Affirmative consent is merely Rape of the gaps

Based on a YouTube conversation…

Rape of the Gaps

 

 

Trigger warning: long as a train going into a tunnel…

“i am, indeed, a proponent of the idea that making consent a prerequisite before sex is a reasonable limitation on individuals during sexual interactions, as a matter of ethical conduct…”

Consent before sex, before eating, before work, before anything is the hallmark of a civilized society.

This, however, is not what Senate Bill No. 967 (the “Affirmative Consent Law”) proposes. I’m not sure that you’re familiar with the law (the bill, really) in question. Find it here for clarity’s sake, it’s a reasonably easy read: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB967

In short, the law states that if universities want government funding, that they must enact policies that use affirmative consent as a standard to determine whether or not a rape has been committed. It propose that lack of of constant affirmation thought-out sexual activity is sexual assault. It is not merely “Would like you like to make love to me?” once followed by a yes-or-no; it is the Rape of the Gaps argument: every interaction that is not demonstrated to have had expressed verbal consent is a form of sexual assault.

The problem is that in case someone comes forth, claiming to be a victim of rape, the university must in fact demand evidence of non-rape on the part of the accused, the proving of a negative, and from someone who more often than not is not given the ability to respond, who is denied due process rights in the disciplinary hearing.

Of course, the only means by which evidence of consistent consent can be presented is via video, which of course, requires the consent of both participants before hand-holding begins, and the willingess of the disciplinary committee to admit it.

But there’s more. The accusation of rape is of course retroactive to any supposed act, and this is what makes it so dangerous. In addition to the many institutional and cultural prejudices against men in universities, and the standard of preponderance of evidence (50.1% more likely than not) versus the “beyond a reasonable doubt” standard in a highly politicized arena makes it so dangerous to men’s careers, freedom and future that the law itself is an unjust law. It is not designed to prevent rape as much as it is to assuage a lobbying group.

One of the reasons that the law has been pushed was to meet the condition of where a woman does not express consent, for reasons ranging from immobilization by terror, to mere discomfort at saying “no.” It is a law, designed on the basis that women are victims, and have such a flimsy character that they cannot even squeak out a “no” because they “froze.”

I the past, a popular witch-detection method was to make the accused submit to The Lord’s Prayer Test, in which the person had to recite the Lord’s Prayer without making any mistakes. It was believed that only the innocent could recite it all the way through without error, as surely those possessed by the Devil could never manage to recite holy words. Unfortunately, words are insufficient, and video is either impossible, or just as subject to any interpretation as one might wish to make a case.

“but, that being said, i have a lot of problems with the idea of mandating or legislating the method a set of individuals uses to gain and assess that consent.”

/me nods.

“i agree with the spirit of the law, just not the letter. a well-meaning, poorly thought-out proposal by well-meaning, poorly thought-out people.”

If you don’t mind, I’d like to gently point out that what causes this conversation to arise is that you aren’t familiar with either the spirit or the letter of the given law. I absolutely believe that you have honourable and moral intentions and, I do agree with you firmly that sex is a matter of consenting adults. Both adulthood, and consent should be a prerequisite. Where I disagree with you is that those who have lobbied for this bill are well-meaning, or that they have not fully thought this out.

But I’m a cynic, that way.

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5 thoughts on “Affirmative consent is merely Rape of the gaps

  1. “Affirmative Consent” is a great position for individual morality. When it’s ask yourself “is there a YES, not just the lack of NO”, this is a great way to determine if consent really is present. With Affirmative Consent being an individual moral standard, then “The look in her eyes” and “The way she wrapped her legs around me” are very much Affirmative Consent.

    When “Affirmative Consent” isn’t individual morality, but policy or even law, the question then becomes “What can I prove to a third party”. When “Affirmative Consent” is law, the act of sex is presumably a crime and getting consent become a matter of having the proper paperwork filled out and the acts documented to show they abides by the terms and conditions established in the sex contract.

  2. Matthew Chiglinsky says:

    I’ll be the first person to defend women on the issue of rape, but I’ll also be the first person to point out that rape cannot be legislated. It’s a matter of human emotion. Even if a girl says “Yes… Yes… Yes…” she may still regret the sexual experience later if she isn’t really in love with the guy. You can’t legislate love.

  3. Here’s what I don’t understand…. how does it actually help? You say she said yes the whole time, she says she didn’t… how do you prove or disprove what she said even if she said yes? Are you supposed to record it? I don’t understand how consent (or lack of consent) is ever proven in court.

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