T Nation

'Affirmative Consent' Policies


Thoughts? (It's a long piece)

I was particularly disturbed by the shift from "innocent until proven guilty" to "guilty until you can prove you're innocent." But The intent here seems good, protect people. The implementation is frightening as hell though.

One of the main concerns for those who oppose "affirmative consent" policies is how an accused person is supposed to prove they obtained consent when the only evidence is an accusation. Schulhofer and Murphy's draft shifts the burden of proof from the accuser to the accused, who would now have to show he â?? it is usually he â?? obtained consent in order to prove there was no assault.



I've been waiting for someone to post something like this so I could link to this story. It's beyond horrifying:

  • Amherst College expels male student for raping female student while he was blacked out. Yes, he was blacked out. And she performed oral sex on him while he was blacked out. But because he couldn't prove that the encounter was consensual (because he was blacked out, duh), he's guilty of rape.

Got that?

Fuck everyone involved in this fucking travesty, I hope they all die a lingering, painful death.

Amherst College expelled a male student who was accused of sexually assaulting a female student while he was blacked out. Again, while he was blacked out. The woman he allegedly assaulted was fully lucid.

How did that happen? It didnâ??t. The evidence overwhelmingly suggests that the male student did nothing wrong. If anyone committed sexual assault during their encounter, it was in fact the female student.

The male student, â??John Doe,â?? is suing Amherst. KC Johnson parsed his lawsuit here. Agreeing with Johnsonâ??s analysis, The Washington Examinerâ??s Ashe Schow wrote:

This is one of the few cases where we have an actually good idea of what happened the night in question. Doe accompanied the accuser (who was Doe's girlfriend's roommate) to her dorm room. The accuser performed oral sex on a blacked out Doe (Johnson notes that even the Amherst hearing found Doe's account of being blacked out "credible"). Doe leaves. The accuser then texted two people: First, a male student she had a crush on â?? whom she invited over after a heavily flirtatious exchange earlier in the evening. Then, a female friend.

The accuser said during her hearing that she only texted one friend to help her handle the assault as she felt "very alone and confused." But her texts with her female friend give no indication of an assault. Rather, the accuser texted her friend "Ohmygod I jus did something so fuckig stupid" [sic throughout]. She then proceeded to fret that she had done something wrong and her roommate would never talk to her again, because "it's pretty obvi I wasn't an innocent bystander."

She also complained that the other man, who had come over after the alleged assault, had taken until 5 in the morning to finally have sex with her.

The accuser found herself friendless after the encounter, when her roommate discovered what she had done.

Between the encounter with Doe and the accusation â?? nearly two years later â?? the accuser developed new friends. And as it happens, these new friends were all "victims' advocates."

After making those new friends, long after the incident, she accused John Doe of assaulting her. The adjudication process, as described by Johnson, was a Kafkaesque farce:

Despite an accuser who offered borderline non-coherent responses that subtly expanded on her initial story, the panel ultimately accepted her credibility. It ruled that while Doe likely was â??blacked outâ?? during the oral sex, â??[b]eing intoxicated or impaired by drugs or alcohol is never an excuse.â?? Since AS [the female] said she withdrew consent at some point during the sexual act, and since Doe couldnâ??t challenge that recollection, the panel was at least 50.01 percent inclined to believe the accuserâ??s tale.

Keep in mind what happened here. John Doe was with his girlfriendâ??s roommate when he blacked out. She then performed oral sex on him. She immediately regretted itâ??not because Doe had done anything wrong, but because she had done something wrong. Yet he was expelled.

This outcome was obviously a gross miscarriage of justice. I think even the most staunchly pro-victim anti-rape activists would admit that (maybe). But it strikes me that this is exactly the kind of confounding verdict that a college is likely to reach when forced to adhere to the favored policies of the anti-rape activists: affirmative consent and preponderance of the evidence standards. When university administrators poorly trained in legal procedures are asked to determine whether it is more likely than not an accused student had obtained ongoing, enthusiastic, affirmative consent during a sexual encounter, they will invariably convict the innocent.

In a twisted sense, administrators were correct to find John Doe guilty. He was accused of sexual assault, and he couldn't prove the encounter was consensual. Imagine if he had accused her of sexual assault as wellâ??the panel might very well have concluded that they raped each other.

We should expect to see more of this insanity, not less, when the federal government obligates college administrators to insert themselves in studentsâ?? sex lives.


I won't argue with Walkaway again that's for sure...

Doc, that makes me want to punch someone repeatedly in the face.


What's this mean? Cliff's to backstory?


For some weird reason, and it isn't on purpose, I almost always seem to argue with Walkaway when this sort of stuff comes up because it's usually him posting some nonsense about how men are falsely accused, women get off with a hand slap, etc...

I never in 100,000,000 years would have thought a guy would be expelled for rape while being completely blacked out. If anything the girl should be charged with rape.

So, I won't argue with him about this topic again. On some level he's right and I was wrong.


Walkaway lied about being falsely accused of rape in a thread he created this year. Then he sought to justify his lie by pointing to the larger social problem of false-rape accusations. In a nutshell.


Walkaway's biggest sin was lying about his own personal situation.


The thread where his OP was a complete lie (about being falsely accused of rape) comes to mind. His delivery is awful, but what can I say? This is evidence that men, especially young men, can very easily find their lives destroyed over a fucked up system.

Humble pie tastes like shit, but it is what it is.


Absolutely, but this at least justifies the premise of that thread.



*Edit: I just read back through that thread. Fuck that guy...


I found this story too ridiculous to be believed so I googled several accounts of this case. The following looks like a more probable version:

"The complaint also alleges that â??after the disciplinary process had run its course, the plaintiff discovered, and submitted to the college, irrefutable, documentary evidenceâ??text messages previously concealed by the complainantâ??which disclosed that the very night the sexual encounter occurred, the complainant admitted that not only had she consented to the sex, but that she was its moving force.â??

"Jonesâ?? original complaint alleges the oral sex had been nonconsensual the entire time. However, she later told an investigator that she performed oral sex willingly at the beginning and it became nonconsensual â??â??on a breakâ?? during the sex act,â?? per Doeâ??s complaint. Documents say that Jones had asked Doe to stop but that he had forcibly made her continue."


Oh... Yeah I didn't read any of that thread, and if I did and even posted, I've purged it from my consciousness.


Quit saying his name; you'll summon him.


I thought it took three time and a mirror.

Biggie Smalls

Biggie Smalls

Fuck, I can't do it!


There's no way that they would have done anything if he had accused her because envelopment isn't considered rape. He would have far more likely to have been laughed at and dismissed outright.


Rape is a horrible violation against a woman, and I'm glad I don't have a daughter to worry about in that matter.
But hell, now I have to worry about my son for the possibility of a false accusation.


Well, perhaps he's trans-racial.


On the subject of affirmative consent, it doesn't technically make the accused guilty until proven innocent. It just means that the accuser now has to prove that affirmative consent was not given rather than prove that she made her lack of consent clear.

Taken at the most basic level, it's reasonable that a woman should actively participate in consenting to sex rather than simply not say no. No normal, reasonable man is going to continue to have sex with a woman if she doesn't actively participate (even if she isn't resisting or saying no). The problem with the law is that no intelligent person who is paying attention believes that it will be interpreted that way. It's basically a back door for a woman to regret a sexual encounter after the fact and then cry rape.


"Lack of consent" is an affirmative element of the crime. The proposal substantively changes the basic definition of the crime and also appears, to me at least, to shift the burden of proof to the accused to disprove an affirmative element in a way that circumvents traditional burdens of proof on affirmative elements.

The proposal also appears to unduly burden 5th amendment rights, which includes the right to not have the court or prosecutor comment of the accused's right to remain silent and not testify. I don't see how an accused could ever defend after the change without testifying.

The proponents of the change know that the law will, in practice, alter the burden of proof and infringe on 5th Amendment rights--it is the whole point of the proposal--but consider it a move forward in "social justice" to make it easier for a victim to prove rape. Frankly, the proponents also admittedly want to use the criminal justice system to fundamentally change the way males and females interact.


I think the idea behind this is really good. There are a lot of guys out there who unintentionally push the boundaries, or worse, feel it is OK to escalate the sex without consent and feel that they are entitled to more because, "Hey she can always leave if she doesn't want it".

For the sake of expanding this conversation and, perhaps, illustrating what I believe this policy is trying to address, I am going to share a couple of stories. Please note, that I take responsibility for my actions in these situations. In some cases I was stupid, drunk and left myself vulnerable. In others I was too young to know what to do. In NO instance did I ever consider pressing charges, but that does NOT mean that I was fine with what happened. I don't know if a guy can ever fully understand what something happening to your body against your will truly feels like at the moment. It is traumatic. It does mess with your head. Its not necessarily insurmountable, but it stays with you.

  1. I had just turned 21. None of my friends were old enough to drink so I had the brilliant idea to go to a bar by myself. I was talking to a couple of guys who continued to buy me drinks so I would "hang out". Being inexperienced, I over did it and couldn't drive. They offered to let me crash at their place.
    While there, I had sex with one of the guys. It was consensual and we used a condom. In the morning, the guy tried to go for round two. I told him I didn't want to and pointed out that there were no condoms. He said that since I liked it so much the night before, that I would enjoy it even more without a condom. I protested, he won and I found out 6 weeks later I had chlamydia.
    I went home with a stranger while drunk. I agreed to sex already. Despite feeling violated, I was also ashamed of my actions and blamed myself.

  2. I was dating a guy for almost 3 years. We were starting to have some major problems and I knew I was in a situation I needed to get out of, but was not sure how to do it. After weeks of pushing off sex, I finally decided to concede so he would stop getting mad at me about it.
    He started to get extremely rough. Not hitting me, but rougher than I wanted to go. I told him what he was doing hurt. His reply was, "This is unbridled passion and you need to suck it up". At that moment it went from sex I was mildly OK with to something very dark and scary. In the moment, the life we shared together didn't even register in my mind. All I felt was fear.

  3. One last drunken story (yes. You would have thought I had learned my lesson). I go home with a guy I had been flirting with for months. We're messing around and I am having a good time. While he's going down on me, he sticks a finger up my ass and I cum.
    Fast forward a bit and he decides he wants anal. I say no. He insists that since I liked it so much when he was going down on me that I obviously like anal. After a few more protests he finally stops trying and things go back to fun. He then "accidentally" changes lanes. I scream. Try to back away but he holds my hips and tells me to relax so it doesn't hurt as much. You want to talk about a feeling of utter powerlessness? In that situation, the damage is done. Aside from trying to claw his eyes out, I am left with few options except to wait for him to finish, get dressed and leave.

In none of these circumstances did I press charges. I understood my own culpability in what occurred. However, the way I viewed those examples and the way the guy did were vastly different. I wouldn't label any of them a "rapist". I honestly believe that none of them meant, or even realized, the damage they had done, but the memories stay with me.

This is where the concept of "affirmative consent" is a great idea. If nothing else, it serves as a reminder that you can't always read signals and what a guy might find benign may be too far for the girl; particularly in a world where we are so inundated with porn, some guys' expectations can be far from reality.

I do NOT, however, support the enforcement of this policy. It is too vague and makes it too easy for women to take advantage of it. And, FWIW, MOST women hate the ones who falsely accuse because it diminishes the severity of rape. Because so many women have cried "wolf" in the past, women who claim rape are now instantly scrutinized.

I have been extremely fortunate to have not been sexually attacked. My experiences were mild compared to what some women have gone through. But, you don't have to be pulled into a dark alley to feel violated. These instances affected how I viewed my self-worth for quite a while, but they are nothing compared to the life shattering trauma that other women have gone through. I share them not to garner pity. They are not stories I regularly think about now. Hell, I don't even discuss it with my bf.

I shared these examples so that maybe some of you can see why women want to have this conversation. I am sick of the phrase "Rape Culture", but I do think we need to have open and frank discussions about sexual situations that are escalated by guys who may or may not know they have gone too far. Something that seems rather innocuous to a guy could have a lasting impact on the woman involved.

That's all I went men to know. Women don't all hate men. We are not all out to ruin your life. We are all also very different. So please do not assume that just because your previous 5 girlfriends loved something that we are onboard right from the start. Your intentions may be innocent and perhaps you are just trying to do your best to please the girl, but I beg you not to assume. Take the time to make sure everyone is having a good time every once in a while. This policy makes it seem like you should get a written affidavit before hand (and with the potential legal ramifications that could be a result, I understand why a lot of guys feel like that is the only way). A simple, "Does that feel good" or "Do you like that" every so often can make a world of difference in the way a woman views her time with you.