New affirmative consent + anti-stealthing laws in Australia (in Victoria)

[barebackbro]

My Australian state, Victoria, has passed new laws regulating sex. Melbourne is the big city in Victoria.

There is a summary here: [think before following links] https://www.abc.net.au/news/2022-08-31/victorian-sexual-assault-laws-changing-affirmative-consent/101383450. (It's from our very reliable and independent government-funded news service, so it should be accurate.)

The two main changes are:

• putting 'the onus on the accused person to confirm they have received consent, rather than scrutinising the behaviour of the victim-survivor' (that is, introducing a requirement for affirmative consent); and
• outlawing stealthing.

Obviously, this is handy for anyone visiting Melbourne, but it raises some interesting questions. I'd love to hear what people around the world think!

1. On affirmative consent, would a law like this change your behaviour? How would affirmative consent work in a dark room or for a guy bent over in a steam room?

2. What do you think of the anti-stealthing law?

These topics have come up before, but it's nice to have a concrete example. I'll post a link to the legislation if I can find it!

[barebackbro]

This seems to be the legislation: [think before following links] https://content.legislation.vic.gov.au/sites/default/files/bills/591338bi1.pdf. The relevant bit starts on page 10 of the PDF.

It's hard to get your head around, but it will change the Crimes Act. The news sources are all reporting that parliament has passed the legislation. It isn't the law yet. That will happen later on, according to the media reports [think before following links] https://www.theguardian.com/australia-news/2022/aug/31/victoria-passes-laws-banning-stealthing-and-requiring-affirmative-consent.

Don't rely on my summary though!

[BootmanLA]

1 hour ago, barebackbro said:

1. On affirmative consent, would a law like this change your behaviour? How would affirmative consent work in a dark room or for a guy bent over in a steam room?

2. What do you think of the anti-stealthing law?

For question 1: The law wouldn't change my behavior because I already disclose and receive consent for anything I'm involved in.

As for dark rooms and steam rooms: if you can't identify the party who (might) have violated this law regarding consent, it's kind of irrelevant; there's nobody to charge with anything if you don't have and can't get a name. In other words, it probably technically applies, but it's like running a stop sign on a desert highway where you can see 5 miles in every direction and there's no other car to be seen: you're not going to get caught, so the law, while applicable, isn't going to impact you under those circumstances.

For question 2: Stealthing, as defined in the law (assuming this newspaper summary is correct:  the removing, tampering with, or not using a condom without consent) ought to be illegal. There's been a somewhat lengthy discussion about a holding of the Canadian Supreme Court on this issue - a man was found to have sexually assaulted a woman when she'd told him he needed to wear a condom for sex and (on their second go-round) he did not. I recognize the erotic appeal for many around stealthing, just as I can recognize the erotic appeal of forced sex in general while nonetheless recognizing that what we find hot to think about, and what we are permitted to do in real life, are not always congruent.

[Guest]

I'm seeking from this crowd a bit of enlightenment, please...

So, how does this work in real terms? Let's just say that two guys meet: a top and a bottom. The top asks the bottom if he is still game for a fuck, to which the bottom replies Yes. And, in the memorable words of Master Yoda, fuck they go. Totally vanilla, nothing hardcore, no aggressive behaviour, no violence, all good. The sex is bareback as per previously exchanged messages. They both go home happy. A year later, the top is picked up by the police on sexual assault charges brought up by the bottom guy who filed the charges a year later. The bottom guy says he did not give the top guy permission to penetrate him because he thought his behaviour was too aggressive. But then, he (the bottom guy) says he got scared and let the top fuck him as per previously exchanged messages as he was fearing for his life. He now says, that a year later, he got past the trauma of that encounter and files the charges. 

How would someone in this case prove that the top guy is not guilty since the onus is on him to prove that he has received affirmative consent?

I am choosing the top guy to be the bad guy, but equally can be the bottom guy, i.e. the bottom forced himself on top's dick because the top was fearing for his life. A slightly more unlikely scenario, but in the world of possibilities, this is a probable situation too.

Do you have to wear a webcam for every encounter? Even if the whole episode is filmed, how can either of them prove that the other one was sober and in full mental capacity? 

 

 

[Guest]

I actually wrote a research article about how gay men perceive affirmative consent policies, and an Australian journalist tweeted about it yesterday. Basically, I argue that affirmative consent has an implicit heterosexual bias despite the gender neutral language within the policies due to how sexual assault has been constructed as a form of gender violence. Here is the link to it if anyone is interested. Moderator's Note: The link which led to a site with personally identifying information has been deleted by poster request. 

I have written quite a bit about how policies like affirmative consent function to regulate sexuality by forcing those who engage in stigmatized sexual behaviors or cultures to conform their sexual behaviors to heteronormative standards of “appropriate” or “safe” sex. This can also be problematic for sexual cultures in which silence and non-verbal cues are the norm since affirmative consent policies insist that consent must be verbal. Personally, I also just find them patronizing.

[BootmanLA]

8 minutes ago, on2thenxt87 said:

I actually wrote a research article about how gay men perceive affirmative consent policies, and an Australian journalist tweeted about it yesterday. Basically, I argue that affirmative consent has an implicit heterosexual bias despite the gender neutral language within the policies due to how sexual assault has been constructed as a form of gender violence. Here is the link to it if anyone is interested.([think before following links] [think before following links] https://onlinelibrary.wiley.com/doi/full/10.1002/sgp2.12040#sgp212040-sec-0001-title)

I have written quite a bit about how policies like affirmative consent function to regulate sexuality by forcing those who engage in stigmatized sexual behaviors or cultures to conform their sexual behaviors to heteronormative standards of “appropriate” or “safe” sex. This can also be problematic for sexual cultures in which silence and non-verbal cues are the norm since affirmative consent policies insist that consent must be verbal. Personally, I also just find them patronizing.

If affirmative consent laws have a heterosexual bias, it's because the world has a heterosexual bias. Most lawmakers are heterosexual and their work is going to be shaped by their viewpoints unless they're challenged. It's the same reason "head and master" laws were the norm until the 1960's or later: the people making the laws virtually all lived in a world where husbands dominated and wives submitted.

And the reality is that women are more subject to sexual violence than men are. Certainly men can be and are sexually assaulted, especially in situations like prisons and boarding schools and the like. But the numbers are with the women, and I don't think it's a big mystery why.

You may find such consent rules patronizing. Those who have been raped, or forced to participate in sexual activities to which they didn't consent, might beg to differ.

[Guest]

37 minutes ago, BootmanLA said:

You may find such consent rules patronizing. Those who have been raped, or forced to participate in sexual activities to which they didn't consent, might beg to differ.

You say this as if I said I find consent in general patronizing. Nor do I ever minimize the experiences of people who have been raped or sexually assaulted. However, I do find affirmative consent and legislation requiring people to adhere to affirmative consent policies problematic for a number of reason I lay out in my paper. As someone who greatly values consent and respect in all my sexual interactions, saying that I personally find such legislation patronizing does not mean I do not advocate consent in all sexual situations or that I am belittling the experiences of individuals who have experienced sexual violence. What it means is that I find the insinuation of such policies that all consent must look a specific way without considering the various ways that sexual minority subcultures practice consent patronizing, and frankly dangerous because of the implication it could have for those subcultures. This is especially true since there is no evidence to support that such policies actually prevent sexual assault. I hope that clarifies what I meant, but I also recommend reading my paper on the topic so you have a better understanding of both the issue and my argument.

[barebackbro]

1 hour ago, on2thenxt87 said:

... I also recommend reading my paper on the topic so you have a better understanding of both the issue and my argument.

Thanks so much for posting your paper! It's great that it's publicly available.

It must have been fun interviewing that cohort about those topics 🙂

[BootmanLA]

2 hours ago, on2thenxt87 said:

You say this as if I said I find consent in general patronizing. Nor do I ever minimize the experiences of people who have been raped or sexually assaulted. However, I do find affirmative consent and legislation requiring people to adhere to affirmative consent policies problematic for a number of reason I lay out in my paper. As someone who greatly values consent and respect in all my sexual interactions, saying that I personally find such legislation patronizing does not mean I do not advocate consent in all sexual situations or that I am belittling the experiences of individuals who have experienced sexual violence. What it means is that I find the insinuation of such policies that all consent must look a specific way without considering the various ways that sexual minority subcultures practice consent patronizing, and frankly dangerous because of the implication it could have for those subcultures. This is especially true since there is no evidence to support that such policies actually prevent sexual assault. I hope that clarifies what I meant, but I also recommend reading my paper on the topic so you have a better understanding of both the issue and my argument.

You quote me saying "you may find SUCH CONSENT RULES patronizing" (emphasis mine) and then go on to reword my statement as "consent in general" to make it easier to attack. If you're going to debate what someone has written, you have to actually engage with his words - or do they not teach that in universities any longer? Is it fair game to just change what someone said and then base your countervailing arguments on that?

You say "the insinuation of such policies that all consent must look a specific way" while ignoring that I pointed out, VERY CLEARLY, that the law we're discussing says nothing of the kind. In fact, this law is expressly clear that how consent is shown or not shown in any given case is highly contextual.

And laws making certain behaviors crime are not solely for the purpose of preventing those crimes. There's the very important purpose of punishing those who transgress.

As for your paper: I've read it. I think it raises some interesting questions but that's about it. I don't think you can draw any conclusion from a study of ten - TEN - people selected at a gay pride event as indicative of anything. Given that almost all were students, it might be relevant to a study of student-specific experiences; but even so, that's an incredibly tiny sample of people who were already self-selected to some extent because they're ones who would show up at a Pride event - thus completely non-representative of those who aren't out or who otherwise dislike large, crowded events like a Pride festival.

What I find especially problematic is your paper's sweeping statements - for instance, "Ultimately, gay men felt like affirmative consent, as well meaning as it was, was not created with them or the diversity of gay sexual culture and subcultures in mind, and that this made affirmative consent policies difficult to interpret or apply to their interactions." Again, that's based on conversations with just ten gay men. Period. I'll not address your methodology, other than to point out when you ask questions and "let" those lead into other areas of discussion - a tactic that can easily be manipulated to get a discussion going on what you want to prove - you're eliminating any hope that the "study" (if you can call ten interviews a study) is free of bias.

Again - I don't disagree that consent can manifest itself very differently in different populations. But the law in question ALREADY ACCOUNTS FOR THAT. It sounds like you're bitching about something the drafters of the legislation worked hard to cover precisely because people are different. All I can take from that is that despite allegedly believing in consent, you aren't supportive of any attempts, no matter how well-structured, to penalize those who violate that consent.

[Guest]

38 minutes ago, BootmanLA said:

You quote me saying "you may find SUCH CONSENT RULES patronizing" (emphasis mine) and then go on to reword my statement as "consent in general" to make it easier to attack. If you're going to debate what someone has written, you have to actually engage with his words - or do they not teach that in universities any longer? Is it fair game to just change what someone said and then base your countervailing arguments on that?

You say "the insinuation of such policies that all consent must look a specific way" while ignoring that I pointed out, VERY CLEARLY, that the law we're discussing says nothing of the kind. In fact, this law is expressly clear that how consent is shown or not shown in any given case is highly contextual.

And laws making certain behaviors crime are not solely for the purpose of preventing those crimes. There's the very important purpose of punishing those who transgress.

As for your paper: I've read it. I think it raises some interesting questions but that's about it. I don't think you can draw any conclusion from a study of ten - TEN - people selected at a gay pride event as indicative of anything. Given that almost all were students, it might be relevant to a study of student-specific experiences; but even so, that's an incredibly tiny sample of people who were already self-selected to some extent because they're ones who would show up at a Pride event - thus completely non-representative of those who aren't out or who otherwise dislike large, crowded events like a Pride festival.

What I find especially problematic is your paper's sweeping statements - for instance, "Ultimately, gay men felt like affirmative consent, as well meaning as it was, was not created with them or the diversity of gay sexual culture and subcultures in mind, and that this made affirmative consent policies difficult to interpret or apply to their interactions." Again, that's based on conversations with just ten gay men. Period. I'll not address your methodology, other than to point out when you ask questions and "let" those lead into other areas of discussion - a tactic that can easily be manipulated to get a discussion going on what you want to prove - you're eliminating any hope that the "study" (if you can call ten interviews a study) is free of bias.

Again - I don't disagree that consent can manifest itself very differently in different populations. But the law in question ALREADY ACCOUNTS FOR THAT. It sounds like you're bitching about something the drafters of the legislation worked hard to cover precisely because people are different. All I can take from that is that despite allegedly believing in consent, you aren't supportive of any attempts, no matter how well-structured, to penalize those who violate that consent.

I apologize if you feel like I misinterpreted the meaning of your statement that I quoted; however, that's how I interpreted it, especially in connection with your other comment about victims of sexual assault, so I just wanted to make it clear that I am both an advocate of consent and sexual assault survivors.

You say that you pointed out very clearly that this law in Australia doesn't outline specific guidelines for how consent should look, but you really did not discuss this other than to claim that it would be hard for someone to prove anything in a darkroom. I think it is also important to point out that affirmative consent policies were created as a primary prevention strategy to prevent sexual assault before it happens and defines consent is a specific way. On some level, this law exists for the same purpose, but that does not mean that it cannot also be used to help prosecute individuals that violate the standard of affirmative consent that the law attempts to establish.

I'm glad you read the paper and that you felt like it raised interesting questions; that was the point. I clearly address the small sample size of the study in the limitations section of the paper. The paper, like most qualitative research, is not generalizable, but it does serve as a starting point for future research. Considering that no other research at the time had looked into gay men's perspectives about affirmative consent, I'd say that the paper is important despite it's clear limitations. I would hardly call summarizing that all the gay men I talked with finding affirmative consent not adequate as a sweeping statement, but if that's your opinion, okay. Regarding the methodology of the paper and bias, again, you're entitled to your opinion on that as well obviously. Clearly, it was good enough to get published in a peer-reviewed journal, so I'm okay with it despite your criticisms, and I look forward to continue doing research around affirmative consent policies in the future.

You keep saying the law already accounts for differences in how consent can be interpreted in different contexts between different populations, but legislators in California have claimed the same thing about our affirmative consent law when it really didn't, especially regarding how affirmative consent is taught to students and enforced. I can believe in consent and punishing sex crimes while also being critical of affirmative consent policies because I disagree with your assertion that it is a well-structured piece of legislation. In fact, I think that more emphasis should be put on rehabilitation and education rather than on punitive legislation like this affirmative consent law, which many legal scholars and advocates agree is filled with convoluted amendments and definitions that could make it harder to secure a conviction from a jury. This is why I advocate for more comprehensive sex-positive education in primary schools before young people start internalizing the problematic sexual dynamics that contributes to the epidemic of sexual assault on university and college campuses.

Ultimately, we may just need to agree to disagree because I really don't want to fight about it. I just wanted to share a resource with another perspective for those who are interested.

[TaKinGDeePanal]

For a crime with such a heavy penalty as sexual assault (which stealthing seems to be), it is hard to believe that is now going to be treated as a strict liability offense, which is where this seems to be leading.

Edited September 2, 2022 by TaKinGDeePanal

[Guest]

On 9/1/2022 at 11:46 PM, BootmanLA said:

And the reality is that women are more subject to sexual violence than men are. Certainly men can be and are sexually assaulted, especially in situations like prisons and boarding schools and the like. But the numbers are with the women, and I don't think it's a big mystery why.

You may find such consent rules patronizing. Those who have been raped, or forced to participate in sexual activities to which they didn't consent, might beg to differ.

The reality is also that the average male who has experienced sexual violence against him usually takes decades, sometimes several suicide attempts and often abusing alcohol and drugs before admitting he has been victimised in this matter. It is very lightly women are more subject to sexual violence because men often have more power, be it physically or social-economically. 
But I also think sex crimes against men are very, very underreported, understated and misunderstood. Speaking from experience they can also happen in the family home when a boy is underaged, and be inflected by an (older) female family-member.

I would applaud it when all sexual acts that go against the will - or when concerning (young) children in all cases - it be considered rape. THAT would send a strong signal about what's wrong, and what's right.

But in the real world where shit happens, the biggest problem imho isn't rules about giving consent, but proving what has happened when one who has been victimised speaks out. There needs to be credible witnesses, physical proof or something else - always - to corroborate an accusation. Because I still wouldn't want anybody to be convicted purely based on the testimony of one person. And neither would I as a grown human being, want to use a digital or written declaration of consent before engaging in sex.

One reason being I would like to be able to retract any consent I've given at any time during sex myself. 
Do you see my point, that in reality the well-meaning idea of switching the burden of proof around, in practice might also do harm because people might think they are obliged to have sex and don't have the right to have a change of heart?

 

On 9/1/2022 at 11:19 PM, on2thenxt87 said:

I actually wrote a research article about how gay men perceive affirmative consent policies, and an Australian journalist tweeted about it yesterday. Basically, I argue that affirmative consent has an implicit heterosexual bias despite the gender neutral language within the policies due to how sexual assault has been constructed as a form of gender violence. Here is the link to it if anyone is interested.([think before following links] [think before following links] https://onlinelibrary.wiley.com/doi/full/10.1002/sgp2.12040#sgp212040-sec-0001-title)

I have written quite a bit about how policies like affirmative consent function to regulate sexuality by forcing those who engage in stigmatized sexual behaviors or cultures to conform their sexual behaviors to heteronormative standards of “appropriate” or “safe” sex. This can also be problematic for sexual cultures in which silence and non-verbal cues are the norm since affirmative consent policies insist that consent must be verbal. Personally, I also just find them patronizing.

Hm.

I have two big objection to your input. Somehow your line of reasoning seems to exaggerate any differences (if they even exist) between heterosexuals and homosexuals because of our 'sub-culture's which almost dehumanises us if we're not careful.
The other being that it's not THAT difficult to define rape: anything sexual you were forced to do or undergo. (See above).

I would like to put the hypotheses to you that rules and laws about non-nonsexual sex are put into this world not with the victims or perpetrators in mind, but mostly to make the people (and politicians..) who advocate them feel righteous and good about themselves. 

[Guest]

5 hours ago, BareLover666 said:

Hm.

I have two big objection to your input. Somehow your line of reasoning seems to exaggerate any differences (if they even exist) between heterosexuals and homosexuals because of our 'sub-culture's which almost dehumanises us if we're not careful.
The other being that it's not THAT difficult to define rape: anything sexual you were forced to do or undergo. (See above).

I would like to put the hypotheses to you that rules and laws about non-nonsexual sex are put into this world not with the victims or perpetrators in mind, but mostly to make the people (and politicians..) who advocate them feel righteous and good about themselves. 

So do you not think that there are any differences between gay culture and straight culture? I not only think that there are differences, but that these differences impact the ways we navigate sex. Furthermore, both straight and gay culture each have various subcultures (including sexual subcultures) that have their own structure including norms and roles. Acknowledging that these subcultures exist and that they have their own norms does not equal dehumanization, like not even close. If I had implied that the reasons these differences exist are because homosexuals are intrinsically immoral and thereby less than heterosexuals, then that would be an example of dehumanization, but I don't say that (nor would I). Gay people are not a monolith, which the very existence of this site clearly demonstrates.

The concept of rape, how it is understood and defined, is not the same across time, space and culture. An example of this is how when a man forced his wife to have sex with him it was not considered rape; however, by the 1980s this changed and our conceptualization of rape expanded, yet still would not be considered a crime nationwide until 1993. Sexual assault, sexual harassment, and sexual battery were all created to describe various forms of sexual mistreatment that people experience, but are considered relatively new terms when compared with the concept of rape. Moreover, these terms are subjective even to the people who experience them. One early study found that many women who had experiences that fit the definition of sexual assault did not consider the experience to be assault. I know that I have had similar experiences like this myself. Specifically, I had a friend who tried to rape me once after a party. I was really lucky that I was able to fight him off, but since I was able to fight him off I don't really feel like I was sexually assaulted even though my experience fits into the definition of sexual assault. Maybe rape shouldn't be that difficult to define, but the reality is that sometimes it is for many of these reasons.

I definitely appreciate where you're coming from though and your perspective.

[BootmanLA]

On 9/1/2022 at 11:03 PM, on2thenxt87 said:

On some level, this law exists for the same purpose, but that does not mean that it cannot also be used to help prosecute individuals that violate the standard of affirmative consent that the law attempts to establish.

Criminal law exists primarily to define and punish transgressions against others. To the extent that the penalty provided therein acts as a disincentive to committing those crimes, that's a welcome bonus, but a bonus nonetheless. I think it betrays a certain mindset to say that laws can "also be used to help prosecute individuals that violate" as though all this criminal law stuff was just, you know, an afterthought.

On 9/1/2022 at 11:03 PM, on2thenxt87 said:

I clearly address the small sample size of the study in the limitations section of the paper. The paper, like most qualitative research, is not generalizable, but it does serve as a starting point for future research. Considering that no other research at the time had looked into gay men's perspectives about affirmative consent, I'd say that the paper is important despite it's clear limitations. I would hardly call summarizing that all the gay men I talked with finding affirmative consent not adequate as a sweeping statement, but if that's your opinion, okay. Regarding the methodology of the paper and bias, again, you're entitled to your opinion on that as well obviously. Clearly, it was good enough to get published in a peer-reviewed journal, so I'm okay with it despite your criticisms, and I look forward to continue doing research around affirmative consent policies in the future.

I'm not saying it's not important. I'm saying that at most, what such a small sample can do is provide anecdotes and possible topics for further study.

In a sideline, for several years, I worked as an assistant to an ornithological researcher. At one point, she had trapped and marked an individual bird within a research tract at a national park. Later that day, the marked bird was seen at a feeder at the park headquarters, nearly a mile away from the capture point. The next day, she recaptured the bird about a half mile from the original capture point (opposite direction from the park), and when it was released, it flew to its nest in a nearby tree. What that tells us is that for that particular species of bird, in that habitat (which was fairly arid and barren), individuals can forage for up to a mile and a half from their home territory - a reasonable conclusion to draw based on the evidence. It's also demonstrated that other species in this family of birds have an aptitude for repeatedly visiting multiple feeding sites on a regular basis when they're "resident" in a given area (either breeding season or wintering season).

Unfortunately, she treated this as evidence that all species in this family of birds - which are incredibly diverse - all (and I quote) "know where every source of food within a mile and a half" is from wherever they're residing. And that might be true, but it's not what the evidence shows. One species, in a habitat with limited food sources, ranged over that large distance. Other species, not even particularly closely related but in the same family, demonstrated knowledge of multiple food sources in a much more circumscribed area. But merging the two has zero evidentiary backing whatsoever.

Or there is that old joke: A mathematician, a physicist, and an engineer are flying over Scotland when they saw a black sheep down below. The engineer thinks "So, Scottish sheep are black." The physicist mentally observes "Some Scottish sheep are black." The mathematician jots down a note, "There is, in Scotland, at least one sheep, black on top."

On 9/1/2022 at 11:03 PM, on2thenxt87 said:

You keep saying the law already accounts for differences in how consent can be interpreted in different contexts between different populations, but legislators in California have claimed the same thing about our affirmative consent law when it really didn't, especially regarding how affirmative consent is taught to students and enforced.

First, we're talking about this specific law in question, not "law" in general. My point, which I keep making and you keep ignoring, is that the authors of this law specifically and clearly anticipated that the expression of consent would vary depending on context and situation and individuals, and wrote that into the law. And you go right on, jumping first to California law (which isn't cited here and thus we can't say what it does or doesn't do) and then from there, jump to how consent "is taught to students" - which isn't law at all, but university policy. And I get that you want to keep going back to university policy because that's where the most egregious mismatches seem to occur, but sorry, that's not the subject here. If you want to argue affirmative consent in general, go start a thread on that - I know you know how. But please stop hijacking a thread about a particular law in a particular country in order to sound the alarm about something markedly different.

On 9/1/2022 at 11:03 PM, on2thenxt87 said:

I can believe in consent and punishing sex crimes while also being critical of affirmative consent policies because I disagree with your assertion that it is a well-structured piece of legislation.

It may or may not be a well structured piece of legislation, but it does nonetheless address the specific complaint you've raised - that it doesn't account for how different populations indicate consent, which is what you keep dragging up, over and over and over and over.

On 9/1/2022 at 11:03 PM, on2thenxt87 said:

In fact, I think that more emphasis should be put on rehabilitation and education rather than on punitive legislation like this affirmative consent law, which many legal scholars and advocates agree is filled with convoluted amendments and definitions that could make it harder to secure a conviction from a jury. This is why I advocate for more comprehensive sex-positive education in primary schools before young people start internalizing the problematic sexual dynamics that contributes to the epidemic of sexual assault on university and college campuses.

The law was restructured precisely because too many sexual assault crimes were going unpunished. You say "many legal scholars and advocates" agree on deficiencies in the law; every citation I've been able to find suggests that Australians are more interested in strengthening affirmative consent laws.

And here's the core of my issue with your approach. I note your acknowledgment that you're an "both an advocate of consent and sexual assault survivors," but the historic problem with sexual assault has been that people were unwilling to punish someone for a sex crime unless there was clear and unequivocal evidence that the victim protested, fought, basically did everything possible to prevent the assault from happening. And even then, if she (and it was almost always a she) wasn't "the right sort" of victim, then conviction was even more unlikely. Rape was effectively not a crime if you were a sex worker. Not a crime if you had previously had sex with more than one man (not at once, just over time). The presumption was that, like wives, such women inherently consented to sex because they hadn't "proven" that they were virtuous. When the sexual revolution hit, instead of giving those women the status that "good" girls had always had, regarding the ability to consent, men used the opportunity to reduce all women down to that level. If it was no longer shameful for a girl to have sex before marriage, then clearly they were all "available" for sex and men didn't have to worry about things like consent because they weren't going to be sullying her reputation if they ignored it.

THAT is the origin of affirmative consent laws: recognizing that sexual liberation does not mean sexual subjugation to the whims of those with power and strength. 

Have we over-corrected? I don't think so. Where we are, basically, is that men are expected to have clear consent established before they start, and to be on the lookout for signs of withdrawal of that consent as they continue. And frankly, I don't have a problem with that, and if a bunch of horny college boys find it harder to get laid because they have to be more careful, so fucking what? 

Part of the problem is that men - speaking in general, and yes there are lots of exceptions - tend to look at the kind of sex they want as the end goal, even if they have to practice deceit to get it. Hence stealthing: men don't like condoms, and they'll do anything to avoid having to use them for the duration of the sex, including lying about intent to use them, slipping them off mid-way, breaking them deliberately in the process, and having a second round of sex unprotected after establishing that they're "willing" to use a condom during the first round. All of that - ALL OF IT - is just crappy rationalization of the guy's desire to fuck unprotected, using any flimsy excuse for why he didn't "this time" or "the entire time" or whatever. Screw that. If the person's rules for having sex aren't acceptable, don't fuck them. And especially don't pretend to accept the rules and then try to evade them mid-way. That's what shitty fuckheads do.

[Guest]

2 hours ago, BootmanLA said:

Criminal law exists primarily to define and punish transgressions against others. To the extent that the penalty provided therein acts as a disincentive to committing those crimes, that's a welcome bonus, but a bonus nonetheless. I think it betrays a certain mindset to say that laws can "also be used to help prosecute individuals that violate" as though all this criminal law stuff was just, you know, an afterthought.

I'm not saying it's not important. I'm saying that at most, what such a small sample can do is provide anecdotes and possible topics for further study.

In a sideline, for several years, I worked as an assistant to an ornithological researcher. At one point, she had trapped and marked an individual bird within a research tract at a national park. Later that day, the marked bird was seen at a feeder at the park headquarters, nearly a mile away from the capture point. The next day, she recaptured the bird about a half mile from the original capture point (opposite direction from the park), and when it was released, it flew to its nest in a nearby tree. What that tells us is that for that particular species of bird, in that habitat (which was fairly arid and barren), individuals can forage for up to a mile and a half from their home territory - a reasonable conclusion to draw based on the evidence. It's also demonstrated that other species in this family of birds have an aptitude for repeatedly visiting multiple feeding sites on a regular basis when they're "resident" in a given area (either breeding season or wintering season).

Unfortunately, she treated this as evidence that all species in this family of birds - which are incredibly diverse - all (and I quote) "know where every source of food within a mile and a half" is from wherever they're residing. And that might be true, but it's not what the evidence shows. One species, in a habitat with limited food sources, ranged over that large distance. Other species, not even particularly closely related but in the same family, demonstrated knowledge of multiple food sources in a much more circumscribed area. But merging the two has zero evidentiary backing whatsoever.

Or there is that old joke: A mathematician, a physicist, and an engineer are flying over Scotland when they saw a black sheep down below. The engineer thinks "So, Scottish sheep are black." The physicist mentally observes "Some Scottish sheep are black." The mathematician jots down a note, "There is, in Scotland, at least one sheep, black on top."

First, we're talking about this specific law in question, not "law" in general. My point, which I keep making and you keep ignoring, is that the authors of this law specifically and clearly anticipated that the expression of consent would vary depending on context and situation and individuals, and wrote that into the law. And you go right on, jumping first to California law (which isn't cited here and thus we can't say what it does or doesn't do) and then from there, jump to how consent "is taught to students" - which isn't law at all, but university policy. And I get that you want to keep going back to university policy because that's where the most egregious mismatches seem to occur, but sorry, that's not the subject here. If you want to argue affirmative consent in general, go start a thread on that - I know you know how. But please stop hijacking a thread about a particular law in a particular country in order to sound the alarm about something markedly different.

It may or may not be a well structured piece of legislation, but it does nonetheless address the specific complaint you've raised - that it doesn't account for how different populations indicate consent, which is what you keep dragging up, over and over and over and over.

The law was restructured precisely because too many sexual assault crimes were going unpunished. You say "many legal scholars and advocates" agree on deficiencies in the law; every citation I've been able to find suggests that Australians are more interested in strengthening affirmative consent laws.

And here's the core of my issue with your approach. I note your acknowledgment that you're an "both an advocate of consent and sexual assault survivors," but the historic problem with sexual assault has been that people were unwilling to punish someone for a sex crime unless there was clear and unequivocal evidence that the victim protested, fought, basically did everything possible to prevent the assault from happening. And even then, if she (and it was almost always a she) wasn't "the right sort" of victim, then conviction was even more unlikely. Rape was effectively not a crime if you were a sex worker. Not a crime if you had previously had sex with more than one man (not at once, just over time). The presumption was that, like wives, such women inherently consented to sex because they hadn't "proven" that they were virtuous. When the sexual revolution hit, instead of giving those women the status that "good" girls had always had, regarding the ability to consent, men used the opportunity to reduce all women down to that level. If it was no longer shameful for a girl to have sex before marriage, then clearly they were all "available" for sex and men didn't have to worry about things like consent because they weren't going to be sullying her reputation if they ignored it.

THAT is the origin of affirmative consent laws: recognizing that sexual liberation does not mean sexual subjugation to the whims of those with power and strength. 

Have we over-corrected? I don't think so. Where we are, basically, is that men are expected to have clear consent established before they start, and to be on the lookout for signs of withdrawal of that consent as they continue. And frankly, I don't have a problem with that, and if a bunch of horny college boys find it harder to get laid because they have to be more careful, so fucking what? 

Part of the problem is that men - speaking in general, and yes there are lots of exceptions - tend to look at the kind of sex they want as the end goal, even if they have to practice deceit to get it. Hence stealthing: men don't like condoms, and they'll do anything to avoid having to use them for the duration of the sex, including lying about intent to use them, slipping them off mid-way, breaking them deliberately in the process, and having a second round of sex unprotected after establishing that they're "willing" to use a condom during the first round. All of that - ALL OF IT - is just crappy rationalization of the guy's desire to fuck unprotected, using any flimsy excuse for why he didn't "this time" or "the entire time" or whatever. Screw that. If the person's rules for having sex aren't acceptable, don't fuck them. And especially don't pretend to accept the rules and then try to evade them mid-way. That's what shitty fuckheads do.

I literally do not have the time or the energy to keep going around with you, so you win lol.