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October 28, 2014

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Regarding ugh's update pointing to Henry Farrell, Crooked Timber has a post up about Farrell remarks accompanied by an interesting 275 comment thread, thus far.

If you are lucky, you might catch Brett Bellmore on the thread, though I haven't read enough to know.

He's been hanging at Crooked Timber, and even found himself disemvoweled at one point last week.

I could tell what he was writing, however.

NV:

I really don't disagree with anything in your last post. A few minor comments:

This is really the biggest problem I see with the law.

SA cases is that it very often devolves to dueling unsupported testimony, and this does nothing to resolve that.

Agree 100%. In general, I am against passing laws that do little.

and I can see it being used to frivolously muddy the waters far more frequently.

Agree.

Ugh:

It seems that we have, and maybe will always have, a morass in this area.

I would agree.

Is that any clearer currently than this law is potentially?

I don't think so. I'd be curious to hear a case otherwise.

So this attempt to "clarify" things in that context in an (it seems) attempt to reduce the number of sexual assaults.

I think that was the attempt. I generally believe people are good, and try to do go things, unless demonstrated otherwise.

And to be absolutely clear, sexual assault is a problem on college campuses. I don't assume malice on the law's authors, just inability to solve a difficult problem.

I think the attempt failed, and added more mud to the waters rather than clarifying it.

IMHO, when laws are unclear, they are more subject to abuse. Those that can afford an attorney can use ambiguous laws to their advantage...those that can't will get skewered by the ambiguities. Sometimes. Sometimes the arbiter in charge of the administrative process will just find one party more likable than the other.

To repeat myself, I think its a bad law. It will do little to reduce sexual assaults, and likely result in innocent people being punished. Possibly even allow guilty people to use the ambiguity of the law as cover.

when laws are unclear, they are more subject to abuse.

When there are no laws, regulations, or other guidelines, abuse also seems to occur.

Ideally all laws should be clear, crisp, and fair.

Ideally, college kids wouldn't sexually assault one another.

I have no opinion about the CA Uni directive, I'm only commenting on the general problem of addressing problems of all sorts via law.

It's a very clumsy tool. Other than miraculously changing the innate nature of humankind, I'm not sure what else is in the toolbox.

At best, what this law may do (especially with the publicity that is accompanying it) is help educate college kids that they do need to get some kind of affirmative consent. Not just assume it.

Of course, if it was clearer on what constituted affirmative consent, that would be better. But I suspect that even the well-intentioned among the legislators decided that they couldn't come up with any rules of thumb which would work.

Thus I do not see this in terms of "more government" v. "less government" but in terms of the tendency toward empire on the part of the powerful and the urge for domination on the part of the powerful, a concept not at all unfamiliar in the annals of human history.

I am concerned about that as well, but I see "the powerful" that I should be most concerned about are those with their hands directly on the levers of the machinery of power, and those who are major cogs in the machinery of power.

We have had, in Finland, an affirmative consent law concerning rape for some years now. It has worked pretty well. The law is bot written so as to require affirmative consent, because this would shift the burden of proof, but the law is quite clear that nothing less is acceptable:

Whoever forces oneself on another by using physical force or by threathening to use physical force, shall be convicted of rape to an imprisonment of no less than one year and no more than six years.

Also, those shall be convicted of rape who by exploiting that another due to unconsciousness, illness, disability, state of fear or other state of helplessness is unable to form or express their will, copulates them.

Damn, English is a difficult language! Finnish, with its gender-neutral third pronoun makes writing the definition much easier.

The definition of situations where the victim may be unable to form or express their will is so wide that only affirmative consent can do. This was also stated by our Supreme Court which upheld the conviction of a man who had copulated with a woman after having removed her trousers and pantiesdespite her request not to. The woman had then asked the man to use the condom, but said nothing else. The Supreme Court ruled that the case was exemplary of "state of fear" making the victim unable to express her will.

The case was a classic he said, she said situation. The Supreme Court convicted because the woman had told the story immediately on the next day to her best friend, reported the case to the police and gotten a rape kit and remained consistent throughout the process. The judgement's pondering on the evidence of the case is at least as important precedent as the pretty self-evident position on the definition of rape. On the same day, they also found a man not guilty in a similar he said, she said case, with a very good explanation of evidence and its evaluation.

I also don't see anything in there that says there must be a verbal statement of consent.

What clearly is needed is a standardized form to be signed by all involved parties and certified by three accredited witnesses ahead of canoodling (or rejection thereof) explicating in detail the intended acts. Plus of course an emergency form to be signed under the same conditions should the actions go beyond the originally envisioned.
Don't go between the sheets before filling out the legal sheets, although that is quite sheety (avoiding NSFW spelling) and may put a slight damp on the romantic nature.

In order that carrying such a form on your person may not be seen as consent in an on itself, the form must of course contain a 'NO' option too, so it has to be signed by all involved in case of no consent too.

'Would you be willing to undertake these acts of a sexual nature with me and/or a yet to be determined number of other persons and/or objects?
'No!'
'Then please sign here thus legally recognizing that advances of a sexual nature were made towards you in the proper form and that you rejected these the same way for reasons you can but do not have to specify (use form 3a in the former case).'
'OK, thank whatever-higher-being-we-worship-or-not that we live in a civilized society where such things can be dealt with in a sane and rational way.'
'Let's have a beverage of your choice on that (provided you are willing to sign this other form of consent to fluid intake).'

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