What do you tell your sons about consent?

Parent Cafe
541

Thanks for the useful analysis, al2simon.

In honor of the original thread topic, I would like to post what I personally would tell a son about consent, if I had a son. And before I start, yes, I am a charter member of Overthinkers Anonymous.

So, first, I would tell my son that my genealogical research on our family (at hobby level) has shown me how much we are all embedded in our historical context, without being really aware of it. I don’t know that I would exactly call it the “forces of history,” but people made decisions which seemed like perfectly rational, independent decisions (to them) at the time, and it is only when it is viewed through the longer lens of history that one sees how much they were acting in according with historical or cultural movements. I have even seen the historical forces acting on me, since enough time has passed to change the milieu. Then, I would say that my research has also shown me this: anything that our society permits to happen–to anyone–will eventually happen to someone they love, or someone they would have had cause to love, if they had lived contemporaneously. Accordingly, we should do whatever we can to prevent harm and injustice, both.

Then–provided he is still awake–I would talk about the societal circumstances that exist now, and the changes that have been rapid on the time-scale of human adjustment, legally and socially. (This was alluded to by another recent poster–sorry for not providing a specific reference.) In a past era, the default assumption about a random college woman’s willingness to have sex was “probably not.” This has now shifted (in my view) to “maybe.” This creates complications on both sides, and I don’t think that university policies have caught up with it. There is the problem that women can be raped by men who don’t realize that they (the men) did not gain consent. There is a smaller number of men who realize they don’t have consent, but think it is likely that they can get away with rape, because the presumption of a hearing board is not going to be “no,” it’s going to be that there needs to be proof of rape. (And appropriately so.) Some university policies are aggressively crafted to counter this. The point of this part of the discussion would be to try to explain how universities have reached their current stance, and–I would hope–to counter support for the anti-feminist backlash, which does exist.

Then, much more personally and driven by ethics, rather than by policy or political climate, I would tell my son that I still prefer chastity before marriage and fidelity afterwards. But I seriously believe that this is a decision that each person needs to make for him/herself. I would say fairly emphatically that if my son did not know a woman well enough to know whether he could trust her, he definitely did not know her well enough for sex (no matter what he had decided). Finally, I would encourage him be aware of situations in which a woman he knows might be vulnerable to a non-consent situation with some other young man, and to do his best to protect the woman.

(Hypothetical QMSon would probably stay with me through all of this.)

542

@QuantMech While you’re telling him that - be sure to show him some of the UCSB Isla Vista party videos. Context is everything.

543

The “know well enough to trust” standard, while excellent in theory, is not much protection. James Bond may sleep with women he knows he doesn’t trust, but my personal experience, and that of my friends, is that when we were in college we utterly trusted any attractive woman with whom we had had ten minutes’ conversation (she seems really nice!) and who was possibly willing to have sex with us. The walking-libido, thinking-with-your-asterisks thing is overblown, and does not mean that every young man is a potential rapist, but I fear that it does mean that every young man, or almost, is a potential trusting fool.

Also, some factors that cause problems here: The default assumption about a random college woman’s willingness to have sex, at least assuming some level of mutual attraction, no issues around fidelity to another, and you are not meeting in the context of a conservative religious group, is “probably,” not “maybe.” But the default for first-year women as a subset is harder to determine, and is likely to be dynamic. In addition, knowing that a woman will probably have sex with you doesn’t tell you exactly when she’ll probably have sex with you, and that, in and of itself, has enormous potential to generate sexual assaults by men who don’t mean to be sexual assailants.

544

All good points, JHS. By writing about the “default” assumption, I did not mean that my [hypothetical] son should make that assumption! I just meant that it is my perception that it has become the default assumption of the members of university hearing boards, as well as many people of all ages walking around my campus.

The default assumption of “probably” is in my opinion, even worse than the default assumption of “maybe,” from the standpoint of offering any protection to a woman who brings a charge of rape. If the default assumption were “absolutely not,” which is pretty close to the default assumption about someone taking $500 from someone else’s wallet, I think the level of protection would wind up being higher.

With regard to your first sentence in #542, I suppose I was assuming that hypothetical QMSon would have trust issues. :slight_smile:

patertrium, your post #541 made me laugh, without making me want to check out the videos!

545

@QuantMech We actually did watch one of the youtube videos - me and the boys. Fore-warned is fore-armed. They seemed to find the drunken slurring and slobbering kind of gross. Better to see it with dad than seeing it for the first time with the herd.

546

Never had this kind of conversation with my S. Taught him to be a human being. Taught him that women prefer men to be men, not the weak boys portrayed on tv that need the woman to kick butt for them. I also tried to limit his exposure to this stuff because I think it undermines manhood and is a form of psychological castration that happens in college but fails in life.

Consent is what it’s always been in my opinion…a willingness to participate, agreement with what’s going on. Confusion over consent is something that happens when people fail to communicate with one another which doesn’t make something rape. I think rape is when deception or coercion are used against someone else’s will. Bill Cosby has no defense under my definition because the lack of a no is not a yes when you slip people drugs and render them unconscious.

547

[quote]
The default assumption about a random college woman’s willingness to have sex, at least assuming some level of mutual attraction, no issues around fidelity to another, and you are not meeting in the context of a conservative religious group, is “probably,” not “maybe.”/

[quote]

The default assumption about whether a random college women is willing to have sex with one particular guy X is “no.” She’s willing to have sex, but probably not with you.

548

Is there some way to give this sentence about 100 likes?

549

“For example, if a boy is very drunk (say 0.32% blood alcohol, which is 4x the legal limit) and he asks a girl if she will walk him home. She tells him that she will, if he agrees to pay her 10% of all of his future earnings. She pulls out a contract to that effect. In his drunken stupor, he happily signs it, and she walks him home.”

I wouldn’t enforce the contract. But I wouldn’t put the girl in jail or kick her out of school, either. Contracts are promises of future behavior. You can be excused from your obligation to perform the future behavior if you were compromised when you signed. But that doesn’t mean somebody violated you.

If that guy gets in a car at 0.32, of course, we don’t say he was too drunk to be responsible for the decision to drive. If he’s moving the wheel and pressing pedals, he made the decision to drive.

“According to your argument, this service agreement is valid because there is no such thing as being too drunk to sign/consent to something as long as you are still conscious.”

Nope, I didn’t say that. There’s such a thing as conscious but incapacitated. But in the scenario I was originally responding to, the girl was walking a quarter mile home under her own steam and undressing herself. That’s not incapacitated to me, or to the law.

550

@hanna “You can be excused from your obligation to perform the future behavior if you were compromised when you signed.”

Exactly, the person does not have “legal capacity” to agree to the contract in that condition. I am not sure that I understand the perspective that a man in that condition has no legal capacity to consent, but a woman in that condition does have legal capacity to consent.

If you are differentiating current from future, does that mean that a contract for future actions is not enforceable, but she can have any assets that he agrees to give her that night? I doubt that she will be allowed to keep any assets she gets him to give her in that condition.

“If that guy gets in a car at 0.32, of course, we don’t say he was too drunk to be responsible for the decision to drive. If he’s moving the wheel and pressing pedals, he made the decision to drive.”

True, but taking an action on your own, is different from obtaining consent from someone else, just like driving the car would not prove that he had capacity to sign the contract.

“But in the scenario I was originally responding to, the girl was walking a quarter mile home under her own steam and undressing herself. That’s not incapacitated to me, or to the law.”

I agree up to that point, she does not seem to be incapacitated. However, she has also not given consent yet. I believe she would have to remain conscious enough to understand what she is participating in and give consent in some way through her words or active participation. For example, if she walks there, undresses, and then passes out, the man’s defense that she was not conscious, but she had already consented by walking and undressing is unlikely to be successful. Perhaps you were thinking that the additional consciousness and participation were assumed?

“There’s such a thing as conscious but incapacitated.”

Yay! That is what I am looking for.

Thanks you for the education. I appreciate your posts!

551

Much – the contract situation and the sex situation legally differ in one important respect.

In the sex situation, the sober person is legally allowed to proceed with the sex if under the circumstances it was reasonable to believe that the impaired drunk person actually gave consent. Reasonable belief of consent is a complete defense to the charge of rape (unless you are dealing with an underage statutory rape situation). Even if the victim believes consent was not given. As I’ve said multiple times, it always turns on what can be proven, not what actually subjectively happens.

You can’t read minds or administer pre-sex lie detector tests. There’s also no legal BAC level beyond which sex is illegal. So it usually will be legally sufficient reasonably evidence of consent if it can be shown that the drunk person was walking, talking, flirting, texting, undressing, obtaining condoms, etc. Once established, that reasonable evidence would only become insufficient if there’s countervailing evidence of non-consent – video of the victim being passed out cold, credible evidence of the victim resisting, etc. Hypothetically, there’s such a thing as conscious but impaired. But practically, that state can almost never be proven.

If the proof is ambiguous (he said she said) then assault can’t be proven even under the most watered down preponderance (more likely than not) standard.

So it is almost always about the proof. And acquaintance rape victims rarely have sufficient proof of non-consent. That’s why you have to focus on prevention rather than adjudication. Or at least train victims to act in a way that generates proof of non-consent. That’s just how it is and always will be.

If there’s no proof, then sorry we can’t help you. Other than to provide post-attack support and counseling to the victim.

552

“If the proof is ambiguous (he said she said) then assault can’t be proven even under the most watered down preponderance (more likely than not) standard.”

That isn’t true. The fact-finder (judge or panel) doesn’t have to find the “he said” and the “she said” equally credible. A fact-finder is entitled to listen to a witness and give that person no weight at all.

553

And that’s as it should be. The jury should be able to listen to my claim that a stranger stole my laptop and sold it, and his claim that I decided to give it to him, and decide I’m telling the truth and he’s lying.

554

If the he said is as credible as the she said, then nothing can be proved. Which is what happens ALL the time.

As a practical matter, if the only evidence you have is plausible she said countered by plausible he said, then you are going to lose most of the time.

555

It also means that many of the decisions based on one person’s word against another person’s word with no other evidence could be incorrect (in either direction) compared to what actually happened.

556

UCB – absolutely right.

In fact, it is possible and actually happens that (i) the girl subjectively did not actually give consent, and (ii) the guy in fact actually did obtain legally valid objective consent. So the two kids fundamentally disagree about incident and both are right.

557

We can start a new thread about this, but one Title IX coordinator has accused another of sexual assault while they were leading a conference for Title IX coordinators, triggering review of many cases already heard at Indiana University:

http://www.nytimes.com/2016/02/18/us/accusation-at-indiana-university-triggers-review-of-sexual-misconduct-cases.html?_r=0

https://drive.google.com/file/d/0B_UHj-FagUI-dk0wSG5DcXp2eE0/view

558

Just a point of clarification.

It would be virtually impossible to sustain a conviction in criminal court in a “he said/she said” situation without more evidence being introduced. It would be very, very difficult to sustain a judgment under a clear and convincing standard in the same circumstances. Under the preponderance standard imposed by the OCR, it is much easier. That is one of the reasons both Harvard and Princeton (and assumedly other schools) objected so strongly to the imposition of such a standard in the first place, and why the OCR and other advocates are so intent on its use.

All that said, there is always other evidence when you have competent investigators involved (on the criminal side) or a robust discovery process (on the civil side). Another problem with the tribunal system is that there appears to be no recognized investigative/discovery standards.

559

Ohiodad, are you saying that when I report my laptop stolen, and the stranger is arrested with my laptop in his possession, he can’t be convicted of stealing it if he says I gave it to him? I thought that would be an open and shut case. There is no dispute that he has the laptop that once was mine, and the only evidence is I say he stole it and he says I gave it to him.

I’m not asserting that consenting to sex with someone you just met is equally as implausible as giving your laptop to someone you just met, but in both cases, the only disagreement is he said/she said.

560

Years ago, two men were caught trying to steal my car off the street in front of my house at 3:00 am, by undercover cops who were watching the neighborhood trying to catch a ring of car thieves. One got away; the other was beaten by police and handcuffed to my fence for a while. When he got a lawyer, he claimed that we had said he could use the car.

It didn’t get very far, and he pleaded guilty to something or other. But it forced the police to circle back to us and ask us whether we had given him permission to use the car, and had it gone to trial one or both of us would have had to show up and to testify. There were lots of ways that claim could have helped get a good result for the defendant.