Affirmative Consent Laws

[Citizen (The) Doctor]

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.

To believe that empowering people to say no would be a comprehensive fix I think ignores the basic fact that other psychological conditions could be placed upon a person who is under assault that stops them from saying 'no' or reacting negatively to the assault.

[Citizen (The) Doctor]

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.

I would argue against the idea that these laws encourage gender norms with regards to passivity. Affirmative consent means consent from both parties and I don't see any reasonable interpretation under these laws where if a woman propositioned a man and a man withdrew consent that the woman would not be committing assault. The problem that these laws are meant to address is that even if the individual is conditioned to say no and wishes to withdraw consent from the situation, that may not happen simply due to the power dynamics of the sexual act or other psychological factors affecting the victim.

I've personally worked with people who have worked on these laws and have some people very close to me who have undergone similar experiences, and if anything, I have noticed is a greater propensity to charge the victim with not doing enough to stop the assault, even from authorities, than there has been to hold the perpetrator responsible. We should question whether its more effective to teach prevention as opposed to attacking the root cause of the matter, which is the actual choice to commit assault. I see affirmative consent laws as the right step in the latter direction.

[Citizen (The) Doctor]

I don’t know why I missed this.

Ultimately, action against unwanted sexual advances is determined by what statistics say. And what statistics say on this issue is ultimately meaningless. So you have social science saying ‘a woman has a 1 in x chance of rape’ based on surveys and then the legal system spitting out statistics on arrests/convictions for said offences. And because they can never fit together and the arrest/conviction rate is low, the action is to evoke the law into ensuring that arrests/convictions increase. The problem with this is the assumption made that the correct course of action is to prosecute more men, when perhaps the more productive method is to increase education about appropriate sexual behaviour.

The idea that there is consent of any nature in a sexual act (and I’m not saying consent isn’t a real and tangible thing) is based on the legal definiton of consent. It pays little attention to actual social and sexual interactions that people have. It is for the very same reason that the age of consent itself is entirely arbitary and pays little attention to whether someone is physically/psychologically capable of sex and capable of consenting to that. However there is no other method that can be applied that can safeguard the vulnerable.

As Marokai touches upon in any human interaction, even those of a non sexual nature, verbal consent is not the only means by which someone consents to an action. From experience I’ve found myself in bed with someone without either of us muttering a word about it.

If you are arguing for affirmative verbal consent, you’re asking someone to clarify their intent in every step. The logical extension of this is that  you cannot chat someone up unless you both verbally agree. You cannot kiss them unless both parties agree. You cannot fondle unless both partes agree, no touching until both verbally agree, no oral until both agree, no penetrative sex until both agree. Do you check in in every few minutes to make sure it’s still okay? It’s absurd.

Saying no is much more powerful. And when you say no, even after doing all of the above, it is clear and is a strong expression of sentiment that you wish for the action to stop. And if you keep going after someone says no, there is absolutely no ambiguity about that and you can can rightly, and through legal means, throw the book at them if you have to.

Well then let's look at the text of SB-967, the law that mandated affirmative consent practices be taken up by California university systems:

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Source: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

If we look at Section 1, Clause 1, there is no specific legal requirement for "verbal" affirmative consent. It says "silence does not mean consent" which some would argue to be taken up as a predisposition that non-verbal consent is not valid. However, nowhere within the law itself does it mention that the agreement has to be verbal, only that it has to be somehow communicated (which can happen a variety of ways), only that the agreement has to be conscious, voluntary, and made with sound mind (i.e. sober). Conscious, voluntary consent can be communicated without verbal agreement (a nod of the head for example).

Furthermore, the actual text of the law itself requires all parties to enter into agreement of sexual activity, not just the initiator. So I believe that any argument that puts the law up to target males requires one to agree to the traditional gender dynamic that males have to be the ones initiating at all times, which I think is erroneous for obvious reasons.

Lastly, I want to tackle of the charge of absurdity regarding the need to check in to see if its 'okay' to do some act. I don't necessarily see anything wrong with the idea that you asking if doing something specific is 'okay'. Hell, I would hazard that most partners consider this a positive action, if anything. Even BDSM, which would have one committing several sexual acts to a person, is done upon a standard of predisposed affirmative consent which could be taken away during any part of the sexual activity (e.g. safewords).