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SBR: Let's Theorize Consent

  
  

Page: 1(2)3

 
 
Ticker
17:58 / 06.12.07
I think it can be approached more sanely, but it has to come largely through training people out of the rape-culture mentality that we all pretty much are bathed in here, and then bottom-up development of policies and strategies. If "the rules" come from the top, it's deadly.

I agree. It's great to hear people have found a functional facilitator mode with this. I totally dig the idea of having to just do a brief check in with a third party. Especially as the third party is not making any judgments but rather holding space for the people directly involved to examine the situation. I can see that it wouldn't prevent 100% bullshit from going down but it is more than many have currently. It also has a great impact of reminding people they are part of an invested community specifically invested in them personally. I've seen this structure used well in more edge play environments where the people in charge of the space check in to make sure people are agreeing to the proposed play rather than bullied into it.

How does it work in regular environments with issues of privacy?
 
 
Pili-pala
08:47 / 14.01.08
I think it would be difficult to match with the idea of privacy that most people have. To be fair it seems to be the case that to have a direct conversation as to whether to have sex or not seems to be a shocking concept. Last night on the (UK) radio one person responded to a caller that they shouldn't even have a direct conversation about whether to introduce BDSM into their relationship,(link) it should just be 'slipped in' to the conversation when the partner wasn't expecting it. Against that background to have any sort of reasonable conversation with a third party (or even as has been suggested with one's PDA) is unrealistic, although one I have no problem with in principle. I feel that educating people to the point where the parties involved can have a conversation with each other would solve a lot of problems and is a more realistic, if still far off, starting goal.
 
 
*
14:58 / 14.01.08
There's a lot of cultural stuff built up around indirectness, guessing what the partner wants, and love as telepathic mind meld. There has to be a big shift about this, and I think showing that explicit consent is sexy and romantic is good significant step toward that.
 
 
Fungus of Consciousness
02:03 / 19.03.08
There was an interesting debate about this going on in Australia last year, specifically New South Wales.

Rape law reform on drunk, drugged sex

What is interesting is that, under the then proposed laws, a woman who is drunk may not have been considered to be in possession of the "cognitive capacity" to legally give consent, whether "persuaded" or otherwise. Which is quite a frightening thought because:

a) What is the definition of "drunk"?
b) The removal of the legitimate right of drunk women to give consent.
c) What exactly does "persuasion" consist of?
d) The potential for the criminalisation of large tracts of the male population.
e) Such requirement for sufficient "cognitive capacity" must be recognised by the male , even though his own "cognitive capacity" may be similarly impaired.
f) How does a victim go about establishing proof of their drunkenness at the time of the alleged offence?

This is a very tricky area. Nobody wants the rape of drunk women to be justified on the basis of that drunkenness. But, without wishing to trivialise the issue, my personal experience in my single years often consisted of taking a girl to a bar to "loosen her up" (I'm sorry, that's quite a vulgar term in the context, but it's an apt description) socially, emotionally and sexually. Furthermore, once we'd had a few drinks, I may also have been guilty of trying to "persuade" women to sleep with me (trust me it takes some work)! Now obviously no women that I met thought of themselves as so victimised to make an accusation, but would such proposed reforms had made me into a rapist? If consent could not be given while drunk, would the effect of the legislation have made the law more ambiguous rather than less ambiguous? Would the law have have made it too easy for women, regretful their actions, to bring a sexual assault case against someone who otherwise obtained consent? What if such a woman claimed that she was drink at the time of the encounter? What would such reforms have done for the perception of extreme seriousness of the crime of sexual assault if such charges can so easily be brought against an alleged perpetrator?

I feel that alcohol, "wining and dining", have become an accepted part of the courting ritual in Western society. Could such amendments to NSW laws have made this a criminal act? Would my previous actions have marked me as some type of sexual predator? Under the proposed laws.... yes!

This whole debate arose because the actual definition of "consent" has never been codified in law. We ran the very real risk of legislative overkill on the issue.

The proposed bill was defeated in November 2007 but it goes to show how delicate an issue this really is. And how "over" or "under-legislating" can have a disastrous effect on innocent people by either criminalising them, or not recognising them as victims.

To my knowledge the definition of consent is still being debated. As it stands, it is up to the courts to asses consent on a case by case basis. Something that takes a lot of court time and causes a lot of anguish to those unfortunates involved.

Cheers.
 
 
*
04:30 / 19.03.08
Never mind
 
 
Ex
08:33 / 19.03.08
Furthermore, once we'd had a few drinks, I may also have been guilty of trying to "persuade" women to sleep with me (trust me it takes some work)!

Find other women.

Or, to be less insultingly brief:

Would the law have have made it too easy for women, regretful their actions, to bring a sexual assault case against someone who otherwise obtained consent? What if such a woman claimed that she was drink at the time of the encounter? What would such reforms have done for the perception of extreme seriousness of the crime of sexual assault if such charges can so easily be brought against an alleged perpetrator?

This seems like an interesting spin on the perennial 'what if women are liars'.

I share your concerns with the looseness of definition on things like 'drunk' but at the moment, reporting and convication rates in my country are abysmally low. Which is to say, even when the police believe there is enough evidence to go to court and present a case - which is very rare - there is then very rarely a conviction for that case. This is shit.

I don't think, therefore, that the idea of malicious prosecution should be a deciding factor in whether to bring in a sensible law. I think malicious prosecutions are minimal or nonexistant, ceratinly by the time it gets to court - even very well-grounded cases with a lot of evidence rarely get anywhere, and as you note, are traumatic for everyone involved.

I think a law which tries to lay out guidelines for people being not cognitively capable of giving consent could be useful.
We're not, I think, talking about 'tipsy'. We're talking 'incapable of making a coherent decision', and for that to factor in a prosecution I would imagine that would have to be visible - through additional witnesses - or provable - through blood tests. Not the kind of thing that would creep up on you unless, as you mention, you are also blotto.

So if people are worried about being accused of assault, then - a person should avoid allowing their potential sexual partner to drink so much that they seem to be making wildly out of character decisions and actions, and not get so drunk themself that they can't judge that.
If someone wants to have drunk sex I'd suggest (as I think id has before me) that they decide, with someone, when sober, to have drunken sex, and then get drunk.

I realise that for a lot of people this seems like some kind of monstrous robotic imposition on the sweet flirtatious dance of the dating scene, but I think there's a difference between dimming the lights and putting on Barry White, and trying to wheedle sex out of someone too drunk to stand.
 
 
Fungus of Consciousness
11:22 / 19.03.08
Found another woman five years ago. We're married.

See this is the point. I've proposed a situation that is fairly innocent and I'm kind of made to feel a bit sleazy! I'm not saying that that is your intention, but it neatly illustrates the predicament one could find oneself in. Even though I have related a situation that was fairly innocent, where both partners in an encounter are fully and completely consensual, under the proposed laws, given the wording of those laws, I technically would have been guilty of a sexual assault. I'm not saying this would then cause a raft of vexatious rape claims, but the capacity for such claims could have been written into law. Surely this isn't the way to go? Bare in mind also that men can also be victims and, anecdotally, if women are reluctant to report sexual assault, men are even less so.

It can't be said that a law is sensible when it is so open to interpretation. The words "drunk" and "persuaded" are fairy subjective. I've known women who get quite drunk off two glasses of champas. I've known others who can go drink for drink with the boys all night. Consent is a difficult enough concept to codify in law without then introducing such nebulous concepts as persuasion, while also trying to establish if someone was drunk at the time. Should some responsibility not lie with the victim to ensure they don't get so drunk that they accept otherwise unwanted advances? Please understand that I'm not thereby justifying the rape of drunk people, but if two people go to a bar together, get drunk together, consent to have sex together, then surely consent is as much a responsibility of one party to give as it is for the other party to obtain? If one party cannot be considered "responsible" enough to consent to sex, then how can a similarly affected second party be expected to be responsible enough to know that the other party is too drunk to provide that consent, particularly after it is expressly given?

We're not talking about the sleaze who goes to bars and stalks drunk women in the hope of finding one who is so off her face that she can't actually give consent. Clearly we need to protect women from these types of predators.

So with that in mind, the idea of "malicious" or "vexatious" claim is only a tiny part of the issues that are raised. Nor do I think it is a spin on the "what if women are liars" theme at all. Clearly 99.9% of women would not wish to go through the anguish and humiliation of a rape case. This goes a long way to explaining why genuine cases are often not reported or pursued. I'm sure that even less would wish to bring a vexatious proceeding against an otherwise innocent man. But the effect of the law would have allowed consent to be given and then withdrawn after the fact. So if a man takes a woman for a few drinks, "persuades" (whatever that means) her to have "consensual" sex, that consent could be withdrawn the next day, even when the previous night it was freely given.

Another thing to consider when introducing a law where "consent cannot be given while drunk" is the question of proving whether the victim was drunk. We thereby introduce not only two modes of prosecution, consent and drunkenness, but we also introduce them as modes of defence as well. So you can imagine the anguish of the extremely drunk woman, who is accosted by the completely sober man who goes on to beat the charges brought against him because her drunkenness could not be established to the satisfaction of the court. What if, as you mention, there were no witnesses and no blood test? Any defence lawyer worth his salt is going to argue that because a woman's drunkenness cannot be established, then nor can her inability to provide consent. This therefore becomes a law that potentially makes victims of either party.

The purpose of the law was to codify what constituted consent, which is a desirable aim. Unfortunately, by neglecting to define the word "drunk" we just shift from one interpretation (consent) to another (drunk).

Cheers.
 
 
Ex
12:50 / 19.03.08
I felt I was following the emphasis of your original post - apologies if that made you feel sleazy. The original questions you asked were as follows:

Would it reduce the perceptions of this crime as serious – 1
Would it render the law as ambiguous - 1
Would it criminalise acceptable behaviour – 1
Would it criminalise my behaviour – 2
Would it help women who lied about sex – 2

My answers in brief would be:

Would it reduce the perceptions of this crime as serious
Would it render the law as ambiguous
I don't know enough about how it would have been codified to tell - Ive written some more at the end of this post about how alcohol is already 'present' legally, in cases, and why I think some more guidelines could be useful.


Would it criminalise acceptable behaviour
Would it criminalise my behaviour

These struck me more as rhetorical questions, indicating that a change in the law would be inadvisable.
You did describe your experiences in slightly odd ways - 'loosening' women up, pointing out how few of them wanted to have sex with you. I assumed that was amusing self-deprecation. Using oneself as the self-evident example of why a law shouldn't be changed, but then portraying oneself as a bit of a comic sleaze, is a tricky maneouvre, and in context, it struck me as icky. Thus I made a rather snippy joke back. Sorry if that set a hostile tone for the discussion.

Which rather leaves 'women lying about sex', hence my focus.

I'll try to address the ambiguity of alcohol in cases a bit more - I can only really refer to existing UK law, though.

I do know that alcohol is already present - both literally, and legally - in many cases. In many instances, the presence of alcohol make a conviction harder to secure, rather than easier - having drunk alcohol tends to reduce a victim's credibility as a witness, and can be used to explain otherwise behaviour that might otherwise indicate assault (having sex with someone you've only just met, or in an odd location).

In British law, under the Sexual Offenses Act of 2003, there's an odd balance. Person A is guilty of rape 'if A does not reasonably believe that [partner B] consents.' However, 'Subsection (2) provides that whether a belief in consent is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.' [my italics]

I understand that double-part definition of the perception of consent, because otherwise you're rewarding people for ignoring signs that their partner might not be consenting - if person A avoids noticing them not consenting, it wouldn't be rape. But it's still a difficult grey area. If Person A and Person B are drunk, that (I would think) gives person A two chances: both to say 'I may have misunderstood, I was drunk' and to say 'B may have given off mixed signals, they were drunk' - both of which reduce the chance of 'reasonable belief' being clearcut.

So alcohol is a factor at the moment, even if it's not codified - it's there under 'reasonable belief' and 'regard to all the circumstances'. Possibly additional information, if not a concrete definition of drunkenness in law, would help jurors work out how to handle this additional layer of complexity.
 
 
Fungus of Consciousness
00:59 / 20.03.08
Ex,

Thanks for your reply.

The issue has been raised before on this thread about "consent being given without it actually being said". I guess what I was trying to illustrate by personalising the example would be a situation where that consent was "close" to being given but hadn't actually been expressed. I think most men, and probably most women, would experienced the situation where the "tension" exists and alcohol had been a catalyst for the removal of any residual inhibition. I certainly don't advocate getting women drunk for the express purpose of "getting into her pants". Indeed, I agree that you would walk a fairly dangerous (not to mention sleazy) line by doing so. I realise that this forum is probably not the most appropriate place for "self depreciating humour", but that is all it was intended to be. Thanks for recognising it!

Drunkenness is a key issue, but it was by no means the onl issue. There was also the issue of "persuasion" whether drunk or not. The Bar Association of NSW gave two examples in their submission to parliament.

" Example 1Example 1Example 1

A woman goes out on a first date with a man. After they have both drunk too much, she says "yes" to sex. The next morning the man has moved on, she feels humiliated and decides to go to the police. If the law is changed as proposed, their apparent consent may not be regarded as true consent on the basis that there was no "free agreement" or because she suffered from "cognitive incapacity" (part of the new definition of "consent") because she was drunk. As for the man, even if he believed that "yes" meant consent, that will not save him if he lacked "reasonable grounds" for believing she had the "capacity to consent". The jury will be told that they must ignore the fact that he was drunk and judge him by the standards of a sober "reasonable person". If that sober reasonable person would have come to the view that she, because of her drunkenness, lacked the capacity to make a free agreement, then he is guilty.

Example 2Example 2Example 2

A young man and a young woman are in a boyfriend/girlfriend relationship. The young man asks for sex but she is reluctant. After a time, he says to her that they will have to break up unless she says "yes" to sex. She says "yes" and they have sex. The next day she regrets her decision and tells her mother. Her mother calls the police. If the law is changed as proposed, her apparent consent may not be regarded as true consent on the basis that there was no "free agreement". As for the man, even if he believed that "yes" meant consent, he will be convicted of an offence carrying a maximum penalty of 14 years imprisonment if his grounds for believing that she consented were not "reasonable"—if a "reasonable person" would have believed that her apparent consent was not "freely and voluntarily" given."

As distasteful as I find Example 2 in particular, I think we can all agree that neither are genuine rape cases. But this would have been the effect of the law. This was the reason for my question about the diminishing the seriousness of the charge. Effectively, the answer to the following list of questions would then be:

Would it reduce the perceptions of this crime as serious – Yes
Would it render the law as ambiguous - Yes
Would it criminalise acceptable behaviour – Yes
Would it criminalise my behaviour – Yes
Would it help women who lied about sex - Yes

It just goes to show how difficult the issue of consent really is. Then add alcohol.....
 
 
Jack Fear
01:51 / 20.03.08
...I think we can all agree that neither are genuine rape cases.

Think again.

In example 2, there's a clear element of coercion. Consent given in the face of a threat is not meaningful consent; and the scenario you've outlined is predicated on a threat, as surely as the proverbial gun to the head.

Also, I don't see any of the proposed changes to the law as in any way "minimizing the seriousness" of rape. Seems to me that they would tend, rather, to stigmatize some rather dodgy social practices and behaviors—behaviors that, frankly, deserve all the stigma they get.

If that makes you personally uncomfortable, consider the possibility that the fault lies not with the law.
 
 
Fungus of Consciousness
03:20 / 20.03.08
I disagree.

In the case of the threat of violence, I would definitely agree. But I don't think that a threat of a break-up is anywhere near grounds for a rape case. There has to be some responsibility for the provision of consent. Again, are we saying that women cannot be responsible for such consent? And if so, could this not equally apply to males?
 
 
Jack Fear
04:24 / 20.03.08
You may disagree all you wish, but I think you'll find yourself in the minority: see earlier in this very thread.

Part of the issue, I think, is that you may be confusing acquiescence with actual consent. One may acquiesce and still be essentially unwilling, whereas "consent" implies a full willingness.

There will, of course, be times when both parties truly consent to sex, both thinking at the time that it's a good idea, both entering into it out of desire—and afterwards in hindsight, find the whole thing regrettable.

That is, however, an entirely different kettle of fish than a scenario of one partner bullying, badgering or threatening the other into sex after that partner has explicitly expressed her unwillingness.

So I'm a little confused about your insistence that there has to be "responsibility for the provision of consent." She said no: end of story.

I admit that I take a pretty hard line on this stuff, because I believe that you shouldn't treat other people like shit to get what you want—and that when you do, more often than not, treating other people like shit becomes the end, rather than the means. It might help to know we're all on the same page when we talk talk about rape—what it is, what it's about, and its relation, if any, to sex. We thrash it about pretty well here.
 
 
ONLY NICE THINGS
06:48 / 20.03.08
Nor do I think it is a spin on the "what if women are liars" theme at all.

Absolutely not. As we can now see, it is "what if women are liars... or tell their mums."

I don't know if we have weapons for this threat.
 
 
ONLY NICE THINGS
09:01 / 20.03.08
Slightly more seriously, or at least at greater length, I think the problem with both of these examples is that they show people behaving in wildly counterintuitive ways. A comparable example might be a man who lost his car in a game of poker while drunk, who then claims that the car has been stolen because he was not competent to decide whether or not the car was a good thing to bet, and his co-better should have realised that and ended the game. Except, and this is quite important:

That isn't a comparable example

It isn't a comparable example primarily because the thought process of the woman in question would have to go something like "Gosh. I feel humiliated. What better way to avenge myself for this feeling of humiliation than to seek to set in motion a course of events in which, in front of a gallery of witnesses and the press, I am called to answer intrusive questions about my sex life, the condition of my genitals, my drinking habits, the number of partners I have had, the number of one-night stands I have had and so on, as the defence seeks to portray me as a loose woman, as part of a judicial process that statistically, even were there good, convincing evidence of violence against me, I would be very likely to lose. That will certainly resolve any feelings of humiliation I may currently be suffering." I just don't find this credible, even in terms of your 99.9% statistic earlier - I have known such an apparently frivolous case to have happened once in the UK that I can think of, and there have been, I ween, rather more than a thousand situations in my living memory in which people have had sex in these isles. Notably, hat one case got a lot of attention - quite a bit more than other, more workaday cases where guilt was proven.

This model requires women not only to be liars, but to be committed to the lie far beyond the dictates of self-preservation. Thus, the fear of the retroactive withdrawal of consent, consent having knowingly and willingly been given at the time, I find unconvincing. However, if one is concerned about it, or just wishes to be sure that all is well in the world, what mechanisms would help to ensure one's protection from potential liability? How about written consent? Would that work?
 
 
Fungus of Consciousness
09:08 / 20.03.08
Jack,

It may or may not be the case that most people disagree but we keep going back to someone basically "pestering" someone for sex. You state that someone has said "no".I agree, no means no. I fail to see where I've ever argued otherwise. I agree that acquiescence is a completely different different issue to consent, but if no means no, yes should mean yes, except in the case of the threat of violence. But then this isn't consent so much as acquiescence....

We're not talking about someone having said no, been plied with drink until dribbling, and then taken advantage of at the point of incoherence. I'm not sure why we keep coming back to this point. We are talking about a fully consensual situation where the only factor in contention is the participant's drunkenness.

"There will, of course, be times when both parties truly consent to sex, both thinking at the time that it's a good idea, both entering into it out of desire—and afterwards in hindsight, find the whole thing regrettable."

Under the proposed law the above situation was rape should one of the participants have chosen to bring charges to bare. This is my argument! Nothing more, nothing less.

In "Example B" supplied by the Bar Association we are talking about "persuasion". But there is the absence of drunkenness. Why should someone not be responsible for their own consent? Under the proposed law, the person in Example B would have been liable for the same maximum sentence as somebody who violently attacked and forced himself upon an unsuspecting woman.

I know this is an emotive subject that deserves to be treated sensitively, but by the same token, laws that are ineffective by virtue of their being poorly written only serves to make victims of the wrong people.
 
 
Fungus of Consciousness
09:58 / 20.03.08
Haus,

Obviously written consent would be quite clear. But even then, where a law exists that states that consent can't be given while drunk, you'd have to think that this would have to include written documents....

I agree wholeheartedly that most women would not wish to go through the trauma of a frivolous rape case. But this may well be because of the current difficulty of such a case. Were such cases to become "easier" would this situation change? I don't know. The point is that law must be as watertight as possible, even if we all know it never reaches the point of impermeableness. A law that seeks to remove interpretation from one word (consent) by introducing two intrinsically malleable words (drunk and persuasion) only makes consent an even more nebulous concept.

I believe that actually codifying consent is actually very dangerous. What may be consent in one case may not be consent in the next.
 
 
Fungus of Consciousness
11:32 / 20.03.08
Also Haus,

In absence of knowledge of the characters of those involved in Examples A & B we can't say for sure that they had acted in a counter intuitive fashion.

Had the law taken effect, it would not longer be a rape case for the purpose of establishing the facts. If we accept that "consent cannot be said to have been lawfully obtained if at the time of that consent the victim was intoxicated by drugs or alcohol" then the only thing that needs to be established to uphold the case is the intoxication of the plaintiff at the time of the incident.

So we may well have gone from a situation where rape is perhaps too difficult to establish, to one where it doesn't actually need to be established at all to achieve a conviction.
 
 
Jack Fear
11:59 / 20.03.08
I'm going to step around the issue of drunksex and what Haus so neatly defines as "the retroactive withdrawal of consent," and focus instead on your Example 2; I think it would be helpful if, going forward in this conversation, we could talk about them as separate issues.

Now.

but if no means no, yes should mean yes, except in the case of the threat of violence.

Emphatically disagree. There are lots of other, non-violent threats and coercive tactics that can be applied to force unwilling participants into sex.

If you don't put out, I'll have you fired.
I'll tell my spouse.
I'll tell your spouse—or parents.
I'm not leaving this house until you fuck me.
If you don't sleep with me I'll kill myself.
I'll tell Social Services about your drinking. They'll take the kids away.
If you don't sleep with me right now, tonight, then we're through.


In all these cases—as in your own Example 2—we have a woman who acquiesces to sex because she fears the consequences of refusing. Can this be meaningfully classified as consent?

In all these cases—as in your own Example 2—we have a woman who is unwilling, who has clearly stated her unwillingness; and a man who, fully understanding and knowing her unwillingness, contrives to fuck her anyway, despite her stated unwillingness—or perhaps even because of it.

There is a reason why rape is classified as a violent crime. In rape, sex is not sex. In rape, the sex itself is an instrument of violence.

Rape is understood, in the eyes of the law and in the psychological literature, as being primarily motivated not by sexual desire but by the desire to dominate another person. And the examples given above—and your own Example 2—fit the profile.

It's not really about you having the horn, and it's certainly not about feelings of love and desire for your partner; it's about forcing her to do what you want. About imposing your will on hers.

And that—forcing her, despite her stated unwillingness—is what makes it rape; whether your means of imposition is violence, blackmail, threats, badgering—force is force. And it's rape. It is rape.

Really. It is. Not just in my opinion. It is rape. It's a textbook example of R-A-P-E. Rape. Rape-a-rooni. Rapity rapity rapiness.

Sorry. But it is.





Look, I understand and sympathize with your desire to have a simple, universally-applicable marker for consent. Unfortunately, life isn't that simple.
 
 
Jack Fear
12:01 / 20.03.08
Also? "Knowledge of their character" reads suspiciously like an acceptable phrasing of "she was asking for it."
 
 
Fungus of Consciousness
12:59 / 20.03.08
Jack,

I'll start with your second post first.

"Knowledge of their character" reads suspiciously like an acceptable phrasing of "she was asking for it."

Haus wrote "I think the problem with both of these examples is that they show people behaving in wildly counterintuitive ways" in response to Example B (which, incidentally, aren't my words, they were presented to the NSW Parliament by the NSW Bar Association as examples of people who could be charged with rape had the law changed to the proposed wording). I pointed out that we cannot say for sure if these people were behaving in a counter-intuitive fashion if we know nothing about them other than what we know via the examples provided. Surely that is fairly self evident?

It is an excellent idea to explore the issues in isolation as they are very different issues. You've given a couple of examples:

If you don't put out, I'll have you fired.
I'll tell my spouse.
I'll tell your spouse—or parents.
I'm not leaving this house until you fuck me.
If you don't sleep with me I'll kill myself.
I'll tell Social Services about your drinking. They'll take the kids away.
If you don't sleep with me right now, tonight, then we're through.

In Australia at least, all of these situations are covered by anti-Harassment laws (specifically, those pertaining to sexual harassment). They may be subject to other laws (such as trespass for example) But, if the victim consents in the face of such pressures as you mention, they would have a very difficult time proving rape, as their acquiescence in the absence of physical violence or threat thereof would most often be construed as consent. Let me tell you with 100% certainty, harassment is much less a traumatic case to bring against someone than a rape case. Furthermore just the "say so" of these events having occurred is enough to obtain a Apprehended Violence Order (AVO). The effect of an AVO is generally similar to a restraining order. If an AVO is broken gaol terms are available to the courts to enforce compliance.

Look, I understand and sympathize with your desire to have a simple, universally-applicable marker for consent. Unfortunately, life isn't that simple.

Actually that's the opposite of what I argue! My point is that by defining consent simplistically we run the very real risk of not being flexible enough to incorporate other, more subtle forms of rape, consent and non-consent.

Cheers
 
 
Jack Fear
13:10 / 20.03.08
if the victim consents in the face of such pressures as you mention, they would have a very difficult time proving rape, as their acquiescence in the absence of physical violence or threat thereof would most often be construed as consent.

And are you okay with that?
 
 
Leigh Monster loses its cool
13:44 / 20.03.08
"There will, of course, be times when both parties truly consent to sex, both thinking at the time that it's a good idea, both entering into it out of desire—and afterwards in hindsight, find the whole thing regrettable."

Under the proposed law the above situation was rape should one of the participants have chosen to bring charges to bare. This is my argument! Nothing more, nothing less.

This reminds me a lot of arguments that gay marriage shouldn't be legalized, because then straight people could get married to their friends to take advantage of marriage's financial benefits. WHAAAAT?! In this case, having legislature that protects the rights of people who want to get married is clearly (to me anyway) far more pressing than NOT having it because a few unlikely people might take advantage; likewise, having a law that protects people--not just women, btw--from un-consensual sex is far more important than not having that law because someone might hypothetically use it to falsely accuse.

If you intend to sleep with someone before either of you have had anything to drink, I think the idea of broaching the issue with hir to find out if ze's game before "loosening" hir up is perfectly reasonable--getting pre-drunk consent from someone who wants to sleep with you is easy and neatly avoids the problem you're presenting. If the idea never entered either of your minds before you were both tipsy, but the act was still fully consensual on both sides...honest to god, what do you think the chances are that ze's going to wake up and sue you in the morning? And are those chances worth denying the rest of the population protection from rape?
 
 
Fungus of Consciousness
14:00 / 20.03.08
Jack,

That's a god question! No I'm not "okay" with it, but there are a lot of things that I'm not "okay" with under the law. But you have to ask what he alternative is. Pressuring someone for sex and having them acquiesce probably shouldn't be considered rape because we then introduce the subjectivity of pressure.

I won't deny it is a very tricky area, lawyers debate this constantly, but the idea of the law should be to remove loopholes, not introduce them. As I said, a woman who is subjected to such pressure would have legal recourse before it got to the point of rape. In fact sexual harassment laws were introduced so that a woman (or man) would not feel so much pressure that the felt that they had to consent to unwanted sex.

But this is all very different to my original post.

Under the proposed laws, a situation could have arisen that saw two people get drunk together, have fully consensual sex (where the sex is expressly agreed to), and that consent could be withdraw after the fact. In fact, even where the consent is not withdrawn, by law it would have been a sexual assault due to the fact that ""consent cannot be said to have been lawfully obtained if at the time of that consent the victim was intoxicated by drugs or alcohol" and given that, under the law, a crime is considered to have happened regardless of whether it was reported.

Furthermore, it may have had the effect of making a rape case more difficult to prove if the "intoxication" of the victim cannot be established to the satisfaction of the court.

Surely these are reasonably easy concepts to assimilate? Jack, I'm certainly not having a go at you but surely you can see that I'm not thereby justifying rape or, indeed, harassment, of any sort? I'm just attempting to illustrate the effect of trying too hard to define consent. That's the conundrum! If we don't better define consent then it's very nature can be argued to the detriment of a legitimate plaintiff, but if we actually define it in a legal sense, then legitimate plaintiffs may find their situation falling outside of the legal definition.
 
 
Jack Fear
14:40 / 20.03.08
Again, you're conflating two issues—intoxication and non-violent pressure—when I think it would be more profitable to discuss them separately.

Secondly, you seem to be speaking out both sides of your mouth. You say on the one hand that nothing good can come of trying too hard to define consent; then you turn around and say "if no means no, yes should mean yes, absent the threat of violence." Is that not a call for simple, universally-applicable signifier of consent? Either I'm confused, or you are.

Thirdly; I'd have to do some research the intent and effect of Australian law, but it looks to me as if, in the examples you cite of sexual harassment, that there are in fact two crimes being committed—sexual harassment, followed by rape.

Here in the States, and probably in Australia, assault and battery are two separate charges. Simply threatening someone with violence—shouting "I'm gonna kick your ass!"—constitutes a misdemeanor assault; actually kicking his ass constitutes battery.

But such incidents often result in charges of simple assault, minus any battery charges—even when battery indisputably occurred—because it's easier for the cops and the DA to make assault charges stick, and it's more likely to result in a guilty plea without the expense of a full trial.

Just so, the simple act of threatening or coercing someone with the intention of having sex with them—even if there is no actual sex—constitutes grounds for a sexual harassment charge. If you actually go through with the sex, it's rape.

By your own admission, a harassment charge is more easily and less-intrusively proved. The decision to pursue harassment a conviction is therefore most likely a tactical one, rather than an admission that rape did not occur.

In any case: You seem to be very concerned that a change in the laws will lead to a drastic uptick in the number of rape charges filed. Given that rape is the most underreported and underprosecuted of all crimes, I'm at a loss as to why you think this is a bad thing.

Are there innocent men who are right now sitting in prison on false rape charges? Undoubtedly. And every one of those cases is a tragedy.

But I don't think the frequency of such cases points towards any widespread pattern of abuse of the law by regretful women; at a guess, I would put the blame more on lazy law enforcement, an overstressed public defender system, judicial prejudice, and institutional racism and classism—though of course every case is different.

Frankly, I think you're inventing a problem—an epidemic of false rape charges—that simply doesn't exist in any meaningful way. That, in itself, is simply ignorant.

But when so many real rapes go unreported, when so many real rapists are never caught or punished, I think that anything that encourages more women to report the crime and press charges is unambiguously a Good Thing, and that opposition to such is, frankly, counter-productive at best and harmful at worst.
 
 
Fungus of Consciousness
14:42 / 20.03.08
Leigh,

You make some interesting points there!

My only counter to that would be that even when drunk explicit consent should be obtained, just as it should be when you're sober.

The best way to answer that would be from the other side. With those laws in effect a plaintiff would actually have to establish that they were drunk at the time of the incident in order for their proceeding to be upheld (provided that it was already established that there consent had been obtained) given, as I've said, consent could not have been given if they were drunk.
 
 
Jack Fear
15:01 / 20.03.08
As to the issue of drunkfuckery, which I have hitherto scrupulously avoided: I've got to admit, it's a trickier situation. But intoxication does, in fact, cloud the judgment.

If you're very drunk and someone is pestering you for sex, it may, in the heat of the moment, seem like a good idea to blow him, just so he'll fuck off and leave you alone. Then again, when one is very drunk it may, in the heat of the moment, seem like a good idea to piss on the electric fence.

I find it interesting that the proposed NSW law takes into account the impaired judgment of the man, as well. If you are drunk and horny, you may, in the heat of the moment, interpret a statement like "All right, all right! For fuck's sake! If I blow you, will you fuck off and leave me alone? Jesus Christ!" as a whole-hearted statement of informed and unreserved consent, whereas any Decent Normal Bloke, when sober, would more likely interpret it rather as evidence that his evening might be better spent in the company of a tube of handcream and a clean cotton rag.
 
 
Jack Fear
15:12 / 20.03.08
Also, regarding your contention elsewhere that "drunkenness is subjective": not in the eyes of the law it isn't. It's a simple matter of blood alcohol levels, which can, even in the absence of a blood test or breathalyzer, be estimated from the subject's body mass, the measure of alcohol consumed, and the amount of time over which it was consumed.

And if your defense is "I knew she was drunk, but I didn't know she was that drunk," then I'm thinking your case is on pretty shaky ground to begin with.
 
 
Fungus of Consciousness
15:14 / 20.03.08
Jack,

We're actually closer to agreement than I think you understand.

I'm not speaking out of both sides of my mouth because I actually support a more solid definition of consent. The problem is that the proposed law actually didn't do that at all, it only defined what consent wasn't (yes when drunk). So if we're going to have a definition of consent (which currently doesn't exist) we need to do better than attempting to define it by what it isn't. Furthermore, if we do define it, the definition needs to be very clear, otherwise, legally, anything falling outside of that definition could then have the effect of legalising certain forms of rape, or at least introduce defensive loopholes.

You're right in saying that harassment and rape are two separate charges. The only difference being that, as far as I know, you can't downgrade a rape charge to one of harassment once in court, they're completely separate charges for which guilt will be determined independently. Your statement "the simple act of threatening or coercing someone with the intention of having sex with them—even if there is no actual sex—constitutes grounds for a sexual harassment charge. If you actually go through with the sex, it's rape." is spot on. As far as I know, the definition of each is clearly enough defined that you couldn't argue that a rape case was actually harassment and vice versa because of their respective physical and non-physical natures.

You seem to be very concerned that a change in the laws will lead to a drastic uptick in the number of rape charges filed.

Yes, but is only half of the story. As I've said on countless occasions, where you introduce a mode of prosecution, you also introduce a mode of defence.

Are we getting there yet?
 
 
Fungus of Consciousness
15:23 / 20.03.08
Jack,

Yes it IS tricky!

I find it interesting that the proposed NSW law takes into account the impaired judgement of the man, as well.

No it doesn't. This was a point of contention also. I was just trying to dig up the exact wording, I'll try again soon, but basically the effect was that perpetrator would have to assess what would reasonably be considered intoxication, even though he himself would have been similarly intoxicated.

Like I said, I'll do my best to dig up the exact wording and get back to you.
 
 
Jack Fear
15:39 / 20.03.08
where you introduce a mode of prosecution, you also introduce a mode of defence.

What defense? "I was too drunk to recognize her failure to give proper consent"?

I don't see that one flying in court, frankly. Ignorance of the law does not constitute a defense, and never has. And anyway, in those cases of heat-of-the-moment consensual drunksex, I think it's safe to assume that the percentage of women who will retroactively withdraw consent rather than simply filing the evening under "things I regret doing and will never do again" is probably vanishingly small.

And for those women who do feel strongly enough about it to file charges, I say let 'em be heard. Maybe, as BRB said elsewhere, they're mostly assholes. Or maybe there's a legitimate grievance; maybe we really do need a lemon law for sexual encounters.

I dunno. I'll tell you one thing: it'll be a devil to prosecute that vanishingly small number of cases, and if, after the wheels of justice have ground through a few of them, it's entirely possible that additions or provisions to the law will be made accordingly.

But I'm thinking that those decisions should be left for the appropriate time, and that possible, potential future it-could-maybe-happen scenarios are no reason to scuttle the law before it's implemented.

Again, I think you're creating a problem where there is no problem; the law is probably not perfect, but I think that even in its current, imperfect state, the benefits far outweigh the dangers.
 
 
Fungus of Consciousness
15:46 / 20.03.08
No Jack,

The defence of reasonable doubt over whether she was actually drunk.

I'm off for Easter, see you when I get back.

Happy Easter.
 
 
Tuna Ghost: Pratt knot hero
03:20 / 21.03.08
I've proposed a situation that is fairly innocent and I'm kind of made to feel a bit sleazy!

For Fungus and anybody else: this is not, it simply, unequivacably and absolutely, is not a sign that some sort of injustice has occured.

Sometimes you will see sleazy or ugly things that almost mirror something you find acceptable and this will make you feel uneasy. It's okay. It doesn't make you a bad person. Ignoring that feeling and denying any responsibility to properly investigate probably does, though, so make sure to avoid that if you're interested in being a decent person.

See here for an example of someone coming to the harsh realization that a previously accepted behavoir might actually be creepy and not at all as harmless as previously thought.
 
 
Fungus of Consciousness
11:10 / 23.03.08
Thanks Tuna,

A small light in a dark night!

It may have been one of the purposes of proposing the idea in the first place..... but it certainly wasn't going to be explored in a faulty frame of reference......
 
 
HCE
14:42 / 23.03.08
In the Barbannoy thread, you said you had already replied to the issues taken with your statement that consent could be withdraw after the fact. Can you point me to where you believe you did that?
 
 
Fungus of Consciousness
06:14 / 24.03.08
brb,

I'll do it now.

If the law had been enacted then the withdrawal of consent after the fact would have then been possible under those laws. It might be reasonably argued that the incidence of this happening compared to legitimate cases of rape would be quite small, but you don't introduce laws on a "she'll be right mate" basis. Furthermore, before the introduction of a law, we have no way of knowing how many people will utilise it as either a mode of prosecution or defence. Introducing faulty laws that seek to close a loophole by introducing two new loopholes just makes for more injustice, not less. I don't see what is controversial about this. Nor do I see how it makes me sexist by pointing it out.

Cheers.
 
  

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