ORIGINAL ARTICLE

By Kevin D. Williamson

Rape is a vicious crime, one that disproportionately affects poor women and incarcerated men, but Barack Obama knows his voters, and so his recent remarks on the subject were focused not on penitentiaries, broken families, or Indian reservations but on college campuses, where the despicable crime is bound up in a broader feminist Kulturkampf only tangentially related to the very real problem of sexual violence against women.

The subject is a maddening one. President Obama repeated the endlessly reiterated but thoroughly debunked claim that one in five women will be sexually assaulted in her college years. The actual rate is . . . sort of an interesting problem, the information being so inconsistent and contradictory that one almost suspects that it is so by design.

President Obama, who gives every indication of being committed to the bitter end to his belief in the omnipotence of his merest utterance, gave a speech in which he affirmed his position that rape is wicked and that we should discourage it. Instead of giving a content-free speech, he should have directed his Department of Justice to put together some definitive data on the question.

Much of the scholarly literature estimates that the actual rate is more like a tenth of that one-in-five rate, 2.16 percent, or 21.6 per 1,000 to use the conventional formulation. But that number is problematic, too, as are most of the numbers related to sexual assault, as the National Institute of Justice, the DoJ’s research arm, documents. For example, two surveys conducted practically in tandem produced victimization rates of 0.16 percent and 1.7 percent, respectively – i.e., the latter estimate was eleven times the former. The NIJ blames defective wording on survey questions.

This is a matter of concern because a comparison between the NIJ’s estimates of college-campus rape and the estimates of rape in the general population compiled by the DoJ’s National Crime Victimization Survey implies that the rate of rape among college students is more than ten times that of the general population.

It is not impossible that this is the case, but there is significant cause for skepticism. For example, in the general population college-age women have significantly lower rates of sexual assault than do girls twelve to seventeen, while a fifth of all rape victims are younger than twelve. Most of the familiar demographic trends in violent crime are reflected in the rape statistics: Poor women are sexually assaulted at twice the rate of women in households earning $50,000 a year or more; African American women are victimized at higher rates than are white women, while Native American women are assaulted at twice the rate of white women; divorced and never-married women are assaulted at seven times the rate of married women; women in urban communities are assaulted at higher rates than those in the suburbs, and those in rural areas are assaulted at dramatically higher rates. But there is at least one significant departure from the usual trends in violent crime: Only about 9 percent of those raped are men.

It is probably the case that the prevalence of sexual assault on college campuses is wildly exaggerated—not necessarily in absolute terms, but relative to the rate of sexual assault among college-aged women with similar demographic characteristics who are not attending institutions of higher learning. The DoJ hints at this in its criticism of survey questions, some of which define “sexual assault” so loosely as to include actions that “are not criminal.” This might explain why so many women who answer survey questions in a way consistent with their being counted victims of sexual assault frequently display such a blasé attitude toward the events in question and so rarely report them. As the DoJ study puts it: “The most commonly reported response — offered by more than half the students — was that they did not think the incident was serious enough to report. More than 35 percent said they did not report the incident because they were unclear as to whether a crime was committed or that harm was intended.”

If you are having a little trouble getting your head around a definition of “sexual assault” so liberal that it includes everything from forcible rape at gunpoint to acts that not only fail to constitute crimes under the law but leave the victims “unclear as to whether harm was intended,” then you are, unlike much of our culture, still sane.

Of all the statistics and evidence that are prevalent in the discussion of sexual assault, there is one datum conspicuous in its absence: the fact that sexual assault has been cut by nearly two-thirds since 1995. Under the Bureau of Justice Statistics’ apples-to-apples year-over-year comparison, sexual assault has declined 64 percent since the Clinton years. That is excellent news, indeed, but it does not feed the rape-epidemic narrative, and so it must be set aside.

The fictitious rape epidemic is necessary to support the fiction of “rape culture,” by which feminists mean anything other than an actual rape culture, for example the culture of the Pakistani immigrant community in Rotherham in the United Kingdom. “Rape culture” simply means speech or thought that feminists disapprove of and wish to suppress, and the concept has been deployed in the cause of, inter alia, bringing disciplinary action against a Harvard student who wrote a satire of feminist rhetoric, forbidding politically unpopular speakers from speaking on campuses, and encouraging what often has turned out to be headlong and grotesquely unjust rushes to judgment, as in the case of the Duke lacrosse team. Feminism is about political power, and not the Susan B. Anthony (“positively voted the Republican ticket — straight”) full-citizenship model of political power but rather one dominated by a very small band of narrow ideologues still operating under the daft influence of such theorists as Andrea Dworkin and Catharine MacKinnon, each of whom in her way equated political opposition to feminism with rape.

This has some worrisome practical results, not the least of which is muddying the water on the issue of sexual assault itself. For example, feminists energetically protest that advising women to take such precautionary measures as moderating their alcohol intake at college parties is a species of rape-culture victim-blaming (rather than reasonable advice), and so it is no surprise that, as the DoJ notes, many surveys inquire of rape victims whether they believed their attackers to have been under the influence of drugs or alcohol but decline to ask the victims whether they were under the influence. Evidence very strongly suggests that rapists frequently use intoxicants, openly or surreptitiously, as part of a strategy conceived with malice aforethought to render their victims vulnerable. It might be useful to know how often this is the case and how often it works or fails to work, but we will not know if we refuse to ask the question.

Our policy debates are dominated by relatively narrow-minded and self-interested elites, and so it is natural that our discussion of sexual assault focuses on what might be happening at Villanova University rather than what’s happening on Riker’s Island or on Ojibwe reservations. But the way we talk about rape suggests that we do not much care about the facts of the case. If understanding and preventing rape were our motive, we’d know whether the victimization rate was x or 11x, and whether elite college campuses are in fact rather than in rhetoric more dangerous than crime-ridden ghettos and isolated villages in Alaska, a state in which the rate of rape is three times the national average. We’d never accept that the National Bureau of Economic Research  didn’t know whether the inflation rate were 1.6 percent or 17 percent. We’d give the issue properly rigorous consideration.

But if your interest were in making opposition to feminist political priorities a quasi-criminal offense and using the horrific crime of rape as a cultural and political cudgel, then you’d be doing about what we’re doing right now.

ORIGINAL ARTICLE

By Echo Chambers

The dust is settling around National Football League (NFL) players Ray Rice, Adrian Peterson and Greg Hardy after each man was arrested for separate cases of domestic abuse. Now another prominent athlete is making headlines for similar reasons - female football star Hope Solo.

In June, the US national women's team's star goalkeeper was arrested and charged with two counts of domestic abuse in connection with an assault on her sister and 17-year-old nephew.

She has pleaded not guilty and is awaiting trial in November.

Rice is suspended from the NFL indefinitely and Peterson and Hardy have been benched. But Solo continues to play for two teams, including the US national side.

Nike has publicly ended ties with Rice and Peterson, but nearly three months after Solo's arrest, the company has not said a word about its sponsorship deal with her.

This summer, the US Soccer Federation issued this gentle statement:

"We are aware that Hope is handling a personal situation at the moment," US Soccer spokesman Neil Bluethe told USA Today.

"At the same time, she has an opportunity to set a significant record that speaks to her hard work and dedication over the years with the national team. While considering all factors involved, we believe that we should recognise that in the proper way."

Continue reading the main story“Start QuoteThere is a reason why we call it the 'Violence Against Women Act' and not the 'Brawling With Families Act'”

Ta-Nehisi CoatesThe Atlantic
Since then, Solo broke the record to which Mr Bluethe referred - the women's national team record for shutouts.

Some commentators say she should have been sent off the field months ago.

"Solving the problem in the NFL while ignoring the issue elsewhere would accomplish little as a whole," writes John Smallwood for the Philadelphia Daily News. "If we are going to address domestic abuse, let's address it, regardless of the status of the accused perpetrator."

Thousands of young girls flock to stadiums to watch Solo play, he notes.

"How is it OK to showcase Solo to those girl fans - some of whom unfortunately will become victims of the same domestic abuse she is accused of?" he asks.

ESPN's Kate Fagan came out in favour of a strong punishment for Solo. "The issue is about anger and power, about controlling relationships with violence, regardless of the gender of the perpetrator," she wrote. "The US women's national team is sending the wrong message by allowing Solo to continue playing."

But as if to demonstrate the complicated nature of this case, Fagan felt compelled to follow up days later. While she stands firm in her desire to see Solo benched, she says she was uncomfortable with how many people were using Solo's actions as a way to neutralise the discussion of domestic violence within the NFL.

NFL running back Adrian Peterson has been banned from team activities until his legal issues are resolved
"See?" she wrote, summarising the arguments that troubled her. "Women commit domestic violence, too, so let's just call it even and get back to watching some football!"

That approach, she writes, is a mistake.

"The reason the 'NFL and domestic violence' story is so important is because it's holding up a mirror to the rest of society," she writes. "We can get somewhere better by examining the NFL's failures. Every minute we spend talking about Hope Solo is a minute spent walking down a dead end."

On MSNBC's Morning Joe chat show, BBC World News America presenter Katty Kay emphasised that Solo's case, while serious, was not representative of the norm.

"Let's not try and use that as an example to suggest that women are as guilty of domestic violence against their partners, because it is overwhelmingly men who beat their wives," she said.

Ta-Nehisi Coates of the Atlantic agrees, citing the main US anti-domestic violence law.

"There is a reason why we call it the 'Violence Against Women Act' and not the 'Brawling With Families Act'," he writes.

For Slate's Amanda Hess, the differences between the NFL and the US Soccer Federation make them difficult to compare.

"Isn't it more likely that the lack of public pressure in Solo's case simply represents the relative lack of attention that women's soccer receives as compared with pro football?"

And unlike the NFL, she writes, US Soccer is not burdened with "a systematic, decades-long history of ignoring the fact that certain players abuse their partners."

Solo herself posted on Facebook and Twitter saying, "Once all the facts come to light and the legal process is concluded, I am confident that I will be fully exonerated."

Officials are waiting to see what the court decides.

"Abuse in all forms is unacceptable," US Olympic Committee chief officer Scott Blackmun said in a recent email to USA Today.

"The allegations involving Ms Solo are disturbing and are inconsistent with our expectations of Olympians. We have had discussions with US Soccer and fully expect them to take action if it is determined that the allegations are true."

While they wait, fans are forming their own opinions - and women's football, never as popular in the US as the NFL, is getting attention for all the wrong reasons.

Written by Kierran Petersen

ORIGINAL ARTICLE

by 
Robby Soave

The redefinition of the word violence continues among revelations that discounting a sexual partner's feelings and withholding sex constitutes sexual violence at the University of Michigan. The relevant info can befound at the university's "Stop Abuse" webpage:

Examples of sexual violence include: discounting the partner's feelings regarding sex; criticizing the partner sexually; touching the partner sexually in inappropriate and uncomfortable ways; withholding sex and affection; always demanding sex; forcing partner to strip as a form of humiliation (maybe in front of children), to witness sexual acts, to participate in uncomfortable sex or sex after an episode of violence, to have sex with other people; and using objects and/or weapons to hurt during sex or threats to back up demands for sex.

Criticizing someone sexually and withholding sex are unkind things to do, but they aren't violent acts in and of themselves. Indeed, a university spokesperson could only defend the definitions as appropriate within "a larger context," according to Derek Draplin of The College Fix:

The definitions of behaviors of violence … describe most accurately what occurs in an abusive relationship,” [U-M spokesperson Rick Fitzgerald] said in an email. “Those behaviors not in the context of violence are not abusive.  A reader of this site would recognize that it’s described as one behavior in the context of a pattern of behaviors to maintain power and control over an intimate partner."

But, as Draplin writes, universities make these slips all the time—treating disfavored behavior and physically painful behavior as one and the same. He cites an interview with the sexual violence support coordinator at Brock University in Canada in which the administrator claims "anything that makes someone feel unsafe" counts as violence.

Institutions of higher learning should be more precise with their definitions. Being insufficiently attentive to other people's feelings is not an act of violence.

For related coverage, see "Ohio State: Students Must Agree on Why They Are Having Sex."

ORIGINAL ARTICLE

By Bill Wichert | NJ Advance Media for NJ.com 
Follow on Twitter 
on September 18, 2014 at 6:00 PM, updated September 19, 2014 at 3:04 PM

MAPLEWOOD — A high school teacher in Maplewood has been charged with sexually assaulting three 15-year-old students on school property and in her car multiple times, Acting Essex County Prosecutor Carolyn A. Murray and Maplewood Police Chief Robert J. Cimino announced today.

Nicole Dufault, 35, of Caldwell, has been accused of assaulting the three boys during the 2013-2014 school year and during summer school in 2013 and 2014, authorities said.

UPDATE: Teacher pleads not guiltyDufault was arrested last night at her home and charged with multiple counts of aggravated sexual assault and endangering the welfare of a child, authorities said.

Dufault is being held at the Essex County Correctional Facility in lieu of $500,000 bail, and she was ordered to have no contact with the victims. She also has two minor children, who have been removed from her custody, authorities said.

The three victims were 15-year-old boys attending Columbia High School, where Dufault has been employed as a language arts teacher for about nine years, authorities said.

Authorities allege Dufault had oral sex and vaginal intercourse with the students on school property and in her car on multiple occasions.

In a letter addressed to the community, Acting Superintendent James G. Memoli and Principal Elizabeth Aaron said they were unable to comment on the allegations because they were still cooperating with an active investigation by both local and state police agencies.

Administrators, counselors, social workers and teachers had all been employed to provide support to any students or staff impacted by the arrest, they added.

“Our primary focus remains on the health, safety, and well-being of our students and staff,” they said.

The ongoing investigation was conducted by the Essex County Prosecutor’s Office Special Victims Unit and the Maplewood Police Department. Anyone with information is asked to contact the Essex County Prosecutor’s Office Special Victims Unit at 973-753-1130.

The matter represents at least the second case in which a Columbia High School teacher has been accused of sexual assault for having sex with a student.

In 2006, Nelson Trias, an English teacher at the school, was sentenced to three years in state prison on an official misconduct charge for having sex with a 16-year-old student in his classroom in June 2005.

Trias had pleaded guilty to the charge, and the sexual assault and other remaining charges were dismissed.

Reporter Dan Ivers contributed to this report.

ORIGINAL ARTICLE

Posted by Kemberlee Kaye

This is a thing that’s actually happening at Columbia University in New York City.

Rather than taking her allegations of rape to local law enforcement, Emma Sulkowicz has decided to carry around her mattress as long as her alleged rapist remains on campus. Sulkowicz didn’t report the rape immediately after it happened, but was convinced to report the alleged incident months later. The case was ultimately dismissed by university authorities.

According to the Columbia Spectator:

As long as her alleged rapist goes to Columbia, Emma Sulkowicz, CC ’15, plans on carrying a navy blue, extra-long twin-sized mattress wherever she goes.

Entitled “Carry That Weight,” the mattress is both the visual art major’s senior thesis and a step in her journey to come to terms with her experience. Over the past year, Sulkowicz has become a prominent critic of the University’s sexual assault adjudication policies, retelling her story to various administrators and media organizations to raise awareness.

“The past year of my life has been really marked by telling people what happened in that most intimate and private space,” Sulkowicz said, referring to the dorm bed where she was allegedly raped on the second night of her sophomore year.

“I was raped in my own dorm bed and since then, that space has become fraught for me. I feel like I’ve carried the weight of what happened there since then,” she added.

Months after her alleged rape, Emma reported the incident to the school. Her case, one of three individual complaints filed against the same student, was closed, and her rapist found “not responsible.” She appealed, but it was denied and the decision was upheld.

Sulkowicz has turned what she says was a horrible tragedy into performance art.

Performance art that will suffice as her senior thesis. A fact I’ll just leave there without commenting on further:

Sulkowicz plead her case to the university. But why didn’t she go to the police?

Why rely upon the school’s justice system to take action? 

Cases like this highlight what seems to be a growing problem in higher education.

Professor Jacobson wrote about a similar case in May, also occurring at Columbia. A male former Columbia student filed a complaint with a federal court in New York alleging he was found guilty of sexual assault by university officials based on weak evidence. He also claimed he was denied proper due process proceedings.

Legal Insurrection frequently writes about the death of due process on college campuses.

Serious allegations would be better be handled by law enforcement equipped to handle them and by a justice system designed to dispense justice as opposed to whatever is most politically expedient.

Sulkowicz made this argument herself in an interview with Time:

Ultimately they decided he wasn’t guilty. I appealed, but appeals go to the dean who basically has the autonomy to make the final decision for every case of sexual assault on campus. That’s not right. They either must find a disinterested party or they should train him because he hasn’t been trained to know to deal with survivors.

I think the school is pressured to find him not guilty because up until now Columbia could just push these things under the rug and no one would know. But that means the Columbia administration is harboring serial rapists on campus. They’re more concerned about their public image than keeping people safe.

Rape and sexual assault are major felonies.  Treat them that way.

Update:In an interview, Sulkowicz discussed her experience with the NYPD:

Emma, as well, reported to the police. As much as her attempts to work with the New York Police Department have already been documented, she reiterates to me how disconcerting the experience has been. “The first responder told me that what happened to me was consensual because I’d had sex with him before. I have [heard from the NYPD since], but just after being mishandled by them as well, I just didn’t feel safe or comfortable talking to them anymore, and they passed the case on to the district attorney’s office, who contacted me and said it would take up to nine months or a year for it to go to court. By then I would have graduated, and if I sit around waiting for that, I’ll be missing out on other opportunities like creating this piece, or doing other work, it’ll just be a waste of my time.” In short, she has been unable to work with the NYPD.

All accounts vaguely indicate Sulkowicz chose not to pursue her case with the NYPD. It took Columbia seven months to deal with the case once it was reported.

We still maintain major felonies should be treated as such.

ORIGINAL ARTICLE

Posted by William A. Jacobson  

Some privileges are permissible topics for discussion on campus and in the media.

For example, White Privilege is the obsession of some faculty and students.

George Will pointed out that there is another privilege on campuses — false or contrived claims of victim status.  Will did not argue that real victims, be it of actual racism or sexual assault, share some special privilege, but rather, that there are people who contrive or encourage others to falsely create victimhood where none exists.

We see it in theories such as microaggression, where in the absence of proof of actual racism, critical race theorists find racism in routine everyday interactions where the participants do not even realize they are being “racist,” much less have any racist intent.

We see it in repeated instances of fake, self-inflicted “hate crimes” in which the victim is, in fact, the perpetrator.

We also see it in the lowering of the standards of proof and definitions of what constitutes sexual assault.

I think everyone agrees that sexual assault as used in the criminal law deserves condemnation and punishment. But colleges, under pressure from the Justice Department and supposedly feminist groups, have started using definitions of sexual assault that can reach absurd results.

When I was in college, the standard for sexual assault basically was the title of Susan Brownmiller’s book — used during Freshman orientation — Against Our Will — Men, Women and Rape.  That made sense — No means No, whether expressed verbally or by conduct.  Or if the victim were incapable either by reason of age or physical condition of giving consent, that also made sense.  And those standards roughly equate to the criminal law’s understanding of sexual assault and rape.

Now, however, “against our will” on campus has become murky, using standards in which two completely willing participants who evidence no indication that the sexual activity is against either of their wills, will have committed a campus offense.  But only men are prosecuted.

The campus movement — reflected in proposed California legislation — to require affirmative verbal statements of consent at each and every stage of sexual relations creates crimes where no crimes exist in any real sense.  And those contrived crimes, in which both parties in fact willingly participated in conformity with their will at the time, allow after-the-fact claims of sexual assault months or even years after the event, sometimes after consultation with others.

Mere intoxication at a non-disabling level also may create a campus violation, as K.C. Johnson describes at Minding the Campus, If She Had Drinks, You May Be a Rapist:

The Education Department’s Office for Civil Rights has been waging a war on campus due process, ordering colleges to change their disciplinary processes to make it more likely that students accused of sexual assault will be found culpable. Many schools, however, have gone beyond the OCR’s demands in various ways, both in terms of due process changes and in terms of dramatically expanding what constitutes a sexual assault. So the chances of an innocent male being branded a rapist are growing.

Not suprisingly, we are seeing an increasing number of lawsuits by men convicted in campus tribunals of sexual assault under vague standards and loose if any burdens of proof.  Kangaroo campus courts are what await men accused of sexual assault, where lives can be ruined even though no criminal charges were filed much less prosecuted.

George Will pointed some of this out. And for that wrongly was accused by propagandists of sanctioning sexual assault and rape.

Will now is experiencing the campus Shut-Up Culture, in which the statistics or standards used to make claim to a “rape culture” cannot even be subject to debate.

Except that Will is not being shut up by a college newspaper, but by the St. Louis Post-Dispatch, Editor’s note: Michael Gerson replaces George Will:

Starting today, Washington Post columnist Michael Gerson replaces George Will on Thursdays and Sundays….

We believe that Mr. Gerson’s commitment to “compassionate conservatism” and his roots in St. Louis will better connect with our readers, regardless of their political bent.

The change has been under consideration for several months, but a column published June 5, in which Mr. Will suggested that sexual assault victims on college campuses enjoy a privileged status, made the decision easier. The column was offensive and inaccurate; we apologize for publishing it.

We have heard from both conservative and liberal readers asking for new conservative voices. We believe Mr. Gerson’s addition to our op-ed page will be a refreshing and revitalizing change.

In coming weeks, we plan to bring more diverse voices to this page, and to connect our print readers with some of the other vibrant conversations taking place in the digital universe.

If you have any comments about the change, please email me at tmessenger@post-dispatch.com or call at 314-340-8382.

The St. Louis Post-Dispatch didn’t need to write such a long explanation. It could have just written, “Shut up, George.”

ORIGINAL ARTICLE

Posted by William A. Jacobson 

A wave of litigation is following years in which due process rights of accused male students were disregarded on campus.

We have been covering extensively the issue of denial of due process to male students on campus accused of sex-related infractions and/or crimes.

One of the cases we reported on regarded campus “conviction” of a male athlete at Columbia, where the female accuser took several months to complaint, and there were contemporaneous electronic communications reflecting that the conduct may have been consensual. See,Suspended Columbia athlete files federal lawsuit over campus sexual assault conviction.

The same attorneys alerted me to a new lawsuit filed on behalf of a student at the University of Massachusetts – Amherst.

The Complaint reads like so many of the others — allegations of consensual sex for which there were later regrets coupled with a university witch hunt to convict the male student almost in disregard of the evidence and without proper procedural protections.

The Boston Globe summarizes the Complaint:

The recent lawsuit against UMass Amherst contends that the male student, a Connecticut native and a sophomore at the time, met the female student, identified in the suit as Jane Doe, at a party in a friend’s dorm room.

During a night of drinking, playing card games, and dancing with friends, the two students became friendly and flirted, and she later invited him to her room to have sex, the lawsuit said. They had consensual sex, and the female student at no point showed signs of intoxication, according to the suit.

The next day, the female student could not remember what had happened, according to the lawsuit. At her roommate’s urging, the female student went to the campus health center for an evaluation. The following day, she filed a complaint with the dean of students’ office.

In her written complaint, she never called what happened harassment, assault, or rape, according to the lawsuit.

Three days later, the university told the male student he was under investigation for threatening behavior, sexual harassment, sexual misconduct, and violating community living standards, the lawsuit said. He was immediately ordered to move off campus and was barred from the premises except to attend classes, the lawsuit said.

Two months later, the university held a disciplinary hearing, the lawsuit said. But the male student had not been given copies of case documents beforehand, key pieces of evidence were not presented during the hearing, the male student was repeatedly interrupted, and questions he had were ignored, the suit said.

Two days later, the student was told he had been found “responsible” for three violations: “sexual harassment, sexual misconduct and community living standards,” and he would be expelled.

The student’s appeal was denied.

Of course, at this state these are only allegations, but they are allegations we are seeing not just in lawsuits around the country, but also through increased scrutiny of the media.

We will upload the Complaint shortly. (Here)

How does classifying most consensual sex as rape help rape victims?

As a lawyer who has handled rape and sexual harassment cases, I can’t imagine how. But this radical result is what some want to happen in California.

In endorsing a bill in the California legislature that would require “affirmative consent” before sex can occur on campus, the editorial boards of the Sacramento and Fresno Bee and the Daily Californian advocated that sex be treated as “sexual assault” unless the participants discuss it “out loud” before sex, and “demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity.”

Never mind that consent to most sex is non-verbal, and that rape has historically been understood to be an act against someone’s will, rather than simply a non-violent act that they did not consent to in advance. Perhaps in response to the bill, the University of California, on February 25, adopted a policy requiring affirmative consent not just to sex, but to every form of “physical sexual activity” engaged in.

The affirmative-consent bill, Senate Bill 967, does not expressly require verbal permission to demonstrate consent, although it warns that “relying solely on nonverbal communication can lead to misunderstanding.”

But supporters of the bill are very clear about their desire to require verbal discussion or haggling prior to sex.

The Fresno Bee praised the bill because “it adopts in campus disciplinary cases the ‘affirmative consent standard,’ which means that ‘yes’ only means ‘yes’ if it is said out loud.” The Daily Californian declared that “the proposal’s requirement that defendants in a sexual assault case demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity makes SB 967 a step in the right direction.”

Since most couples have engaged in sex without “verbal” consent, supporters of the bill are effectively redefining most people, and most happily-married couples, as rapists. By demanding verbal discussion before sex, they are also meddling in people’s sex lives in a prurient fashion.  (Whether consent is explicit is often inversely related to whether sex is really welcome, with grudgingly consensual acts often being preceded by more explicit discussion and haggling than acts that are truly welcomed and enjoyed, as I explain here).

Requiring people to have verbal discussions before sex violates their privacy rights, under the logic of Supreme Court decisions such as Lawrence v. Texas (2003), which struck down Texas’s sodomy law, and federal appeals court decisions like Wilson v. Taylor (1984), which ruled that dating relationships are protected against unwarranted meddling by the Constitutional freedom of intimate association.

It also serves no legitimate purpose, since even supporters of the bill, like Tara Culp-Ressler have on other occasions admitted that sexual violence is not the result of mixed signals: studies show that people who commit sexual violence are almost always aware that what they are doing is against the will of their victims, rather than the assault being the product of “blurred” communications.

Defining sex as rape merely because there was no verbal discussion in advance trivializes rape and brands innocent people as rapists (including some people who themselves have been sexually victimized in the past).

Disturbingly, it’s not just sex they want to regulate, but also “sexual activity” in general. The bill may require affirmative consent before multiple steps in the process of foreplay that leads to sex, even between couples who have engaged in the same pattern of foreplay before on countless occasions.

The bill states:

“’Affirmative consent’ is a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions. . . The existence of a dating relationship between the persons involved, or the fact of a past sexual relationship, shall not provide the basis for an assumption of consent.”

This disregards common sense, since what people intend or consent to is often illustrated by the history or nature of their relationship, such as when courts determine the intent of the parties to a contract by looking at the past course of dealings between the parties.

In addition to endangering privacy rights, SB 967 also contains provisions that could undermine students’ due process rights, such as mandating a low standard of proof for discipline, and encouraging anonymous allegations, as I explained in a letter published last month in the Sacramento Bee. The bill’s requirements apply not just to public colleges, but also to certain private colleges.

On February 25, the University of California system appears to have essentially adopted most of the requirements of SB 967, in a new policy defining “sexual assault” and “sexual violence,” to include some conduct that is not violent at all.

What concerns me most is that the policy defines “sexual assault” to require “unambiguous” “affirmative” consent prior not just to penetration (which is not always unreasonable if consent is defined to include non-verbal cues as well as verbal responses), but also “physical sexual activity” in general.

Effectively, this might ban foreplay as it commonly occurs among married and unmarried couples alike, as I explain in more detail at this link.

Yet, the University of California policy says:

“Sexual Assault occurs when physical sexual activity is engaged without the consent of the other person or when the other person is unable to consent to the activity. . . .Consent is informed. Consent is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. . .Consent means positive cooperation in the act or expression of intent to engage in the act . . . Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion. A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. . .Consent must be ongoing throughout a sexual encounter.”

Although this language is vague (at one point, it allows consent to be based on “positive cooperation,” which might extend beyond consent in advance), it clearly defines some sex and sexual activity as sexual assault on campus, even if it would be perfectly legal off campus (it does so even more clearly than SB 967 does).

It does that even though college students are largely adults who have the right to vote, get married, and serve in the military. For example, students have First Amendment rights that are largely “coextensive” with their rights in society generally, as the Supreme Court has indicated in decisions such as Papish v. University of Missouri Curators, Healy v. James, and Rosenberger v. University of Virginia. (Disclosure: I used to practice education law for a living.).

The assumption seems to be that California’s general definition of sexual assault, which applies off campus, is too narrow. But this assumption is dubious, and in a few rare situations existing law is already too broad, as I discuss here.

(Featured Image: YouTube – Sex Consent – The Legal Take On Love)

Hans Bader is a senior attorney at the Competitive Enterprise Institute. Before joining CEI, Hans was Senior Counsel at the Center for Individual Rights. Hans blogs regularly at theOpenMarket.org and is an occasional contributor to Legal Insurrection and College Insurrection.

 

ORIGINAL ARTICLE

Posted by William A. Jacobson 

Last March we covered how California Seeks to Redefine Consensual Campus Sex as Rape, and we asked the question: “How does classifying most consensual sex as rape help rape victims?”

It doesn’t, of course. The California affirmative consent legislation was not about preventing rapes or other sexual assaults, which already are crimes, but about redefining inter-personal relationships in accordance with radical feminist demands which always view the female as victim of the male patriarchy.

The affirmative consent obligation now is on the verge of becoming law (emphasis added):

To address the problem of rape on campuses, California colleges and universities would have to adopt a standard of unambiguous consent among students engaging in sexual activity under a proposal passed by state lawmakers Thursday.

If signed by Gov. Jerry Brown, such policies would be required at all public colleges and other institutions that receive state funds for student aid. They would have to include a detailed protocol for assisting victims of sexual assault, stalking, domestic violence and date violence….

Students engaging in sexual activity would first need “affirmative consent” from both parties — a clear threshold that specifically could not include a person’s silence, a lack of resistance or consent given while intoxicated.

Campus relationship regulation now is about the predominance of “rape culture” theory which ensnares men into kangaroo campus courts, and even opposes objective preventative measures, like “Undercover Colors” nail polish that reacts to date-rape drugs.

The normal sequence of romantic interaction now is a violation of law unless there is something more than objectively willing conduct. It’s no longer “against our will,” but rather, a matter of procedural steps imposed on willing, consensual participants in order to avoid creating a crimewhere none exists:



When I was in college, the standard for sexual assault basically was the title of Susan Brownmiller’s book — used during Freshman orientation — Against Our Will — Men, Women and Rape.  That made sense — No means No, whether expressed verbally or by conduct.  Or if the victim were incapable either by reason of age or physical condition of giving consent, that also made sense.  And those standards roughly equate to the criminal law’s understanding of sexual assault and rape.

Now, however, “against our will” on campus has become murky, using standards in which two completely willing participants who evidence no indication that the sexual activity is against either of their wills, will have committed a campus offense.  But only men are prosecuted.

So normal consensual human interactions must be documented to prove affirmative consent.

In the March post, we linked to the video below, which clearly was intended as parody at the time.

Parody may be law soon in California:

ORIGINAL ARTICLE


BY LEVI PULKKINEN, SEATTLEPI.COM STAFF

A 28-year-old woman accused of breaking into a West Seattle man’s home and forcing herself on him as he slept has been charged with rape.

Filing the charge earlier in September, King County prosecutors claim Chantae Gilman sexually assaulted her neighbor during a night break-in more than a year ago. Police claim a recently completed DNA test tied Gilman to the rape.

The man told police he’d gone to sleep following a party only to wake to find Gilman on top, pinning him down as she had sex with him, a Seattle Police Department detective said in charging papers. The man didn’t know the woman but recognized her as a “drug user in the area,” the detective continued.

The man demanded Gilman get off of him, but she refused and told him to be quiet, the detective said. According to charging papers, he was able to work his way out from under the 240-pound woman and push her out of the apartment.


Staff at Harborview Medical Center performed a sexual assault examination on the man later in the day. DNA collected then is said to match Gilman.

Interviewed by police, Gilman said she didn’t remember having sex with the man or being in his home. She described herself as mentally ill.

Gilman was charged Monday with second-degree rape. A warrant for her arrest has been issued.

Check the Seattle 911 crime blog for more Seattle crime news. Visit seattlepi.com's home page for more Seattle news.