Affirmative Consent Laws

[Marokai Backbeat]

I mean, I obviously favor strict and straightforward consent laws that invalidate any consent given under coercion.

Often what is flawed about affirmative consent proposals is that they are vague on how they are all that different from established consent law, introduce a lot of subjective interpretation to an issue where present law is fairly clear cut (though difficult to determine for obvious reasons), and subverted just as easily as current consent laws: lying. Due to all of this they just sort of strike me as the sort of laws you implement in a "We must do better!" moral panic and don't really think them through very clearly.

California's most recent consent law was pretty terrible for a lot of reasons that have been argued over on this forum before, but at least it, to my knowledge, targets specifically colleges and universities which makes it sort of understandable, even if statistics don't really support the notion that college students are substantially more likely to be raped than the rest of the population. (That strikes me just as an extension of mainstream feminism's classism but that's another debate.)

But they're generally done from a sympathetic place. In general it comes down to the individual proposal. Stuff like requiring stated, "sufficiently enthusiastic" consent (this is, actually, ableist) to every progression of every sexual encounter is the stuff I find to be (oddly dis-empowering) overkill.  

[Marokai Backbeat]

I support the idea in theory, but there are problems with ambiguity and enforcement of said laws in practice. They are by no means a catch-all solution to the issue of rape, but they are justified in that verbal consent is obviously necessary for sex, and the law should reflect that.

I obviously agree that there should be an expression of consent to initiate some sort of sexual interaction but am uncomfortable about explicit verbal statements of consent being the only way. It ignores a lot of the way that we as humans communicate. Body language, nodding the head, and shouldn't you being the one initiating the act be implicit interest in the activity? And there are people with disabilities that have difficulty with speech, or the deaf. There are a lot of things that complicate that being the only standard.

There are obviously ways to work all of that out but the law should be more nuanced to accommodate for that.

And I think it's important to impress on people the equal importance, not just of saying yes, but also saying no.

[Marokai Backbeat]

Is there any argument against these laws that isn't a colossal strawman?

I mean, if you just don't read them, then I guess not.

[Marokai Backbeat]

Is there any argument against these laws that isn't a colossal strawman?

I mean, if you just don't read them, then I guess not.

OK, I get that a specific law might be too vague, or effectively unenforceable, or fails to address other issues, but 1) that doesn't mean that all affirmative consent laws would necessary have the same problems

They maybe don't all have the same problems, but as far as I'm aware there's not been any affirmative consent proposals that don't suffer from either being unenforceable, redundant, or awkward and dangerous.

And honestly, Antonio, you're smarter than "Well maybe all of those proposals are terrible but that doesn't mean every single one of these laws are bad! You don't know that!" Okay, make some sort of affirmative consent law for us that isn't either:
1. Vague.
2. Unenforceable.
3. Placing the burden of proof on the accused.
4. The same as current consent law.

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Now who's strawmanning?

The crux of these affirmative consent proposals demand explicit, stated consent for any activity of a remotely sexual nature and any elevation thereof all the way to the real deal. It doesn't take much to imagine a scenario where harmless incidents get people thrown in jail. The only way you can think that's okay is if you're using the same logic as law and order conservatives.

I mean, when I see stuff like this or this I don't even think it's much of a stretch anymore to say these people expect really bizarre behavior from people for normal intimate interaction. Those are literally "consent contracts." Skits like this aren't even an exaggeration for some people anymore.

What I find so baffling is why these activists don't empower people to just say no. It's like these people are trying to set up the most dangerous game of Simon Says ever, creating some obtuse set of standards where the burden is on the initiator, instead of just encouraging both people to make the boundaries clear beforehand.

The idea of individuals who have been together for years and have developed an innate understanding of each other still needing the government to impose on them a series of permission requests for kissing or taking off each others shirt is a joke. Or it would be, if some people didn't actually think that's how people should behave. Sorry, Simon didn't Say "take off the shirt." That'll be 6-12 months.

[Marokai Backbeat]

Wanted to post this as an edit and may as well make it a separate post at this point:

The thing is here, I don't even necessarily disagree with the idea. These standards should be up to individuals to determine with their partners, and obviously we should be encouraging people to be super duper sure in their sexual encounters, particularly early in life, and educating people on what is and isn't over the line. I just don't think you accomplish that under threat of imprisonment, you accomplish that with sexual education. Awareness campaigns. Informal stuff. It can be far more effective.

If, say, Madeline wants her sexual encounters to be very cautious, and likes to constantly communicate permission checks or what-have-you, I don't want that to be taken away from her. If TNF likes his partners to ambush and f**k the s**t out of him, I don't want to take that away from him either. I want people to communicate their own personal etiquette with their partners instead of the government defining that etiquette. The only way the state should be interfering is if someone wanted it to stop, said no, and the other person didn't stop. Lock those people up.

[Marokai Backbeat]

Antonio, if I said to you "Can I f**k you?" and you said yes, congratulations, you just consented to being f**ked. We're good on that front. But these laws, along with the groups they're coming from, explicitly say that consenting to one thing doesn't consent to anything else, and the process of consent requires an explicit affirmative statement. If I tried kissing you during this process, I just committed a crime according to the law because I did not stop and acquire consent before doing so. In practice, according to these laws (and these activists especially) it absolutely does mean needing to ask about each and every thing. You could sue over anything and the question to the accused would be "Did you request stated affirmative consent before ____?" and if the answer is no, congratulations, your life is ruined.

[Marokai Backbeat]

Normal human beings do not sue people because they did not expressly consent for each and every step of sex-having, jesus christ how sheltered were you as a kid

What is the purpose of these laws over existing law, then, if not to increase the strictness of what consent means?

I'm pretty sure the sheltered individuals are the ones asking for these laws.

[Marokai Backbeat]

I'm fairly sure you can just say "Should I grab a condom" or something

What if someone wants to withdraw consent in the middle of sex though? Under these laws, they do not have tell the other partner. The only way to be sure is to check in every 2 minutes.

Which is why we should be encouraging people to be fearless enough to say no, which activists think is too victim-blamey.

I'm fairly sure you can just say "Should I grab a condom" or something

What if someone wants to withdraw consent in the middle of sex though? Under these laws, they do not have tell the other partner. The only way to be sure is to check in every 2 minutes.

No, they don't, but they'll probably say something because THAT IS HOW NORMAL HUMAN BEINGS FUNCTION!

Normal human beings don't stop and request permission for every little act, either, which isn't a great pitch for these laws. We intuit each others responses, we communicate with body language, we return a kiss when kissed if we want it, etc. If you've been with someone long enough you also build enough expectation and understanding of the other.

I mean, in this entire conversation, Antonio's response above included, I've yet to see exactly why you would prefer these laws over present consent law when your vision of consent law isn't any different than what presently exists. These laws are pushed in response to a perceived epidemic of rape and sexual abuse on campuses (how nice that the non-college educated don't matter as much) for the purpose of making consent have a stricter definition and by extension result in easier to obtain convictions. There's no other purpose than that. Denying that is disingenuous.

[Marokai Backbeat]

I mean, in this entire conversation, Antonio's response above included, I've yet to see exactly why you would prefer these laws over present consent law when your vision of consent law isn't any different than what presently exists. These laws are pushed in response to a perceived epidemic of rape and sexual abuse on campuses (how nice that the non-college educated don't matter as much) for the purpose of making consent have a stricter definition and by extension result in easier to obtain convictions. There's no other purpose than that. Denying that is disingenuous.

Because there are many of women who were raped but didn't explicitly say "no". These kind of cases should lead to convictions. You should have to ask someone and get their full, unambiguous consent before you have sex with them. It's really not so hard to understand.

It is already law that it's not consent just because the person didn't explicitly say no, or declined to physically resist.

These are the California and New York affirmative consent laws. They place much, much more burden on the accused. Because that is the goal. To make it easier to convict the accused.

Here's something that can be held against you under the California law: "The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented." (That really dismantles gender roles, doesn't it? "Men, make sure the women are okay!")

The New York law states that "consent may be withdrawn at any time" and obviously "when consent is withdrawn, sexual activity must stop." Makes sense, but how am I supposed to know? I have to keep asking. There's no other way to know.

On the face of it there's obviously a sensible interpretation. Should someone make sure the other is consenting? Yeah that's obviously reasonable. Should sex stop whenever consent is withdrawn? Clearly, yes. But those black/white interpretations are already in law. How do you determine when consent is withdrawn, without continuously asking, if it can be withdrawn at every time and the other individual is under no legal obligation to say so? Especially since consent must be required for every aspect of the encounter and no other act implies consent for another. That's vague. That's a problem. And in the hands of the wrong judge, innocent people could be put away. And many feminists are okay with that for the greater good.

You trust courts that regularly administer the death penalty to innocent people to make the right call when it comes to determining whether or not consent was given during intercourse?

Yeah, this is just straight-up naive. You know he wouldn't trust the courts on any number of other issues, but this is the one where he magically does. How convenient.

Especially since he already clearly doesn't trust the courts to make the distinction between rape and not-rape. If that was the case there wouldn't be an outcry for these laws in the first place. It just doesn't make sense.

[Marokai Backbeat]

I don't think it would be a comprehensive fix, I just think we should be encouraging that just as much as asking the initiator to feel sure consent is present in some fashion. It's much more reasonable than effectively expecting the men (let's be honest here) to be the ones that have to figure out the parameters of an encounter. Hell, my whole point has been that this is a super complicated issue that has more than one solution. I actually included "just as much" in a draft of that post and then somehow it didn't make it in the end.

In any event consent is already, ideally, invalidated when the individual feels threatened, which is of course the way it should be. I just think we should be encouraging people to figure out what they want out of sex and defining that with the people they're with. Women aren't passive in all of this. Honestly I'm still super uncomfortable thinking about the fact that these laws make them out to be so. Nothing is doing more to reinforce traditional gender norms in sex than these laws.

[Marokai Backbeat]

Archangel I agree with you about the power dynamics of the situation, etc. That's a real issue, of course. My problem is that the scenario you're talking about is still against the law, it's just difficult to determine due to the ease of lying about it (which doesn't really change with these laws either) and though I agree with you about prevention being more sensible, I'm not sure how well these laws accomplish that either. Prevention tends to be something you do through education and awareness campaigns.

Antonio mentioned this before, but the larger issue (people not taking rape seriously enough) is difficult to solve through any law, and if you want to find an issue people care way less about then male-on-female rape, don't even bother with female-on-male rape, something large parts of the population don't even believe is possible. I trust courts even less to approach that issue with much maturity.