Yes means Yes > No means No
October 4, 2014 11:13 AM   Subscribe

The groundbreaking decision in California to address rape culture with a new standard that aids in defining sexual consent was signed into law this week by Governor Jerry Brown. The men's magazine GQ immediately provided a useful (and progressive!) guide called "Nine Signs She Wants to Have Sex with You (Even in California)".
posted by quin (58 comments total) 24 users marked this as a favorite
 
Worth noting that the author is Lindy West.
posted by Beardman at 11:26 AM on October 4, 2014 [14 favorites]


I was gonna say, needs the Lindy West tag.
posted by Navelgazer at 11:27 AM on October 4, 2014


For the uninitiated, the significance of Lindy West is what?
posted by Noisy Pink Bubbles at 11:48 AM on October 4, 2014 [10 favorites]


If you can read social cues on, like, a golden retriever level or above, you can tell when someone wants to have sex with you (and if you can't, you definitely shouldn't be touching a single genital without an explicit "yes").

This is advice for the ages.
posted by Dip Flash at 11:52 AM on October 4, 2014 [31 favorites]


I think this will actually reduce assault and rape, and that is the most important thing.

But!!

It strikes me that there are going to be some college kids who actually have better sex because of this. "Is this OK?" not only gives someone the opportunity to say "yes" or "no", it also gives someone the opportunity to say "a little higher" or "more lube" or whatever. And that is kind of awesome.
posted by poe at 11:54 AM on October 4, 2014 [43 favorites]


(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.


From the law itself. I am not a lawyer but from where I'm sitting, there's a whole lot of room for interpretation and ambiguity in that word, and I don't see how this is going to avoid the problem of he-said she-said. As I say, not a lawyer.

(Of course, if you really want to be on the safe side, have the law require a written consent form double signed and time stamped before the fact.

I suppose that might kill the moment....)
posted by IndigoJones at 12:00 PM on October 4, 2014


For the uninitiated, the significance of Lindy West is what?

I was curious too as I didn't recognise the name. She's just finished up at Jezebel, where she was a staff writer, where she wrote a number of articles about rape culture, social justice and fat shaming in the same vein.

One of her latest projects is i believe you ¦ it's not your fault where older people share their stories of how they've survived abuse and rape, answer anonymous questions sent in by (mostly) younger people about the abuse they've suffered from, and offer advice. Mostly girls and women, but also some by and from men and boys.

It's harrowing stuff to read, and brutally honest. I'm glad it's there, that it's a place where survivors can share their stories and support. And also it breaks my heart that such a place is necessary, and that there are so, so, many submissions.

The law in California? About damn time. It should be the same everywhere. If you don't want to rape anybody, you SHOULD be wanting active, positive consent, and then you won't 'accidentally' rape someone. And then maybe, hopefully, sites like 'i believe you' won't be flooded with people who've been raped and abused.
posted by ArkhanJG at 12:10 PM on October 4, 2014 [8 favorites]


Of course, if you really want to be on the safe side, have the law require a written consent form double signed and time stamped before the fact.

That sounds like a good way to introduce an argument that consent can't be revoked.

I'm generally hopeful about this as a way of shifting the focus from "did she fight hard enough?" to "how do you know she was into it?"
posted by bile and syntax at 12:10 PM on October 4, 2014 [12 favorites]


I agree, with you, poe!

In fact, there was this one time a young lady and I started to get frisky and I was all "hey do you want to have sex?" and she was like "no" and I was like "okay that's cool" and then we went to sleep and when we woke up she took off my pants and I was like "hey are you sure you changed your mind?" and she was like "yes" and then sexy times followed with like zero ambiguity and that was a fucking relief because I was young and not very good at getting hints (which had resulted in my not getting laid a lot by later-I-found-out-they-were-willing partners).

Man if only I had learned at a younger age that I could have just asked instead of guessing until my prospective partner got bored and left.
posted by TheNewWazoo at 12:14 PM on October 4, 2014 [16 favorites]


"a fucking relief" heheh see what I did there
posted by TheNewWazoo at 12:17 PM on October 4, 2014 [5 favorites]


Anyone else thinking that most of these 9 signs are completely wrong, especially in context of the law?
1. Your partner just said, "I want to bang you!"
This is a great, positive indication.
2. You asked your partner, "May I bang you?" and they said, "YAAAAAASSSSS!!!"
Also great.
3. When you kiss your partner, they kiss you back.*

**Reminder: Just because they consent to kissing you doesn't mean they consent to other stuff! Yes, you have to continually pay attention and reevaluate your partner's consent (as they do yours!), because THAT'S WHAT NOT SEXUALLY ASSAULTING PEOPLE MEANS. And isn't it worth it?
So why include it in the list if this is about sex?
4. When you touch your partner, they lean into and reciprocate your touch, sometimes even initiating contact themselves, almost as though they are actively engaged in the situation and not just going along with it because you made them feel obligated and/or frightened.
If this leads to sex, it's probably best to have some form of verbal communication.
5. Your partner makes erotic moaning noises such as "Ooh," "Aah," or "Huzzah."
None of which are "Yes".
6. Your partner looks deep into your eyes with care and affection.
Is your partner a golden retriever? Your mother? Eye contact is great, but it's not consent.
7. You think back to earlier in the night and are certain you didn't guilt, pressure, coerce, blackmail, manipulate, or threaten them into having sex with you.
Because no rapist has ever thought they didn't rape someone the previous night.
8. Your partner is not incapacitated by drugs or alcohol.
A good starting point, but not consent.
9. Your partner doesn't freeze up, go rigid, recoil from your touch, say "no" or "stop," become detached and stare at the ceiling, look at you in terror, hyperventilate, make up excuses to leave, actually try to leave, scream in pain, and/or weep.
Also not "Yes" or affirmative consent according to the law.

So, 2 great, 2 not so great, and 5 terrible. Am I way off base here?
posted by Revvy at 12:19 PM on October 4, 2014 [5 favorites]


Yeah like... I have never been raped, but in my younger days I had a lot of sex that was just sort of unpleasant for me because I didn't really believe it was ok for me to give directions. I thought sex had to be this magical spontaneous nonverbal mental accord between two people, and any attempt to talk about it either before, during or after was a Big No-No. I think a lot of people think this, both men and women, which is where the whole notion of these gray areas comes from- but it doesn't have to be that way at all. Now that I feel ok about speaking up, and seek out partners who do the same, I have WAY BETTER SEX.
posted by showbiz_liz at 12:22 PM on October 4, 2014 [20 favorites]


Won't a rapist just lie about having gotten verbal consent? I mean, if you're willing to rape somebody I'm not sure why you'd balk at a little bit of perjury.
posted by Justinian at 12:25 PM on October 4, 2014 [3 favorites]


That sounds like a good way to introduce an argument that consent can't be revoked.

It's more of a tired joke about how getting clear and affirmative consent is terribly unsexy, on a par with contract law. I remember those same jokes when Antioch's consent policy came out in the early 1990s, and here they are again.

Am I way off base here?

Yes. The California law does not require consent to be verbal (e.g. "Yes, kiss me please"); it can be non-verbal (e.g. reciprocal touching) as well. Many of her examples fall into that category, and/or of giving consent to one thing (e.g. kissing) without necessarily giving consent to other things (e.g. sex).
posted by Dip Flash at 12:27 PM on October 4, 2014 [21 favorites]


One thing I'm curious about is how this is intended to apply to initiatory acts. If A is engaged in a non-sexual cuddle with B (his longterm sexual partner), and then puts his hand on her bottom with the intention of initiating a sexual encounter, is that act a sexual assault under this standard of consent? And if not, why not? It seems to me that the typical components of sexual assault would be made out here (touching which is sexual in nature or intent, in the absence of consent).

Typically, this is dealt with through a mechanism of deemed consent. Deemed consent seems pretty clearly ruled by the text of this legislation, however. Or am I reading it wrong?
posted by howfar at 12:45 PM on October 4, 2014 [1 favorite]


Am I way off base here?

I really hope we aren't aiming for the sexual equivalent of "are we there yet?"

... and what Dip Flash said.
posted by JoeXIII007 at 12:54 PM on October 4, 2014


It's more of a tired joke about how getting clear and affirmative consent is terribly unsexy, on a par with contract law.

I'm not really sure what's hotter than clear and affirmative consent. Maybe everyone is doing contract law wrong?
posted by bile and syntax at 12:56 PM on October 4, 2014 [13 favorites]


They needed to add being asleep or unconscious to this list. And they should have clarified that, actually, honking your wife's breast if she isn't consenting isn't okay - it's assault.

When I was in university, I had a boyfriend who would ask me each time if I wanted to have sex, if I felt pressured at all, and let me know we could just hang out. And, during the act, he'd check in with me and check that I wanted to keep going. Best partner of my entire life and I wish I'd been able to understand how valuable that was. It was sexy, too - we need to get people to realize that this can all be part of sex without being awkward or unglamorous, just like we've convinced a generation or two that condoms are fine.
posted by Chaussette and the Pussy Cats at 1:06 PM on October 4, 2014 [16 favorites]


They needed to add being asleep or unconscious to this list.

The actual bill (pdf link here) does include that.
posted by soundguy99 at 1:11 PM on October 4, 2014 [1 favorite]


Prior to jezebel, Lindy West put in some time at The Stranger in Seattle. She's put up with a fuckton of online crap from people who don't like her views.
posted by Ik ben afgesneden at 1:11 PM on October 4, 2014 [6 favorites]


Am I way off base here?

I think you are off base, because I think the point of the article isn't to clearly lay out the implications of the law. It's that consent is really not altogether that ambiguous. The article is addressing stupid fearmongering that oh no, this bill is going to cause Totally Normal Sex to now be classified as rape! But it turns out it's because these idiots' definition of "normal" is wide enough to include sex where one partner is lying completely still and waiting until it's over, or resisting and having to be coaxed, or just generally not trusting the other enough to talk openly about their needs.
posted by capricorn at 1:19 PM on October 4, 2014 [5 favorites]


the issue with consent isn't the relative eros of a surprise ravishment by 200 pounds of drunk football player, but the idea that our social acts reduce down to individual choices i.e. to consent or to not consent. so, you can have a society which disempowers women but then you go to college and now, as a woman, you are completely free to choose, as if the relative difference in social power between you and the football player means nothing. it's a variation on "illegal for poor and rich to sleep under bridges." how many women *consent* to sex because the social pressure against saying no is too large?

and then on top of this is the issue that the first arbiter of these consent contracts (before the courts), the university, is hardly a party disinterested in the outcome. look at what happened at Penn State. Lots of people think that men 'raping' women is sometimes ok, but no one thinks men sexually preying on boys is ok. Yet, the university aided and abetted just that...

you come to university and they say you all, as students, are equal. but you aren't. men have more power than women, high prestige teams have immense power on campus. fraternities and sororities confer power to their members. if campus is a model of liberal society then reducing this society to the choices of it's individual members just reinforces the power differences already there.
posted by ennui.bz at 1:20 PM on October 4, 2014 [7 favorites]


I think you are off base, because I think the point of the article isn't to clearly lay out the implications of the law. It's that consent is really not altogether that ambiguous.

Perhaps I'm taking things too much out of context. My fear is that any one of those bad list items, like not thinking that there was anything like rape happening the night before, would be taken, by itself, as an indication that there was consent according to the law.

Taken as a whole, the article provides deeper meaning. The individual, specific items, if they were handed off as a list, still trouble me.
posted by Revvy at 2:00 PM on October 4, 2014


howfar >

One thing I'm curious about is how this is intended to apply to initiatory acts. If A is engaged in a non-sexual cuddle with B (his longterm sexual partner), and then puts his hand on her bottom with the intention of initiating a sexual encounter, is that act a sexual assault under this standard of consent? And if not, why not?

Wouldn't B's feelings and experience of the event be equally if not more important determinants of whether or not that would be sexual assault than the hypothetical details you list?
posted by clockzero at 2:04 PM on October 4, 2014


To me, the rhetorical point of the list is obviously "If you can muster only weak evidence that your partner is actually consenting, then you should stop immediately." I don't think West meant to say "Any individual point on this list is conclusive evidence of consent and if one applies to your situation then you can feel free to turn off your brain and continue."
posted by Rustic Etruscan at 2:14 PM on October 4, 2014 [15 favorites]


"Of course, if you really want to be on the safe side, have the law require a written consent form double signed and time stamped before the fact. "

Generally we call that marriage and it was prerequisite to legal sexual activity in much of the US for much of its history.

It had its whole own set of problems, including difficulty in revoking consent and the fact that marital rape wasn't recognized as a crime until comparatively recently. But, you know, if you really want to pursue that line of thought, there's tons and tons of prior attempts with that exact scheme! The contracts were just quite long term. Which is to say, these things don't happen in an ahistorical vacuum.
posted by Eyebrows McGee at 2:16 PM on October 4, 2014 [17 favorites]


Perhaps I'm taking things too much out of context.

Yeah, I think you are, because Lindy West's article reads (to me) like a semi-humorous attempt at pointing out how actual consent is really not that hard to comprehend (see the "golden retriever" bit Dip Flash quoted above), and thus all the people whinging about how awful the bill is are being obtuse at the very least.

It's not intended to be a list handed out to college freshmen or used in a determination of whether assault has occurred or anything.
posted by soundguy99 at 2:20 PM on October 4, 2014 [4 favorites]


Wouldn't B's feelings and experience of the event be equally if not more important determinants of whether or not that would be sexual assault than the hypothetical details you list?

Well I'm not sure. I'm not sure that anything could prevent it being sexual assault. How can one actively consent to something without knowing it's going to happen? The law specifies "conscious...agreement". I don't know whether it's possible to consciously agree to something one doesn't expect. So it would seem that, at the moment of touching, a sexual assault occurs, no matter what B's feelings or experiences are. I wonder if my reading is faulty; it very well may be.
posted by howfar at 2:22 PM on October 4, 2014


OK, I'm taking this "nearly foolproof" bit too literally, I guess. Carry on.
But to assuage any lingering fear and confusion, here are some nearly foolproof verbal and non-verbal signs that your partner wants to do sex stuff with you:
posted by Revvy at 2:23 PM on October 4, 2014


Won't a rapist just lie about having gotten verbal consent? I mean, if you're willing to rape somebody I'm not sure why you'd balk at a little bit of perjury.

As I understand it, the law is about how accusations of rape are treated in college disciplinary proceedings, not in criminal cases, so I don't think perjury is the issue.

A rapist could certainly lie about getting verbal consent. But under the new standard, there is no excuse for anyone to ask the victim, "Do you refuse?" much less "Did you resist?" That seems significant in itself.
posted by layceepee at 2:24 PM on October 4, 2014 [9 favorites]


Your point about the need to consider the significance of B's feelings is well taken, by the way, clockzero. My initial framing was definitely overly concerned with contextual factors. I apologise for this, given the sensitivity of the subject.
posted by howfar at 2:25 PM on October 4, 2014


The bill shifts the burden of proof, in internal campus investigations only, away from traumatized victims (asking, "Did you say no? Did you do enough to prevent your rape?") and on to alleged perpetrators (asking, "Did she say yes? Did you do enough to confirm that she wanted it?"). It's a subtle reframing that could have a major impact on how we think about sexual assault long-term

I like this description of the bill.
posted by jaguar at 2:26 PM on October 4, 2014 [8 favorites]




Howfar,

I think the point is for continued communication. Honestly in a situation with concentual cuddling and then partners hand moves for more is the perfect time for yes means yes. The communication is suppose to happen. Partner says don't touch because I'm trying to sleep. Other person says ok and stops. It's like workplace harassment does not cover one time events (at least in this state) where person a tells person b to stop and they do.

If you or someone you know it's in a relationship were an awkward or exploratory touch ends up in rape charges when everything is handled appropriately and respectfully you have other problems on your hands. It is like the person who files assault charges when riding the train and somebody bumps into them when the train stops abruptly. It isn't something the law handles very well.

I think this line of thinking perpetuates the fear that people feel like instant assualt victims and go out of their way to press charges because of some honest mistake.
posted by AlexiaSky at 2:33 PM on October 4, 2014


I think the point is for continued communication. Honestly in a situation with concentual cuddling and then partners hand moves for more is the perfect time for yes means yes. The communication is suppose to happen. Partner says don't touch because I'm trying to sleep. Other person says ok and stops. It's like workplace harassment does not cover one time events (at least in this state) where person a tells person b to stop and they do.

Why do you think that this law has that effect? What you're describing seems much closer to "no means no" than "yes means yes". Can you point me at the material that's giving you the sense that this is the effect of this law? Or describe your reasoning. I'm not seeing that, personally, but I'm not a criminal lawyer and I've no practical experience of US law.

It is like the person who files assault charges when riding the train and somebody bumps into them when the train stops abruptly. It isn't something the law handles very well.

Hm. I'm not aware of any jurisdiction in which the offence would be made out in the circumstance you describe. The mens rea of battery requires intent to touch, which would be absent in the circumstance you describe. Pressing against someone's shoulder in a crowded carriage is covered by notions of deemed consent.

I think that the law does a pretty good job of dealing with consent in those situations where the fact that the law is a gendered product of a patriarchal society is not very immediately important. Situations like contract law and battery and those sort of things. I think that the law, in general, does a really bad job of dealing with consent in situations where the realities of patriarchy and misogyny are significant immediate factors, such as sexual consent. I am far from convinced that current approaches to sexual consent are appropriate or useful, but I'm not sure I even understand the model of consent used in this law well enough to decide whether it's an improvement or not. I think we might need something more contextual and responsive to the experience of victims than this appears, on my first consideration, to be to me.

I think this line of thinking perpetuates the fear that people feel like instant assualt victims and go out of their way to press charges because of some honest mistake.

Again, hm. If my reading of the law is correct (if), then I think it is probably useful to acknowledge that and decide whether we think it's good or bad, and how much it matters, if at all. I don't think it can be unhelpful to know exactly what the boundaries of a law are, when thinking about its implications.
posted by howfar at 3:14 PM on October 4, 2014


Wow, koavf, that Chronicle article is terrible.
posted by IAmUnaware at 3:36 PM on October 4, 2014 [15 favorites]


I'll be honest, I don't understand why people are so upset about this shift other than that it takes a lot of the impetus off victims to prove that they said no enough. We should absolutely be teaching children that consent should be imperative and enthusiastic. I understand that there's no real way to create perfect legislature, but the idea that the victim isn't wholly responsible for making sure a situation doesn't go too far is a huge step in the right direction. The Chronicle article was absolutely terrible because it didn't have a compelling reason for existing other than the author thinking that yes isn't sexy - which is a bizarre relic of the idea that communication is irrelevant in relationships.

I spent years worrying that maybe I should have been louder and more forceful with my no I didn't want to, and that I should have argued more when he kept trying to talk me into it. This shift means a generation of girls hears that it wasn't their fault and doesn't spend years internalizing that they didn't do enough to stop it.
posted by Nimmie Amee at 3:39 PM on October 4, 2014 [18 favorites]


Lots of people think that men 'raping' women is sometimes ok,

The people who think it's okay don't consider a whole lot of acts to be rape, so dispensing with the scare quotes there would be pretty awesome, please.

The bill shifts the burden of proof, in internal campus investigations only, away from traumatized victims (asking, "Did you say no? Did you do enough to prevent your rape?") and on to alleged perpetrators (asking, "Did she say yes? Did you do enough to confirm that she wanted it?"). It's a subtle reframing that could have a major impact on how we think about sexual assault long-term

This really is awesome in a lot of ways. What disturbs me is that this bill applies to universities only. It should apply statewide. Worldwide, really.
posted by feckless fecal fear mongering at 3:44 PM on October 4, 2014 [5 favorites]


One interesting thing about the affirmative consent requirement is that unlike laws that defined rape as "forcible penetration", this definition is entirely gender-neutral, and creates a category of rape that can be committed by women almost as easily as men. I wonder if the effect will be like the early years of hate crime laws, where there was a surge in defendants of color being prosecuted.
posted by ThatFuzzyBastard at 3:45 PM on October 4, 2014 [1 favorite]


It should be noted that this is a law which directs educational institutions on how to approach and enforce consent, sexual assault, domestic violence, dating violence, and stalking issues which, a failure to comply will result in denied funding and student financial aid. It's a law by the state but it isn't a State law regarding consent, sexual assault, domestic violence, dating violence, and stalking issues. Quoting the Bill
This bill would require the governing boards of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions, in order to receive state funds for student financial assistance, to adopt policies concerning sexual assault, domestic violence, dating violence, and stalking that include certain elements, including an affirmative consent standard in the determination of whether consent was given by a complainant. The bill would require these governing boards to adopt certain sexual assault policies and protocols, as specified, and would require the governing boards, to the extent feasible, to enter into memoranda of understanding or other agreements or collaborative partnerships with on-campus and community-based organizations to refer students for assistance or make services available to students. The bill would also require the governing boards to implement comprehensive prevention and outreach programs addressing sexual assault, domestic violence, dating violence, and stalking. By requiring community college districts to adopt or modify certain policies and protocols, the bill would impose a state-mandated local program.
posted by vapidave at 3:48 PM on October 4, 2014 [6 favorites]


Interesting point aboit deemed consent upthread. This law means drunk sex in a long term relationship is rape.
posted by jpe at 3:53 PM on October 4, 2014


No, it doesn't.

First, see vapidave's point above. The set of criminal laws that apply to all citizens has not been drastically expanded by this bill.

Second, from the bill itself:
SECTION 1. Section 67386

(2) (A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.

(4) (A) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
Two drunk people can still mutually & enthusiastically consent to sex. This bill does not negate that.
posted by soundguy99 at 4:05 PM on October 4, 2014 [2 favorites]


The bill shifts the burden of proof, in internal campus investigations only, away from traumatized victims (asking, "Did you say no? Did you do enough to prevent your rape?") and on to alleged perpetrators (asking, "Did she say yes? Did you do enough to confirm that she wanted it?"). It's a subtle reframing that could have a major impact on how we think about sexual assault long-term.

That is well-said, right there. Great law. Big thumbs up for not interrogating victims like they have done something wrong by coming forward to report what happened to them. Well done, California.

That said, the rest of Lindy West's GQ piece is glib and annoying (obviously, IMHO). I don't care much for jokes about rape and/or rapists, and the line about "inadvertently raping someone" managed, I felt, to offend just about every sensibility I have. One, because there are no roving bands of men inadvertently raping women for Lindy to address this remark; two, because rape is a lot of things--a crime of opportunity, a method of control through sexual means, a predatory act--but it's not inadvertent and there is no, "Oops! sorry, didn't see you there, I was trying to have sex with the bed and missed" moment; and three because rape jokes are not funny, Lindy.,

/rant
It seems to be in vogue right now for humorous pieces to basically consist of the author lecturing, to an imaginary audience, in an overly breezy and patronizing way, what should be common sense stuff, with the object of making the readers feel smugly superior because of course WE know this stuff, and isn't it silly anyone has to be told? And what about those people objecting, what's up with those losers, amirite?

Except the people objecting are never specifically addressed, because they don't really exist. Not in any sense other than the stereotypical generalization of the other, anyway. Boil it all down and we're just talking about another way to introduce a straw-man argument without getting called on it.

And I know Lindy West's humor relies pretty much entirely on this technique, and she's been profiting from it so I doubt she's going to stop any time soon, and certainly not because I object to it. And, of course, it isn't just Lindy West that employs this method; I have seen this crap so often that it's getting old and tired now.

But it is annoying, all the more so for the cookie-cutter derivative nature of the beast. If I knew anything about coding, I could just whip up a Strawman Lecture Masquerading as Humorously Helpful Guide to the Oblivious Generator and capitalize off of it myself.

But then, I don't really feel the need to start tilting at windmills myself these days.
/end rant
posted by misha at 4:14 PM on October 4, 2014 [3 favorites]


IndigoJones:

>> ... it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity [if] ... The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.

> From the law itself. I am not a lawyer but from where I'm sitting, there's a whole lot of room for interpretation and ambiguity in that word [recklessness], and I don't see how this is going to avoid the problem of he-said she-said. As I say, not a lawyer.


Other folks have observed that this law is about reducing the focus on the alleged victim's state of mind. There's still some ambiguity, but it's kept where it usually is in criminal cases rather than uniquely putting the victim on trial.

But it's totally fair to ask about "recklessness." As you guessed, some legal background is helpful here.

First of all, just about every crime requires proof of (a) a guilty act and (b) a guilty state of mind (intent). So we're never going to dispense with ambiguity; we have to argue about what the defendant was thinking, and that's inherently ambiguous.

Every criminal law sets the level of intent that is required to commit the crime. Recklessness is one of the standard options, so it's pretty well defined. The common levels of intent include: strict liability (we don't care about your state of mind -- statutory rape being one of the only examples); negligence (an ordinary person in your position would have known the consequences of your actions); recklessness (you knew your conduct might have those consequences); knowing conduct (you knew your conduct would have that result); and intentional (you affirmatively wanted your conduct to have that result).

In practice, the last three are hard to distinguish, so we usually draw the line for criminal intent at recklessness. The statutory definition of carjacking or arson or assault and battery or whatever will specify a set of guilty actions, and specify that those actions must be undertaken "knowingly or recklessly." The idea here is that it becomes a crime when you, personally, knew you were doing something that might have criminal results.

So recklessness is routinely defined for juries. In California, this seems to be the definition:
A person acts with reckless disregard when (1) he or she is aware that his or her actions present a substantial and unjustifiable risk, (2) he or she ignores that risk, and (3) the person’s behavior is grossly different from what a reasonable person would have done in the same situation.
(via the Judicial Council of California Criminal Jury Instructions -- warning, 2000-page PDF.)

So in the bit you quoted, "reckless" would mean that the accused subjectively believed they had affirmative consent despite actually knowing there was a substantial and unjustifiable risk that they had not received affirmative consent, and therefore acted in a way that was grossly different from what a reasonable person would have done.

Which, yes, is still hopelessly ambiguous in terms of "substantial," "unjustifiable," "grossly," "reasonable," etc., not to mention the philosophical ambiguity of subjectively believing something you simultaneously know is substantially likely not to be true. But ultimately we are trying to guide a judge or jury in deciding what, subjectively, occurred in someone else's mind when they took an action the state has forbidden. You reach a point where the words have to be good enough, and we have to trust the people involved in the process, or else give up on the notion of standardized and codified law all together.

(I'm speaking in terms of criminal law because that's what I'm familiar with, but hopefully it maps more or less onto these disciplinary proceedings as well.)
posted by jhc at 4:23 PM on October 4, 2014 [10 favorites]


"This law means drunk sex in a long term relationship is rape."

As a practical matter, this isn't something the law is particularly interested in. There is fairly robust jurisprudence on marital rape laws -- which were met with the same hysteria -- and in general when faced with a long-term-relationship-rape accusation, courts have looked more at the totality of the relationship. Most marital rape laws require some kind of force or coercion, OR that the raping-spouse knew (or should have known) that the victim-spouse was too incapacitated to consent and/or would not have consented if they'd been able to. In practice judges tend to look at whether a marital rape accusation (that falls within the context of an otherwise-normal sex life; that is, it didn't involve unusual force or coercion) is within the context of an emotionally abusive relationship, or a messy breakup, or a period of unusual stress, etc., and also whether the individuals are remaining together or separating, and the resources of each individual (the victim-spouse might be unwilling to leave the perp-spouse because the victim-spouse lacks resources to support himself, for example).

The law is an ass, and also a blunt instrument, but not quite THAT blunt.

Again, not in a vacuum. These things have been considered before in other contexts and there's robust case law on how to work them out. Of course courts will be wrong sometimes, but to pretend like they're staffed by robots solving equations, rather than humans who understand the messiness of other humans' lives, is just silly.
posted by Eyebrows McGee at 4:25 PM on October 4, 2014 [15 favorites]


I totally bought into the "omg affirmative consent so unsexy amirite" framing until the first time someone said, "Is it OK if I...?" and I said yes and then we had really nice sex.
posted by Sara C. at 4:47 PM on October 4, 2014 [11 favorites]


The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

And that means that if someone is drunk enough that they can't understand the nature or extent of what's happening, they can't consent. Pretty much what I said.
posted by jpe at 5:20 PM on October 4, 2014 [1 favorite]


I didn't want to dilute my point above but eight of the nine points in TFA use the word "partner" which indicates an established relationship.

Here I get in trouble with the internet.

An established relationship doesn't give you any right but there is a nuanced difference between first time sexual encounters and long term partners.

I know this subject is fraught and asymetrical but I will bet any one of which I have two of that I'm not the only person reading this who has woke in the morning and dimly remembered middle of the night sex that may or may not have happened.

TFA seems directed, tongue in cheek, at people in established relationships and is a bit dangerous as a guide for first encounters. It has a reasonable approach I think though in that there are many ways of communicating desire nonverbally.

"8. Your partner is not incapacitated by drugs or alcohol." is about right as codrunk sex has been a lot of my sexual encounters.

Damn, it's been quite a while since I've "honked" a boob other than my own.
posted by vapidave at 6:00 PM on October 4, 2014 [1 favorite]


Run-of-the-mill consensual drunk sex is a far cry from a situation in which someone is so wasted that they don't even know (at the time) that what is happening is a sex act.
posted by heisenberg at 6:07 PM on October 4, 2014 [4 favorites]


It's not that this will do away with X said / Y said scenarios. Of course a rapist may lie in court. But if this gets some people who do not *think* they are rapists, but don't understand what consent is, to understand and start actively seeking it, then the law is worth it. And I think we will start seeing that happen. I don't have any illusions that this will make it easier to prosecute more rape cases. It just may prevent some rapes. Which is even better.
posted by greermahoney at 6:10 PM on October 4, 2014 [2 favorites]


The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

And that means that if someone is drunk enough that they can't understand the nature or extent of what's happening, they can't consent. Pretty much what I said.


I may have misread you, then, and I'm sorry if I did, because I was reading "This law means drunk sex in a long term relationship is rape" as taking the law to mean that essentially any non-sober sex is inherently non-consensual and therefore slippery slope out-of-control-Political-Correctness blah blah blah.

Apparently, instead, you meant that the bill reinforces the point that there can be non-consensual sex even in a long-term relationship, and if one or both parties are incapacitated by whatever substances, that's a factor in defining the incident(s) as sexual assault.

Which, yes, absolutely.
posted by soundguy99 at 6:20 PM on October 4, 2014


I didn't want to dilute my point above but eight of the nine points in TFA use the word "partner" which indicates an established relationship.

@Vapidave - You are confusing sexual partner with life partner. Sexual partner has nothing to do with established relationships.

Whether you have just met the person that night, or been married for 50 years, if you didn't get consent before sex, you didn't get consent.

(And I say that as a former spouse who woke up to being sexed once. We both cried after, and he said he'd never do it again, although I don't think either of us could have said why, or what was so traumatic. We just knew something was wrong. I was too young at the time to recognize that for what it was. If this law makes it more apparent to anyone what consent actually is, and saves another couple from a night like this, it's worth it.)
posted by greermahoney at 6:20 PM on October 4, 2014


"@Vapidave - You are confusing sexual partner with life partner. Sexual partner has nothing to do with established relationships."

Um, politely, no I'm not. This is likely just a difference in the interpretation of the word "partner" and our differing understanding of how it is used in TFA.

"Whether you have just met the person that night, or been married for 50 years, if you didn't get consent before sex, you didn't get consent."

Duh? Please don't accuse me of not understanding the difference between consensual sex and rape. I don't consider a person that I met just that night to be a sexual partner - even if we have sex.

My observation had more to do with the language in TFA than conduct. Not to go all merriam-webster or google but partner is typically understood as having an ongoing relationship.
posted by vapidave at 7:50 PM on October 4, 2014


Dance partner. Bridge partner. Tennis partner.

"Sexual partner" is not an unusual use of the word "partner," and I think it's a misreading to assume she means a long-term partner.
posted by jaguar at 8:17 PM on October 4, 2014 [9 favorites]


Not to go all merriam-webster or google but partner is typically understood as having an ongoing relationship.

This is a weird derail. She is obviously using "partner" to mean "the person you are getting sexual with," but regardless, those checklist items work equally well for hooking up with a new person or for snuggling with your spouse of decades. It's an unimportant distinction.

I don't want to go illegally meta here, but I do wish that conversations about gender and consent tended to follow the improv pattern of "yes and" rather than this kind of "no but." Taking the best of her ideas and running with it is a lot more interesting than nitpicking for small errors and omissions, but it's a rock-solid pattern of how many people approach these topics, even with a piece like this that was carefully written to try and preemptively shut off those kinds of responses.
posted by Dip Flash at 8:41 PM on October 4, 2014 [9 favorites]


An established relationship doesn't give you any right but there is a nuanced difference between first time sexual encounters and long term partners.

I understand what you're saying. I think a lot of people who are or have been in long term relationships see guidelines like this and mentally recount the times they've had consensual sex without explicit active consent and thus believe the law is accusing them of rape. Human relationships are complicated and nuanced, and yes, there are situations in which people in LTRs are sexually active under the influences of alcohol, Ambien, sleepwalking, and in consensual roleplay scenarios that, under some interpretations, could technically qualify as rape under a strict and noncontextual reading of some definitions.

But that doesn't mean that all sex without active explicit consent is rape, and in particular this legislation doesn't mean that. The key point to remember is that these are guidelines for disciplinary investigations. These guidelines only kick in after someone has made a rape allegation.

Is it somehow remotely possible that two reasonably well meaning parties could come out of a sexual encounter with very different interpretations of what happened? That one party could believe they had consent, not realizing that somehow the other party felt socially pressured or coerced? Yes. That is possible. There is no legislation or internet consensus that can apply strict, concrete guidelines that unambiguously describe every possible human relationship.

So just from a practical perspective, try to look at this as a guideline rather than a strict universal legal definition. People in trusting, consensual long term relationship sometimes have sleep sex and things like that. As with all human relationships, sexual relationships are complicated. There's a whole lot of nuance in there, and a whole lot of complicating factors. But no third party is going to come in and preemptively oversee your private sexual encounters, and to my knowledge, nobody is proposing that. This oversight is triggered by someone alleging that rape happened.

And the reason that Yes Means Yes is such an important concept is that rape culture is very much real and very much pervasive. The concept of 'inadvertently raping' someone sounds absurd at first, but go look at pretty much any pick up artist/seduction forum, and you'll see a whole lot of people teaching rape by deception and coercion, and you'll see NONE of them calling it rape. And at least some of them really believe that it's not rape as long as there's no physical violence, or as long as nobody explicitly says no, and part of the reason they do is that many people still have a horrifically predatory perspective on sex and consent. Heterosexual sex is still viewed as something that men take from women, rather than something that's freely exchanged among consenting parties. It is considered totally normal and acceptable for men to pursue and have sex with women who don't want to have sex with them. That is weird as hell, and also sickeningly common.

Just changing that focus and that perspective might seem like a subtle thing, but it's a huge, huge deal.
posted by ernielundquist at 9:35 AM on October 5, 2014 [8 favorites]


@vapidave "Sexual partners are people who engage in sexual activity together." That is the dictionary definition. If you choose to use it otherwise, that's fine, but don't blame others for misunderstanding you.
posted by greermahoney at 9:42 AM on October 5, 2014 [1 favorite]


Ezra Klein:

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.
posted by Cash4Lead at 8:05 AM on October 13, 2014 [3 favorites]


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