Wait what? No-one has the right to murder to unless you tell them no. I’m sorry I don’t understand this argument at all. The absence of a no is not a yes. :-t
CF - I don’t have a good answer for you. I understand and respect the principle you are defending. I think I understand what bad scenarios affirmative consent is designed to protect against, but do you really think the law before affirmative consent went so far as to give anyone else the right to your body? Seems like a bit of an overstatement. I hope you can understand why I don’t think it’s affirmative consent is perfect. I just don’t know - that’s really my official answer. Here’s my best response though -
I’d say this is precisely why we have trial by a jury of our peers rather than try to cover every corner case in statute. A group of men and women hear the facts (let’s assume that there is a videotape of the encounter so there is no dispute as to facts). They apply their life experiences to decide these tough cases. It won’t be perfect but it’s a pretty good system. For two people on their first few dates there’s one set of expectations. I’d say there should be a explicit/implicit Yes for every step forward in their physical relationship, and a No stops it. I’m fine with the intent behind affirmative consent. In the case of two people who have a long term loving relationship I think there are certain implied parameters based on their history. That doesn’t mean you can disregard a No, it doesn’t mean you can force someone to do something, take advantage of their incapacitation, etc. But I think people can reasonably make certain assumptions based on their history, the mood at the time, etc.
Please don’t think I can write a rule book, but I’d have to trust a jury to figure it out. I think that is why many laws refer to “a reasonable person”. I’m sure there’s some sensible middle ground and to be honest you’re much better informed on these issues than I am. I thank God that no members of my family have ever been raped, but it probably makes me blind to some issues.
Honestly, there are many laws that I disagree with, but I mostly just shrug my shoulders, try to stay out of trouble, and hope society doesn’t collapse into a pile of rubble after disregarding my infinite wisdom -
In case this hasn’t already been posted…
University Of Virginia Legal Costs Mount After Discredited Rape Story
I found this bit interesting…
Marie, under the No Means No rule, dstark has the right to stick his **** in your **** unless you tell him No and keep telling him No. He has the right to use your body unless you tell him No first. He doesn’t have that right to your front yard, because we have private property and trespass rules, but he does have that right to your body. And if you try to accuse him of rape, he can say “She didn’t say No,” and he’ll skate right out of court a free man.
Some people say, you shouldn’t have to say No. Dstark should have to keep his **** to himself until you tell him otherwise. But if you accept the No Means No, then dstark has the right to your body, and you have to act affirmatively to stop him.
That is only because murder is against the law. Sex is not (generally) against the law. That is why there is a difference.
No. No. No. There are what ifs and they are very important. First, what is our relationship? If it is non-existent I’m calling the cops and Dstark will be arrested. This, I know for sure. Now, if we were in a relationship and in bed together or both drunk after a date and can’t really remember much or I don’t tell anyone anything for 6 months it gets much harder. But, he is not automatically absolved anywhere just because I was quiet. It is never did you say no? Oh well, then he had the right to whatever. However, I will need my ducks in a row at that point if I want to proceed.
Rape is against the law, too. Granted, it is often but not always more difficult to prove than murder if you have a body. If not, that’s tough too. But, it happens.
I agree with this ideal, but I think it is realized better in an affirmative consent regime than in a No Means No regime. I don’t see how affirmative consent is even going to matter in a longterm relationship. In the physical/real property realm, we have ownership, and trespassing rules and so forth, but two people who have a loving friendship work out implied parameters. When I go over to my best friend’s house and walk right in the door, he doesn’t call the police because I’m trespassing, and I know he won’t. Legally, I suppose I’m trespassing, but I don’t worry about that because I know our relationship.
But a stranger doesn’t have the right to walk into my friend’s house, or mine, and I don’t see how the same sort of rules wouldn’t work for body autonomy. I’m not going to call the police if my husband engages in some intimate practice without getting explicit consent first, of course not, but everyone else should know that they have to get my explicit permission first (which they won’t get).
You know? I was recently in jail. 
I have not read all the posts fully, but this sentence stuck out to me because it is so true.
In the corporate cases I mentioned earlier, every plaintiff lost. And the issue was very similar to what colleges are seeing in the grey area cases - it was not that the female did not say no; it was she was actually saying yes and doing everything action-wise to back up the yes, then after the fact presented the “I was drunk and that was not my intent” argument. Maybe these women sincerely meant and intended not to act that way and to indicate and say no, stop or something along those lines, but they never did. Worse, they actually were acting and saying yes.
It is very possible the underlying problem was the women could not handle their alcohol and because of this they were saying and doing things they did not mean. But, the juries (I believe a couple were summary judgements of some sort) were pretty clear that not being able to handle your alcohol was not the males’ issue to figure out, and the males were deemed to have had a reasonable understanding of the women’s actions and words, which was to have sex, regardless of the females’ real intent.
In short, the males were not held responsible for a female ingesting something that may have changed her behavior to be opposite of her stated intent. And where the technicalities played a role is none of these females acted beyond the normal tipsy drunk, so none were incapacitated, all were functioning under their own power, all were talking to others as well, and all took positive actions in conjunction with the male to get to be alone together.
I do have some rather basic, free advice for such females and males, in college or otherwise - if you cannot handle your alcohol, and it makes you do things you do not intend to, then best not drink. Easiest way to avoid bad situations of which you might be an instigator of or a willing participant in something without the slightest intent of ever being as much. Cannot blame someone else for that after the fact.
Re Post #4026:
Actually, you are not legally trespassing at all walking up to the friend’s door.
In business, and I know it exists outside in the real world, there is a concept that no one really even thinks about called implied, or some call it prior, permission - not sure what they call outside of business. And we use it all the time to expedite business without fear of trespassing or having to rewrite contract terms to cover every exception that occurs, which is very expensive to do.
Specifically, your example is not correct or else the Fedex man and girl scout with the cookies would be trespassers. They are not, however.
The walkway was expressly built and is used to reach the front door, and the front door is the standard place where packages are left and cookies are delivered. And more importantly, the door bell is at the front door and is used specifcally to signal that someone is at the door.
Therefore, there is implied or prior permission given to anyone to reach the occupants in the house to use the walkway and the door bell at the front door. That is not trespassing, not even technically.
However, it is trespassing if: 1) there is a sign that says do not come to the front door and do not walk on walkway, 2) your friend gives you a warning and says to no longer step on his property, but you do it anyway, or 3) you reach your friend’s door and he asks you to leave, but you do not. But even then only after giving you an adequate amount of time to leave (enough time to walk off the property) can he then say you were trespassing if you have failed to do so in that time.
I walk up to my friend’s house, enter his kitchen, and rummage around to see if there’s something tasty to eat while I wait for him. I hope the FedEx guy doesn’t do that at my house when he needs my signature and I’m not home. I’m pretty sure Fedex guys don’t have implied permission to enter my house.
This requirement to say yes or no presumes one is able to reasonably say so. This takes us back to the drunk issue. Or even a mind clouded by alcohol.
What if this were your straight son and a male who wanted sex? Your kid had been drinking and was impaired, physically and mentally. Would you say, well he didn’t clearly say No? Would you settle for, “Well he seemed to want it?”
Would you be so quick to say, these things happen, get over it? You shouldn’t have had that last drink?
Would you post the sort of comments made about young women?
I am sitting in a rural farmhouse waiting for the zombie invasion.
Still I am concerned about the next generation. When Cardinal Fang takes the time to do all that research and write all those excellent posts, it isn’t just for those still posting here. There are high school students reading. Some have shown up from time to time to participate. Those posts have the potential to have a far-flung positive educational impact.
Cardinal Fang: Thank you!
4031
Since I have a gay son, I’ve been trying to think about this issue in gender neutral terms, but find it very difficult. When he was first in college, I was very concerned he would be taken advantage of sexually because he was pretty naive. If he attended a party and ended up on the floor drunk out of his mind, that did not give someone the right to **** him, no matter what “signals” he might have been giving out earlier in the evening.
I first started posting on this board more than 10 years ago as a counter voice to parents who started annual threads with titles like: “OMG - my kid got assigned a gay roommate and is now at great risk… what can we do?” My opinion was that the gay kid was the one at risk. and statistics certainly backed me up. There haven’t been any of those threads in a number of years. Campus culture has changed dramatically in that regard. I imagine 10 years from now affirmative consent will be a given. No one will see it as worthy of discussion.
It’s difficult for me to see rape in gender neutral terms because heterosexual white males are sill so advantaged in our society. However, a lot of our kids don’t take this advantage for granted and that really changes culture. We already see this on some campuses. I like it a lot.
No one has a “right to your body.” Think about it, if a medical procedure is recommended you can say yes or no. If you say no, that is the end of it (or can be the end of it). But if you say yes, the yes alone is not good enough - you have to sign consent papers. You sign for your prescriptions, you sign consent forms everytime you walk into a physician’s office. “Yes” to someone messing with you physically isn’t meaningful without signed consent. No is no - you can refuse medical treatment, you can refuse prescription drugs, you can refuse dental treatments, you can even refuse commitment for mental illness unless someone goes to the courts and supersedes your legal rights. You can’t have power of medical without a legal process. People implicitly have a right to their body - you have the right to say no. You can say yes, but you need to sign a consent - something that isn’t ever going to happen between two drunk young people or a rapist and a target. Legally my gut tells me that “no” has more legal power behind it than a “yes” and in the affirmative yes legislation the legislators added the non-verbal yes language which really waters down whatever they were “intending” (there’s that word again!).
The issue of consent is often linked, on legal sites, to wills or contracts. Just saying “Yes” isn’t enough. And certainly, just seeming to mean yes, when not of full, sound mind, isn’t good enough. The will can be tossed, the contract nullified.
This came up this am. Apparently, the college is taking some moves (perm or temp, I don’t know) to restrict underage drinking. In the linked letter: “While the review [of alcohol policy and social event regulations] is underway this spring, no events with alcohol can be held in any Greek or program houses. Student organizations in good standing can host events in which alcohol is served to students aged 21 and over, in approved campus spaces. All such events must be registered with the Student Activities Office. We are prohibiting parties with alcohol service in residential areas. Approved events will have appropriate security and safety measures in place.”
It does. A verbal “no” effectively overrides any signed consent form, any signed unenforceable contract, and even many enforceable contracts because most enforceable contracts are not worth the costs to litigate.
As in your example, a signed consent form is not a codification, but really only a verification that your Yes was not coerced and that you understand the terms of what you are about to do. A patient could sign all the consent forms in the world, but at any time the patient can say no, and the procedure, must be stopped, in as safe a manner as possible. A consent form does not force anyone to have any procedure.
Non-enforceable contracts in business are agreements, which do not involve services or monetary restitution of any kind, but help facilitate a business transaction. If the party who initially gave the “Yes” decides to stop and says “No” at some point, the other entity cannot force them to continue, even if something were signed. A verbal “No” effectively kills it and that signed document means zilch.
I have thought about it quite a bit since poetgrl first brought up the concept. My almost immediate reaction was all the instances, with regard to medical procedures, where women do not have autonomy of their bodies, don’t have privacy rights. Since this is impossible to discuss without getting into what is deemed political on this board, that’s all I’ll write on the subject. It would be a shame for the thread to be closed at this point but I did feel compelled to respond.
adding: In my opinion, when one looks at “body rights” through the male gaze and through the female gaze, the view is quite different. Male gaze isn’t limited to males.
Alh, thanks for sharing another perspective.
^and all males aren’t blinkered by male gaze. 