Me Too Champion showed it was him too

[Benton]

(05-11-2018, 09:40 AM)Belsnickel Wrote: I'm going to make this a more general statement than directing it at one post, but I've been ruminating on this term "consensual relationship." I think I understand what is being implied by this term, but it is being used erroneously. Being in a relationship doesn't imply consent to anything other than being in a relationship. This idea that being in a relationship implies consent to sexual acts and that consent must be revoked is very problematic and, while I'm sure there will be jeers at this term, is a product of a rape culture. This is part of the conversation that we, as a society, are having these days surround the idea of sexual assault and consent and how these things play out. Being in a relationship allows for foundation of communication that better facilitates conversation surrounding consent and what each party is up for and how consent is going to be communicated in the heat of the moment, but the relationship itself does not mean consent is there.

If you’re familiar with a persons sexual appetite and you’re consenting to sex with that person ... what I would call a consensual relationship ... then it’s up to you to address issues you’re uncomfortable with.

Going back to the glitter farting, if I’m involved with a woman who primarily wants to engage in glitter farting, an act I’m uncomfortable with, then it’s up to me to talk to her about it. If she wants to continue glitter farting then my options are to a- leave or b- get glitter farted on.

[fredtoast]

(05-11-2018, 10:04 AM)Belsnickel Wrote: That's interesting, because that is not how we have defined consent for our Title IX proceedings, and this definition of consent has been tested in federal court.

That is what I am saying.  There should not be special rules for sexual behavior.

If I had a roommate who let me ride his bike to class every morning I could not be convicted of stealing that bike just because he woke up on morning, changed his mind, and called the police.

If I am a business man who has always accepted late payments without penalty then I can not impose a penalty on a late payment unless I inform the other party that I am changing the rules.

As far as consent to sex if I am in a relationship with a woman I should be allowed to assume sex is consetual unless she says "no".  "No" means "no" but it is ridiculous to say that the rules can change without one party notifying the other.  Why should the laws regarding sexual conduct be different from the other laws that are deemed fair and just by the court system?

Based on your suggestion if a man touched his wife's breasts without asking permission first he could be charged with sexual assault.  That is absurd.

[Belsnickel]

(05-11-2018, 10:29 AM)fredtoast Wrote: That is what I am saying.  There should not be special rules for sexual behavior.

If I had a roommate who let me ride his bike to class every morning I could not be convicted of stealing that bike just because he woke up on morning, changed his mind, and called the police.

If I am a business man who has always accepted late payments without penalty then I can not impose a penalty on a late payment unless I inform the other party that I am changing the rules.

As far as consent to sex if I am in a relationship with a woman I should be allowed to assume sex is consetual unless she says "no".  "No" means "no" but it is ridiculous to say that the rules can change without one party notifying the other.  Why should the laws regarding sexual conduct be different from the other laws that are deemed fair and just by the court system?

Based on your suggestion if a man touched his wife's breasts without asking permission first he could be charged with sexual assault.  That is absurd.

Because sexual assault is an attack on a person, not on property.

[fredtoast]

(05-11-2018, 10:33 AM)Belsnickel Wrote: Because sexual assault is an attack on a person, not on property.

This makes no sense at all.

How does property ever give consent?  The issue of consent is between two people.  The law should be consistent.  There is ZERO burden on a person to notify the other that consent is withdrawn.

The easiest way to create a "rape culture" is to allow consensual sex to be defined as "rape" if one party changes their mind.

[Belsnickel]

(05-11-2018, 10:38 AM)fredtoast Wrote: This makes no sense at all.

How does property ever give consent?  The issue of consent is between two people.  The law should be consistent.  There is ZERO burden on a person to notify the other that consent is withdrawn.

The easiest way to create a "rape culture" is to allow consensual sex to be defined as "rape" if one party changes their mind.

Property crimes are different than crimes against a person, yes? Crimes against a person involve denying someone of life or liberty. To me it is a perfectly logical system that sets a higher standard for crimes against a person compared to property crimes. Theft of property can be compensated for, and while we like to place values on the lives of human beings in a number of ways, there is no adequate compensation for depriving someone of life or liberty.

As for the last line there, none of what I am saying does that.

[fredtoast]

(05-11-2018, 10:44 AM)Belsnickel Wrote: Property crimes are different than crimes against a person, yes? Crimes against a person involve denying someone of life or liberty. To me it is a perfectly logical system that sets a higher standard for crimes against a person compared to property crimes.

You can have different punishments, but you can't change the rules.  You can't just say "This crime is worse so due process does not apply."

I've been thinking about this and I think what you are trying to do is address the situation where one person has sexual contact with another person who is unconscious.  I don't have a problem with cutting out a specific rule for that specific situation, but to claim that an accepted practice established by a course of conduct can become criminal without giving the other party any notice is absurd.  There is nothing fair or just about that because there is no burden on the party to inform the other that consent has been withdrawn.  By not requiring notice you are doing nothing but creating a "rape trap" where one person is suddenly guilty of a crime with no notice for doing exactly the same thing that was not a crime the day before.

[Belsnickel]

(05-11-2018, 11:25 AM)fredtoast Wrote: You can have different punishments, but you can't change the rules.  You can't just say "This crime is worse so due process does not apply."

I've been thinking about this and I think what you are trying to do is address the situation where one person has sexual contact with another person who is unconscious.  I don't have a problem with cutting out a specific rule for that specific situation, but to claim that an accepted practice established by a course of conduct can become criminal without giving the other party any notice is absurd.  There is nothing fair or just about that because there is no burden on the party to inform the other that consent has been withdrawn.  By not requiring notice you are doing nothing but creating a "rape trap" where one person is suddenly guilty of a crime with no notice for doing exactly the same thing that was not a crime the day before.

I don't see how due process does not apply. I mean, when you are talking about contract law you are talking not only about issues of property, but also issues of civil law. These are different things than a criminal act against a person and so applying these different rules does not necessarily equate to a violation of due process.

Consent applies for what is taking place in the moment when it comes to sexual activity. It does not carry forward to future occurrences. That is how it is looked at in the law right now, and that has been upheld as due process. You may disagree, and that is fine. It makes sense to me. But what makes it fair is that this idea of consent is communicated. This is why every student that comes to the school is informed of the policies and it is covered during orientation. There is no "rape trap" if the known standard is that saying yes once does not mean you are saying yes for all future occurrences by default.

[fredtoast]

(05-11-2018, 11:52 AM)Belsnickel Wrote:  There is no "rape trap" if the known standard is that saying yes once does not mean you are saying yes for all future occurrences by default.

In all other areas it is.

Once consent is established by a course of action it creates an obligation for a party to give notice in order to withdraw the consent.  That is what the courts have determined is fair in other situations so why not with sex?  Why is it such a burden to withdraw consent?

You are basically trying to live in a fantasy land.  I've been married.  I have spent a lot of time with other married couples.  No one asks permission each and every time before they touch their spouse.

Withdrawing consent is not a burden.  All this does is create a trap where a person can be charged with a crime for doing what he/she has always done without being given any notification that it was no longer acceptable.

"No" means "no" but someone has to say "no" before anyone can get in trouble.

[Bengalzona]

(05-09-2018, 01:10 AM)bfine32 Wrote: https://www.cbsnews.com/news/5-reasons-eric-schneiderman-hypocrite/


Wanted to put this in the Weinstien Thread  because of his comments; but for some reason that one got locked. I have always said, be careful of those that speak the loudest.

I like the thread title. Seems appropriate.

[fredtoast]

(05-11-2018, 11:52 AM)Belsnickel Wrote:  But what makes it fair is that this idea of consent is communicated. 

What makes it unfair is that once consent has been established by a course on conduct it can be negated WITHOUT BEING COMMUNICATED.

What is the huge burden in saying "no"?  If communication is required to make it fair then how can consent be withdrawn without being communicated?

You are screwing with basic principles of law just to cover one specific instance when a person is unconscious.  Now the guy who has been coming home from work every night and grabbing his wife's butt when he kisses her is guilty of sexual assault if she changes her mind and does not tell him.

That is ridiculous.

Do you ask permission every time before you kiss your girlfriend/wife?

[Belsnickel]

(05-11-2018, 12:12 PM)fredtoast Wrote: In all other areas it is.

Once consent is established by a course of action it creates an obligation for a party to give notice in order to withdraw the consent.  That is what the courts have determined is fair in other situations so why not with sex?  Why is it such a burden to withdraw consent?

You are basically trying to live in a fantasy land.  I've been married.  I have spent a lot of time with other married couples.  No one asks permission each and every time before they touch their spouse.

Withdrawing consent is not a burden.  All this does is create a trap where a person can be charged with a crime for doing what he/she has always done without being given any notification that it was no longer acceptable.

"No" means "no" but someone has to say "no" before anyone can get in trouble.

Let's go back to your discussion of the bicycle. If you have a friend that needs to borrow your bike and you allow that one day, your earlier assertion (and this one) is saying that if he then borrows it later that it cannot be considered theft because you have consented to that previously? You are saying with your posts that the criminal case law has a precedent for this? I'm not buying it. I know it to be the case in civil contract law, but I'm not buying it here. I'd like to see that case law, because I'm doubting your claim that is how it works in other criminal situations.

You keep saying withdrawing consent is not a burden, so by the same logic it is not a burden to ask for consent. I know that there isn't going to be a verbal discussion every time, but this is why I emphasize that relationships lay a foundation for a discussion about what consent looks like. You should be able to describe what your partner does or says that indicates consent, and that should be agreed upon. If it's not, then you should be getting that verbal consent every time. We don't use the "no means no" standard anymore. Nothing other than a sober and enthusiastic "yes" is a "yes" when it comes to consent. That is how we treat it, that is the standard we and many universities follow, and one that has been upheld by the courts because as public agencies we must follow due process.

[fredtoast]

(05-11-2018, 12:25 PM)Belsnickel Wrote: Let's go back to your discussion of the bicycle. If you have a friend that needs to borrow your bike and you allow that one day, your earlier assertion (and this one) is saying that if he then borrows it later that it cannot be considered theft because you have consented to that previously? You are saying with your posts that the criminal case law has a precedent for this? I'm not buying it. I know it to be the case in civil contract law, but I'm not buying it here. I'd like to see that case law, because I'm doubting your claim that is how it works in other criminal situations.

It requires more than just one prior consent.  It requires a "course of conduct" over a period of time.  I'll gladly post the law when I have some time to look it up.  Same applies with trespassing.  The law is so well accepted in these areas that I usually do not have to cite specific case law.  If you have been allowing someone to walk across your property on a regular basis you can not have them arrested for trespassing unless you specifically revoke that permission.

[fredtoast]

(05-11-2018, 12:25 PM)Belsnickel Wrote: Nothing other than a sober and enthusiastic "yes" is a "yes" when it comes to consent.

It has to be "enthusiastic"?

Seriously?

A girl can say yes but if she does not say it with enthusiasm it is rape?

[fredtoast]

(05-11-2018, 12:25 PM)Belsnickel Wrote: You keep saying withdrawing consent is not a burden, so by the same logic it is not a burden to ask for consent.

It is not a burden, but it is also not required.

Notice is only required when something changes.  Notice is not required when everything is the same.

So answer the question about kissing your girlfriend/wife.  Do you ask permission every time?  Kissing someone against their will is offensive contact that is illegal in this state.

[Belsnickel]

(05-11-2018, 12:34 PM)fredtoast Wrote: It requires more than just one prior consent.  It requires a "course of conduct" over a period of time.  I'll gladly post the law when I have some time to look it up.  Same applies with trespassing.  The law is so well accepted in these areas that I usually do not have to cite specific case law.  If you have been allowing someone to walk across your property on a regular basis you can not have them arrested for trespassing unless you specifically revoke that permission.

For trespassing, I believe you are referring to the creation of an easement, specifically an implied one. I deal with land use law on the regular so I am familiar to that particular sort of thing but that only applies to real property and so would not correlate to this situation as the common/case law for those doesn't really mesh. Much like contracts, as you have previously brought up, there is longstanding precedent regarding access to land from use in such a way. I am unaware of its application to other possessions or to persons, however, and am skeptical that there is such a precedent.

I could be wrong about this, I freely admit it. But even there is case law for it to apply to other possessions, it would seem the courts have not applied it to persons given that the version of consent I am discussing has been upheld by federal courts. But I'm willing to have my mind changed.

[Belsnickel]

(05-11-2018, 12:35 PM)fredtoast Wrote: It has to be "enthusiastic"?

Seriously?

A girl can say yes but if she does not say it with enthusiasm it is rape?

That is the way consent is typically defined. Yes. This is due to people being coerced into saying yes, which happens.

(05-11-2018, 12:39 PM)fredtoast Wrote: It is not a burden, but it is also not required.

Notice is only required when something changes.  Notice is not required when everything is the same.

So answer the question about kissing your girlfriend/wife.  Do you ask permission every time?  Kissing someone against their will is offensive contact that is illegal in this state.

The reason I have ignored your question about the asking permission every time is because it is a straw man. I have said, repeatedly, that in a relationship there should be a discussion about what consent looks like between the parties involved. My wife and I know what that looks like and so we don't need to have a discussion about verbal consent each time. But you are trying to build a straw man argument by ignoring my statements about this.

[fredtoast]

(05-11-2018, 12:47 PM)Belsnickel Wrote: In a relationship there should be a discussion about what consent looks like between the parties involved. My wife and I know what that looks like and so we don't need to have a discussion about verbal consent each time.

So what if a guy uses this a defense when his girlfriend cries rape?

"My girlfriend and I have had consensual sex a lot of times so I know what consent looks like.  Therefore I don't need to ask permission every time."

Would that be considered a legitimate defense?

And have you ever had sex with your wife when you had both been drinking?  Or should I say, have you ever raped your wife when you had both been drinking?

You are trying to enforce rules that you admit you don't follow.  This is nothing like a straw man.  This is the exact same thing.

[Benton]

(05-11-2018, 12:25 PM)Belsnickel Wrote: We don't use the "no means no" standard anymore. Nothing other than a sober and enthusiastic "yes" is a "yes" when it comes to consent. That is how we treat it, that is the standard we and many universities follow, and one that has been upheld by the courts because as public agencies we must follow due process.

In an academic setting or in regard to teens/kids/young adults, I think that's a plausible standard. As someone with kids, I'm happy that's the standard.

For the other five billion people on the planet, that's probably never going to work. If sobriety and enthusiasm are the benchmarks for consensual sex, I couldn't recall the last time I had consensual sex during the last 14 years of marriage. I'm sure there were times either she or I hadn't had a drink and both were enthusiastic about it. 

[fredtoast]

If both parties are drunk and they have sex are they BOTH guilty of rape?

There is no way you could just charge one of them is there?

Are college women held to the same standard of getting a "sober and enthusiastic 'yes' " for consent before sex to avoid rape charges?

[Benton]

(05-11-2018, 12:59 PM)fredtoast Wrote: So what if a guy uses this a defense when his girlfriend cries rape?

"My girlfriend and I have had consensual sex a lot of times so I know what consent looks like.  Therefore I don't need to ask permission every time."

Would that be considered a legitimate defense?

And have you ever had sex with your wife when you had both been drinking?  Or should I say, have you ever raped your wife when you had both been drinking?

You are trying to enforce rules that you admit you don't follow.  This is nothing like a straw man.  This is the exact same thing.

I reported on a story years ago along that same line.

The girl friend filed rape charges against the boyfriend who slapped her and sodomized her with a flashlight. The defense was that it couldn't have been rape since the couple regularly engaged in rough sex and he often stuck foreign objects in her rear. She refused to testify and charges were dropped.

The issue of consent in a consensual relationship is a complicated one. I don't think there's a blanket 'this works for every case' approach when you're talking about lengths of relationships, past activities, etc. 

Picking up someone in a bar who is obviously intoxicated, slapping them around and having sex with them is not the same as your wife giving you an unenthusiastic handy because it's your birthday.