College Sex-Assault Trials Belong in Court, Not Campus (2014)

Affirmitive just means "yes", getting the other party to say it out loud helps if you're really that bad at body language and non-verbal communication but is not required.

As someone else stated, if verbal consent was what was required, they'd call it "verbal consent" not "affirmative consent". Affirmative meaning, from a plain dictionary definition: "saying or showing that the answer is "yes" ".

Again, the history and context is people being raped who did not "fight back", and it was held against them, and people accused of rape who said in their own defence that they didn't think they were raping the person because they didn't do anything to stop them. That's not their responsibility, it's yours to get "affirmitive consent".

> The Los Angeles Times summed up the events: “The college’s investigative report, performed by an outside firm, said both parties agreed on the following facts: Both had been drinking, she went to his room, took off her shirt while dancing, made out with him and returned to his room later for sex, asking if he had a condom. When friends stopped by the room to ask if she was OK, she told them yes.” Prior to their encounter, the two exchanged texts about their planned assignation, and Jane texted another friend to announce she was going to have sex. Later, when Jane came to see the incident as rape, she reported it to the Los Angeles Police Department. A female LAPD officer investigated, and a female deputy district attorney declined to pursue the case. She wrote, “Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment.” Her report further found that Jane was capable of resisting and that John had reasonably concluded that her communications and actions conveyed consent.

> Jane lost her virginity that night, and when she sobered up and realized what happened, in distress she went to a faculty adviser who referred her to Dirks. An 82-page investigative report prepared for the school by the firm Public Interest Investigations shows it was Dirks, in her first phone conversation with Jane, who introduced Jane to the idea that she had been raped. Jane told the professor, “Oh, I am not calling it rape yet.” Over many hours of conversation, Dirks helped move Jane from what the professor described as Jane’s “strong state of denial” about what happened.

> Occidental hired an outside attorney to review the investigative report and make a recommendation about John. Here’s the conclusion of the attorney, as reported by the Los Angeles Times: “The attorney, Marilou F. Mirkovich, found that the young man did not know that his classmate was too drunk to consent because he, too, was inebriated. But, citing the college's policy that does not allow alcohol or drug consumption to excuse sexual misconduct, Mirkovich found that he should have known and was responsible for the assault.” After only a few months as a college student, John was expelled.

Here's FIRE's pithy description of the same incident ( https://www.thefire.org/sexual-assault-injustice-at-occident... ):

> Occidental pursued its own investigation by hiring the firm of Public Interest Investigations, which produced an 82-page report about the incident. Among other evidence, the report examined text messages between Doe and his accuser leading up to the sexual encounter. In the messages, the accuser asked Doe, “do you have a condom,” texted another friend “I’mgoingtohave sex now” [sic], and, in an exchange spanning 24 minutes, coordinated with Doe to sneak out of her dorm and proceed to Doe’s dorm to have sex with him.

This, despite the wording of the attorney finding above, is not someone who's incapable of consenting to sex.

Here are some highlights from that article of KC Johnson's (from http://www.mindingthecampus.com/2014/06/if-she-had-drinks-yo... -- your call as to how mainstream Minding the Campus is):

> Broadening what constitutes sexual assault by redefining consent has been a principal goal of “activists”—who have worked with sympathetic faculty and (increasingly) the OCR. The McLeod case at Duke is a particular obvious example of how the new standards might function: two students were drinking and had sex, after which the university concluded that the male student, Lewis McLeod, had committed sexual assault because the accuser could not give consent. Why? Dean Sue Wasiolek explained: Even when both students consumed alcohol, “assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”

As that standard is actually illegal, it's rare to see it admitted to so openly.

> Minding the Campus staff examined the alcohol-related policies of U.S. News & World Report’s 55 top-ranked universities. The schools fall into three categories: those that bypass the issue entirely; those that link sexual assault to the incapacitation of the victim; and those, troublingly, that have such a vague definition of consent to almost certainly be arbitrary.

> The majority of the top schools—32 of the 55—employ an incapacitation standard. [...] A few of these policies, such as Berkeley’s, Rochester’s, Yeshiva’s, and Penn State’s, have some vagueness, but reasonable people would construe them as not suggesting that having a drink in and of itself can prevent consent. Yale’s language—“consent cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other condition”—typifies this group. This standard is similar to that in criminal sexual assault cases.

> That leaves 18 of the U.S. News top 55—roughly one-third of the total—that avoid this standard. Instead, at these schools, at least in some instances, a student can be branded a rapist if a college disciplinary panel, by a preponderance-of-evidence (50.01 percent) threshold, determines that the accuser was intoxicated.

I feel comfortable having characterized about 1/3 of schools as "various schools".

> Six of the schools have internally contradictory policies, referencing the incapacitation standard regarding alcohol consumption, but then modifying it elsewhere in the university’s own policies.

> Dartmouth also claims to punish only according to an incapacitation standard, but then suggests that the “use of alcohol or other drugs can cloud people’s understanding of whether consent has been given (or even sought). A ‘yes’ from an individual who is under the influence of alcohol or other drugs may not necessarily mean ‘consent.’” Obviously an incapacitated accuser could not (by definition of the word) say “yes.”

> At William and Mary, consent “can only be given by someone in an unimpaired state of mind who is able to understand what is happening; consent is not valid if the party from whom consent is sought is impaired by the use of alcohol or drugs

> Wisconsin is unique among the 55 schools, in that it explicitly recognizes claiming sexual assault as a way for a student to avoid facing campus charges for alcohol offenses

(Not directly relevant, but pretty amazing, no? Might this lead to any less-than-clear-cut charges of rape?)

> Readers who follow the issue doubtless will notice that many schools in this third category of broadening the way in which alcohol can be used to establish a student’s guilt (Brown, Stanford, Duke, Dartmouth, Columbia) all have checkered records regarding general due process in campus sexual assault cases.

> Two final thoughts. First, even at the third group of schools, obviously every time two intoxicated students have sex, the male student isn’t brought up on campus charges. But at many of these institutions, the role of alcohol in establishing consent is so vague as to at least, on paper, deem as rape acts that few outside of campus would consider sexual assault.

> Second: given the efforts of “activists” to broaden the definition of consent, it’s likely that three or four years from now, there will be many more schools in the third category, making it more likely that more innocent students will be brought up on charges.

> If you're sitting close to someone you're attracted to and you turn to stare into their eyes and they don't smile back or snuggle closer or lick their lips or do something

That's afterwards. I was asking about the general explicit consent concept, which is one must ask explicitly before escalating.

Getting expelled is less drastic than being put in prison.