September 29, 2014

Jerry Brown signs a law requiring colleges and universities that get state money to impose a "yes means yes" standard on student sex.

The Chronicle of Higher Education — citing the famously spurious "one in five women" statistic — says the new law "ushers in a new era in the debate about how to curb sexual assaults on college campuses."

Actually, the statute doesn't — like the Chronicle — call it the "yes means yes" standard, which sounds silly, since "yes" already meant yes. They ought to at least say "only yes means yes." But the statutory term is "affirmative consent":
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. 
He or she... this is gender neutral, as, of course, it must be. So no more assuming that the male must want the female's touchings.
Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
The statute proceeds to speak of "the accused" and "the complainant." The accused is not permitted to use intoxication as an excuse for misperceiving the existence of affirmative consent and there can be no affirmative consent when the complainant was "incapacitated" by drinking or drugs.

What if both are drunk? The smartass answer to that question is: It depends on who's the accused and who's the complainant. It seems as though, beyond the gender-neutrality of the statute, there is an assumption that only women will complain. The statutory scheme would collapse if men complained too. But social conditioning and convention keep men quiet... at least so far. Perhaps in the future, they will complain defensively after a night of ambiguity.

As The Chronicle of Higher Education says, it's "a new era in the debate."

ADDED: I suspect that what's really going on is an effort to change the culture of drinking and sex. It will go the way of drinking and driving and become something that decent people don't do... not beyond a light drink anyway. The feminist angle is the wedge.


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Todd said...

David said...
Frankly they do not care if a young man's reputation is ruined by female timidity during the encounter and retrospective regret or revenge.
9/29/14, 1:25 PM


MayBee said...
This comment has been removed by the author.
MayBee said...

well said
"It is hard to believe that the omission of a standard for withdrawal of consent is an oversight. "

Omission of a definitive timeline also seems unlikely to be an oversight:

Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

Look how open-ended that is.

SGT Ted said...

If they were serious about solving the problem, they would deal with the underage drinking on campus that leads to the vast majority of these situations.

Instead of this silly shit, they'd actually be doing something constructive.

richard mcenroe said...

What do you mean 'something decent people don't do"? Some of our most prominent Democrat candidates and elected officials here in Texas do it all the time! The videos are awesome!

damikesc said...

Again, how can a man prove consent?

It's, literally, no different than it is right now.

He says she consented. She says she didn't. Ergo, he's a rapist.

And women wonder why assholes are so prevalent. Because one must be an asshole to look at the risk and not give a shit.

Auntie Ann said...

Inch by inch, the Victorian Era returns, for what guy would want to go out with a girl under these terms...especially when other entertainments are probably cheaper.

The straight-laced Victorians were a reaction to their rather shocking parents of the Regency. Now, we see the reaction to the free-love movement.

The pendulum swings.

Auntie Ann said...

damikesc said...

Again, how can a man prove consent?

By paying for it and getting a receipt. Nevada borders California after all.

SH said...

A: so if affirmative consent means you can't consent under many situations. then...yes does not mean yes.... typical bs on their part...
B: so can men counter complain about not giving affirmative consent... after being accused?

Krumhorn said...

This is what burdens of proof are for. If it's not a criminal case, the burden might be low, preponderance of the evidence. Still, if it's in equipoise, the accused should win.

Not every problem can be solved by action of the state. In fact, this is the quintessential use of state power for social engineering purposes. It's a terribly blunt instrument that will clearly cause more harm than is usually the case.

The current crop of sexual conduct regulations often don't even permit direct questioning of the complainant (or of the complainant's witnesses) by the accused. There is no enforceable assurance of an unbiased hearing panel. Often the accused isn't even permitted to be represented by counsel.

The consequences of the results of Orwellian campus sex tribunals can be extremely severe. One guy at Holy Cross was expelled the day before he was to graduate because of sex with a woman who said she was too drunk to consent. He asserted that she wasn't drunk and willingly participated.

Apart from the cost of his education, his opportunities after expulsion for rape were pretty limited. Unless the idea is that guys should just relax and submit to the tender mercies of the feminists, we shouldn't be so unconcerned about the (already known) results of these policies.

- Krumhorn

Tarrou said...

Ok guys, line up. How many of you have had sex? Of those, how many of you gave AFFIRMATIVE VERBAL CONSENT?

Right, that's none of you, everyone off down to the Provost to fill out the paperwork!

Seriously, there is one simple and easy way to destroy this law. Make it apply equally to women. Guys, report any woman who has not expressly asked your consent before sexual behavior. I'm reporting my girlfriend to the chancellor's office. They say she doesn't go to school there, but should that count? Surely, rape in a college is the same as rape anywhere else.

President-Mom-Jeans said...

I wonder if Althouse would be so gung ho if these new ridiculous rules were imposed on her son.

Or are the gays a protected class and the rules don't apply to them like those evil heteros?

Titus, feel free to chime in.

VeracityID said...

Mr. Hand always says yes. And the girls online are better looking and do more for less money. Go long on porn and whorehouses, they are going to clean up. Short anything to do with babies or dating.

What? You mean I have to pay and then I have to beg and she can still wreck me of she feels bad about it at thrust 137?

Don M said...

Problem with 'incapacitation' as a standard is there will hardly ever be any evidence of incapacitation, or lack of same after the event is complete.

Drunk driving convictions depend on breath or blood tests performed within minutes of the arrest.

Complaints will occur at least hours later, and so any evidence of incapacitation will be gone, or evidence of not being incapacitated will be gone. Worse, a conscious woman with regrets could drink afterwards to increase blood alcohol level, and create false evidence of incapacitation.

Don M said...

It was simpler when I was young. 20$ on the bed was normal.

Today, I guess one has to run one's credit card through the young lady's square on her iPhone with an appropriate tip. Of course that provides evidence of prostitution.

Damned if you do, Damned if you dont.

khesanh0802 said...

Bob Boyd's phone app is the winner. The only thing missing is the on -call college Dean of Notary witnessing the consent document.

n.n said...


I think Althouse would offer a similar response. Remember when she raised the issue of exposing the fraudulent basis for homosexual discrimination? The homosexual on homosexual crime, which was popularly presented and exploited as a hate-crime. I don't think she would want her son to be a victim on either side of that justice scale.

Don M:

That reminds me of the conflict created by the investigation of an allegation of lewd conduct in public, which was popularly portrayed and exploited as discrimination. That was a hornet's nest. Or the many other situations, which are selectively elevated to an exquisite focus.

hombre said...

Although the voting patterns of young single women imply adolescence, these new college sex nanny regulations really are over the top.

Douglas said...

Prof Althouse,

When I accused you of wanting to toss due process out the window, I was specifically referring to your comment:

"Note that the students are choosing to go to the school, and they submit to the system of rules.

"I'm not saying that law doesn't impose some limits on what those rules can be, but the students a subject to a lot of sanctions that wouldn't apply to them otherwise."

I cited the Donohue case as support for the proposition that the due process clause requires confrontation and the right of cross examination in cases where witness credibility is the key factual issue and expulsion is the penalty. The DOE guidelines specifically forbid giving students accused of sexual assaut these procedural rights and in fact most schools do not do so. I don't think asking me when I stopped raping my wife is really an adequate response to my question of whether you could make some other suggestion for changing the hookup culture that didn't rely on kangaroo courts that were pre-programmed to convict male students of sexual assault and expel them from school without affording them any of the customary indicia of due process.

sean said...

I think the theory that men will not become complainants because of social pressure will break down quickly. Surely the first thing any lawyer will advise an accused to do is to file his own complaint.

Ann Althouse said...

@davis I have not said what I think the process should be. You made a classic assumption of a fact not in evidence, and I gave back the joke it quite precisely deserved.

There is room for a campus community to have rules of behavior and the process due is an issue tgat I have never attempted to resolve here in writing.

buwaya said...

College students drinking to excess is such an ancient thing that I think it has acquired a degree of respectability - i.e., a bit of license to which students are entitled by tradition.
Attempts to control this rub me the wrong way.

These are nearly all medieval students drinking songs -

buwaya said...

In fact I think that student saber dueling should be reintroduced. Best done while drunk. It would immensely improve the character of our graduates.

chillblaine said...

That clicking is the sound of California boys choosing out-of-state colleges, and farmboys choosing to stay in-state. The enrollment at the Reseda Porn Institute will drop off too.

Two hundred comments and not one from Natalie Portman Sexbot. Must be offline.

chickelit said...

Jello Biafra had something to say about this issue: TDTF. There's actually some cinematic erudition in the lyrics.

Come to think of it, Jello Biafra had a few things to say about Jerry Brown.

jr565 said...

Jane the actuary wrote:
By definition, if both the man and woman are drunk, the man is at fault.

I'm not saying that in a sarcastic way. I'm saying that's what the "experts" are on the record as having said.

not only are you not being sarcastic you can hear some of this same attitude from Althouse when it comes to men and their sperm. Women could fellate a dude and take the tissue out of the garbage Impregnate herself with it and she would say the man needs to guard his sperm. Apparently he needs to carry all sperm filled tissues from the bedroom or its his fault and he's responsible for child support. she could have had sex with an underage boy, and took his sperm from the garbage, and did the same and she (and society) would still hold him accountable for child support.
Why doesn't Yes me a Yes also apply to paternity. Did she get express permission from the man before she impregnated herself with his sperm without his knowledge.

Static Ping said...

There are already reports of men secretly taping sex just to avoid these prosecutions. From Instapundit:

I am also baffled why the politicians would think that they should apply a standard to colleges that does not apply to, you know, regular criminal acts. This feels like legislation by way of watching the Jesse Jaymes "College Girls Are Easy" music video on repeat. But then again this is California. They probably have that in the shuffle with "Me So Horny," "Put 'Em on the Glass," and "Blurred Lines" in the state senate's men's bathroom.

Also, I think betamax3000 had the best comments, both on humor content and deep insight. Well played.

jr565 said...

"I would advise young men to have the self-respect to turn away from women who've had anything more than a light drink. Quite aside from the trouble it can cause you with the authorities, it's a pathetic way to go about having sex. "
Yet women can go on slut marches and men are pricks if they point out that they are in fact acting like sluts. Not saying that Althouse is on one hand saying that its ok to be a slut, but men must be chivalrous gentlemen, but some are certainly saying it. What would althouse advise the drunken women getting themselves into situations where they are potentially taken advantage of by men? Isn't that similarly a pathetic way to go about having sex?

jr565 said...

Joe rec wrote:
If it's an alleged crime, why doesn't this go to the police? And I don't mean the campus police either."
Because those are the rules on campus. It's handled in house. now, let's remember the Joe Paterno/Sandusky case and those who vilified Paterno for not doing more, despite not being witness to any actual events. He did exactly what the campuses said should be done. Take it to the school authorities and let them deal with it. How many people who vilified Paterno are supportive of these policies?
Paterno had his career ruined for basically following campus protocol that most universities use as the status quo.

jr565 said...

"Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent. "

"I'm going to Insert my penis into your vagina. Is that ok? I'm now going to thrust. Is that ok? I'm going to thrust again. Is that ok. I'm going to thrust again is that ok? I'm going to thrust ten times in rapid succession. Is that ok? You only have to say yes once. Or do you want me to ask for every thrust? Which way is best for you? I can ask once for a group of thrusts or I can ask every time I thrust. I just want to make sure you are ok with it. Are you ok with it? "

Aunty Trump said...

So is a premature ejaculator a serial rapist?

May I come now ma'am?

Not yet.



jr565 said...

People want to have cops film all interactions with the public to show what happens and so that cops don't get away with illegal activity. I'm starting to think all sex should be filmed so thst women don't falsely accuse guys of rape on the same premise.

David said...

Ann Althouse said...
@davis I have not said what I think the process should be. You made a classic assumption of a fact not in evidence, and I gave back the joke it quite precisely deserved.

There is room for a campus community to have rules of behavior and the process due is an issue tgat I have never attempted to resolve here in writing.

Professor, with respect,I understand that you have not articulated a process that you think would work. My point is that there is NO PROCESS that can compensate for the inadequacies in the definition of the standard of conduct (especially when coupled with the witch hunt environment.) When the substantive standard inherently encourages complaints based on ambiguity or dishonesty, process is irrelevant. You misunderstood (or I did not fully articulate) my point. To put it more crudely, process is bullshit with standards like this.

Todd said...

David said...
To put it more crudely, process is bullshit with standards like this.
9/30/14, 10:18 AM

That completely depends on what the goals are. Based on recent history, the standards and the process are working exactly as designed and expected.

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