes, but just violations of university rules.


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Kelsey Arwen MacAilbert wrote:
Necromancer wrote:
False accusations should be punished just as severely whether they go to criminal courts or college disciplinary hearings.
Aye, it should be. I hate those two faced b&&!&es who fake it. It makes things so much harder for rape victims. The problem is, how do you go after them without putting rape victims who don't get a conviction in jeopardy of criminal charges? If you aren't incredibly careful, you'll make almost every rape victim too scared to speak up and report the assault, because doing so could result in jail time if there just isn't enough proof (and rape is incredibly difficult to prove).

I agree here, except that there really aren't a lot of "two faced b&&!&es who fake it".

No one talking about punishing the false accusers has said anything about what standards should be used for that. Or even what the punishment should be.

I do suspect that a lot of the hysteria about false accusations comes from the idea that date rape isn't really rape, that only "stranger rape" really counts.


thejeff: What this kind of rules does is, even if you discount what Kelsey wrote, that it puts two prospective lovers in a situation where the question of trust becomes even more difficult than it already is. I saw an article some time ago stating that many young people choose to film their sessions of intercourse to have something to fall back on if it should become a legal matter. See, the alternative is to have nothing at all. Add in prohibitions of filming people younger than seventeen and various other laws, and it seems to me that there are a number of politicians who want it to be impossible for people to feel secure in having sex before they are eighteen. At least in states where age of consent is below eighteen, this feels like a very odd situation.

Also, no. If you are claiming this change is a good one, it falls to YOU to explain how we should see the fact that false accusations will lead to more convictions with the new rules. You can't turf that over to someone else and then wash your hands of it. Changes like this WILL lead to more people who have been falsely accused getting sentenced. Is that okay? What do we say to that? I am waiting for an answer.

And no, sanity doesn't in general enter into this. As I told you in another thread, we had a politician actually campaigning to remove trials in cases of rape - because it was so emotionally tough for the victim. You have been accused of rape, go directly to jail, do not collect 200$. Given this, and the fact that people accused of rape will under laws like this have to prove their innocence, no, this is a development that is gravely unhealthy.

And it doesn't matter if you claim not to say that it doesn't matter if innocents are sentenced and punished. It is the sum of what you say.


Sissyl wrote:

thejeff: What this kind of rules does is, even if you discount what Kelsey wrote, that it puts two prospective lovers in a situation where the question of trust becomes even more difficult than it already is. I saw an article some time ago stating that many young people choose to film their sessions of intercourse to have something to fall back on if it should become a legal matter. See, the alternative is to have nothing at all. Add in prohibitions of filming people younger than seventeen and various other laws, and it seems to me that there are a number of politicians who want it to be impossible for people to feel secure in having sex before they are eighteen. At least in states where age of consent is below eighteen, this feels like a very odd situation.

Also, no. If you are claiming this change is a good one, it falls to YOU to explain how we should see the fact that false accusations will lead to more convictions with the new rules. You can't turf that over to someone else and then wash your hands of it. Changes like this WILL lead to more people who have been falsely accused getting sentenced. Is that okay? What do we say to that? I am waiting for an answer.

And no, sanity doesn't in general enter into this. As I told you in another thread, we had a politician actually campaigning to remove trials in cases of rape - because it was so emotionally tough for the victim. You have been accused of rape, go directly to jail, do not collect 200$. Given this, and the fact that people accused of rape will under laws like this have to prove their innocence, no, this is a development that is gravely unhealthy.

And it doesn't matter if you claim not to say that it doesn't matter if innocents are sentenced and punished. It is the sum of what you say.

Except for the whole part about this law not being about criminal trials. No convictions. No (or very, very few) kids under 18, since it's a college administration thing.

I would absolutely be opposed to changing the standard of proof in a criminal trial for rape, but this isn't about that. Even in this administrative matter, the accused still doesn't have to prove their innocence. Any more than the person being sued in civil court has to prove their innocence. It's just a lower standard of proof, which is appropriate, since the penalties are much lower.

You'll have to refresh my memory on the politician. Politicians propose lots of stupid things. It's usually a reflection on the politician, not a sign of the imminent collapse of society.


Sissyl wrote:

thejeff: What this kind of rules does is, even if you discount what Kelsey wrote, that it puts two prospective lovers in a situation where the question of trust becomes even more difficult than it already is. I saw an article some time ago stating that many young people choose to film their sessions of intercourse to have something to fall back on if it should become a legal matter. See, the alternative is to have nothing at all. Add in prohibitions of filming people younger than seventeen and various other laws, and it seems to me that there are a number of politicians who want it to be impossible for people to feel secure in having sex before they are eighteen. At least in states where age of consent is below eighteen, this feels like a very odd situation.

Also, no. If you are claiming this change is a good one, it falls to YOU to explain how we should see the fact that false accusations will lead to more convictions with the new rules. You can't turf that over to someone else and then wash your hands of it. Changes like this WILL lead to more people who have been falsely accused getting sentenced. Is that okay? What do we say to that? I am waiting for an answer.

And no, sanity doesn't in general enter into this. As I told you in another thread, we had a politician actually campaigning to remove trials in cases of rape - because it was so emotionally tough for the victim. You have been accused of rape, go directly to jail, do not collect 200$. Given this, and the fact that people accused of rape will under laws like this have to prove their innocence, no, this is a development that is gravely unhealthy.

And it doesn't matter if you claim not to say that it doesn't matter if innocents are sentenced and punished. It is the sum of what you say.

This is the law in question.

If you could please read it, then quote the passage that deals with criminal cases of sexual assault or rape.

You're talking a lot about how this impacts criminal cases, so I'm sure you can find a passage in this law that deals with criminal cases.

Hint

Spoiler:
there isn't one.

The law is about post-secondary education institutions and guidance no how they handle cases of reported rape or sexual assault on their campus. It has nothing to do with the police.

Quote:


(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.

(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

An actual rapist just has to change their story for this law. He just has to say "I asked her if she wanted to have sex, she said yes. I asked again if she was enjoying and wanted to continue, she said yes." It is now entirely his word against hers again. The law doesn't actually change or force ANYTHING in regards to guilt or innocence, it merely changes the words that will be successful to avoid punishment from an administrative body (not a law enforcement organization, since this law has nothing to do with law enforcement, like the police).

Really what the law does is standardize how educational institutions will judge and evaluate sexual assault and rape reports on their campus, nothing more. It doesn't create some sort of new burden of proof, it just clarifies what kind of verbal arguments are NOT allowed.

An analogy:

You leave something on the front step of your house.
I take it.
You accuse me of stealing it.
I say that you regularly leave things on your front step for me to take, so clearly this was an implied consent between the two of us.

That defense is no longer valid according to this law. Instead I just say "We talked at the mailbox the day before and you told me you'd leave it for me to take."

Seriously, being up in arms over this is the silliest thing IMO.


thejeff wrote:

1) So can rape, even if the attacker is punished. Even the

2) Especially if the victim wants to remain in school and they have to remain in close contact (classes, dorm) with the attacker.

3) There is a long distance between not "guilty beyond a reasonable doubt" and "false accusation". What are your standards for punishing false accusations?

4) Of course it's not right to do it to innocent students. You'll notice they didn't change the standard to "Kick out anyone accused of rape."

There are so many things you can get thrown out of college for, with far less than a formal that requiring far more due process for rape than for many less serious things makes little sense.

1 & 2 - No one's dismissing these concerns.

3 - I'll answer this below.

4 - No, but that won't stop liars from using the system to "punish" or silence someone.

Kelsey Arwen MacAilbert wrote:
Aye, it should be. I hate those two faced b!!**es who fake it. It makes things so much harder for rape victims. The problem is, how do you go after them without putting rape victims who don't get a conviction in jeopardy of criminal charges? If you aren't incredibly careful, you'll make almost every rape victim too scared to speak up and report the assault, because doing so could result in jail time if there just isn't enough proof (and rape is incredibly difficult to prove).

First, I'll cover my ideas to help discourage false claims in academic settings. If a student (or staff) charges someone with sexual assault or rape, police should be notified and the alleged victim should immediately go to a hospital to get evidence needed. The window of opportunity for these charges should be small (no more of "I was assaulted last Spring garbage") since it's a college setting.

Second, I'll cover a few things that I think would help law enforcement and real victims. We've got to stop putting victims on pedestals. When police ask about the victim's sex life, clothing worn during the event, level of drugs (including alcohol), etc. they are not trying to help the defense build a case nor are they victim-blaming. They're looking for patterns and elements that might help convict the perpetrator. It's become a very popular trend to say "just believe the victim", but this is encourages liars to step in and capitalize on someone else's misery. Victims should be strongly encouraged to properly report the crime and head to a hospital to get physical evidence. This discourages liars and helps the victims to know that they're doing the right thing even if it would be easier to just go home and hide.

To make matters worse, Second Degree Rape is basically a crime of liability. This statute really needs a makeover. The idea that someone can regret a drunken sexual encounter and then excuse themselves by crying "rape" is disgusting. It damns the accused to a pointless legal battle and diminishes real rape in the public eye.


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And looking at that more closely, it doesn't require specific verbal consent.

Quote:
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.

The whole bit about body language and non-verbal communication isn't relevant. The point isn't that you have to specifically ask and receive a spoken "Yes" at every stage, but that "Lack of protest or resistance does not mean consent, nor does silence mean consent."

"She didn't say no" isn't acceptable.

There's also a fairly decent definition of "too drunk":

Quote:
(B) 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.

This kind of thing usually gets reported as "it's rape if she's drunk", but the laws are often more carefully written.


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Irontruth wrote:
Necromancer wrote:
thejeff wrote:
Left unsaid here is that this only applies to administrative college actions, not to actual rape trials. No criminal penalties are at stake. That makes me a lot less concerned about shifting the burden of proof. It's not a criminal trial. That's where the whole "beyond a reasonable doubt" thing comes in.

An accusation of sexual assault (let alone an accusation of rape) can ruin someone's career before it even begins. If someone's expelled from a college after a biased hearing, there's a good chance they won't get into other colleges if that knowledge follows them. This is in addition to wasting the accused student's time and money.

Above all, it's simply not right to do this to innocent students. False accusations should be punished just as severely whether they go to criminal courts or college disciplinary hearings.

Are you aware that often times women face social backlash that ruins THEIR careers just for reporting a rape? Even rapes that are real.

You know why, right? If they can blame the victim, then it's not something that can happen to them.

We also need to stop telling victims they're special for being victims. This cultural attitude needs to stop. They need to be encouraged (and supported) to properly report the crime and get the medical evidence needed to secure a conviction. We need to stop praising victims for their mere existence (and unknowingly telling liars that being a victim is a desired state) and instead listen when they want to talk and support them when they're low. None of this involves removing burdens of proof.

Victims are best served by truth.


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Necromancer wrote:
Irontruth wrote:
Necromancer wrote:
thejeff wrote:
Left unsaid here is that this only applies to administrative college actions, not to actual rape trials. No criminal penalties are at stake. That makes me a lot less concerned about shifting the burden of proof. It's not a criminal trial. That's where the whole "beyond a reasonable doubt" thing comes in.

An accusation of sexual assault (let alone an accusation of rape) can ruin someone's career before it even begins. If someone's expelled from a college after a biased hearing, there's a good chance they won't get into other colleges if that knowledge follows them. This is in addition to wasting the accused student's time and money.

Above all, it's simply not right to do this to innocent students. False accusations should be punished just as severely whether they go to criminal courts or college disciplinary hearings.

Are you aware that often times women face social backlash that ruins THEIR careers just for reporting a rape? Even rapes that are real.

You know why, right? If they can blame the victim, then it's not something that can happen to them.

We also need to stop telling victims they're special for being victims. This cultural attitude needs to stop. They need to be encouraged (and supported) to properly report the crime and get the medical evidence needed to secure a conviction. We need to stop praising victims for their mere existence (and unknowingly telling liars that being a victim is a desired state) and instead listen when they want to talk and support them when they're low. None of this involves removing burdens of proof.

Victims are best served by truth.

I love how you directly from social backlash for reporting rape to a cultural attitude that tells victims they're special.

How about we stop the victim blaming, which in the case of rape at least, is far, far more of a problem than any victimhood culture?


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The central issue here is the fact that people get punished (expulsion is not something most people enjoy, right?), but it's touted as an "administrative action" or some s%++ like that. Worse, it's specifically designed to handle the cases where someone is NOT convicted of rape in the legal system. Presumably people get expelled if they get convicted of rape, no? This law allows a "second strike" against someone who was not convicted, with different, very much laxer, requirements for punishment.

Second, while it's important that rape victims go get checked at the hospital, there is a misunderstanding as to what can actually be shown. Sum total, such a check can determine whether violence was used and whether sexual intercourse happened. Possibly, with whom. Just like the accused can say "She said yes", the victim can say "he threatened me and I didn't dare struggle".

But hey, anything to get more people in jail, right? Proving your innocence is going to be a giant stride forward toward a society where the state gets to chuck anyone they feel like in jail.


Irontruth wrote:
Don't just link them though, I want someone to explain to me how this is a BIGGER problem than say... the 60% of rapes that go unreported.

Source? RAINN lists an aggregate of Bureau of Justice statistics from 2008-12 as their source, so I'm thinking it's mostly secure funding each year. In 2013, they no longer list unreported stats probably because it's impossible to know how many crimes go unreported. And once again, this is solved by encouraging the victim to report what happened and go to a hospital as soon as possible.


thejeff wrote:

I love how you directly from social backlash for reporting rape to a cultural attitude that tells victims they're special.

How about we stop the victim blaming, which in the case of rape at least, is far, far more of a problem than any victimhood culture?

It's two cultural attitudes. One born out of fear and the other born out of ignorance.


Necromancer wrote:

First, I'll cover my ideas to help discourage false claims in academic settings. If a student (or staff) charges someone with sexual assault or rape, police should be notified and the alleged victim should immediately go to a hospital to get evidence needed. The window of opportunity for these charges should be small (no more of "I was assaulted last Spring garbage") since it's a college setting.

Second, I'll cover a few things that I think would help law enforcement and real victims. We've got to stop putting victims on pedestals. When police ask about the victim's sex life, clothing worn during the event, level of drugs (including alcohol), etc. they are not trying to help the defense build a case nor are they victim-blaming. They're looking for patterns and elements that might help convict the perpetrator. It's become a very popular trend to say "just believe the victim", but this is encourages liars to step in and capitalize on someone else's misery. Victims should be strongly encouraged to properly report the crime and head to a hospital to get physical evidence. This discourages liars and helps the victims to know that they're doing the right thing even if it would be easier to just go home and hide.

To make matters worse, Second Degree Rape is basically a crime of liability. This statute really needs a makeover. The idea that someone can regret a drunken sexual encounter and then excuse themselves by crying "rape" is disgusting. It damns the accused to a pointless legal battle and diminishes real rape in the public eye.

1) Rape is a horribly traumatic crime. Victims often go through a process of shock and denial. That's in addition to the social pressure not to admit it happened and not to report it. Obviously, it is far better to go at once to the police and the hospital, but it is not an easy thing to do. Especially when you know that you're not likely to be believed and that the chances of a conviction are minimal.

I agree that victims should be encouraged to report immediately, but dismissing the case if that doesn't happen isn't the way to go about it.
2) a) Victims aren't put on pedestals.
b) When the defense lawyers ask those same questions are they also "looking for patterns and elements that might help convict the perpetrator"?

Finally, I'm not sure what definition of Second Degree Rape you're using, since they vary from state to state. Generally it includes the use of force or threat of force, but not of a deadly weapon. That's not "a matter of liability". But even assuming you misspoke and really mean to refer to date or acquaintance rape, which isn't an actual legal category, casually dismissing that as "regret a drunken sexual encounter and then excuse themselves by crying "rape" " and not "real rape" is disgusting.

In fact pretty much any use of the term "real rape" is disgusting.


Necromancer wrote:
thejeff wrote:

I love how you directly from social backlash for reporting rape to a cultural attitude that tells victims they're special.

How about we stop the victim blaming, which in the case of rape at least, is far, far more of a problem than any victimhood culture?

It's two cultural attitudes. One born out of fear and the other born out of ignorance.

Not out of fear that it can happen to them, since much, though far from all, of the shaming and victim blaming comes from men. It's essentially the same attitude, though weakened, as the old idea of the rape victim as "soiled goods".


Rape, like many other crimes, is difficult to prosecute because there are no witnesses, usually just the two people in question. This leads to few convictions, because the legal principle is "beyond reasonable doubt". So, you need to show that not only were the two in the same place, not merely having intercourse, but that the victim did not want to have sex at that time. Good luck with that. Hospital can't really help with that last criterium unless there was a struggle. Given this, it doesn't exactly come as a surprise that few convictions for rape happen.

However, there are different conclusions to draw from that. First, you can draw the conclusion that if the legal system really can't do the job (which is arguable), everyone needs to be careful and adjust for it. What would that mean? Well, primarily, don't go to booze parties, leave alcoholic and emotionally dysfunctional partners, call the cops if the s##! is hitting the fan. The other is easier: Relax the evidence needed to convict someone of rape, possibly demanding that the accused prove their own innocence, thereby shifting the entire burden of proof to the defendant and breaking with centuries of legal tradition. At least it looks better on paper: Assuming an equal number of reports of rape, you get a higher percentage of convictions. That these people were before the law changed tried in court and it was found that "beyond reasonable doubt" was not achieved, well, too bad. Now we have better statistics.


Sissyl wrote:

The central issue here is the fact that people get punished (expulsion is not something most people enjoy, right?), but it's touted as an "administrative action" or some s+&+ like that. Worse, it's specifically designed to handle the cases where someone is NOT convicted of rape in the legal system. Presumably people get expelled if they get convicted of rape, no? This law allows a "second strike" against someone who was not convicted, with different, very much laxer, requirements for punishment.

Second, while it's important that rape victims go get checked at the hospital, there is a misunderstanding as to what can actually be shown. Sum total, such a check can determine whether violence was used and whether sexual intercourse happened. Possibly, with whom. Just like the accused can say "She said yes", the victim can say "he threatened me and I didn't dare struggle".

But hey, anything to get more people in jail, right? Proving your innocence is going to be a giant stride forward toward a society where the state gets to chuck anyone they feel like in jail.

Yes, it's an administrative punishment. Like getting thrown out for any other violation of the university rules. Most of which aren't actual crimes and require even less evidence.

You are correct about what can be shown from hospital evidence. One point you left out is in cases where the victim isn't sure of the identity of the attacker, dna evidence can be taken. That might be the case when she was drugged or extremely drunk as well as in attacks by strangers.

Since no one is getting thrown in jail here (or added to sex offender lists or any other criminal punishment or record), I don't understand why you keep harping on it. I would love to see more actual rapists in jail, but it is fundamentally a very difficult crime to convict for, so I don't know of a good way to do that, while still preserving the presumption of innocence. This is a good compromise, because it will at least separate the victim from the assailant while not lowering the standard for criminal penalties.


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Sissyl wrote:

Rape, like many other crimes, is difficult to prosecute because there are no witnesses, usually just the two people in question. This leads to few convictions, because the legal principle is "beyond reasonable doubt". So, you need to show that not only were the two in the same place, not merely having intercourse, but that the victim did not want to have sex at that time. Good luck with that. Hospital can't really help with that last criterium unless there was a struggle. Given this, it doesn't exactly come as a surprise that few convictions for rape happen.

However, there are different conclusions to draw from that. First, you can draw the conclusion that if the legal system really can't do the job (which is arguable), everyone needs to be careful and adjust for it. What would that mean? Well, primarily, don't go to booze parties, leave alcoholic and emotionally dysfunctional partners, call the cops if the s~*! is hitting the fan. The other is easier: Relax the evidence needed to convict someone of rape, possibly demanding that the accused prove their own innocence, thereby shifting the entire burden of proof to the defendant and breaking with centuries of legal tradition. At least it looks better on paper: Assuming an equal number of reports of rape, you get a higher percentage of convictions. That these people were before the law changed tried in court and it was found that "beyond reasonable doubt" was not achieved, well, too bad. Now we have better statistics.

Or in other words, women need to restrict their behavior and never allow themselves to be in any position where they're vulnerable to a man.

Men, on the other hand, should be able to pretty much rape with impunity as long as they stay away from witnesses.

An excellent solution.


Hold on - there is a bigger issue:

Why are colleges being involved in sexual assault cases at all? They aren't law enforcement agencies.

The ENTIRE law for "what colleges and universities do about sexual assault on campus" should be "Call the police and report the crime."

Everything else is coming from the mentality - which has been openly stated - that it is the accused, not the accuser, that should have to prove his case.


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Interesting that no one who supports punishing false accusations has commented on what the standards for such punishment should be.

Liberty's Edge

thejeff wrote:
Sissyl wrote:

Rape, like many other crimes, is difficult to prosecute because there are no witnesses, usually just the two people in question. This leads to few convictions, because the legal principle is "beyond reasonable doubt". So, you need to show that not only were the two in the same place, not merely having intercourse, but that the victim did not want to have sex at that time. Good luck with that. Hospital can't really help with that last criterium unless there was a struggle. Given this, it doesn't exactly come as a surprise that few convictions for rape happen.

However, there are different conclusions to draw from that. First, you can draw the conclusion that if the legal system really can't do the job (which is arguable), everyone needs to be careful and adjust for it. What would that mean? Well, primarily, don't go to booze parties, leave alcoholic and emotionally dysfunctional partners, call the cops if the s~*! is hitting the fan. The other is easier: Relax the evidence needed to convict someone of rape, possibly demanding that the accused prove their own innocence, thereby shifting the entire burden of proof to the defendant and breaking with centuries of legal tradition. At least it looks better on paper: Assuming an equal number of reports of rape, you get a higher percentage of convictions. That these people were before the law changed tried in court and it was found that "beyond reasonable doubt" was not achieved, well, too bad. Now we have better statistics.

Or in other words, women need to restrict their behavior and never allow themselves to be in any position where they're vulnerable to a man.

Men, on the other hand, should be able to pretty much rape with impunity as long as they stay away from witnesses.

An excellent solution.

Maybe you should trying reading ALL of what she wrote. You seem to have read the first half and decided to rant. The second half has nothing to do with what you said.


This has gotten ugly.

I lived in cali when I was a kid, and I'm glad I moved back to NY.

Affirmative consent laws put colleges in a weird situation that's hard to enforce. What may happen as a result of this is people (men, women, and people in other locations along the gender spectrum) leaving the state to get laid on the weekends.

Liberty's Edge

thejeff wrote:
Interesting that no one who supports punishing false accusations has commented on what the standards for such punishment should be.

You mean besides proving that she did lie (see Duke Lacross team). Or are you talking what the punishment itself should be?


Martin Sheaffer wrote:
thejeff wrote:
Sissyl wrote:

Rape, like many other crimes, is difficult to prosecute because there are no witnesses, usually just the two people in question. This leads to few convictions, because the legal principle is "beyond reasonable doubt". So, you need to show that not only were the two in the same place, not merely having intercourse, but that the victim did not want to have sex at that time. Good luck with that. Hospital can't really help with that last criterium unless there was a struggle. Given this, it doesn't exactly come as a surprise that few convictions for rape happen.

However, there are different conclusions to draw from that. First, you can draw the conclusion that if the legal system really can't do the job (which is arguable), everyone needs to be careful and adjust for it. What would that mean? Well, primarily, don't go to booze parties, leave alcoholic and emotionally dysfunctional partners, call the cops if the s~*! is hitting the fan. The other is easier: Relax the evidence needed to convict someone of rape, possibly demanding that the accused prove their own innocence, thereby shifting the entire burden of proof to the defendant and breaking with centuries of legal tradition. At least it looks better on paper: Assuming an equal number of reports of rape, you get a higher percentage of convictions. That these people were before the law changed tried in court and it was found that "beyond reasonable doubt" was not achieved, well, too bad. Now we have better statistics.

Or in other words, women need to restrict their behavior and never allow themselves to be in any position where they're vulnerable to a man.

Men, on the other hand, should be able to pretty much rape with impunity as long as they stay away from witnesses.

An excellent solution.

Maybe you should trying reading ALL of what she wrote. You seem to have read the first half and decided to rant. The second half has nothing to do with what you said.

I read it. The second half (or at least the second of the second paragraph) was all about how horrible it would be if we did the easier thing.

Which, by the way, I agree with, if that wasn't clear. We shouldn't relax the standards for criminal trials. I just don't like the consequences of the current approach either.


thejeff wrote:
Since no one is getting thrown in jail here (or added to sex offender lists or any other criminal punishment or record), I don't understand why you keep harping on it. I would love to see more actual rapists in jail, but it is fundamentally a very difficult crime to convict for, so I don't know of a good way to do that, while still preserving the presumption of innocence. This is a good compromise, because it will at least separate the victim from the assailant...

And since you can't have more rapists in jail while still preserving the presumption of innocence, well, tough, but presumption of innocence must go. This law is an expression of EXACTLY that.

Imagine this: Someone accused you of a crime, say, murder by pistol. You feel pretty confident that you'll go free, because you never held a gun in your life, you never met the person in question (and indeed have no idea who he was), you have an alibi where dozens of people saw you give a lecture on the opposite coast the time the murder was committed. Then, once you get to court, you are told by the judge that you are not allowed to bring up any of these points in your defense, ESPECIALLY not your alibi. You are of course allowed to prove you didn't murder him, but not using any of those defenses.

Would you say the standards for criminal procedures had been lowered in such a situation?

Because if they have, every disallowed defense lowers those same standards.


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Martin Sheaffer wrote:
thejeff wrote:
Interesting that no one who supports punishing false accusations has commented on what the standards for such punishment should be.
You mean besides proving that she did lie (see Duke Lacross team). Or are you talking what the punishment itself should be?

Proving, beyond a reasonable doubt, would be a fair standard. I wouldn't be happy with "If there's no rape conviction, it's a false accusation" which is how it often seems to be treated.

Liberty's Edge

thejeff wrote:
Martin Sheaffer wrote:
thejeff wrote:
Sissyl wrote:

Rape, like many other crimes, is difficult to prosecute because there are no witnesses, usually just the two people in question. This leads to few convictions, because the legal principle is "beyond reasonable doubt". So, you need to show that not only were the two in the same place, not merely having intercourse, but that the victim did not want to have sex at that time. Good luck with that. Hospital can't really help with that last criterium unless there was a struggle. Given this, it doesn't exactly come as a surprise that few convictions for rape happen.

However, there are different conclusions to draw from that. First, you can draw the conclusion that if the legal system really can't do the job (which is arguable), everyone needs to be careful and adjust for it. What would that mean? Well, primarily, don't go to booze parties, leave alcoholic and emotionally dysfunctional partners, call the cops if the s~*! is hitting the fan. The other is easier: Relax the evidence needed to convict someone of rape, possibly demanding that the accused prove their own innocence, thereby shifting the entire burden of proof to the defendant and breaking with centuries of legal tradition. At least it looks better on paper: Assuming an equal number of reports of rape, you get a higher percentage of convictions. That these people were before the law changed tried in court and it was found that "beyond reasonable doubt" was not achieved, well, too bad. Now we have better statistics.

Or in other words, women need to restrict their behavior and never allow themselves to be in any position where they're vulnerable to a man.

Men, on the other hand, should be able to pretty much rape with impunity as long as they stay away from witnesses.

An excellent solution.

Maybe you should trying reading ALL of what she wrote. You seem to have read the first half and decided to rant. The second half has nothing to do with what you said.
I read...

Okay we can agree there. I am not sure what the answer is either. It certainly isn't easy, especially short term as changing general cultural attitudes takes time.


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Freehold DM wrote:

This has gotten ugly.

I lived in cali when I was a kid, and I'm glad I moved back to NY.

Affirmative consent laws put colleges in a weird situation that's hard to enforce. What may happen as a result of this is people (men, women, and people in other locations along the gender spectrum) leaving the state to get laid on the weekends.

How does affirmative consent change the colleges situation?

Really, how does it actually change anything from the perspective of actually enforcing the case. It's still going to be a "He said, she said" kind of deal.

Liberty's Edge

thejeff wrote:
Martin Sheaffer wrote:
thejeff wrote:
Interesting that no one who supports punishing false accusations has commented on what the standards for such punishment should be.
You mean besides proving that she did lie (see Duke Lacross team). Or are you talking what the punishment itself should be?
Proving, beyond a reasonable doubt, would be a fair standard. I wouldn't be happy with "If there's no rape conviction, it's a false accusation" which is how it often seems to be treated.

Agree, the problem is too often it is he said vs she said quite often with alcohol involved (which may mean fuzzy memories or at least the perception there of). So not guilty doesn't automatically mean guilty the other way.


thejeff: You know I didn't say women should adapt alone. In fact, I meant both sexes equally in all these suggestions: If people stayed away from booze parties, men and women, a lot of rapes would not happen. If people left abusive or dangerous partners, whether men or women, the same would happen. If people called the cops when situations turned ugly, men or women, the same again. But really, if you think those suggestions are so terrible, please tell me something else people can do, outside the legal system, that would help the situation. Every little bit helps, right?


Sissyl wrote:
thejeff wrote:
Since no one is getting thrown in jail here (or added to sex offender lists or any other criminal punishment or record), I don't understand why you keep harping on it. I would love to see more actual rapists in jail, but it is fundamentally a very difficult crime to convict for, so I don't know of a good way to do that, while still preserving the presumption of innocence. This is a good compromise, because it will at least separate the victim from the assailant...

And since you can't have more rapists in jail while still preserving the presumption of innocence, well, tough, but presumption of innocence must go. This law is an expression of EXACTLY that.

Imagine this: Someone accused you of a crime, say, murder by pistol. You feel pretty confident that you'll go free, because you never held a gun in your life, you never met the person in question (and indeed have no idea who he was), you have an alibi where dozens of people saw you give a lecture on the opposite coast the time the murder was committed. Then, once you get to court, you are told by the judge that you are not allowed to bring up any of these points in your defense, ESPECIALLY not your alibi. You are of course allowed to prove you didn't murder him, but not using any of those defenses.

Would you say the standards for criminal procedures had been lowered in such a situation?

Because if they have, every disallowed defense lowers those same standards.

Your fantasy doesn't have anything to do with this, because this isn't a criminal case.

I have said again and again that I'm not willing to change the presumption of innocence in a criminal case. This law doesn't do that. It's not a slippery slope towards doing that. It doesn't have a thing to do with that.

I think we do need to find ways to convict more rapists, while preserving the presumption of innocence, but I don't know how to do that. That doesn't mean I think we need to do it anyway by dumping that presumption.


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Fergurg wrote:

Hold on - there is a bigger issue:

Why are colleges being involved in sexual assault cases at all? They aren't law enforcement agencies.

The ENTIRE law for "what colleges and universities do about sexual assault on campus" should be "Call the police and report the crime."

Everything else is coming from the mentality - which has been openly stated - that it is the accused, not the accuser, that should have to prove his case.

That would be the ideal. Unfortunately, this is a crime that the legal system has completely and utterly failed to deal with adequetely. So we are left to try to make cultural changes to deal with the issue. Which isnt a bad thing.

Colleges have also failed to deal with the issue effectively, mostly wanting to avoid bad pr as opposed to protect their students. Well here is the backlash. People want the problem to stop, and there is going to be lots of bumbling in the process trying to figure it out because we've ignored it for generations. But at least someone is trying somewhere. The statistics on sexual assault are horrifying, even if they are way off (though in my gut they are accurate) its still aweful.

We need to change our behavior, period. There is definately a fear among men about being falsely accused. I think we all have heard of a horror story or two when someone's life is ruined for something they didnt do. But the reverse, is WAAAY more abundant. How many victim's lives are permanently altered by their assualts every single day? If we have to be dramatically more careful about our sexual behavior to avoid that, I am ok.

Its not impossible to do this right without running afoul of the rules. If a person you are persuing has been drinking, dont persue them. Period. If you've been drinking, dont persue anyone. Period. Before you initiate intimate contact, talk to the person. As you are initiating intimate contact, talk to the person. A simple 'do you like that?' or 'does that feel good?' every time you do something different (IE progressing to more and more intimate contact) will suffice. If someone seems hesitant or upset about having sexual contact with you, stop. Put your pants back on. Physically seperate from that person. Talk to them about what was making them uncomfortable. The key here is being aware of your partner and having open lines of communication.

Its a major cultural shift around sexual contact for our culture, but it's Necessary. It has to happen. Will it mean that sometimes you wont have sex where there might well have been a happy consensual union? Sure. But I'd rather not have sex 1000 times, then hurt someone.

In college I had a rule. I wouldnt have sex with a woman if she had been drinking. End of story. Even if we'd had sex before. Even if we'd had sex earlier that day. Didn't matter. It pissed off a few of my girlfriends who liked to drink, but for me, its simple. My judgement is bad when I drink. So is hers. I never ever want being with me to be something someone regrets[my motivation at the time]. And I sure as hell dont want it to be something someone doesn't want[my motivation now as I have learned more about the problems surrounding the sexual assault problem our culture has]. People thought I was nuts. But you know what, generally, potential partners appreciated it. It made them feel safer around me, and ultimately worked out in my favor.

If you do these things, your chances of false accusation of assault are effectively nill. You might get laid less, but you might not. And you wont run afoul of this law. We need to learn to have open communication about consent to be a part of our sexual language. If this law pushes us in that direction, great.

And I totally get the fear a lot of men have. I have it too. It's why I am so careful. But I feel like even that is solvable. I have this idea kicking around in my head for a 'consent app'. We are walking around with super computers in our pockets that can take video, keep records, and do all sorts of magic. This issue is solvable without the need to have some kind of akward conversation that too few people are comfortable with.

It would start from a basis of those anti drunk text apps, that make you do like logic puzzles or arithmatic before you can access their phone, then have some kind of elegant interface for people to describe what they are down for in terms of contact. Because consent for one kind of contact does not give consent for another.


Fantasy or not, you did not answer the point: That each disallowed defense, whatever the body making the judgement, lowers the standards of evidence. Thus, this law explicitly, clearly and indisputably is a lowering of criminal procedure standards. You are of course welcome to show how they don't, if you can.

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