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We live under laws on sexual assault that, in large part, were not written with women’s interests in mind. [...] The legal verdict on whether sex is nonconsensu

We live under laws on sexual assault that, in large part, were not written with women’s interests in mind. [...] The legal verdict on whether sex is nonconsensual still often rests on the perspective of the alleged perpetrator rather than the experience of the victim. It would be contrary to the principles of fundamental justice to imprison someone who has done nothing wrong. If the alleged perpetrator of an offence has taken all reasonable steps to ascertain consent (and believes that consent exists) then any lack of consent is a tragic mistake, not a criminal offence. As far as I can see, this was written with everybody's interests in mind.

cmdkeen 11y ago
An example of a law written with the (gender neutral) victim's interest in mind is that of statutory rape - you can contain all the consent you like but if the person is not viewed as being able to give it then an offence is committed. Attempts to move looking for consent towards it being "engaged and enthusiastic" rather than posing a Yes/No question have potential - though it really needs to become a societal thing before a legal expectation. We don't live in the 50s where a woman was expected to lie back and think of England - it shouldn't be for a single partner to take "reasonable steps to ascertain consent", it should be something you are certain of or you stop and make sure. Not just because it's the right thing to do, but also because you're likely to have much better sex...
- cperciva 11y ago
  An example of a law written with the (gender neutral) victim's interest in mind is that of statutory rape - you can contain all the consent you like but if the person is not viewed as being able to give it then an offence is committed. Almost. If they were not able to consent (due to age, inebriation, mental illness, etc.) then there was no consent. But if you had a well-founded belief in their ability to consent, then you are not culpable. In Canada it has been held to be unconstitutional for a criminal offence "where it is not open to the accused to exculpate himself by showing that he was free of fault" to have incarceration as a possible punishment; such absolute liability is valid for such things as parking tickets, however. Offences such as statutory rape are instead "strict liability" offences: The prosecution is not required to show intent, but an accused can raise the defence of due diligence. The situation is a bit murkier in the USA, but courts have accepted (see e.g., Kantor) a "good faith" defence even where the legislature has explicitly rejected the mens rea requirement.
peteretep 11y ago
> It would be contrary to the principles of fundamental > justice ... then any lack of consent is a tragic > mistake, not a criminal offence There's a reason jurisprudence is a doctorate: https://en.wikipedia.org/wiki/Strict_liability_%28criminal%29 https://en.wikipedia.org/wiki/Strict_liability_%28criminal%2...
- cperciva 11y ago
  There's a reason jurisprudence is a doctorate: Yes, there is: http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985ca...
ZeroGravitas 11y ago
Isn't taking all reasonable steps to ascertain consent what the affirmative consent thing is all about? It's one of those sensible things, like recycling, renewable energy, belief in evolution, or decent medical coverage, that somehow becomes a very bitter political issue for no logical reason.
- deleted 11y ago
  [deleted]
  - Steuard 11y ago
    It doesn't have to be verbal! I'd consider a big grin while pulling your partner into position to be a perfectly lovely form of affirmative consent, just for instance. (That's why it's not called "verbal consent", eh?) "Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression." -- http://system.suny.edu/sexual-violence-prevention-workgroup/policies/affirmative-consent/ http://system.suny.edu/sexual-violence-prevention-workgroup/...
- nailer 11y ago
  Is requiring consent at every sexual escalation practical? Do affirmative consent campaigners encourage women having sex with men to obtain affirmative consent when the woman escalates?
  - Steuard 11y ago
    Without question, yes! That's the whole point.
    - nailer 11y ago
      So from talking to flirting? Flirting to lightly touching arm? Lightly touching arm to sitting closely? Sitting closely to staring into eyes? Staring to kissing? Kissing to hands on body? Each escalation of foreplay? I understand what you're saying, but I don't see the granularity as being clear at all. Nor have I ever seen anyone else pressure women into obtaining explicit consent at each escalation. You mention in another thread consent could be given non verbally. Non verbal cues are easily misunderstood - and we're taking about using this as a basis for determining guilt for a serious crime here.

cmdkeen 11y ago

An example of a law written with the (gender neutral) victim's interest in mind is that of statutory rape - you can contain all the consent you like but if the person is not viewed as being able to give it then an offence is committed. Attempts to move looking for consent towards it being "engaged and enthusiastic" rather than posing a Yes/No question have potential - though it really needs to become a societal thing before a legal expectation. We don't live in the 50s where a woman was expected to lie back and think of England - it shouldn't be for a single partner to take "reasonable steps to ascertain consent", it should be something you are certain of or you stop and make sure. Not just because it's the right thing to do, but also because you're likely to have much better sex...

cperciva 11y ago
An example of a law written with the (gender neutral) victim's interest in mind is that of statutory rape - you can contain all the consent you like but if the person is not viewed as being able to give it then an offence is committed. Almost. If they were not able to consent (due to age, inebriation, mental illness, etc.) then there was no consent. But if you had a well-founded belief in their ability to consent, then you are not culpable. In Canada it has been held to be unconstitutional for a criminal offence "where it is not open to the accused to exculpate himself by showing that he was free of fault" to have incarceration as a possible punishment; such absolute liability is valid for such things as parking tickets, however. Offences such as statutory rape are instead "strict liability" offences: The prosecution is not required to show intent, but an accused can raise the defence of due diligence. The situation is a bit murkier in the USA, but courts have accepted (see e.g., Kantor) a "good faith" defence even where the legislature has explicitly rejected the mens rea requirement.

peteretep 11y ago

> It would be contrary to the principles of fundamental > justice ... then any lack of consent is a tragic > mistake, not a criminal offence There's a reason jurisprudence is a doctorate: https://en.wikipedia.org/wiki/Strict_liability_%28criminal%29 https://en.wikipedia.org/wiki/Strict_liability_%28criminal%2...

cperciva 11y ago
There's a reason jurisprudence is a doctorate: Yes, there is: http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985ca...

ZeroGravitas 11y ago

Isn't taking all reasonable steps to ascertain consent what the affirmative consent thing is all about? It's one of those sensible things, like recycling, renewable energy, belief in evolution, or decent medical coverage, that somehow becomes a very bitter political issue for no logical reason.

deleted 11y ago
[deleted]
- Steuard 11y ago
  It doesn't have to be verbal! I'd consider a big grin while pulling your partner into position to be a perfectly lovely form of affirmative consent, just for instance. (That's why it's not called "verbal consent", eh?) "Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression." -- http://system.suny.edu/sexual-violence-prevention-workgroup/policies/affirmative-consent/ http://system.suny.edu/sexual-violence-prevention-workgroup/...
nailer 11y ago
Is requiring consent at every sexual escalation practical? Do affirmative consent campaigners encourage women having sex with men to obtain affirmative consent when the woman escalates?
- Steuard 11y ago
  Without question, yes! That's the whole point.
  - nailer 11y ago
    So from talking to flirting? Flirting to lightly touching arm? Lightly touching arm to sitting closely? Sitting closely to staring into eyes? Staring to kissing? Kissing to hands on body? Each escalation of foreplay? I understand what you're saying, but I don't see the granularity as being clear at all. Nor have I ever seen anyone else pressure women into obtaining explicit consent at each escalation. You mention in another thread consent could be given non verbally. Non verbal cues are easily misunderstood - and we're taking about using this as a basis for determining guilt for a serious crime here.