Yale's Comprehensive Sexual Misconduct Guide

[DeltaBetaBaby]

Originally Posted by honorgal

How absurd. It's most definitely not the dominate view among college administrators, faculty, and the folks at OCR. And they run the show on college campuses.

And you are an expert on the inner workings of college campuses because you have a daughter there, never mind that at least two commenters on this thread work in higher education.

[DrPhil]

Even if people in sexual relationships have "an understanding" it is important to pay attention to verbal and nonverbal cues (communication) and err on the side of caution if sexual advances are not reciprocated. Being together a certain number of years doesn't prevent victimization.

It is also important to define "agency". Based on the true definition and practical application of "agency/sense of agency", there is no "agency" if someone doesn't feel physically, mentally, and emotionally safe in responding. That is why "onus" cannot be used in this instance. However, those of us in this thread who know that, also wish that more potential victims had the physical, mental, and emotional ability to react in a manner that would not increase the risk. Ideally, we wish there would be fewer potential victims in the first place. But we are cognizant of the realities of this topic and know that "why didn't you resist or fight back" is a common response to victims which ignores the realities of many experiences of sexual victimization. Yet, we are definitely not creating a template that states that all potential victims across all circumstances should be silent. If someone has the physical, mental, and emotional ability (meaning, capability and it does not increase the risk) then the person should respond in the manner necessary to prevent or escape the victimization.

[Low D Flat]

there is no "agency" if someone doesn't feel physically, mentally, and emotionally safe in responding.

It's troubling to me that there's no expectation of reasonableness here when the consequences to the sexual partner are so severe. I think it's unreasonable to invite a (recent) former lover into your bed, wish for him to stop his second attempt at intimacy, and say and do nothing to convey your wishes. In fact, I think it's insane. Of COURSE there are circumstances where women reasonably fear physical or emotional punishment for saying "no," and of course it's rape if they stay silent due to that intimidation. But this survivor didn't claim any fear of this kind -- not even based on earlier trauma, much less this guy's actions. It's not clear to me that this guy knew that she didn't want to have sex at the time it happened. (If she'd even shaken her head, I'd want him in jail. But she didn't.)

I support an affirmative consent rule that's clear to everyone as a community standard. I applaud schools working to establish that standard explicitly. But it wasn't in place at the time and place of that case. I don't think expulsion and the "rapist" label are the right consequence for these facts.

[DrPhil]

Originally Posted by Low D Flat

It's troubling to me that there's no expectation of reasonableness here when the consequences to the sexual partner are so severe.

That is your interpretation.

We won't call you all's silent consent with your partner "rape" just as you all should not dismiss this perspective as "unreasonable".

In addition, I find it interesting that discussions of rape lead people to believe humans are truly rational, logical, and reasonable. Most discussions of offending and victimization consider the inconsistencies and complexities of humanity (while still maintaining that even an irrational person can be a victim who didn't deserve to be a victim even if there were misunderstandings on the part of the offender and/or victim). Discussions of rape conveniently do not.

People who do not believe they have physical, mental, and emotional ability to resist are operating based on their own risk assessment and logic. That may seem unreasonable and shortsighted to you but, as with most forms of crime and deviance, it is easy for people not in the situation (or people whose situation ended differently) to say what should be done in an ideal situation.

[LAblondeGPhi]

Originally Posted by Low D Flat

It's troubling to me that there's no expectation of reasonableness here when the consequences to the sexual partner are so severe. I think it's unreasonable to invite a (recent) former lover into your bed, wish for him to stop his second attempt at intimacy, and say and do nothing to convey your wishes. In fact, I think it's insane. Of COURSE there are circumstances where women reasonably fear physical or emotional punishment for saying "no," and of course it's rape if they stay silent due to that intimidation. But this survivor didn't claim any fear of this kind -- not even based on earlier trauma, much less this guy's actions. It's not clear to me that this guy knew that she didn't want to have sex at the time it happened. (If she'd even shaken her head, I'd want him in jail. But she didn't.)

I support an affirmative consent rule that's clear to everyone as a community standard. I applaud schools working to establish that standard explicitly. But it wasn't in place at the time and place of that case. I don't think expulsion and the "rapist" label are the right consequence for these facts.

I agree with your assessment.

Originally Posted by DrPhil

In addition, I find it interesting that discussions of rape lead people to believe humans are truly rational, logical, and reasonable. Most discussions of offending and victimization consider the inconsistencies and complexities of humanity (while still maintaining that even an irrational person can be a victim who didn't deserve to be a victim even if there were misunderstandings on the part of the offender and/or victim). Discussions of rape conveniently do not.

This all sounds like a supporting argument for Low D Flat's statement - that there is room for genuine, not malicious, misunderstanding on the part of both parties.

To me, one of the most tragic circumstances would be a woman (or man) who truly feels violated sexually, and an alleged perpetrator who truly believed that the encounter was consensual. Parallel circumstances happen all the time in all kinds of other non-sexual instances. In such cases that go to court (or arbitration, or something similar), one has to start making judgements about what constitutes reasonable behavior/responses given certain situations.

[DeltaBetaBaby]

Originally Posted by LAblondeGPhi

To me, one of the most tragic circumstances would be a woman (or man) who truly feels violated sexually, and an alleged perpetrator who truly believed that the encounter was consensual. Parallel circumstances happen all the time in all kinds of other non-sexual instances. In such cases that go to court (or arbitration, or something similar), one has to start making judgements about what constitutes reasonable behavior/responses given certain situations.

Which is why affirmative consent is a good idea.

[DrPhil]

Originally Posted by LAblondeGPhi

This all sounds like a supporting argument for Low D Flat's statement - that there is room for genuine, not malicious, misunderstanding on the part of both parties.

I don't consider that the statement Low D Flat is making.

We already know that miscommunication and misunderstanding happen. That is why some of us dismiss Low D's and honorgal's attempt to apply their "silent consent" to everyone else.

[Low D Flat]

In addition, I find it interesting that discussions of rape lead people to believe humans are truly rational, logical, and reasonable.

I'm coming at this as a lawyer. I know that people are irrational, illogical, and unreasonable all the time. But when we're going to dish out serious consequences to a third party, the law often takes a look at what a reasonable man or woman would do. Is it reasonable to think that your regular lover is accepting your seduction if she doesn't say anything as your advances escalate? I think it's a legitimate question.

[DeltaBetaBaby]

Originally Posted by Low D Flat

Is it reasonable to think that your regular lover is accepting your seduction if she doesn't say anything as your advances escalate? I think it's a legitimate question.

Personally, I read it as "if she lies there not moving or in any way indicating enjoyment," and that's the part that's so messed up to me. Whether or not it reaches the standard that someone should be punished for it, it's really messed up to think that someone WANTS to have sex with someone who is not reciprocating interest in any way*.

*outside, of course, of some sort of pre-negotiated scene

[DrPhil]

Originally Posted by Low D Flat

I'm coming at this as a lawyer. I know that people are irrational, illogical, and unreasonable all the time.

Then you should understand, very well, the role of perceived physical, mental, and emotional ability.

If we want to turn this into a thread about "sex education 101", yes, there are many women and men who believe in "sliding it in" regardless of whether the other person is even remotely interested, of sound mind, of sound body, or even awake. This thread can get into more details if people need to be schooled on how millions of people unfortunately engage in sexual intercourse (whether considered consensual or nonconsensual). That's how some people get their rocks off but people who want to err on the side of caution may consider potential risk.

[Low D Flat]

Whether or not it reaches the standard that someone should be punished for it, it's really messed up to think that someone WANTS to have sex with someone who is not reciprocating interest in any way*.

I definitely agree with you on that. The world is full of lonely, unsatisfying sex.

[DrPhil]

Originally Posted by Low D Flat

I definitely agree with you on that. The world is full of lonely, unsatisfying sex.

"Lonely, unsatisfying sex" should be used for consensual sex among sexually incompatible or boring sex partners.

The issue of consent is about more than "lonely, unsatisfying sex".

[Low D Flat]

Of course it is. But we're talking about a particular case where there may have been a rape, and there may have been a reasonable belief that it was just a sad and pitiful encounter.

[DrPhil]

We have thankfully gotten past the "silent consent" discussion. We have moved to supposed blurred lines between "sad and pitiful encounter" and "nonconsensual and nonreciprocitous" encounter. Nice.

[DeltaBetaBaby]

The absence of a "no" is not a "yes."