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"Yes means yes" consent policies getting a resounding "NO" from US courts


Mr. Ambien

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'Yes means yes' policy coming under fire from judges

Judges across the country are saying “no” to the “yes means yes” standard of affirmative consent for date rape.

The legality of the standard – adopted on California and New York campuses by state legislatures and in effect on numerous other colleges throughout the country – is in question following a series of recent rulings that cite a lack of due process.

“These decisions are harbingers,” said John Banzhaf, a professor at George Washington University Law School and a public interest lawyer. “It does take time for new ideas to percolate through the system.”

Under the standard, the accused, typically a male, has to prove he obtained consent, even if neither party remembers what happened. The standard forces the accused to prove his innocence, rather than be proven guilty.

Proponents of the “yes means yes” law claim it’s a necessary step to combat sexual assaults, which some studies suggest occur at a high frequency on campuses.

But judges in California, Tennessee and Virginia say it goes too far.

A student expelled from the University of California-San Diego had an “unfair” hearing, Superior Court Judge Joel M. Pressman ruled in July. The John Doe accused in the case said he was unable to cross-examine his accuser and other witnesses. He also said he was forced to submit questions to a hearing panel in advance, and many of his questions were then rejected. Pressman agreed this was a violation of his due process rights.

A student found guilty of sexual misconduct by the University of Tennessee because he couldn’t prove he obtained verbal consent had his verdict overturned by a Chancery Court judge on Aug. 4.

A student expelled from Washington and Lee University for alleged sexual misconduct will be allowed to continue with his gender bias lawsuit against the school, U.S. District Court Judge Norman Moon ruled on Aug. 8. In the lawsuit, a Title IX officer at the school is quoted during a presentation she gave to the woman who later accused John Doe. The Title IX officer is alleged to have said “regret equals rape” and “went on to state her belief that this point was a new idea everyone, herself included, is starting to agree with.” Shortly thereafter, an allegation of misconduct was launched against John Doe. The Title IX officer played a significant role in the investigatory process.

A right to due process at state universities may seem like a novel concept, but Banzhaf said the fourth amendment protection was never intended to apply solely to the court system.

“The Constitution trumps everything else,” he said. “So no matter what the Department of Education or Department of Justice suggest, regardless of what a state’s statute provides, or what the University decides, the Constitution trumps it all.”

The Supreme Court somewhat settled the due process question in its 1976 Mathews vs. Eldrige decision, a case cited by Chancellor Carol L. McCoy in the University of Tennessee decision.

“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner,’” McCoy wrote. “Due process is flexible and calls for such procedural protections as the particular situation demands.”

Banzhaf explains that means that not every element of protection for the accused must be provided in every case. A “minimal amount of procedural protection” – such as the right to cross examine witnesses – must be provided in all cases, however.

The University of Tennessee announced on Monday that it would implement a new sexual misconduct policy, to take effect on Aug. 19. The changes reportedly involve “easy-to-read” mandatory reporting charts and making prohibited conduct “front and center” in training manuals. Nothing about expanded due process is noted.

That could change, however.

The American Bar Association on Aug. 4 adopted three resolutions focusing on campus assaults and gender-based violence. Some of the language includes “assuring that the rights of those accused of such acts are recognized, respected and protected.”

These protections for the accused are vital from both a fairness perspective and a financial outlook, Banzhaf said. Not only can universities be sued by those accused of assaults whose due process rights may have been violated, Banzhaf added, but administrators can also be sued and possibly held individually liable.

“Colleges who are smart are going to look at these cases and say maybe we should start thinking about this when we craft our policies,” he said.

http://www.foxnews.com/us/2015/08/11/yes-means-yes-policy-coming-under-fire-from-judges/

The big proponent of the 'Yes' means 'Yes' policies is that it presumes guilt of someone who can't prove she said "Yes" when she makes a claim of rape. Therefore, a claim of rape = automatic guilt. Sounds logical... not. It comes as no surprise that it's schools/universities typically enforcing these policies. They're pretty good at taking a dump on the rights of one group of students for the feelings of another group.

Of course, this type of ridiculous political correctness as per the usual with the court of public opinion disregards the rights of the accused for the feelings of the accuser. Thankfully the real justice system is putting a stop to this.

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I wouldn't call that a 'resounding NO!'. Here's the most salient passage from the article:

“These decisions are harbingers,” said John Banzhaf, a professor at George Washington University Law School and a public interest lawyer. “It does take time for new ideas to percolate through the system.”

This is a very new legal standard proposed this time last year, approved in November, put into effect just last month.

As usual it's good to get a second viewpoint.

Earlier this month, a Wall Street banker turned philosophy lecturer launched We-Consent, an app to help young people document when they’ve given one another explicit permission to, well, be explicit with each other. It follows Good2Go, the affirmative-consent app that was launched last September but removed from the Apple store within weeks, on grounds of “objectionable” content.

With We-Consent, both participants are encouraged to record video memos, naming themselves, the date, time and place they’ve given sexual consent, logging it for seven years in the event that one of them finds themselves accused of non-consensual behaviour afterwards. Immediately, most people over, say, 25 might find themselves questioning the app’s obvious flaws: first off, who would ever actually whip out their mobile to log the crucial moment before that crucial moment? What can filmed mutual agreement possibly mean when one or both parties have the right to change their un-filmed minds at any given point? Why is the basic human responsibility to understand the premise of yes or no being outsourced to an app?

But despite the ridicule both apps received, the consensus on campuses suggests that students aren’t so much facing a crisis of consent as standing a crisis down: even if the very modern ways in which consent awareness is being raised seem dumb and flawed, it’s not young people who are too stupid and too irresponsible to understand that no means no and yes means yes – it’s the generations before them. That much, at least, is clear from the reporting of cases where high-profile offenders have claimed “blurred lines”.

Several million sexual consent kits and contracts were distributed across campuses in the US by the Affirmative Consent Project last year. The rationale might seem bizarre and unromantic, but consent workshops are now mandatory for freshers at Oxford and Cambridge universities in the UK; the National Union of Students expects the majority of first-year British undergraduates to have sat in on one. This month, MP Caroline Lucas tabled a bill in parliament demanding compulsory sex and relationships education in schools, with clear guidelines on the subject of consent. In the same week,a blog on the “Consent is Sexy” campaign was shared 131,000 times on Tumblr. Clearly, sexual consent demands clarity.

As last year’s Canadian ad campaign, More Than Yes, put it: “Real consent is mutual and sure. It is not muted, frail, hesitant or afraid. It is never uncertain, assumed or silent.” To be sure: the absence of no isn’t a yes. Being too drunk, too high, already naked, half-asleep, into this thing but not sure about that, turning away, feeling guilty or obligated isn’t a yes. All of these go-to archetypes of students’ sexual experiences have been cited as examples of when consent seems confusing or awkward. It isn’t. If there’s ever doubt, stop. The bleak alternative is that you risk raping someone.

As of July, affirmative consent – the “yes means yes” rule – is law across a quarter of US states, from California to Louisiana, and it is poised to be rolled out across the country. Governor Andrew Cuomo, on signing New York state’s affirmative sexual consent bill this month, asked his audience: “Why is sex assault on college campuses such a problem? Because we let it go on too long.” Emma Sulkowicz, who graduated from Columbia University, New York, in May, became a powerful case in point: in her second year, she filed a police report against a student alleged to have raped her. The case dragged on; the student wasn’t expelled. In protest, Sulkowizc carried a double mattress around with her on campus every day for a year, because: “I [wanted] people to see how it weighs down a person to be ignored by the school administration and harassed by police.”

Professor Stephen J Schulhofer, who co-wrote the amended rape law, told the New York Times that the case for legislating confirmative consent was compelling: “Whether millions of people drive 65 miles per hour despite a 55-mile-per-hour speed limit, the law still saves lives. As long as people know what the rules of the road are, the overwhelming majority will comply with them.”

Last year, the Spectator scoffed at the idea, asking: “Do adults really need to be taught about the moment of ‘consent’?” The suggestion, posed under the banner of common sense, is that all the talk of needing to clarify consent is a daft generational trend, one where young people are complicating the simplest, and oldest, of human interactions with stuttering indecision. It is tempting to believe that the campaign for affirmative consent is unnecessary – after all, plenty of people have and will continue to have sex without mutually, verbally, clarifying each step. But when a reported third of British women on campus have endured sexual assault or abuse, and cases ofinstitutional coverups and inadequacy have been alleged against Ivy League universities, common sense would suggest that consent hasn’t been talked about loudly or frequently enough.

On those terms, the march on affirmative consent, then, is also one for social progress. It’s unimaginable to think, 40 years from now in a world post-Savile and post-Cosby, that dozens of this decade’s most powerful men will be exposed for inflicting years of sexual abuse on women in the way “the culture of the 1970s” appeared to allow so many of them to.

Earlier this month, the NYT published details of a deposition against Bill Cosby. In it, he claimed that drugging a woman with Quaaludes – which she apparently knew about – and then having sex with her was consensual. That bringing a woman drugged on Quaaludes to orgasm was further proof that it was so. (Should it bear pointing out in biology 101 terms: arousal and rape aren’t mutually exclusive – sexual stimulation can occur whether consensual or not.)

Legally speaking, you can’t call Cosby a rapist. But that he casually claims, in his terrifying arrogance and delusion, that his methods have anything to do with normal sexual consent is warped – and he doesn’t exist within a moral vacuum. This is why, however basic and obvious the conversation over consent seems, it’s evidently not basic and obvious enough. Be it via apps and viral campaigns, student workshops or manuals, until the boundaries of consensual sex aren’t blurred, the question of whether we need to talk about consent remains: yes, yes we do.

http://www.theguardian.com/lifeandstyle/2015/jul/27/sure-sex-affirmative-consent-apps-yes-mean-yes

I think I'd agree that a blanket 'yes means yes' law swings things a little too far in favour of the accuser, but on the other side the accused has had the upper hand for way too long in a legal system that requires proof of guilt, considering these crimes more than any other tend to take place one on one behind closed doors.

But maybe a simpler way of putting it is it's impossible to reduce these things to slogans/soundbites of yes vs. no when human sexuality is built upon uncertainty and exploration.

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Of course, this type of ridiculous political correctness as per the usual with the court of public opinion disregards the rights of the accused for the feelings of the accuser. Thankfully the real justice system is putting a stop to this.

Ambien, you might want to stop... you could offend someone and. and. and

In all seriousness, rape is a terrible issue to deal with in the courts. You've got the (maybe, maybe-not) victim, who most likely can't prove anything if they were raped, and the (maybe, maybe-not) offender, who most likely won't admit to anything if they did something. You've got the families involved and the social media sphere, which both will want to get their input and try to force their hand on the decision.

I can understand why these colleges would want to do this, but in reality it just takes "your word v. mine" and biases it towards the accuser, which, with false rape accusations, would do more harm than good.

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I wouldn't call that a 'resounding NO!'. Here's the most salient passage from the article:

This is a very new legal standard proposed this time last year, approved in November, put into effect just last month.

As usual it's good to get a second viewpoint.

http://www.theguardian.com/lifeandstyle/2015/jul/27/sure-sex-affirmative-consent-apps-yes-mean-yes

I think I'd agree that a blanket 'yes means yes' law swings things a little too far in favour of the accuser, but on the other side the accused has had the upper hand for way too long in a legal system that requires proof of guilt, considering these crimes more than any other tend to take place one on one behind closed doors.

But maybe a simpler way of putting it is it's impossible to reduce these things to slogans/soundbites of yes vs. no when human sexuality is built upon uncertainty and exploration.

There's multiple facets here to argue..

As far as US law goes, I wouldn't even use the term "blanket".. any public policy that assumes guilt until proven innocent is going to get wrecked in court. Hence why "Yes means yes" is getting a resounding "no". Another thing.. the premise upon it is "yes or nothing". Not "yes or any other type of consent", which is current rape law already. Not a single person I've fracked I've ever had to literally get a "yes" answer from. There are already rape laws, and they already have gone through the gauntlet of legal challenges. Honestly, there's nothing wrong with them as it is. Contemporary attempts at improvement clearly disregard the fact that the accused have rights too. Any attempts to chip away at this have been and should be met the same way these policies have been met, running face first into a brick wall.

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Rape is a disgusting, terrible, heinous crime. It's one of the worst things an individual can do to another. Unfortunately its difficult to prove the guilt of a rapist in court a significant amount of the time. That being said, I'm not in favor of anything like this, that takes away the rights of the accused. I've seen an absolutely absurd amount of false rape claims, so I could see this putting a gigantic amount of innocent folks in jail. This kind of thing would/will cause much more damage than good IMO. That and it completely goes against our current legal systems ideology.

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Huh, and it actually is FOX News this time...

But getting a 'yes' isn't valid anyway, what if one party changes their mind? Then it becomes a 'no' and the 'yes' beforehand means nothing. Of course, the innocent until proven guilty part should make that obvious, but still, it's a nuance proponents of the policy aren't grasping.

And the "regret equals rape" thing?! Wow, just wow. How the hell is anyone supposed to know the other party may or may not regret having consented to sex after it's happened? Someone can only stop before or during an act, not afterwards.

I wouldn't call that a 'resounding NO!'. Here's the most salient passage from the article:

This is a very new legal standard proposed this time last year, approved in November, put into effect just last month.

As usual it's good to get a second viewpoint.

http://www.theguardian.com/lifeandstyle/2015/jul/27/sure-sex-affirmative-consent-apps-yes-mean-yes

I think I'd agree that a blanket 'yes means yes' law swings things a little too far in favour of the accuser, but on the other side the accused has had the upper hand for way too long in a legal system that requires proof of guilt, considering these crimes more than any other tend to take place one on one behind closed doors.

But maybe a simpler way of putting it is it's impossible to reduce these things to slogans/soundbites of yes vs. no when human sexuality is built upon uncertainty and exploration.

What's that, using multiple sources to understand an issue?

But the app certainly doesn't remove the possibility of withdrawing consent, even if making the act of consent so deliberate should remove a majority of the doubt from anyone considering sex.

I got a kick out of the speed analogy too. If you're going to use it as a comparison and then say the overwhelming majority will comply then clearly you don't drive very much. Even the most conscientious people will go over the speed limit fairly regularly, even if only by 5 kms or so. Even those who don't ever want to go over have surely done so since you can't ever maintain the exact speed limit and would have to drive under the limit and slow down well before speed zone changes. Now apply that to consensual sex.

As the article puts it though, "If there's ever a doubt, stop." Seems simple enough, doesn't it?

I do like your last comment though about sexuality being built upon uncertainty and exploration. That sums up pretty much everyone's first time, and probably a fair amount of times after that.

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Presumption of innocence is one of the most important pillars our common law tradition, and any deviation from that needs to be carefully scrutinized.

True, however, suggestion of guilt is what the social sphere perceives. Even if the accused is cleared in the courts, it still puts a mark on them for life.

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What an absolutely ridiculous concept. The most terrifying part in my opinion is the "regret equals rape". Would there be a time limit on that? Would the reason for regret make a difference? Or is it just as simple as a woman has sex with a guy, her boyfriend finds out about it two years later, she now regrets the act therefore it is now rape. Really, where does the line get drawn? It's insanity.

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Re-reading this post just makes me feel awkward. Enter at your own discretion.

What an absolutely ridiculous concept. The most terrifying part in my opinion is the "regret equals rape". Would there be a time limit on that? Would the reason for regret make a difference? Or is it just as simple as a woman has sex with a guy, her boyfriend finds out about it two years later, she now regrets the act therefore it is now rape. Really, where does the line get drawn? It's insanity.

Probably before or at penetration (for man-on-other) or immediately after unless you can find traces of drugs that were in the victim's system during the act of ****ing (sorry, couldn't figure out a better word).

It would be a very strenuous process no matter what though.

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"OK, we just have to get this waiver out of the way, can I just get you to initial here and here, and sign at the bottom at the X. OK then, we're good to go, how would you like to get started?"

I wonder if I was the only one who was thinking Demolition Man is our future (but the lawyer/notary thing works too):

sL18Vly.png

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I wonder if I was the only one who was thinking Demolition Man is our future (but the lawyer/notary thing works too):

He could also double as a cameraman :P

We should just have a thing on the wall where all involved parties have to put their hand on the wall to consent. It reads the palm in case of fear/trauma or unresponsiveness due to drugs. Problem solved.

And have that thing pretty much everywhere, because people do it pretty much everywhere.

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He could also double as a cameraman :P

We should just have a thing on the wall where all involved parties have to put their hand on the wall to consent. It reads the palm in case of fear/trauma or unresponsiveness due to drugs. Problem solved.

And have that thing pretty much everywhere, because people do it pretty much everywhere.

voice activated chastity belts? But then again after a few beers yes probably sounds more like yesurigusso or let's #(#-?!..

it probably wouldn't work.. Back to the old drawing board.

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Re-reading this post just makes me feel awkward. Enter at your own discretion.

Probably before or at penetration (for man-on-other) or immediately after unless you can find traces of drugs that were in the victim's system during the act of ****ing (sorry, couldn't figure out a better word).

It would be a very strenuous process no matter what though.

I'm sorry. Your reply to my last post makes very little sense to me.

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Rape is a terrible crime and one of the hardest to prove. Nothing sucks more than being a victim. Unfortunately our justice system is not perfect, however anything that overrides that so clearly overrides the constitution cannot be allowed. There are other types of heinous crimes out there, get those that are accused are still considered innocent until proven guilty. No law can override our most basic rights.

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New Details Emerge in 2012 Amherst College Rape Case

A former Amherst College student has filed a lawsuit against the school, claiming he was expelled after being falsely accused of rape in 2012.

According to the Boston Business Journal, the plaintiff, listed in the court filings as John Doe, claims he was expelled because administrators wanted to show they were tough on sex offenders.

In a "Kelly File" investigation, Trace Gallagher reported tonight that John Doe's attorney discovered text messages from the accuser that suggest not only did he not attack her, but it appears she may have sexually assaulted him.

He said the text messages show the accuser began texting her dorm counselor and another male student she invited over to "entertain her" shortly after the alleged sexual encounter.

Gallagher said the accuser graphically detailed her sexual encounter with her dorm counselor in the text messages and "joked about the possibility of having sex with two men in one night."

Gallagher stated the other male student, who came to the accuser's dorm later that evening, confirmed they had sex.

"When I arrived, [the accuser] did not appear in any distress. To the contrary, she was friendly, flirtatious and spirited," an affidavit by the accuser's male friend reads. "At no point during this period of time did [the accuser] appear anxious, stressed, depressed or otherwise in distress."

Gallagher said the accuser was friendly with John Doe when he returned to her dorm the next morning to retrieve his cell phone that he left behind the night before.

The plaintiff is currently in "academic limbo," as his transcripts state he was expelled for "disciplinary reasons," Gallagher asserted.

Gallagher said the male student wants to remain anonymous because he doesn't want "the case to follow him on Google."

http://insider.foxnews.com/2015/06/16/megyn-kelly-new-details-revealed-amherst-college-lawsuit-over-2012-rape-case

Another example of how these piss poor policies work. This is all tied to provisions in Federal legislation and money. Schools are obligated to investigate ALL instances of rape/sexual assault/sexual misconduct. If they do not, then they lose funding. They end up installing kangaroo courts that din't resemble anything remotely like the justice system. Further more, SJW's end up on the boards that investigate / adjudicate these cases. This case is a prime example of what happens.

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Another example of how these piss poor policies work. This is all tied to provisions in Federal legislation and money. Schools are obligated to investigate ALL instances of rape/sexual assault/sexual misconduct. If they do not, then they lose funding. They end up installing kangaroo courts that din't resemble anything remotely like the justice system. Further more, SJW's end up on the boards that investigate / adjudicate these cases. This case is a prime example of what happens.

The irony is, the liberal SJW education system in the US used to teach rationality, especially with approach to court cases, emphasizing the 12 Angry Men approach of scrutiny and keeping one's feelings under control for more favouring of the "facts" that can be established. You can surely say liberal society has all but abandoned that, as it contradicts a "reaction/feelings" bias. One step forward, two steps back.

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