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Affirmative Consent As Legal Standard?

March 19, 2010

From time to time people ask about how “yes means yes” relates to the law of rape. I’ll give the cynical answer first: what law of rape? One can open the statute books and find a definition of “rape” or “sexual assault”, that varies depending on the jurisdiction. If one reads that, one will have learned nothing about the law of rape. (Some readers may understand that I’m making a statement here about what is called “philosophy of law,” and a very controversial one. More on philosophy of law below.) In the United States, we basically only apply criminal penalties to stranger rape. Acquaintance rape mostly is unpunished, and so, to say it is even illegal is sort of misleading. In that sense, my initial reaction is to say that we should worry about how to reform the legal standard for rape when we’re serious about treating it like a crime.

But leaving it at that is too bleak and hopeless, so instead I want to set down some thoughts on how the feminist thinking about rape and affirmative consent translates to law.

An Affirmative Consent Standard?

When feminists talk in moral terms about rape, many of us talk about “enthusiastic participation” or “enthusiastic consent.” I think that’s the right standard for determining when one’s sex partner consents. However, as a rule of law, it is difficult to work with because “enthusiastic” is slippery. I’m not saying it’s impossible, by the way, but it’s not the clearest wording.

“Affirmative consent”, however, is not at all ambiguous. What we are doing is not working. I’m not a fan of Dr. Phil, but he occasionally turns a clever folksy phrase, so I’ll quote him: “If what you’re doing isn’t working for you, try doing something different.” Affirmative consent is something different.

I’m certainly not the first person to think that affirmative consent ought to work as a standard. As a conduct standard, though not a criminal standard, Antioch College imposed a requirement to secure affirmative consent. Rachel Kramer Bussel wrote about it in her Yes Means Yes essay, and I expanded on what she wrote here. Recently, I was sorting through this thinking in emails to a friend, and after she encouraged me to write it up as a post, I went looking for writing specific to affirmative consent as a legal standard. There are probably other pieces, but I came across a law student note (a note is something like a thesis, the major piece of writing that law students do, and many but not all of them are published) from a guy named Nicholas Little that paralleled much of what I was thinking. Perhaps I only like it because he and I said many of the same things, and perhaps that is evidence, if more were needed, of my own intellectual shortcomings. But I like it and I’m going to quote it nonetheless.

Little’s note is titled From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law, and Vanderbilt Law School, whose Law Review published it, kindly makes it available to folks who don’t have flat-rate Lexis and Westlaw subscriptions on their website as a .pdf.

Little points out that even “no means no” is still contested terrain:

Central to the consideration of consent has been the much affirmed concept that “no means no.” In short, the standard means that, if an individual verbally rejects sexual advances, that person must be seen as withdrawing consent to sexual contact. “No means no” has been a rallying cry for the on-campus feminist movement. Despite its utter simplicity and apparent reasonableness, supporters of “no means no” are still having to make their case on a daily basis, and apparently many still believe that a woman’s outright verbal rejection of sexual advances does not, in and of itself, create a case of rape against a man who engages in sexual intercourse with the woman. For example, columnist Gregg Easterbrook, examining the Kobe Bryant case, opines that “the reality of human interaction is that ‘no’ does not always mean no. Maybe half the sex in world history has followed an initial ‘no.’ ” Such opinions base themselves not infrequently on the findings of surveys such as that done in 1988 at Texas A&M University. This survey found that 39.3 percent of the female undergraduates surveyed sometimes said no, although they “had every intention to and were willing to engage in sexual intercourse.” Although this and other studies showed that “no” does mean “no” for most women, some interpreting these results cite them as evidence that the word “no” confuses some men.

The “no means no” standard, despite its apparent simplicity, is under attack by those who claim that it is simply not true—that in many dating cases “no” may not actually mean no. The intent of this Note is not to present such attacks as persuasive; they are not and were refuted in the 1998 Texas A&M University study, Muelenhard and Hollabough’s original work. They are still made, however, and these arguments show how the “no means no” movement has failed to establish itself as the common sense position it portrays itself as. That debate still exists about whether a woman has been raped, when she has explicitly stated that she does not wish to engage in sexual intercourse but was ignored by her partner, who proceeded to have sex with her, is a sign of the failure of “no means no” to come into the mainstream. More importantly, court decisions acquitting men of rape where there is no doubt that the woman has indeed said no to sexual intercourse indicate that “no means no” is far from being the accepted legal standard.

[At p. 1323, internal citations omitted.]

Rape is a crime that almost always happens without witnesses (the major exception being gang-rapes, and even then all the witnesses may be either participants or passive supporters of the rape), and where a key element is not usually subject to measurement by physical evidence. Yet simply not prosecuting it, which is what we really do now, is a bad solution because the crime becomes epidemic. One in eight women who attend college leaves saying that she was sexually assaulted. Not by some Katie Roiphe definition, or Neagu’s definition; by the Ohio statute. See Robin Warshaw’s book, I Never Called It Rape, based on research by Mary Koss. So that’s a huge social problem, and we have to do something to deter the conduct.

Substantive and Procedural Rules

There are two fundamental problems. The first is the substantive law, that is, what conduct the law requires and/or bars. The second is procedural: the rules of the mechanism by which it is adjudicated. It seems simple enough to me, maybe because I’m a litigator. But as recently as yesterday, I’ve run across people who can’t (or choose not to) keep it clear in their head. As lawyers are wont to do, I’ll illustrate the difference with a silly example that has neither the complexity nor the emotional loading of the topic I’m writing about. Please forgive me for this, because it’s longish and not that interesting, but I feel like it’s necessary groundwork.

Suppose the way the game of hopscotch was played were a matter or criminal law. The legislature might pass a statute that said, “all games of hopscotch will commence with the first player making the first jump on the player’s left foot.” That’s the substantive law. The conduct required is a left-footed first jump. If the statute said, “no player shall knowingly commence a game of hopscotch with a jump other than a left-footed jump,” that’s a different rule, because it imports a state of mind, “knowingly.” How that is proved is procedural. A rule that the prosecution must prove the occurrence of the non-left-footed jump beyond a reasonable doubt is one standard. If there were a certification requirement (to get really silly) that all players write up an affidavit that the game began with a left-footed jump and then keep that on file in case the prosecutor came to inspect it, and the absence of the required left-footed jump at the beginning were presumed from the absence of the record, and the players could then rebut the presumption, that would be a different procedural rule. It would not change the substantive conduct – the required left-foot start – but it would change the means of determining whether that happened.

All that is to say this: when I (and Little) talk about a legal standard of affirmative consent, we’re talking about a substantive requirement, and duty that goes not to how somebody proves what happened, but that tells people how they are required to act in the first instance. One could interrogate and muddy it, but I think that’s angels on the head of a pin. There is a difference between those two things.

Lawyers love neat rules that work not only for the common case, but for the less common forseeable ones. We know from the research that nine out of ten rapes are by guys who do it again and again. Usually, the rules of evidence allow prior bad acts for the purpose of showing plan, motive, or absence of mistake, (for the legal eagles, Fed. R. Evid. 404(b), the so-called “MIMIC exceptions,” but I don’t have time to review the case law concerning application of prior bad acts in rape cases; it’s almost certainly a mixed bag with some egregiously result-oriented decisions), so we generally recognize that if someone claims to have made the same mistake again and again, it’s not likely to be true. However, affirmative consent works at the margins, too. I want to examine that first.

Whether civil or criminal, in law we try to create rules that shift the risk of miscommunication all the time. If we’re not talking about serial rapists but just people who may have a misunderstanding, how can we best allocate the risk? First, by mandating clear communication! Unspoken agreements are a breeding ground for misunderstanding. To skip to civil law for an analogy, a contract is not a contract until there is a meeting of the minds on material terms.

Little says, “the introduction of an affirmative consent standard would not only incentivize rational behavior on the part of both women and men in dating situations but that such a shift in the law would potentially shift public perceptions of women and their role in sexual relationships.” (At p.1324.) We’re unused to people actually bargaining around sex like rational people with interests, because there’s a social script. People have, basically, emotional objections to dealing with sex rationally. (BDSMers are generally immune to this, except the assholes who have gendered ideas about a pre-ordained dom-sub order to the universe.) But it will not ruin sex!

(Nothing will ruin sex. Affirmative consent isn’t even a radical idea. Outlawing sex and making the initiator a criminal in all events is a radical idea. I quoted Twisty Faster floating that idea back on the Antioch thread. Then, people would still have sex, but would only initiate with people they trusted not to turn them in. How do we know that people will not become celibate and let the species die? Because people whose preferred modes of sexual intimacy have been outlawed have risked their freedom and their lives for what fulfills them — see pre-Stonewall gay culture; and see BDSMers, whose conduct is of uncertain legality almost everywhere to this day. I could make a good argument based on the statutes and case law where I live that what my spouse does to me regularly with my consent is a felony.) See Little at 1359-61.

The “it will ruin sex” objection is one of several common objections that I think are rhetorical and fall apart under even casual scrutiny. For example:

“Why does the guy have to secure consent?”

He doesn’t. It’s a gender-neutral obligation. Initiator secures consent. Worked fine at Antioch.

“What if they are both drunk?”

Same answer.

“What if nobody initiates?”

Not possible. If two people lay in bed next to each other, no sexual contact takes place. If we mush up “sex” into some gauzy montage, and refuse to consider it as anything but a unified whole, it becomes possible to have a confused situation about initiation. But each act has to have an initiator. It is that person who has the obligation in the first instance.

“What if they initiate mutually?”

Well, that’s enthusiastic participation. If two people lean in to kiss each other at the same time and stick their tongues in each other’s mouths, I think we can be pretty clear on consent.

“But … Isn’t It Awkward?”

Well, here’s the beauty of it. It isn’t, because people can always bargain around the law in private arrangements, and law provides a background rule. The person initiating has the obligation to secure consent. In the presence of enthusiastic participation, that person may be so clear on the existence of consent that they don’t need a verbal confirmation — but they have to be willing to assume the risk of error. The non-initiator, if they are for example a survivor who freezes, faces serious consequences from a mistake, and the initiator faces serious consequences from a mistake theoretically (but not actually because there are no convictions in these situations). But the initiator is more able to avoid the mistake by checking for affirmative consent. As I recall, “stop if your partner goes limp” was a rule of Fight Club. If a bunch of guys fighting in a basement can observe that, we can expect it between sex partners, I should think.

The other way to “bargain around the rule” is to explicitly agree that silence equals consent and set other conditions for revocation, which is what BDSMers do with safewords and safesigns. Empirically, the experiment worked at Antioch, where the students loved the policy.

“What About False Allegations?”

This is the biggest objection when talking about the law of rape, and high-profile cases that fell apart such as Duke and Hofstra have added ammunition to those folks who argue that false allegations are a common problem – not because they are, but because people tend to view as common what they have heard about.

Little deals with this well in his note, and I’ll quote the section in full:

A. The Bogeyman of the False Allegation

The fear of a false accusation of rape is well documented. What is also well documented is the fact that false accusations of rape are no more prevalent than false accusations of other types of major crime. Indeed, when such false accusations do occur, they tend to be made by young women, and are dealt with rapidly and efficiently by the police. Prosecutors act as an effective screening mechanism here as well—given the difficulty of convicting a rapist, they tend only to prosecute the clearest cut cases, where the chances of conviction are greatest.

The problem is not that rape is over-reported, but instead that it is under-reported. The fact that rape is under-reported is hardly disputed. To some extent, the under-reporting of rape can be seen as the result of the treatment victims receive at the hands of the legal system. It is common that women report a second, non-physical, violation, this time at the hands of the courts and defense attorney. Another explanation for under-reporting, however, is that many victims do not view what happened to them as a crime. The Ms. survey data indicate that only 27 percent of those whose experiences met the legal definition of rape considered themselves rape victims. More disturbingly, 42 percent of those who had been raped reported later having consensual sex with the man who raped them.

Critics, such as Roiphe, argue that these numbers indicate that rape has not occurred at all in the situations considered. An alternative view sees this response as the product of societal factors. “Rather, it is one where the moral lessons taught by society make it difficult for many women to understand when they have been the victim of rape.” Many believe that no woman would ever go back for another encounter with a man who had raped her. Such behavior, however, has been explained by a need to normalize the situation, especially when the initial rape occurred in a dating environment. By having later consensual sex with the rapist, the victim can be seen as
attempting to regularize her world and regain a degree of control over the situation.

That a woman does not realize she has been raped does not, of course, mean that the rape has not occurred. The victim of theft by deception is still a victim of theft, whether she realizes it or not. More importantly, this under-recognition of rape by the victims themselves may be a result of societal factors. When women see the way other women who have been date raped are treated, they may not wish to place themselves in the same category, even on a subconscious level.

Women raised in a society that does not teach girls they have the right to control access to their own bodies may, quite reasonably, not recognize that an action is rape. After all, if society and the media do not consider such a thing to be rape, it is perfectly plausible that those who grow up under that influence will also not consider it to be rape.

Different groups within society clearly define what level of force is acceptable for a man to use in different ways. For example, 31 percent of women who expressed no religious affiliation claimed in the National Health and Social Life Survey that they had been forced to do something sexual by a male. Only 17 percent of Catholics answered yes to the same question, along with 21-25 percent of Protestants. It appears likely that such a large differential is the result of a different definition of what constitutes force, as opposed to any difference between the men to whom the women interviewed are exposed.

[p. 1357-58, internal citations omitted.]

The Limitations Of Changing The Standard

I said above that I would return to philosophy of law. Here it is: if I go to the Field Museum in Chicago, I can see the stuffed bodies of the Tsavo Lions, made semi-famous in that Val Kilmer movie, The Ghost And The Darkness. But those are not lions. Those are just lion skins mounted on sculptures. Looking at them tells me something about how a lion is built. Looking at a veterinary textbook can tell me a lot about how a lion’s digestive system works, and watching a documentary can tell me a lot about how a lioness hunts. But a sculpture is not a lion, and a textbook is not a lion, and a documentary is not a lion. A lion is a living, breathing animal.

The law is a living, breathing animal. What the legislature passes, what appears in a book in black letters on a white page, is no more the law than the textbook is the lion. Law is a structure for adjudication. What the legislature passes that police won’t arrest for, prosecutors won’t prosecute and juries won’t convict is just a set of words on a page. The law is what happens – or as one lawyer friend puts it, “exercises of power and excuses therefor.” I’m not a legal philosopher, and I’m sure Ron Dworkin would say I have it all wrong (so would Stanley Fish, and Fish and Dworkin famously disagree), but that’s my view.

What does that mean? As I said in an earlier post, about a jury that refused to convict a man who assaulted and raped a sex worker in Australia, (and this portion got widely retweeted):

This is not a legal problem. This is not a problem statutory reform can solve. Her work was legal where she was doing it. She was a service provider engaged in a lawful business enterprise … And this is not an enforcement problem. The police made an arrest and the prosecutors brought the case. The judge didn’t throw it out. The case went all the way to a jury.

This is a cultural problem.

[Emphasis supplied.]

Little recognizes this, too. He says:

Ultimately, the matter of whether a woman consented or not will come down to a matter of belief by the jury. Simply moving to an affirmative consent standard does not prevent the accused from claiming that he asked permission and the woman gave it to him.

[p. 1347.]

It is this issue of belief by the jury that is the major problem. It has led some commentators to rather radical suggestions. Donald Dripps, a law professor at the University of San Diego, wrote an article about his proposed solution, titled After Rape Law: Will The Turn To Consent Normalize The Prosecution Of Sexual Assault? It was published as part of the Akron Law Review’s colloquium on rape, which they put online. Dripp’s solution is to create lower degrees of sexual assault offenses that have very small penalties, which he acknowledges is problematic (I think more than he accepts), but it’s not nearly as ill-considered as it may at first sound. Here’s the method to his madness: in the U.S., the accused has a right to a jury trial only for offenses that can result in more than six months’ incarceration. So-called B Misdemeanors exist in all or substantially all the states for this reason, and with maximum sentences of just 6 months or less, they can be tried in front of a judge whether the accused likes it or not.

I’m endorsing Dripp’s thinking as interesting, but not as persuasive, and I’m not endorsing much of his language. His article can be a frustrating read for many reasons, including assumptions buried in it that will be foreign to people who don’t spend time on criminal justice issues, and an unrepentant elitism. I’ll let him make his own point:

My thesis holds that rape exceptionalism is rooted in a divide between elite opinion, reflected in statutes, court decisions, and academic commentary, and popular opinion, as reflected in jury verdicts. Elite opinion values sexual autonomy and suspects, when it does not despise, sexual aggression. Popular opinion supposes that sexual autonomy may be forfeited by female promiscuity or flirtation, and views male sexual aggression as natural, if not indeed admirable.

[p. 958.]

To be clear, because it isn’t from the quote but it is from the piece, Dripps thinks that respecting consent and autonomy is right, and what he calls “popular opinion” is just plain wrong. I’ll unpack his language a little. Where he says, “rape exceptionalism” he means that there have been attempts to make it easier to prosecute rape by changing things like substantive statutes and evidentiary rules. He discusses some of those, and says, “Sadly, these departures from basic principles of both criminal law and the law of evidence have done little to increase the prosecution’s ability to win justified convictions. Conviction rates in rape cases remain the lowest for any of the serious felonies.” [P.966, internal citations omitted.] Where he says “popular opinion,” readers of this blog can simply substitute Rape Culture.

As I indicated, Dripp argues, “clever defense lawyers are able to play on popular opinion and invite nullification of the legislature’s facial prohibition of sex without consent … we must bypass the jury openly.” [Pp. 959-60.] He backs this up with references to juror research that I have not read, but I think he’s right that juries are a major factor in the inability of acquaintance rape survivors to get justice from the criminal process. Dripp places it as not just a factor, but the absolute limiting factor. He continues:

Linda Fairstein, the well-known New York prosecutor, confirms the social science from a blood-under-the-nails perspective. She declared in 1993: “Although our laws now permit us to prosecute them, not until we are able to inform and educate the public – the men and women who serve on our juries – will we be able to convict more of the men who are guilty of acquaintance rape.”

The familiar jury myth of “justified rape” is very much still with us. When the victim met the defendant at a pick-up bar, or asked the defendant into her room, or accepts a ride home from him, jurors remain willing to believe that she asked for what she got. Such opinions, moreover, seem about as common among women as among men.

If the root problem is, as Professor Bryden concludes after deep research, jury reluctance to convict men accused of raping women who have violated traditional sexual mores, the turn to consent will fail to normalize rape law. Prosecutorial discretion will be constrained not just by the cost of trial, a cost all felony defendants may bargain with, but also by a high risk of acquittal at trial, an asset most felony defendants do not enjoy. We can expect legislatures and courts to continue trying to help the prosecution by legal interpretations, and by evidentiary rules and rulings, that would not be forthcoming outside the sexual assault context. And we can continue to expect that these heterodox maneuvers will fail to secure convictions at anything like the levels that prevail for other felonies.

[Pp. 972-73, internal citations omitted, emphasis supplied.]

This understanding leads to Dripp’s policy proposal: a “sex without consent” statute, a B misdemeanor that could be prosecuted before a judge and not a jury. There are benefits but also serious problems to this.

The most serious in my mind is that we already live in a culture which doesn’t consider anything but violent stranger rape as “real rape.” Some folks may worry that the use of a lesser included offense would trivialize rape by saying that it is only “worth” six months, that it isn’t serious. I would put is a little differently. The subjects in Lisak’s research raped women, and they admitted it, but they didn’t want to use the term “rape.” Commentators are inventing new terms, like Laura Sessions Stepp’s “grey rape” to separate some rapes from others and keep from calling the alcohol-fueled rape of friends (which Lisak’s research tells us is the norm) by the same name we use for the stranger-in-the-bushes assault. I think in many quarters, rape is considered serious, but the effort to narrow what is recognized as rape is so successful that the term remains an island describing a tiny portion of sexual assaults. Dripp’s proposal would further, and in fact codify, a division between “real rape” and some sort of lesser stuff that society will continue to refuse to call rape.

One concern Dripp overlooks is that judges are a product of the same society with the same prejudices. I don’t have time to look for all the posts about awful things judges have said about rape survivors; there are many and Cara has chronicled a good number of them at The Curvature. I particularly recall Judge Theresa Carr Deni. Does anyone think a bench trial in her court would go better for the survivor than a trial before a jury? Me neither.

Dripp identifies another concern; that six months just does not do enough. He brushes this aside with the idea that consecutive sentences for repeat offenses, enhancements and sex offender registration will combine to impose punishment. Here, I think he’s basically right, but mostly for another reason. Lisak’s research shows that most rapes are by recidivist predators. Even if the sentence is short, an adjudication in the first case for a misdemeanor that could serve as prior bad acts evidence in a future trial would make it much, much easier for a survivor to get justice before a jury. Tagging them once, however lightly, would vastly increase the chance of taking the predators out of the population at some point before they reach their normal average of six victims, and would mark them as men to be avoided by targets that might otherwise get to know and trust them.

Dripp comes to the conclusion that the complete failure to get convictions now means that his solution imposing some punishment is vastly better than the status quo. I understand his thinking, but I come down the other way because I think that the effect of further marginalizing anything but the traditional stranger rape narrative would end up doing more harm than good.

How To Change The Law

If law were words on a page, changing it might be difficult, but it would not be complicated. If law is a living system, and part of our social structure, and includes the police and the prosecutors and the judges and the juries, then changing it is not just difficult but slow and complicated. A change to basic social structures requires a change to the society.

In my essay for the Yes Means Yes book, Toward A Performance Model of Sex, I introduced the idea of a “social license to operate.” I expanded on that thought in Meet The Predators:

Change the culture. We are not going to pull six or ten or twelve million men out of the U.S. population over any short period, so if we are going to put a dent in the prevalence of rape, we need to change the environment that the rapist operates in. Choose not to be part of a rape-supportive environment. Rape jokes are not jokes. Woman-hating jokes are not jokes. These guys are telling you what they think. When you laugh along to get their approval, you give them yours. You tell them that the social license to operate is in force … What they do is what works. They rape their drunk acquaintances because it works. They rape their drunk acquaintances because we let them.

We need to revoke the rapists’ social license to operate. We need to stop asking, “why do we think he didn’t know she wasn’t consenting,” which is the first question now, really. First as a cultural matter — leaving the legal matter aside — we need to adopt the stance that sexual interaction ought to always be had in a state of affirmative consent by all participants; that anything else is aberrant. If someone says, “I was sexually assaulted,” the first question should be, “why was a person continuing with sexual activity when zir partner did not want to?”

[Emphasis supplied.]

Little makes a similar point, in a section called, “The Effects on Societal Attitudes”. [P. 1355.] He says:

An affirmative consent standard would mark the law’s acceptance that women are full partners in a sexual encounter, and that their wishes should be given equal weight to those of the male participant. By requiring that the initiator of a sexual encounter request affirmative consent, the law would encourage discussion of sexual desires and express a clear disapproval of the stereotypes mentioned above. Of course, in and of itself, a change in the legal standard would not alter deeply engrained societal values overnight; however, there are many occasions on which the law has led popular culture. The Civil Rights Movement in the 1950s and 1960s can certainly be seen as a time when the law was ahead of popular sentiment, and had the effect of changing popular culture to a greater or lesser extent. A similar effect can be expected from affirmative consent. By requiring men (as the usual, and socially presupposed initiators) to gain consent for sexual activity from their partners, such open discussion of sexuality is likely to become more commonplace. It becomes harder for women to play the coy role that society expects and still engage in the sexual activity that they wish if men must ask permission. As such, it is likely that the social stereotype will start to break down, and women who consent to sex will be seen as the norm.

[Pp.1355-56, internal citations omitted, emphasis supplied.] (I note here that Little explains early on (at p. 1325) his decision to limit his analysis to rape of women by men, which necessarily leaves a lot of people out. However, I think the proposal to center consent and mandate affirmative consent in the substantive law of rape is not an idea limited to addressing the rape of women by men.)

Here’s the “legal positivist” in me: the blackletter law is a societal expression, though not a complete one. People look to what the statutes say as a statement of values, and the effects of what the statutes say on how people understand rights and duties in forever intertwined with the effect of people’s understanding on how they will and won’t apply the law. It’s a slow, halting dance forward. The more we say with our laws that consent is the norm and its absence is aberrant, the more that becomes not just a feminist ideological point but the collective wisdom of the culture, and with it the police and prosecutors and judges and the folks who serve on juries gradually, way too gradually, move forward to accept that and do that. And when they do that, when they act on the understanding that the absence of consent is the defining characteristic of rape, then it is the law.

I need to thank Jaclyn for her assistance with this piece. Its genesis was a discussion between us where she got me to work out the basic structure, and then the research I did as a result, and then she added her thoughts about Professor Dripp’s proposal. I’m privileged to have smart and knowledgeable friends who never fail to enhance my understanding of the issues I write about. Anything I messed up, however, is entirely my fault.

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  1. Clarisse permalink
    March 19, 2010 2:26 pm

    Thomas. I love you. This is incredibly thorough and wonderful and covers so many different bases I don’t even know where to start in complimenting you.

    • March 19, 2010 8:08 pm

      Definitely seconded. I thought this was great.

  2. March 19, 2010 3:17 pm


    This is an exhaustively researched paper – but, in the real world, how practical is this affirmative consent standard?

    Let’s face it, for the vast majority of cis gendered straight folks in this country, the old “man as aggressor woman as gatekeeper” standard prevails – there are exceptions (feminists and the majority of the BDSM community are good examples) but they stand out precisely because they are exceptions.

    In effect, this standard would, at least on paper, criminalize their sex lives – and in practice, that would pretty much guarantee that this law would rarely actually be enforced (it would be like the death penalty – only the poorest minority defendants with the worst legal representation would ever have the law enforced against them).

    Considering the fact that, for the majority of cis gendered straight Americans, sex still follows the man as aggressor woman as gatekeeper model, wouldn’t it be a whole hell of a lot more practical if we just focused on enforcing the present rape laws – rather than engaging in some utopian Brave New World social engineering such as proposed in your paper?

    Gregory A. Butler

    • March 22, 2010 2:29 pm

      Gregory, actually this isn’t true that the majority of consensual cisgendered sexual interactions would be illegal. What would be illegal are the many rapes which are falsely called consensual or which are excused as unworthy of prosecution because there wasn’t a sufficiently negative response.

      The affirmative consent standard is in no way utopian as it is used and understood in most other areas of the law. In other areas we have no trouble understanding that consent is something a person does not something they fail to do.

      In Minnesota the definition of sexual consent in the criminal statutes is an affirmative definition.

  3. March 19, 2010 3:42 pm

    Gregory, the reason we can’t just enforce the existing law is the subject of the entire piece. There are structural impediments to actually putting the statutes we have now into practice. Are you offering a solution to those?

    As for the model of man as initiator in opposite sex encounters, whatever other reasons I may have to want to change that, nothing I’ve written in the post requires that to change. All I’m saying is that we ought to make it the law that whoever initiates ought to have the obligation to make sure consent is express, and not simply assume it. If a guy’s not sure his partner is into it, he can ask.

    • March 19, 2010 3:59 pm


      I’m not an attorney, so I wouldn’t be prepared to go into detail on that.

      But I have been a political activist since I was in junior high school, so I do have some idea of just how hard it is to change the law in a progressive way (even in a place like New York City, a dark blue city in a solidly blue state)

      I also know that just because you change the law doesn’t mean that you change society – the Civil Rights Act has been the law of the land for my entire lifetime (it was passed in 1965 I was born in 1968) but America is still racist as hell against Black people (in some ways MORE RACIST than before we got Civil Rights).

      I also think you’re engaging in a bit of double talk here – if you want to change the legal standard from the absence of NO to the enthusiastic presence of YES (openly expressed by BOTH parties – including the woman) then you ARE requiring that the majority of Americans who engage in straight gatekeeper sex change how they have sex (and using the shadow of a police officers nightstick to enforce your social engineering)

      In gatekeeper sex, the man is supposed to keep asking until the woman stops saying no – so, if you are using the force of law to mandate that “If a guy’s not sure his partner is into it, he can ask.” then you ARE TRYING TO CHANGE HOW PEOPLE HAVE SEX.

      I think it’s far more productive to try to reform gatekeeper sex than to impose your enthusiastic consent model on others by force of law – if the goal is to actually get the result of ending rape, rather than some social engineering experiment.

      Gregory A. Butler

      • March 22, 2010 2:53 pm

        Gregory, what you describe as gatekeeper sex is sexual assault. Ignoring a woman’s no and keeping after her until she stops saying no is rape by coercion.

        That this is a model of behavior which is still taught or supported helps explain why non-stranger rape is so common and why so many boys and men who are rightfully accused refuse to label their actions as rape and insist they were falsely accused.

        The traditional legal definition of sexual consent and the traditional legal requirements needed to prove lack of consent were written to excuse rape committed in this way.

      • March 22, 2010 5:05 pm

        “rape by coercion”?

        So, being persistent is rape now?

        That is a pretty extreme position – and by that standard, a huge portion of the heterosexual cisgendered male population of the United States are rapists.

        Gregory A. Butler

      • March 22, 2010 5:58 pm

        Gregory, being persistent after consent is denied is likely to result in rape since compliance is not consent. This behavior absolutely rules out a valid defense of consent if the woman who said no reports having been raped.

        You wrote: “by that standard, a huge portion of the heterosexual cisgendered male population of the United States are rapists.”

        The exact percentages of men who have completed at least 1 rape is unknown but from surveys of men the lowest percentage found was 4.8%.

        Too many of men have committed sexual assaults and the model you are defending contributes to these numbers which explains why surveys found that 1 in 6 women had experienced sexual assault in their lifetime.

      • March 22, 2010 10:37 pm

        It goes without saying that I have a different notion of what constitutes “the guilty” than persecutorial radfems of your ilk.

        Other than to state my total lack of sympathy for your “perspective”, I really have no wish to engage with you at all.

      • March 23, 2010 8:38 am


        If you don’t have any sympathy for the perspective of women who point out how the model you support, which advocates ignoring women’s communicated lack of consent, enables sexual assaults then of course you need to label me in a dismissive way.

        If you follow this model, ignore women’s communicated non-consent then the gatekeeper reports that you raped her then she is making a rightful accusation.

        A man convicted after ignoring a woman’s repeated no’s is not persecuted, he’s guilty. Your lack of sympathy for my “perspective” is a lack of sympathy for all girls and women who are raped using the model you defend.

      • March 23, 2010 10:17 am

        “Your lack of sympathy for my “perspective” is a lack of sympathy for all girls and women who are raped using the model you defend.”

        In a word – nonsense.

        My lack of sympathy for your perspective and radical feminism in general is a dislike of a fringe authoritarian ideology, not a dislike of women in general or a dismissal of concerns about violence towards women. (“Radical feminist” =/= “women”, and I shouldn’t have to draw a Venn diagram to point out the obvious.)

        By analogy, I’m also not a Marxist, and am very against some forms of Marxism. That does not mean I’m anti-working class or anti-union. Quite the opposite, actually.

  4. March 19, 2010 4:18 pm

    If what people are doing out there is sexually penetrating the bodies of others without being sure those people consent, then I do, in fact, want to change that.

    Are you in favor of people sexually penetrating others’ bodies without being sure that those folks consent?

    • March 19, 2010 4:28 pm


      I’m sure you’re a great trial lawyer – you can draft long difficult to read motions AND put words in people’s mouths!

      I’m in favor of keeping the police out of the bedrooms of consenting adults and adolescents.

      Bottom line folks should be able to fuck as they see fit, and if that includes the man making the first move every step of the way and the women passively giving in rather than actively saying yes (or even her getting drunk and passing out with him so he gets to “have his way” without her having to be unladylike and actually say yes), it’s THEIR PRIVATE BUSINESS and the courts should butt out.

      You know, a couple of threads back, when I called for compulsory public education and the banning of homeschooling, you balked and said it was repressive

      But when it comes to sex, all of your family rights libertarianism is totally gone – and you want to use the law to impose your mode of sex on the bedrooms of America!!!!

      Gregory A. Butler

      • March 19, 2010 4:39 pm

        Well, since you want public education to be universally mandatory, I don’t take you as having any across-the-board opposition to social engineering — just a particular opposition to a particular social engineering. Which is a fair description of my positions as well.

        If two people have sex where silence is taken as consent, nobody outside their bedroom is ever going to find out, as long as they are both actually consenting. The problem only arises if someone was not actually consenting.

      • March 19, 2010 5:07 pm


        Remember what they said about people ASSUMING?

        You might want to take that advice.

        And I can ask you the same question – the same person who’s horrified about every child getting a secular public education from teachers hired by the merit and fitness system wants to have other civil servants (cops and judges) dictating the sex lives of consenting adults and adolescents.

        As far as sex goes, the less government intervention, the better,

        Honestly, as a BDSM person, do you REALLY want police detectives judging YOUR sex life?

        Gregory A. Butler

      • March 19, 2010 5:10 pm

        And, on the real side, there is a HUGE difference between every kid going to school (an almost boringly mainstream position that all but a few fringe elements in American society agree with) and having the legal system criminalize the sex lives of the vast majority of Americans.

        Gregory A. Butler

      • March 19, 2010 8:08 pm

        “If two people have sex where silence is taken as consent, nobody outside their bedroom is ever going to find out, as long as they are both actually consenting.”

        Gregory: I think your emphasis on how the restructuring of consent laws somehow threatens ‘majority’ sex detracts from the positive impact that such a restructuring could have and ignores the participation required to accuse somebody of sexual assault. Following the guidelines of the current standard, it’s difficult for a person to understand whether their experience could legally be defined as rape; conflated with the shame that most survivors experience, such ambiguity may convince them that they don’t have a chance to legal accuse a perpetrator of assault. The guidelines that Thomas suggests could help a survivor understand that they were, in fact, assaulted and that they should utilize the legal system to confront their attacker. Restructuring the legal standard does not ‘change how people have sex.’ If a person feels that they have been assaulted, then it’s crucial that the legal standard reinforces and encourages them to take action, and furthermore that it clearly provides an outline for the jury. If the sex is truly consensual (regardless of the consent model the people having sex chose to employ), then the restructuring of the consent standard won’t really change how people are having it.

      • March 19, 2010 10:20 pm


        I’m very uncomfortable with anything that expands the power of police, prosecutors and courts to regulate and punish private individual behavior. As it is, the system has too much leeway in the private lives of the average citizen (in particular, poor, Black and/or Latino citizens) – they really don’t need more power to meddle in our lives.

        A statute criminalizing consensual sexual activity would do just that – hell, that’s why folks fought to repeal the sodomy laws!

        Gregory A. Butler

      • Clarisse permalink
        March 20, 2010 6:10 am


        I think some of your points are valid, like the one where you talk about how this would actually criminalize some consensual activity (which I agree with) and your point that extending the rule of law over sexuality is scary and dangerous (which I agree with). Your comments are interesting and give me a lot of pause.

        But I also think that Thomas’s proposed system actually does something to address the empowerment of women who are raped, and that you’re not. And you haven’t addressed the section on false accusations, which is the biggest counterargument to your stance. You seem convinced that changing the law to support enthusiastic consent will cause convictions of innocent people who are engaging in consensual sex, but why would that be true if false rape accusations are so rare?

      • March 20, 2010 8:04 am


        You do have a point about the rareness of false accusations – that actually is true. But that really wasn’t my main point here.

        The problem is, in Thomas’ densely written legal proposal, it appears that he wants to criminalize a vast area of consensual sex – that is, the consensual sexual activity of straight men and women who feel that the man has to be the aggressor, and the woman has to be the passive participant (in some cases, so passive that she literally doesn’t even actually say yes to sex as such – because “good girls” aren’t supposed to do that).

        Even if nobody ever gets indicted under this law, the fact that you are telling tens of millions of Americans that their way of having sex is criminal is fundamentally wrong.

        Thomas appears to want to use police power to impose his way of having sex on everybody – and that to me is repugnant.

        Considering how passionately he argued about the rights of parents to deny their children access to public schools, it’s remarkable to me that he would advocate for the government telling people what kind of sex they can have.

        Especially in light of the cold hard political reality that, if the government were to actually do that, I doubt they would legally sanction enthusiastic consent sex (which is pretty radical and is subscribed to by very few people).

        Actually, if the government were to regulate sex as Thomas proposes, his sexual practice, BDSM, would be in severe danger of being the first thing they outlaw (after they recriminalize sodomy, of course).

        In other words – be careful what you wish for!

        Gregory A. Butler

      • Clarisse permalink
        March 21, 2010 12:11 pm


        Actually, I think the bit about false rape accusations is absolutely key. Because if we acknowledge that non-initiators are very unlikely to lie and claim that they were raped when they weren’t, then it follows that by creating a definition of rape that better encompasses rape conditions — even if it criminalizes consensual sex — won’t make it more likely for people to be falsely convicted of rape, but will make it easier to get convictions when rapists are accused of rape.

        Also, the BDSM community is a really good example here. Part of the reason we BDSMers are so psychotic about careful communication is because having sex the way we do is often illegal and is always stigmatized. As a result, a bottom who reports assault by a top is much more likely to get a conviction (or at least is perceived to be so), and as a result of that, tops tend to be more careful in making absolutely sure that they have their partner’s consent. If our kind of sex wasn’t illegal, then I wonder if we would be so careful … or if our community would have such an emphasis on teaching us all to communicate about it? The point is that if two people are actually having consensual sex, then there’s unlikely to be any legal trouble even if it’s illegal to have that kind of sex — unless someone’s boundaries are violated. Why are we so quick to assume that a non-initiator would try to get a consensual sex partner sent to jail? If we assume that a non-initiator isn’t going to report rape unless s/he is actually raped, then this proposal becomes a lot clearer.

        I’m actually not sure whether I support the creation of such a law, because I too resist giving the government more control than it has. But I think the above points are the heart of Thomas’s argument. They’re certainly the bits that sway me most.

      • March 21, 2010 12:19 pm


        Indeed, the ethics voluntarily adopted by the BDSM community are admirable – but the key word is that your community VOLUNTARILY adopted those ethics, they weren’t imposed forcibly from outside.

        Gregory A. Butler

      • March 21, 2010 7:42 pm

        “Also, the BDSM community is a really good example here. Part of the reason we BDSMers are so psychotic about careful communication is because having sex the way we do is often illegal and is always stigmatized. As a result, a bottom who reports assault by a top is much more likely to get a conviction (or at least is perceived to be so), and as a result of that, tops tend to be more careful in making absolutely sure that they have their partner’s consent. If our kind of sex wasn’t illegal, then I wonder if we would be so careful … or if our community would have such an emphasis on teaching us all to communicate about it?”

        And as for this point, Clarisse, that is an exceedingly bad argument for supporting a bad law. OK, so the BDSM community has made some good adaptations to bad laws. So has the gay community, but did that redeem pre-Lawrence v. Texas legal norms? Obviously not – such laws had very real direct negative consequences in the lives of many individuals.

      • March 22, 2010 6:00 am

        IACB, there to my mind an important distinction between enshrining a yes-means-yes model in law, on the one hand, and pre-Lawrence sodomy laws and the legal regime Clarisse and I live under, on the other. The latter are both very rarely prosecuted, and their primary effect was that the existence of the laws were used to support a social message I disagree with — the marginalization of same-sex sex and of BDSM. In the case of an affirmative consent statute, prosecutions would arise only on complaint absent the most unusual circumstances also, but the social message of the law is one I agree with, which is that communication about consent ought to be had explicitly.

        Do you have a proposal to increase rape convictions, or are you arguing for the status quo?

      • March 22, 2010 9:55 am

        If by “status quo” you mean the under-enforcement of existing laws, then no, I don’t support it. I point out that initiating sex with somebody who is so intoxicated that they are barely conscious is already legally rape under existing statutes.

        But changing the status quo to a “rape by default” situation? Open to all sorts of abuse, and we only have your supposition that it would be “rarely prosecuted”. I also have serious doubts your proposal, if it were ever passed by a legislative body in the US (and that in itself is doubtful) would stand up to a constitutional challenge.

        Regardless of the “social message” it sends (and I’m very wary of the use of criminal law to “send a message”), the approach reminds me more than a little of the right-wing approach to drug laws and terrorism. Namely, if prosecution gets too difficult, simply throw the rights of the defense out the window. Never mind that those rights exist for very good reason, namely to err on the side of not jailing innocent people.

      • Clarisse permalink
        March 22, 2010 12:38 pm


        I actually am not convinced that we BDSMers would have adopted our approach “voluntarily” if it had not been for the illegal and stigmatized environment we function in. That was an important part of my point. If you assert that “fear of assaulting people” makes actions involuntary, then by your rules, I don’t think there’s a single BDSMer out there who exercises careful communication voluntary.


        But changing the status quo to a “rape by default” situation? Open to all sorts of abuse, and we only have your supposition that it would be “rarely prosecuted”.

        Perhaps you (or Thomas) can answer this question; I’ve been wondering about it recently in another context: Is it currently legally possible for someone to press charges for rape on someone else’s behalf, if the rape survivor does not want those charges to be pressed?

      • March 22, 2010 12:51 pm


        Yes, I would imagine that the shadow of the police officer’s nightstick – and the fear of what their sexual conduct would sound like when presented to a grand jury by a sharp prosecutor – had a LOT to do with how the BDSM community evolved.

        And that’s all the more reason to resolutely oppose any scheme to criminalize consensual sexual behavior, as Thomas appears to be advocating in his lengthy paper.

        Gregory A. Butler

      • March 22, 2010 12:53 pm

        Clarisse, as a theoretical matter, the prosecutor’s authority is independent of the complainant — the “caption” at the top of New York State criminal court papers reads, “People of the State of New York”, and some crimes can be prosecuted without complainant cooperation. Domestic violence, for example, can be, though it rarely is, prosecuted on medical and circumstantial evidence without the complaining witness’s cooperation.

        It is very hard, practically, to see how that would work with rape that involves no overt force. That’s how I meant the proposal — impossible to prosecute unless there’s an actual victim who wants to prosecute.

        The statutes that have allowed the racist and classist American criminal justice system to destroy communities and incarcerate more people than any other country on earth are possessory offenses, and that’s critical. Mere possession of firearms or certain chemicals is a felony for most people, most of the time. If that circumstance exists, the police can pick and choose when and where to enforce by finding the contraband, and then they have most of the evidence the system needs — and the rest comes from arresting people on possessory offenses and coercing them to testify against others. Since the evidence they need is possession and the police can find it without testimony (or simply fabricate it — it happens more than we want to know), possessory offenses give rise to police-state abuses more easily than other kinds of criminal offenses.

      • March 22, 2010 4:45 pm

        What you are describing is again a model for sexual assault not a model for consensual sex. If a girl or woman gets drunk and passes out this is not her way of consenting.

        For this scenario to be consensual she would need to explicitly explain in advance that this is what she wants from a particular man at a particular time because she prefers this to being unladylike and actually saying yes.

        If your mode of sex ends up in you raping an unconscious person who was not intending to consent then, no, you don’t get protected from the law even if that happens in your bedroom.

      • March 22, 2010 5:07 pm

        “she would need to explicitly explain in advance that this is what she wants from a particular man at a particular time because she prefers this to being unladylike and actually saying yes.”

        The problem is, for somebody who thinks like that, the very act of giving that long drawn out legalistic explanation would itself be “unladylike” – not to mention a total buzzkill that would really kill the mood.

        Do you actually know anybody in real life who actually has sex like that?

        Gregory A. Butler

      • March 22, 2010 6:04 pm


        I don’t know any girl or woman who passes out in order to get sex while maintaining her ladylike reputation. But I have heard lots of rape victims be accused of doing just this when they reported their rapes.

        If you don’t have a reliable way of determining which women are saying no only to protect their reputations and which are saying no because they mean no, then proceeding under those conditions means being willing to be a rapist.

      • March 22, 2010 9:05 pm

        “Perhaps you (or Thomas) can answer this question; I’ve been wondering about it recently in another context: Is it currently legally possible for someone to press charges for rape on someone else’s behalf, if the rape survivor does not want those charges to be pressed?”

        I can tell you that’s been exactly the trend in statutory rape law. There was a time when the situation with those laws was the kind of situation you hypothesize with the affirmative consent standard – say a teenager has sex with someone in their 20s, or for that matter another teenager (also illegal). However, if the encounter is formally (if not legally) consensual and neither the younger partner or parents wanted to take it to the police, there was no prosecution.

        From the 1990s onward, many states decided to take a far more aggressive approach, basically, getting evidence via school counselors, physicians, etc, and launching investigations to drum up prosecutions and “send a message”, often even in cases where both parties are teenagers.

        So, yes, the state can definitely prosecute on behalf of a “victim” who is unwilling to press charges, and I see no evidence that the affirmative consent standard couldn’t be abused in precisely the same way.

      • March 22, 2010 10:29 pm


        Your reference to statutory rape law enforcement is interesting because you are complaining about the prosecution of the guilty whom you would excuse. If these same “abuses” would happen for non-statutory sex crimes then by necessity we’d still be talking about the prosecution of the guilty.

        If you aren’t talking about the prosecution of the guilty in both statutory and non-statutory sex crimes then your analogy is meaningless.

  5. sophia b permalink
    March 19, 2010 9:57 pm

    Gregory, firstly i don’t think that a lot of that gatekeeper sex you’re talking about translates in real life into the man always pressuring the woman into sex until she gives up and lets him or he gets her drunk enough to not be able to say no. To me that sounds pretty clearly like sexual assualt.

    The New Zealand government was discussing some possible changes to their rape laws that included a positive/affirmative definition of consent and the possibility of having somerape cases heard by a judge instead of a jury. (and extend rape sheilds to include having previously had sex with the alledged rapist…we should so have this already). I’m in favour of the first and rather wary of the second, but its nice they’re discussing it (not exactly their kindness out of the blue, there were a few cases that had got people really annoyed with rape trials and the police). Not sure whats happening with that atm. And this is from a government that has been pretty awful in other related areas (like dismantling organisations that fight for equal pay, and cutting back on the councelling abuse victims get)

    • March 19, 2010 10:31 pm

      Sophia B.

      Well, if a man pressuring a woman into sex or a woman getting blackout drunk with a guy so he can have sex with her without her having to specifically say yes fall into your definition of sexual assault, then I suspect that there are an awful lot of unindicted rapists out there.

      Since, of course, a couple having consensual sex under the gatekeeper regime sometimes involves the woman not giving specific consent (because it would be considered “unladylike” for her to do so), that is precisely why Thomas’ idea to criminalize such conduct is such a spectacularly bad idea.

      Look, I’m as opposed to rape as everybody else here – but I’m against inflating the rape statutes to the point where wide areas of consensual sex are declared to be rape.

      Also, it seems Thomas has an agenda here.

      It seems his goal is to twist the rape statute to force everybody to practice the enthusiastic consent model of sex – and that kind of police state social engineering is wildly inappropriate.

      It’s OK to ASK people to practice the enthusiastic consent model.

      It’s NOT OK to use a police officer’s nightstick to FORCE people to practice enthusiastic consent!

      Actually, that’s not very consensual at all.

      And, if folks prefer the gatekeeper model THAT’S THEIR BUSINESS and it’s not our place to force them to have sex our way instead of theirs.

      Gregory A. Butler

      • sophia b permalink
        March 20, 2010 1:15 am

        “….or a woman getting blackout drunk with a guy so he can have sex with her without her having to specifically say yes fall into your definition of sexual assault”
        Yes. Definately. If I am unconcious i am not consenting. Ever.

      • March 20, 2010 7:45 am


        There are women who are so uncomfortable with the idea of consenting to sex (because it’s “unladylike” for them to want to be sexual) that they only way they can have consensual sex is for them to get drunk with the man they want to have sex with so they can pass out and he can have sex with them without them ever having said yes.

        That’s an extreme example – but there are a lot of women who can only be sexual with a man if he basically “makes them do it” without them ever saying yes (because women aren’t supposed to agree to sex).

        Are you going to indict all of the men who have sex with women under those circumstances for rape?

        Not everybody is as enlightened and feminist as you are, you know.

        Gregory A. Butler

      • March 20, 2010 9:28 pm

        Most of your concerns were addressed in the post. Thomas’ ideal would be enthusiastic consent but he suggests “affirmative consent” for clearer legal definitions.

        People can do whatever they want in the privacy of their bedrooms because neither participant will complain to police, IF it was consensual. Thomas is not suggesting a surveillance cam in every bedroom.

        A woman with so many mental hangups that she needs to be unconscious to have sex is NOT a willing participant. If she actually wanted to have sex, she’d want to be mentally present for it. Sex should not be like an appendectomy, what you described is all kinds of f-ed up and just sounds like a man using his partner as a flesh-and-blood sex doll. This is different from someone willing but playing hard to get. If a change in laws would possibly reframe that woman’s idea of sex, I don’t see anything wrong with that.

        People can argue that outlawing things like child abuse or FGM or honor killings is social engineering, too. These things are considered normal in some cultures, does that mean we shouldn’t try to change things?

      • March 21, 2010 9:58 am


        I’m not an attorney, so it was actually kind of hard to follow the original post, so perhaps your right.

        As far as changing people’s behavior, I’m much more comfortable with educating people rather than using police power to force them to submit to your will.

        Gregory A. Butler

      • March 21, 2010 10:58 am

        Gregory, women & men who are unable to consent to sex should get the help they need to recover/achieve that ability. Until they can consent, maintain their consent & commmitment to the sexual engagement over a period of more than a few minutes, and express their consent through behavior or verbally, they should not have sex. If they are simply unwilling to communicate their consent to and desire for sex they should not have it.

        There is no implecation in the use of the affirmative standard of using police power to force anyone to “submit” to anyone elses will. The stanard would be used in the prosecution of rape. In cases of rape a person has been, without their consent, been forced to submit to sex. The affirmative standard lets the people involved in the sex know whether consent has been given. If it has not, the person who did not consent can seek remedy for the violation of their person through the law and courts. The standard would assist the courts in establishing whether or not the sex was consensual.

        The idea that the standard would use police power to force anyone to submit to another’s will is nonsensical; the standard instead ensures that no one is forced to have sex without their (affirmative) consent.

      • March 21, 2010 12:13 pm


        I try to avoid using words like “should” when it comes to the behavior of others. I seems pretty damned presumptuous for you to tell folks who don’t have the same sexual ethics that you do that they are forbidden to have sex until they think your way. That seems pretty fascistic to me.

        Gregory A. Butler

      • Desiree permalink
        March 21, 2010 10:17 pm

        So how, in your “gatekeeper model,” Gregory, does a man consistently and accurately tell the difference between a woman who is just saying no for social reasons when she means yes, and a woman who is saying no to communicate refusal to have sex with him?

        It’s all well and good for you to dislike the concept of forcing people to live by a certain set of social rules, but if the freedom FROM those social rules involves the freedom to enforce their own social rules on other, nonconsenting parties, then you have the same sort of logical vortex you accused Thomas of having.

        You used “they” to refer to the people using the gatekeeper model with each other (“and if folks prefer the gatekeeper model THAT’S THEIR BUSINESS”), but where is it established that it is in fact “they,” and not just “he?”

        You are coming awfully close to saying that it’s a violation of consent to take away someone’s right to veto or override someone’s nonconsent.

        So how does your model prevent this? How does a woman who lives by the enthusiastic consent model say NO to a man who lives by the gatekeeper model, and communicate that to him effectively without having to deal with follow-up attempts from him (which she sees as harassment and he sees as seduction) all night due to him expecting that if he keeps asking, she’ll say yes eventually, legitimately consenting, and everything will be super?

        In a world where rape is taken seriously, that would be luring men into a false sense of security and encouraging them to enter a situation where they’re at risk for a wake-up call from the police because she’s filed a complaint against him. In this world where it isn’t, it’s putting women in danger of women being harassed and coerced into sex and then victim-blamed and slut-shamed should they attempt to seek any legal recourse.

        It’s the equivalent of someone being able to turn off their ability to read numbers, and then say, “I’m sorry, officer, I didn’t see any speed limit signs” when they’re pulled over for doing 120 in a 65 mph zone.

        I don’t see, personally, how the gatekeeper model can be anything but a gamble on the part of the initiator, that she actually means yes. And given that he’s gambling with her body, her autonomy, her psyche and sense of self, if his desire to get laid overrides her right to say no, whether it’s deliberate or the sort of contrived accidental that the gatekeeper model is most conducive to, he absolutely deserves whatever jail time his violation of her enthusiastic-consent model can (and should) provide for.

      • March 22, 2010 9:30 am


        The cold hard reality is, we live in a country where the gatekeeper model is the default for the overwhelming majority of cisgendered straight folks.

        There are exceptions, of course, but those are the minority.

        Because of that, straight men learn from hard experience that the only way to be successfully sexually active with women is to be the aggressor, who’s always ready to test a woman’s limits.

        Now, to be quite honest here, that is totally not who I am as a person – thanks in large part to childhood trauma, I’m very respectful of women’s limits.

        Which means that I’ve been incredibly unsuccessful with women sexually – women have actually gotten mad at me because they got themselves in situations where they put themselves in a position for me to “take advantage of them” (that is, have sex with them without them explicitly or even implicitly saying “yes”) and i didn’t because they didn’t enthusiastically consent.

        Honestly, except for two friends of mine who are into the BDSM scene, I really don’t know anybody who actually lives their sex life by the rules of enthusiastic consent.

        I’m sure they exist – and if I moved in different circles I might see it – but where I am that doesn’t exist.

        With that said, I wish that we could just say a few magic words or pass a well written law that would make enthusiastic consent the dominant model for straight cisgendered sex in America.

        I know personally in my case, considering my personality and temperament and lack of aggressiveness, that’s pretty much the only way I’d ever be able to have a successful sex life.

        But unfortunately that’s not the case.

        Thomas’ proposal, if made into law, would not eliminate the gatekeeper model.

        It would just put a law on the books that would criminalize it.

        In practice, that would mean that for most cisgendered straight White folks, their sex life would be technically illegal but that law would never be enforced.

        But for Blacks, Latinos, immigrants, Queer folks, BDSMers, transfolks and others who are considered Other, this law would just be another club the police could use to harass them

        So, we’re not going to get to a place where enthusiastic consent by going down the road of criminalizing consensual sex.

        What will help?

        In part, increasing economic equality for women – because female economic dependence on males is the foundation of gatekeeper sex.

        A woman who needs a man to support her is, by necessity, going to have to ration out her sexuality to the highest bidder.

        But if a woman has her own money, she doesn’t have to do that.

        And in part, we can win converts to enthusiastic consent through education and advocacy – including trying to sell the enthusiastic consent model to men.

        The sales pitch would be that, under enthusiastic consent, it would relieve men of the necessity of always having to make the first move and of having to guess women’s feelings (which are both exasperating chores – and are torture for the more sensitive minded men) and, under enthusiastic consent, it would actually be far easier for men to get sex, because women wouldn’t have to say no when they really mean yes.

        So basically, greater financial independence for women and selling enthusiastic consent to men as a way to make it easier for us to get sex are going to the be the path to making enthusiastic consent the default sexual model for cisgendered straights in America, not Thomas’ legalistic police repression model

        Gregory A Butler

      • March 22, 2010 5:02 pm

        Gregory, unless you know the girl or woman prefers the gatekeeper model and is consenting to interacting under this model and is consenting to sex before you start pressuring her or before she started drinking the gatekeeper model cannot be used as evidence that the sex was consensual because consenting looks the same under this model as non-consenting.

        You say you don’t want to be forced into a different model of consent by the law but others don’t want to be raped, not even by those who don’t think of what they are doing as rape.

        If you don’t ensure that all involved are actually meaning to consent then you are not as opposed to rape as everyone else.

      • March 22, 2010 5:10 pm

        I’ve been on the far left for three quarters of my life – quite literally since junior high school.

        So normally, I”m the political extremist in a conversation.

        It’s odd to be in a conversation where I’m, by default, the voice of the mainstream and the majority of folks I’m dialoguing with are the hardcore radicals.

        Do you have any concept of just how extremist and unrealistic your ideas are?

        Gregory A. Butler

      • March 22, 2010 5:17 pm


        When the definition of sexual success is only numbers then yes men who disregard women’s limits, ignore their lack of consent, and take pretty much any action short of trying to scratch his eyes out as consent will be seen as more successful, but in reality they are most likely to be succesful serial rapists.

        The dominant belief system is warped if men who do not cross into behavior which is likely to result in rape view themselves as sexual failures or are viewed by others as sexual failures.

      • March 22, 2010 5:21 pm

        If you view my belief that each person needs to ensure that the other person is actually a willing participant before taking a sexual action is as you put it “extremist and unrealistic” that says something horrific about the mainstream and helps explain why sexual violence is so common.

      • March 22, 2010 5:40 pm

        The sexual repression and exploitation of women by men of the left and especially among men of the 60’s and ’70’s countercultural left is very well documented and understood by women who went through those times and were expected to serve as adjuncts to and outlets for the sexual drives of dominant movement males. It was not a pretty picture then, and would not be today. But it may have some explanatory power in the context of this discussion.

        To some extent, feminist theory of the early and mid ’70s may have been a reaction to this implicit exploitation of movement women. The sooner we leave that kind of thinking behind us, the better; doing so may reduce the need for women to assert feminist forms that are an appropriate reaction to it.

      • March 22, 2010 9:11 pm

        Jim –

        Your playing the “your just a right-winger” card is so off-base and basically so pulled out of your ass its hard to know even where to start to point out how many shades of wrong it is.

        But, in a nutshell, arguing a civil libertarian stance against a hard-line law-and-order one is ANTI-AUTHORITARIAN, not RIGHT WING.

        Get your politics straight, dude.

  6. March 19, 2010 11:39 pm


    Yes, a woman who has sex while she is drunk and cannot consent (either before or during), is often being raped. This is not “inflating rape statutes” into “wide areas of consensual sex,” but rather pointing out that there is an instance in which Many women have been sexually assaulted, but since they did not give a clear “No” (because they were unable to due to being drunk), they are unsure if they are “raped.” Thus, they are disinclined to prosecute because it is not clear.

    In addition, this is NOT asking people to change how they have sex. (Assuming heterosexual cisgender male aggressor sexual style): If a woman prefers the gatekeeper style of sex, she is welcome to keep having it, if her partners are okay with that. No one is suggesting that police officers break into someone’s bedroom to ask if everyone is consenting.

    As far as the woman’s partners? Yes, they have to be sure that she is consenting, or have to be aware of the ambiguity that exists if she refuses to give clear consent. The only change would be that, in the absence of clear consent, if she was NOT giving consent, her partner would be more likely to be convicted of rape. Whereas in our current system, she may not be giving clear consent, but she isn’t say no, so a rape or sexual assault charge is just ambiguous enough to give pause to someone who would press charges.

    • March 20, 2010 7:52 am


      We’re in danger of talking past each other here.

      Can you really call it nonconsensual if a woman goes out of her way to get blackout drunk with a man she wants to have sex with, so she can have sex with him without her having to say yes, because she feels that it’s inappropriate for her as a woman to ever agree to have sex, even if she wants to?

      You can say that it’s unfortunate that society put that idea in that woman’s head – but calling it rape is an exaggeration and in a real way is an infringement on the sexual freedom of women like that and their partners.

      And yes, by putting in a mandatory enthusiastic consent requirement, you ARE TELLING people to change how they have sex – and holding the risk of criminal prosecution over the heads of those who don’t have the same value system that you do.

      And there’s a slippery slope here – if you use the law to enforce enthusiastic consent, what’s to prevent the far right (who are much stronger than we are) from using the law to prohibit abortion, or the use of birth control, or to ban women on welfare from being sexually active, or to restrict gay sex?

      Do you really want to bring the police department into your bedroom?

      Bottom line, leave the rape statutes alone and lobby the police and the prosecutors to go after rapists under the current legal regime – but do not criminalize consensual sex that doesn’t fit your value system.

      Gregory A. Butler

      • March 20, 2010 9:36 pm

        So how is the man going to know if the woman really consented or not, in your blackout scenario, anyway?

      • Anne Bonney permalink
        March 20, 2010 10:06 pm

        I just have to say that I find your repeated insistence that it is common practice for women to drink to incapacitation for the express purpose of letting a man have sex with her while she’s unconscious is extremely troubling, and I feel that you’re making excuses for men who use alcohol as a date rape drug or target drunk women for sexual assault.

        Saying that women who drink to excess in the presence of men do so to enable the men to have one-sided sexual encounters with them is, at best, ascribing convoluted and ridiculous motivations to women without any real basis (the majority of women are into not remembering or being capable of enjoying their sex? really?) and at worst, straight-up rape-apology.

        I understand that you clearly have a problem with enthusiastic consent as a model of sexuality (I’m not sure why, other than you think that women are too afraid of social stigma to ever enthusiastically consent, which I would argue simply isn’t true), but I urge you to take a look at the system that you’re defending: women who are so removed from their own sexual agency that the only sex they can “choose” is rape, and men who don’t value their partners’ consent or participation at all, because they think it’s imaginary.

        Even if these imaginary billyclubs (I’m amazed that you persist in thinking Thomas was some how advocating a new sex police, when, as others noted, he was simply addressing what happens after someone chooses to bring charges after non-consensual sex) were coming through my bedroom window, I think that’s preferable to maintaining Rape Culture and leaving so many victims and survivors without recourse to justice. Rape is a problem, and we need to start somewhere, and I think that law can affect culture as much as culture determines law.

        PS. Gregory, I understand and sympathize with your distrust of police, lawyers and other parts of America’s legal establishment, but the snide criticisms toward Thomas based off of his occupation and professional training are just rude and uncalled for. It adds nothing to the discourse, and diminishes your arguments with pettiness.

      • March 21, 2010 10:17 am

        Gregory, do you honestly think it’s some kind of normal practice “under the gatekeeper regime” of sexuality for women to purposefully drink themselves unconscious so that they can be humped without having to say yes or even remember what happened? Because that strikes me as a bizarre assumption to make, and it’s even more bizarre to connect that type of sexual practice to BDSM.

        Please, explain where this scenario is coming from anyway, and how you know that this is apparently A Thing Women Do if all the women who do it are presumably far too repressed to ever talk about it.

      • March 22, 2010 9:36 am

        Anne Bonney and K,

        I didn’t say it was common – but it does happen.

        I just cited it as an extreme example of the common practice of women putting themselves in positions where men could “take advantage of them” because they feel that it’s “unladylike” to explicitly say yes.

        I myself have been in situations where women have put themselves in that position and then later on got angry with me because I DIDN’T “take advantage of them” because they hadn’t explicitly consented!

        And no, I’m not trying to justify date rape here – I would never do that.

        As for the enthusiastic consent model – it’s a great idea, and I wish it was the dominant model of straight cisgendered male female sexual relations in America.

        But we all know that it is not – and passing a repressive law isn’t going to make it a common practice.

        It will take a long process of education and societal change before enthusiastic consent displaces the gatekeeper model.

        Gregory A. Butler

    • makomk permalink
      March 22, 2010 10:18 am

      Except that’s making the assumption that drunken women are never sexually aggressive; that is, it assumes that no drunken woman will ever attempt to initiate sex with a man, and especially that she won’t coerce him into it. I’m fairly sure this is untrue already, and it’ll probably become even more so if men are unwilling to have sex with any woman who doesn’t explicitly say “yes”. (Also, the point at which someone is too drunk to remember events clearly is before the point at which they’re sufficiently incapacitated to cause trouble often enough to be cause for concern.)

      Thomas’ definition that it’s the initiator who’s responsible for getting consent is unfortunately nothing more than a smokescreen, given that no-one is going to readily believe the woman actually initiated the sex in question. If some drunken woman grabbed me, pulled down my trousers and had sex with me without my consent, I could tell the truth in my defense all I liked – but if she says she was too drunk to remember clearly and would never do such a thing, who would be believed? (In practice, the answer to this depends on things like race and class…)

  7. vicky permalink
    March 20, 2010 4:36 pm


    I think an important point to make here is that if a woman prefers that manner of sex, she will not be pressing charges. In the enthusiastic consent model, however, this will make it more possible for her to press charges if she feels she has been a victim. I also think it may teach people healthier ideas about what consent really means.

    And as you say, if a woman has gone “out of her way” to have a certain sexual experience, certainly that is her choice. But I do think that those same women whose sexual experiences you think might be compromised think it’s not “ladylike” to resist a man’s advances.

    I also think that that situation is maybe more rare than you think it is, and it is actually far more common for rape and sexual crimes to go unreported because of the “no means no” system. “No means no” also seems to lead to rapists going unpunished.

    I agree that passing legislation on sex and sexuality is a slippery slope, just like passing any legislation could potentially lead to a 1984 scenario. But I think that in this case it is more likely to lead toward ideas about sex and sexuality that allow women to be sexual beings instead of gatekeepers.

    But the bottom line, to me, is that if a woman wants the sexual experience, she will not be pressing charges, and no one will try to make her. It seems to me like now, the opposite is more likely true.

    (apologies for the very hetero-centric arguments made in this comment.)

  8. March 20, 2010 7:26 pm

    Gregory, only consensual sex is consensual. Non consensual sex is, and ought to be a crime and be prosecuted as such. The issue is what constitutes consent, for purposes of prosecution – that is, the standard by which we judge consent. A clear standard that only a clear affirmation of consent, verbal or behavioral, can indicate assent to sex, and indicate that it is consensual, does not raise the difficulties with “entusiastic” consent you toss into the discussion as a red herring. Nor does it involve setting up new police or prosecutorial authorities for supervision of our sexual activities and private behaviors.

    What it does, is make it clear that if we engage in sexual activity which is not consensual, and has not been affirmed to be consensual by the words or actions of our partners, we are liable for prosecution for rape. That is a proper, appropriate, and necessary improvement to our current confused thinking and legal processes.

    There is no use of the law to enforce consent of any kind. Certainly not of “entusiastic” consent. There is only the possibility, hopefully the probability of being prosecuted for non-consensual sex with a partner who has not consented to it.

    We need to be teaching this in middle school, not obfuscating it with nonsense about police intrusion in our private lives.

    If our mutual intentions to have sex cannot withstand the pressure of taking the time, and having the courage, to ask and give, through behavior or words, consent to it, then we neither deserve nor ought to have it. If we cannot ask or answer the question, we should not have it. If we cannot take a 15 minute break for a phone call and come back to it, we should not have it. If we cannot go out to dinner between our agreement to have sex and coming back to have it we should not have it. If we can do those things, it is because we have, and know we have mutual assent to it, even desire for it.

    There is nothing intrusive about expecting that we have this kind of agreement with our partnesrs, or that that the absence of this kind of assent will serve as the standard for consent in rape prosecutions.

    • March 21, 2010 12:15 pm


      You seem to be way more comfortable with police intervention in your life than I am.

      We’re going to have to agree to disagree on that.

      Gregory A. Butler

  9. March 21, 2010 3:53 pm

    Great post.

    Just want to say, I really appreciate the academic rigor you bring to blogging while maintaining accessibility. You do a top-notch job by including internet links as well as more traditional citations. You quote scholarly sources in a way that makes them easy to trace back, and you make note if something’s not publically available. Thanks.

  10. March 21, 2010 4:26 pm

    I just wanted to chime in with a “what he said” to Gregory Butler’s objections to Thomas Millar’s clearly misguided and authoritarian legal strategy vis a vis sexual consent. And, yep, even his objections toward Thomas’ profession: that even “sex-positive feminists” are down with Mackinnonite legalism is symptomatic as to how far that set of ideas has degenerated from when people like Pat Califia and Ellen Willis were *fighting against* would-be sex police.

    • March 22, 2010 9:40 am


      Thank You!

      I’m glad that you “get it” – that we’re not going to get to a better place by bringing the police department into people’s bedrooms.

      Outlawing consensual sex is repugnant and fascistic and there’s not a damned thing liberatory about it -and it would backfire against women, Queers, transfolk, BDSM folks and everybody else who is considered Other in this country!

      Gregory A. Butler

  11. Christopher permalink
    March 21, 2010 5:52 pm

    Umm No!

    How about we use our energy on getting date rape conviction rates where they need to be via the PROPER methods?

    It’s sad that lawyers have difficulty getting juries to understand that “No. means No”, but “try something different” probably means try a different approach in getting them to understand. It does not mean institute oppressive, intrusive sexual codes.

    Redefining rape in such a way that even affection would be “assault by default”, but prosecuted at whim is really disturbing. You would lose the sympathies of millions with this bad idea. My wife giving me a peck on the cheek is not rape, and I should not have the power to have her thrown into jail because she didn’t ask first. Nor am I going to calculate risk if I feel the urge to pinch her rear unsolicited.

    Extremist, kook crap like this makes a mockery out of assault. Rape is about harm and force. Stop making light of it with your academic mind games.

    • March 22, 2010 5:55 am

      Christopher, the entire point of Dripp’s article is that efforts to adjust the procedural laws to bring rape convictions in line with other violent felonies have been tried for thirty years and produced no result, and will continue to produce no result, because juries insist on making rape trials an inquiry into the survivor’s worthiness and not the defendant’s conduct.

      If by “PROPER methods” you meant procedural reforms, what would be suggest that has not been done? If you meant something else, you’ll have to unpack that if you want to be understood.

    • March 22, 2010 9:45 am


      You’re right on the money!

      Thomas’ Dworkinist-McKinnonist approach to legislating sexuality is absolutely wrong and will not serve the cause of feminism or abolition of rape and will make those of us who support those causes look like repressive sex hating assholes.

      To use your words, Thomas’ proposal is “extremist kook crap” and should be rejected – no matter how well written his extensive legal dissertations are.

      Gregory A. Butler

    • March 23, 2010 12:56 pm


      Your characterization of what would happen under a definition of sexual consent using the affirmative consent model is not based on the reality of affirmative consent, a standard used in most other areas of the law.

      You seem to be conflating affirmative with mechanical such that your kissing your wife on the cheek is falsely positioned as criminal under affirmative consent laws.

      Rape is about harm. But a system which views consent as what people who claim to have not consented didn’t do (didn’t scream, didn’t scratch man’s eyes out, etc) allows that harm to flourish.

      This issue is in no way an academic mind game. It contributes to over 200,000 sexual assaults in the US each year against those age 12 and over.

  12. Sarah permalink
    March 22, 2010 7:36 am

    Thank you, thank you, thank you.

    I have been saying for a while how frustrated I am that sexual assault laws assume that women consent to sex, and that the prosecution has to prove she didn’t (and it IS different in the case of male-on-male rape, since in most jurisdictions in the US those are prosecuted under surviving anti-sodomy laws).

    If it isn’t assumed that I consent to someone connecting their fist with my nose, why is it assumed that I consented to having a penis in my vagina?

    It’s nice to hear other attorneys saying the same thing. Maybe it will change in my lifetime. I hope it will.

    • March 22, 2010 9:51 am


      “If it isn’t assumed that I consent to someone connecting their fist with my nose, why is it assumed that I consented to having a penis in my vagina?”

      Apples and oranges.

      Most folks are not interested in being punched in the face – there are exceptions, but generally speaking a reasonable person would not want that to happen, because it generally speaking is painful and causes injury.

      As for having a penis in their vagina, that on the other hand is something that reasonable people consent to All The Time – it’s not at all exceptional for a person to agree to let another person put his penis into her vagina, because, if done properly, it can be pleasurable (or can be a part of an encounter made pleasurable by other means).

      Gregory A. Butler

      • Sarah permalink
        March 22, 2010 10:11 am

        They aren’t apples and oranges; they’re the same thing. Whenever another person does something to your body, other than incidental touches, without explicit consent, the law considers it an assault. The only exception is when a man touches a woman sexually.

        How regularly “reasonable people” consent to sex is wholly IRRELEVANT; it’s only relevant because you are apparently making a value judgment on whether women “should” consent to sex (your answer: yes) versus whether they “should” consent to being punched in the face (your answer: no).

        People regularly loan another the use of a vehicle, too; however, if I report my car is stolen, and my cousin is caught driving it, the police are going to arrest him, and the prosecutor isn’t going to call me up and ask if I have any evidence that I didn’t lend him the car. My cousin might get up on the stand and say, “She let me borrow the car,” but I don’t have to get up there and prove I told him he COULDN’T have it.

        The person who is policing the bedroom here isn’t Thomas – it’s you. You’re the one who is defending an exception to the general rule that my body is my business, and that I am the arbiter of who touches my body. The current version of the law is that ANY person can have sex with ANY woman, in any way, and it’s her job to say, “No, I do not want this sex; no, I do not want this kind of sex; no, I do not want sex with this person,” and prove it later. You’re defending this anachronism.

        And your rationale is that “reasonable” women consent to sex “all the time”?

        Are you even listening to yourself?

      • March 22, 2010 10:48 am


        Obviously, we’re talking past each other here, rather than having a conversation.

        So let me flip the script, and ask you a question.

        Are you calling for the legal presumption that all sexual contact between men and women is to be considered rape unless proven otherwise?

        Gregory A. Butler

      • Sarah permalink
        March 22, 2010 10:57 am

        I am advocating that all substantial (and especially, potentially injurious) physical contact be considered some form of assault, unless consented to. I advocate no exception for contact which is sexual in nature.

        So if a victim wanted to press charges against a person for putting a penis in his or her orifice, then the accused would be able to use consent as a defense…which is the same way any other personal assault crime is prosecuted.

      • March 22, 2010 11:03 am


        So, how would you determine consent?

        To go back to your fist in the face analogy, would we hold p-i-v sex to the same standard as professional boxing, where the participants have to be licensed by the State Athletic Commission and have their combat monitored and supervised by professional observers?

        Gregory A. Butler

      • makomk permalink
        March 22, 2010 11:15 am

        Sarah: no, they’re not the same thing at all. In particular, many jurisdictions don’t even let you consent to being punched in the face or anywhere else (except under limited circumstances, mainly boxing). England, where I live, is one of the places that doesn’t. If someone punches a person in the face and the police have enough evidence that they did, they can arrest the puncher no matter what the person who was punched wants.

        Why the difference? In general, most people don’t consider there to be any reason why someone would ever consent to being punched in the face. There are, on the other hand, obvious reasons to consent to sex – it can be quite pleasurable for a start. Now if you really want to restructure the law around the assumption that women never want to have sex and will never willingly do so, that’s your call…

      • Sarah permalink
        March 22, 2010 11:21 am

        I don’t think you understand how criminal law works, or the concept of consent.

        Professional boxing associations have those kinds of licensing for personal liability and trademark purposes, and to ensure the safety of participants. It isn’t so much to prevent criminal liability, though it’s nice to have such explicit consent in case you get somebody dying in the ring and a crazy, boxing-hating DA who’s up for election or something.

        Two kids playing at karate don’t need to sign a consent form before throwing punches; if somebody chips a tooth or breaks his nose, there’s still no case. The situation was such that participation in the sparring IMPLIES consent to that type of potential harm. If a sparring partner pulled a knife, though, or kept beating the other long after the partner tapped out or went limp, that would be another matter.

        Do you understand? This is not some new, weird idea. Consent as a defense has been around for years and years in other contexts.

      • March 22, 2010 12:19 pm


        I’m not an attorney – so I do not pretend to be an expert on the law.

        But I do have a lot of friends, relatives and acquaintances who have found themselves in the maw of the American criminal justice system, so I am hesitant to expand the reach of that system.

        Gregory A. Butler

      • Sarah permalink
        March 22, 2010 12:29 pm

        No, you are saying that you do not want women to be able to use the law to protect themselves.

        It’s not as if District Attorneys sweep down from the sky to hand out arrest warrants.

      • Sarah permalink
        March 22, 2010 12:35 pm


        You’re looking at it and saying, “This law will assume women NEVER consent to sex,” which is not the case at all; frankly, that’d be impossible, since everyone (juries, judges) know that consent to sexual activity occurs all the time. A change int he law would simply remove the burden from the prosecution/woman to prove LACK of consent; in short, I believe the law should ask, “what evidence is there that this particular woman consented to this particular sex act with this particular man at this particular time?”

        That’s it.

      • March 22, 2010 12:35 pm


        You are putting words in my mouth.

        I’m saying that I don’t want to give the criminal justice system even more power to intervene in the lives of the people

        In particular, marginalized people and those who don’t have enough money to hire a smart litigator like Thomas to get them out of a legal jam.

        America already has too many people in jail – which, among other things, has led to a tremendous number of forcible rapes (including both male inmates raped by other inmates and female inmates raped by male corrections officers) – any law that criminalizes legal consensual conduct, and will lead to more people being jailed, is therefore a bad thing.

        Gregory A. Butler

      • Sarah permalink
        March 22, 2010 12:38 pm

        Gregory, by that logic, let’s repeal all anti-murder statutes, since they put more people in jail.

        A nation needs laws to protect its citizenry of violence, and it needs to enforce those laws. I understand saying that some laws are cruel, or irrational, or bigoted, and that THOSE PARTICULAR laws shouldn’t be enacted or should be repealed. But I cannot understand saying that a law which would result in more people going to jail is bad SIMPLY for that reason.

        Your position is irrational, hysterical, and untenable.

      • March 22, 2010 12:55 pm


        I see logic has failed you, so you resort to insults.

        I am not impressed.

        Also, obviously, I won our exchange, because you would still be able to argue rationally if I hadn’t defeated you.

        Gregory A. Butler

      • Sarah permalink
        March 22, 2010 12:56 pm

        Ah, thanks, Gregory. I needed a good laugh today.

      • March 22, 2010 6:26 pm


        Issues of consent are never apples and oranges. The only way it becomes this different is if actual consent in 1 context becomes optional. The advocacy for men to ignore women’s non-consent is a given under the gatekeeper model and the excuse is that women don’t actually consent because that is anti-female.

        If you have to abandon the way you think about consent in all other contexts to support your position on consent for sex then that should be a sign that you are dealing with something which is far different from actual consent.

      • makomk permalink
        March 23, 2010 4:58 am

        Sarah: no, I’m saying that in practice, if a man and a woman had sex, the courts are going to be much more likely to believe that the man initiated the sex than the woman (unless, perhaps, if the woman in question is black).

  13. March 22, 2010 11:30 am

    Sarah –

    It seems to me your example of two kids playing karate is an example that supports Gregory’s point.

    • Sarah permalink
      March 22, 2010 12:29 pm

      How so?

      • March 22, 2010 11:39 pm

        Because it seems to assume that they’ve consented. What happens if one of them goes to the police and claims to be assaulted?

        Your car theft example if also very different to most rape since you’ll generally have documents to demonstrate ownership. That’s the whole problem with rape, people go to great lengths to ensure that sex is private so when rape occurs there are often no witnesses or consent forms or whatever.

      • March 23, 2010 12:19 am

        Sorry I missed your reply earlier, but anyway, how so – your example supports the concept of implied consent, specifically, consent implied by context. I’m not going to put words into Gregory’s mouth, but I think his objection about “hold p-i-v sex to the same standard as professional boxing” is an objection to throwing out the idea of contextual implied consent for sex.

        And to go back to Thomas’ original post, yes, I realize that he said that *most cases* where implied consent was given would not end up anywhere near a court of law. Nonetheless, it would be formally illegal, and that’s what those of us who are critical of this “modest proposal” are objecting to.

  14. Emily permalink
    March 22, 2010 11:35 am

    I am HORRIFIED by Gregory’s comments. I mean, the idea that some large population of women cannot even muster a single syllable “yes” (or perhaps the two syllable “okay”) even if in response to a question (“like, come on, please?”) is just horrifying. I don’t know who the hell you’re hanging out with, but I would appreciate your not generalizing that experience to the population as a whole without some serious social science to back you up.

    You say that “large swaths of consensual sex” would fall under this restriction, but then you argue from a scenario where a woman has to get black-out drunk to have sex? On purpose? You give lip service to the fact that it’s “extreme” but then use it as the whole basis of your argument, and the sole concrete example of supposed consensual sex that would be outlawed.

    In addition, you don’t address Thomas’s contract law point – that one may give explicit consent IN ADVANCE. I mean, if a woman gets blackout drunk in order to have sex, the ONLY way her partner could POSSIBLY know that she’s doing that is if they have discussed it ahead of time. If you think it’s OK for men to ASSUME that women who are blackout drunk have become so as a manner of consenting to sex, then I, as a woman, do not want to ever be in the same zip code as you and your entire argument is pure rape apologism. The ONLY way for that man to know under the current law that he is not committing rape is to have explicit consent ahead of time. So Thomas’s proposed changes would not affect that case at all.

    • March 22, 2010 12:23 pm


      Honestly, I’m surprised you DON’T know women who are like that sexually – we must really move in very radically different social circles.

      As for Thomas – he puts way too much faith in the American justice system, which makes sense because he’s a lawyer.

      I only know the criminal justice system from the bottom – and it seems that the system’s main function is to funnel the poor, the black, the brown and all those who are Other into this nation’s Gulag Archipelago.

      So I’m reluctant to give that system even more power over the lives of the common people than it already has.

      Gregory A. Butler

      • March 23, 2010 12:54 am

        The women you’re talking about are about as plausible to me as people who only have sex in deep space without air tanks. I not only do not know anyone like that, I do not know anyone who could plausibly be cartoonishly exaggerated into such a grotesque caricature.

  15. Emily permalink
    March 22, 2010 11:42 am

    On the general topic of changes to rape law, I am interested in thinking about creating more sex offenses, because with one crime called “rape” people are clearly inclined to restrict it to stranger-rape scenarios. If we look at theft offenses as an example, there are tons of them. Larceny is different from robbery, and even with robbery there is usually an aggravated offense for ARMED robbery.

    Perhaps we should have separate rape and armed rape offenses. Also, I think there is currently legal conduct that should be criminalized analogous to larceny by false pretenses. If you secure consent by LYING about material facts, then that is not consent (as is recognized under theft law). Now, it doesn’t mean you face the same penalties as if you put a gun to someone’s head and say “give me your wallet” – but it’s still a crime.

    • March 22, 2010 12:27 pm


      “Also, I think there is currently legal conduct that should be criminalized analogous to larceny by false pretenses. If you secure consent by LYING about material facts, then that is not consent”

      There actually are old laws that make it illegal for a man to get sex by falsely promising he’ll marry the woman (Frank Sinatra got prosecuted under New Jersey’s version that law in 1939 – and I think Robert Mitchum was prosecuted under a similar California statute in the 1950’s).

      Are you advocating something like that?

      Gregory A. Butler

  16. Emily permalink
    March 22, 2010 11:43 am

    And I realize there are sex offenses other than rape currently, but my sense is that they are often statutory rape and/or non-penatrative acts, rather than differing methods of obtaining sex without consent. Whereas theft law criminalizes different methods of obtaining property without consent differently.

  17. March 22, 2010 3:25 pm

    Gregory Butler, aka Movie, Reviewed, may not be – as he says – an attorney or trained in the law. That certainly is a way to get him off the hook for his many misstatements about and misinterpretations of legal points and issues involved in understanding the use of an affirmative standard for determining consent in prosecution for rape.

    But Gregory is a skilled, and apparently trained rhetorician of a certain stripe that I am familiar with through spending an inappropriate and regrettable amount of time on the web sites of rightist, especially religious right and corporatarian “libertarian” sites. Rhetoric is sadly neglected in our modern, esp. public education, and we often do not recognize rhetorical devices for what they are, or understand how consciously and manipulatively they are used. Spend time on some of these sites, and you’ll be more familiar with them than you ever wanted to be. (It has been charged by some educators that the emphasis in English language education shifted toward grammar and spelling & away from rhetoric and debate in the 1800’s, in order to avoid exposing young women to – or training themin – the “masculine” activities of rhetoric and disputation/debate; and that this shift ought to be reversed.)

    One obvious, though trivial indicator of Gregory’s background in this rightist kind of website disputation is his reference to “winning” a point or argument when the critique of his argument shifts from t he restricted sphere of his representation of the issues to an analysis of how his representation distorts and misrepresents those issues. At this point he overtly retreats to the classic rhetorical position of the sophomoric rightist debater (as empirically observed over a period of 10+ years)

    (quote) “I see logic has failed you, so you resort to insults.

    “I am not impressed.

    “Also, obviously, I won our exchange, because you would still be able to argue rationally if I hadn’t defeated you.” (end quote)

    A more significant conceit he uses is false equivalence. In this maneuver he substitutes “enthusiastic” for “affirmative” in referring to an argument which is explicitly considering affirmative consent, and explicitly notes potential problems with the definition of “enthusiastic” consent. That this purposeful device was not immediately noted, and firmly repulsed, but instead passed over as trivial seems to me to be based in the mistake of not seeing Gregory as a skilled rhetorical disinformation agent, and instead treating his statements as those of a normal human being struggling to put his thoughts into words. That, I contend, misreads the situation with Gregory completely, and dangerously.

    It points also to another rhetorical device Gregory uses, apparently successfully with some of his readers – his protestations & assertions that his rejection of an effective way to improve the protection of people from rape by other people – affirmative consent – is rooted in a deep fear of police and prosecutorial misconduct based in his personal observation of its impact on people from marginalized and disadvantaged communities. This is “concern trolling”, a favored gambit by rightist rhetoricians, in which proposals for needed reforms are questioned based on falsely posited negative consequences for groups which those advocating the reform would not want to see disadvantaged. It is intended to, and often has the effect of reducing enthusiasm for reform, despite the falseness of its premises and its obvious malicious intent.

    In Gregory’s world, giving the victims of rape relief from a legal obligation to prove that they did not consent to sexual intercourse, and replacing that obligation with an obligation that the party accused of rape demonstrate that they did affirm consent through behavior or word would create a police state where normal sexual relations among were made illegal. The distortions of reality and argument in Gregory’s formulation are so great, and so outside the range of reason, that it astonishes and confounds unless we see, and assert the truth about it.

    Gregory attacks affirmative consent by miss representing it as “enthusiastic” consent. He falsely equates establishing a standard for assessing and judging the existence of consent to sexual relations with the establishment of a police and government activity making sexual relations illegal. He falsely equates possible consequences for conviction and incarceration resulting from the use of an affirmative standard in rape prosecution with the well known and very problematic consequences of group differences in the use of “possession” standards in criminal prosecutions. etc. etc. etc. He cannot be taken seriously, nor can other arguments here which rely on similar rhetorical distraction & dissimulation.

  18. March 22, 2010 3:39 pm


    Nice straw man argument.

    One problem.

    My background is in the FAR LEFT.

    Specifically the Communist Party, USA (I was a member from August 1985 to August 1996).

    That’s where I learned journalism – and I brought my journalistic skills to the internet in 1998.

    Here is a sample of my other writing on the internet:

    You can call me a lot of things – but I am no rightwinger.

    So let’s keep it real!

    Gregory A. Butler

    • March 22, 2010 3:52 pm

      Whoever said there was a substantive difference in the propaganda devices used by the CP-USA and other totalitarian ideological apparatchiks, especially Dominionist pseudo christian rightists? Check out their sites, Gregory. You will feel right at home. You and Jonah Goldberg.

      • March 22, 2010 4:46 pm


        You’ve got an answer for everything, don’t you?

        Isn’t it just easier to admit that you were wrong about me – because you do not even know me?

        Gregory A. Butler

      • March 22, 2010 4:50 pm


        And, to return to the question, it’s odd in the extreme that you’d play the totalitarian card – considering that it is YOU advocating police state repression, and ME taking the libertarian position.

        Who’s the actual totalitarian here?

        Gregory A. Butler

      • March 22, 2010 6:40 pm


        What you are describing as Jim advocating police state repression is treating all rapes commited against women as real crimes.

        You seem to want a man’s usage of a model which blatantly ignores women’s lack of consent to be a valid defense against rape charges.

        If you or other men are afraid of the police under an affirmative sexual consent standard, that has nothing to do with totalitarism.

  19. Jordan permalink
    March 22, 2010 6:08 pm

    Kudos! You’ve written a really detailed post about this, and I agree that affirmative consent would help make the question of consent less murky in courts. By setting a standard of sorts where consent is known for sure rather than implied or assumed, I think it would be good not just for rape cases but in a broader aspect in that communication is terribly important for people to know what each person truly wants. Psychology reminds us that we can’t read each others’ minds; we need to talk openly to understand each other.

    I’ve also read previous articles and books about a few schools going ahead with policies that have students ask for consent, and they’ve been successful where they’ve been implemented. Contrary to other opinions, most people seem to be able to make this adjustment, and it’s not an outrageous alteration of our culture and mindset.

  20. March 23, 2010 12:08 am

    I’m just sickened by Gregory Butler’s comments. That’s really the only reaction I can muster right now.

    • March 23, 2010 12:56 am

      Me too.

      I’m sitting here reading this guy defending the person who tried to rape me. Pity the poor rapists, who will be so put upon by an obligation to actually secure consent.

  21. Christopher permalink
    March 23, 2010 10:04 am

    Um.. Still No!

    The law is not the problem here. Lawyers are. Get some principles! The reason too few cases go to prosecution is because lawyers are so worried about tanking their winning percentage. Just going to trial might deter a guilty defendant from doing it again. You don’t always need a conviction. Even a basic arrest can scare some rapists straight.

    But… instead of doing your jobs you simply want to stack the deck to make it easy for you.

    A basic tenet of justice is equity. Everyone who violates said law gets same punishment. Making everyone a “criminal” so you inevitably abuse whomever you feel like picking on that day under the guise of “tough on crime” is crap. Can anyone say p-r-o-f-i-l-i-n-g???

    When my wife sprints into bathroom to because she’s late for work while I’m naked in the shower … it is not assault.
    When she grabs a piece of chicken from my plate at dinner… it is not stealing.
    When she shows up at her BFF’s home unannounced and assumes the open door was an invitation to come in… it is not trespassing.

    Rape is not the absence of a verbal yes. It is a harmful violation of someone’s will.
    You guys are weird… and scary!!!

    • March 23, 2010 10:20 am

      Christopher said:

      “Rape is not the absence of a verbal yes. It is a harmful violation of someone’s will.”

      This is true, as far as it goes. Consent is a state of mind. We can know our own, but we cannot know someone else’s without communication.

      If someone is with a partner that they don’t know well, that that person is not giving any feedback, how should that person assess the partner’s state of mind? In the absence of any affirmative indication of consent, I think it is wrong to presume consent. Do you disagree?

      “Making everyone a “criminal” so you inevitably abuse whomever you feel like picking on that day …”

      Mischaracterizes the proposal. I do not accept the empirical claim that “everyone” has sex without affirmative indications of consent. Provide evidence. Further, “everyone” can avoid misunderstanding about consent under an affirmative consent standard, simply by asking. Finally, even if two people want to avoid having any explicit communication about consent, the criminal justice system never becomes involved if they both, in fact, consented.

      • christopher permalink
        March 23, 2010 3:21 pm

        “This is true, as far as it goes. Consent is a state of mind. We can know our own, but we cannot know someone else’s without communication.”

        I don’t really know how to say “let’s kiss” in Spanish, but that doesn’t mean I raped Ms. Ramirez while visiting an aunt. You proposed definition of rape is way more expansive than “without communication” as your writings suggest both temporal and verbal obligations. Do you wish to backtrack?

        “If someone is with a partner that they don’t know well, that that person is not giving any feedback, how should that person assess the partner’s state of mind? In the absence of any affirmative indication of consent, I think it is wrong to presume consent. Do you disagree?”

        Not giving feedback means comatose, dead or incapacitated in some way. And we are not speaking about those unique situations so stick to the subject. During the vast majority of sexual activity with a date/lover/spouse feedback is given. Whether verbal or not, the feedback is either yea or nay.

        Initiation does not presume consent. Initiation presumes that the person or persons who are recipients can indeed give FEEDBACK. Please go look up the word FEEDBACK.

        “Mischaracterizes the proposal. I do not accept the empirical claim that “everyone” has sex without affirmative indications of consent. Provide evidence.

        I don’t mischaracterize the proposal. You know that the vast majority of sexual activity does not begin with a “may I”. Stop playing lawyer. You are trying dismiss me with a everyone=100% technicality. You are the one with the wacky proposal. Where are your numbers? Oh wait here they are from “Little” himself…. “Outlawing sex and making the initiator a criminal in all events is a radical idea.” Get some principles dude!

        “Further, “everyone” can avoid misunderstanding about consent under an affirmative consent standard, simply by asking.”
        And “everyone” can avoid misunderstandings about consent under a “FEEDBACK” standard… by using “No”.

        “Finally, even if two people want to avoid having any explicit communication about consent, the criminal justice system never becomes involved if they both, in fact, consented.”

        Oh really. Cause that’s not what you just quoted. “Because people whose preferred modes of sexual intimacy have been outlawed have risked their freedom and their lives for what fulfills them”

        By the way, don’t respond to me unless you ask me in advance if you can.

      • March 23, 2010 3:42 pm

        If you’re sure you understand feedback, you have no need of further communication. You are willing to accept the consequences if you are incorrect in your interpretation, right?

        Or do you expect her to accept that she may be raped if she freezes, but you want a get out of jail card if you misunderstand?

        You’re arguing that the status quo works just fine. The women in my life tell me otherwise.

      • March 23, 2010 3:45 pm

        Oh, and about this:

        “By the way, don’t respond to me unless you ask me in advance if you can.”

        We’re not having sex, and I believe in nonconsensual moderation.

      • christopher permalink
        March 23, 2010 5:07 pm

        “If you’re sure you understand feedback, you have no need of further communication. You are willing to accept the consequences if you are incorrect in your interpretation, right?”

        What are you asking?

        “Or do you expect her to accept that she may be raped if she freezes, but you want a get out of jail card if you misunderstand? ”

        Again this falls outside the lines of what we have been discussing. But, I would think “Freezing” is a form of incapacitation. I would hope that the laws contain reference to it as illegal. If not, well maybe we just found something in which you can channel all that misplaced legal good intention.

        “You’re arguing that the status quo works just fine. The women in my life tell me otherwise.”

        Nope I’m arguing that the status quo should get improved by fair and reasonable ways that doesn’t criminalize the sexual behavior of millions, have a disparate impact on men and make a mockery of the term rape. I also don’t view the women in my life as “damsels in distress” to the detriment of all other values and principles.

      • March 23, 2010 5:38 pm


        If you truly have someone’s willingness and have a way to know you have it then under the affirmative consent requirement you would not be classified as not having that person’s consent.

        The behavior which is criminalized under affirmative consent is when there is no actual freely given consent by one party. This means that a man who believe women are consenting to sex when they pass out cannot use this generic belief as a defense.

        Changing the law to hold men responsible when they rape in ways which avoid the stereotypical proof of non-consent does not in any way make a mockery of the term rape. It no more turns all women into “damsels in distress” than changing any other law to remove loopholes exploited by criminals treats all citizens as children.

      • christopher permalink
        March 23, 2010 8:34 pm


        Even those who agree with you in “means” do not agree with you in vision as indicated below.

        ” Outlawing sex and making the initiator a criminal in all events is a radical idea. ”

        ” people would still have sex, but would only initiate with people they trusted not to turn them in.”

        “Because people whose preferred modes of sexual intimacy have been outlawed have risked their freedom and their lives for what fulfills them — see pre-Stonewall gay culture”

        It is time for you to buy a new crystal ball, because as it stands we share ONLY intention.

  22. March 23, 2010 11:01 am


    “the criminal justice system never becomes involved if they both, in fact, consented.”

    wrong. It never becomes involved when neither party changes their opinion later. If one party does, how would that be dealt with? I see only two options:

    a) without any actual evidence of affirmative consent, like, say, a voice recording on the accused’s phone or so, the accuser would be believed and there whatever actually happened would be considered rape.

    b) if there *was* a recording or other proof of consent, yet that consent would be withdrawn in the process, such a standard of affirmative consent would likely turn out to be an excellent legal cover for rape. Just have her say “Fuck me” in your iPhone before you rape her. If you wouldn’t accept the evidence of consent in that case what good would it be for anyway? If you wouldn’t accept it in this case there wouldn’t be any difference between your proposal and that of Twisty Faster.

    • March 23, 2010 11:15 am

      (1) consent is a fact of the matter _at_the_time_. Changing one’s mind later is “I wish I hadn’t”, not “I didn’t want to.” Those two things are distinct.

      (2) If you mean to invoke the spectre that women will _not only_ change their minds, but that they will then _lie_, and instead of deciding then they changed their minds, misrepresent that actually happened, well,
      (a) I deal with the old canard that false accusations are common on the original post.
      (b) The substantive law doesn’t matter much if people’s sworn testimony bears little relationship to the truth. Under an affirmative consent standard, a man who raped a woman who just layed there and went limp could lie and say, “she said ‘fuck me'” Detecting lies is the jury’s job. Are you proposing to get rid of juries?

      (3) if an affirmative consent standard mean that hordes of women were suddenly going to declare rape-by-hindsight, why didn’t that happen at Antioch?

      (4) These MRA negative-utopia stories about creating elaborate pieces of evidence of consent belong in fiction. Right now, in some jurisdictions, consent can be withdrawn during intercourse, but there are not large numbers of people creating a paper trail to protect themselves. They don’t need to, because in fact, when women have not been raped, with perhaps a small universe of exceptions, they don’t say they’ve been raped. In fact, many women who have been raped — by a no-means-no standard — don’t say they’ve been raped. The personal and social consequences or reporting are so bad for the survivors that they don’t.

      Guys who are not sexually penetrating the bodies of others against their will are worried about nothing.

      • March 23, 2010 1:13 pm


        “(a) I deal with the old canard that false accusations are common on the original post.”

        yes, they *are*. But what if accusations that cannot be determined to be true will not result in closed investigations but in sentences? I don’t think they will be *common*, but I don’t think that the history of false reporting will be indicative of what would happen in that case. I’m not sure to which extent your example case Antioch is representative of a wider spectre of society.

        “a man who raped a woman who just layed there and went limp could lie and say, “she said ‘fuck me’” Detecting lies is the jury’s job. Are you proposing to get rid of juries?”

        I think the jury concept is generally problematic, but that’s beside the point. I’m just wondering what kind of standard you have for discovering the truth – he says “she said fuck me”, she says “no I didn’t”. No one but the two will ever know. What’s the standard? If saying “she said fuck me” will be sufficient to kill the trial then affirmative consent won’t change anything. If the accuser’s word is sufficient to sentence, then it’s Twisty Faster.

        “(4) These MRA negative-utopia stories about creating elaborate pieces of evidence of consent belong in fiction.”

        Well, no one knows what would happen if such a proposal actually became law. I would not bet on people’s strategies to deal with such a threat.

        “The personal and social consequences or reporting are so bad for the survivors that they don’t.”

        Are you saying that only the shaming of rape victims by popular opinion is what would keep women form falsly reporting rape? Well, that would certainly make sense given your apparently slightly cynical opinion of men and how only the absence of legal rights will keep them from raping women.

        “Guys who are not sexually penetrating the bodies of others against their will are worried about nothing.”

        Well, if you’re calling getting rid of fundamental legal principles “nothing”, then sure. To me that sounds exactly like the justifications for getting rid of habeas corpus and a whole lot of other rights in the last ten years because of the war on terror. If you’re not a terrorist, you don’t need to worry about being stripped of rights or government wiretapping, right? It’s “nothing”.

      • March 23, 2010 1:41 pm

        What J said.

        I remember the first time I heard the line “if you’re not guilty of anything, you have nothing to be afraid of”. It was as a teenager, being stopped and searched by a couple of bored suburban cops stopping me for no better reason than being a young guy walking around too late at night. (I can only imagine how badly such a scenario would have gone if I were black.) It was pretty plain what kind of mentality was behind that statement, as it was every time I’ve seen it trotted out in favor of one or another erosions of privacy rights or the right to an adequate defense. Its a real shame that this mindset seems to have spread to ostensible progressives.

        And on the issue of false accusations and worst case scenarios, if you significantly lower the bar for prosecution and conviction of *any* crime, it will lead to abuse, either on the part of an overzealous prosecutor or somebody with a score to settle. Nothing special about rape law in this regard. Standards of evidence and the right of an adequate defense exist for some very good reasons, one I shouldn’t have to explain to anybody with a legal education.

        And the counter that this proposed rollback in rights of the defense is for a socially laudable end (as opposed to many other “law and order” proposals which are explicitly about shoring up existing social hierarchies) seems to me beside the point. Its basically an “ends justify the means” argument, and while I realize there’s a hierarchy of means and ends (eg, some means are justified for certain ends but not for lesser imperatives), I can’t see erosion of the basic rights that keep innocent people out of prison (or at least attempt to) as something worth compromising to “send a message”.

      • March 23, 2010 2:07 pm

        I have to agree with J. and iamcuriousblue.

        It seems like Thomas is very comfortable with a totalitarian legal regime, where wide areas of people’s private lives would be subject to state regulation “for their own good”.

        He would surely counter by claiming that his aims are good and true and he’s only trying to use the law to protect women from rapist men.

        In fact, his legal regime would strip non feminist women of their human right to practice their sexuality their way.

        His regime basically imposes a contract law-style approach onto that most intimate of human relations. Like the much maligned Antioch College mandatory consent rule, every step of the way both parties would have to sign off on every touch, lick, caress and thrust – with the fear of criminal prosecution hanging over the male partner’s head if they don’t.

        That regime would be repugnant to any freedom loving person – male or female.

        Of course, it’ll never happen – neither the US Congress nor any state or territorial legislature in America would ever pass anything close to Thomas’ radical law.

        But, if this idea was widely promoted, it WOULD serve to make feminism an even more marginal ideology than it is today, by posing feminists as sex hating prudes who don’t want anybody to have any physical pleasure without government approval.

        So, Thomas, instead of concocting wild schemes to use the law to impose your morality on America’s bedrooms, why don’t you try and lobby your colleagues in the nation’s District Attorney’s offices to ENFORCE THE ALREADY EXISTING RAPE LAWS?

        It would be a damned sight more useful than this repulsive scheme you’ve concocted here.

        Gregory A. Butler

      • March 23, 2010 2:18 pm

        J, I’m having trouble understanding your point, and I think you may be conflating the substantive standard with the issue of how to tell if someone’s lying.

        The issue of people lying doesn’t change at all with a change in standard, right? If you think it does, please explain how.

        The accuser’s words are sufficient proof for a conviction now, if the police, prosecutor and jury believe her, right? If a woman says, “I said no but he held me down and forced me,” that’s sufficient right now in most jurisdictions. Are you proposing to change that?

        All I’m proposing to change the to reduce the possibility of miscommunication by puttng on an initiating party the obligation to be sure, if necessary by asking.

        Also, I’m not saying that shaming deters false allegations. I’m saying that shaming deters true allegations, and if we as a society are suppressing true allegations of violent crime, we need to worry more about that and less about very rare false allegations.

        Seriously, are you having sex with partners who give no indication as to whether they consent?

      • March 23, 2010 2:23 pm

        IACB, cops harrassing people rely on possessory offenses where they can generate their own evidence. I dealt with that in an earlier comment.

        I am for the criminal justice system prosecuting people for crimes of interpersonal violation. I think analogizing the handling of rape and intimate partner violence to possessory offenses like drug and weapons violations is extremely weak for just those reasons. The problem with possessory offenses is structurally different and much more readily lends those laws to abuse by law enforcement. We don’t have a nation full of poor and black folks in prison for assault; we have a nation full of poor and black folks in jail for drug offenses and to a lesser extend gun crimes.

      • March 23, 2010 2:29 pm

        Gregory, do you really think that every student at Antioch repeated a litany of “may I please lick your clit”? Of course not. The entire point is that an affirmative consent rule is no impediment _if_there_actually_is_consent_. If two people are having sex, and everyone consents, there’s no problem. There’s no complainant.

        Would you agree with me that if one is not certain that one’s sex partner consents to any particular act, one ought to make sure before proceeding? I would think that you and I could agree on that.

        The rule I’m proposing, _in_practice_, is “If you’re not sure, you must make sure.”

      • March 23, 2010 2:40 pm


        I’m quite sure the students at Antioch – being, as a group, a pretty sharp group of young folks – willfully disregarded those absurd and fascistic rules at every turn.

        Hell, they were the ones who started ridiculing those rules when they first came out!

        Maybe you could learn something from their love of freedom, and hatred of bluenoses and bureaucrats who wanted to suffocate their sexuality with rigid rules.

        If you want to win the support of the majority of Americans to your rigid approach to sexuality you need to look upon that task as what it is A SALES JOB.

        You have to PERSUADE them that it’s OK for women to openly and bluntly ask for sex (believe it or not, many mainstream American women don’t believe in that idea – not everybody thinks like you do, Thomas).

        And you have to PERSUADE them that it’s OK for a man to stop at every turn and ask his partner if she’s down for the next move.

        That’s pretty extreme for most folks, Thomas – especially for folks who learned about sex from porno (that is, most American males) or romance novels (that is, most American females).

        So you have a public relations job on your hands here, Thomas – so you might want to start raising funds to hire an advertising agency to promote your approach to sex.

        But using the law to bludgeon people into agreeing with your extreme ideas on sex?

        While that may appeal to your inner John Galt – the social engineer who just KNOWS that his way is the RIGHT way and everybody else should just shut up and do things your way – the fact is, even if the American legal system was willing to go along with your scheme, it would fail.

        Legislated morality always does.

        So why not try to win hearts and minds to your idea, rather than coming up with schemes to cram your morality down other folks throats with a police officer’s nightstick?

        Gregory A. Butler

      • March 23, 2010 3:11 pm

        Gregory, I don’t actually have the power to change the substantive law, nor do I have the personality to sell ideas about sexuality to people who don’t already share a lot of common ground with me. (I’m not buddies with prosecutors, either. When I did crim law, I was on the defense side.)

        My goal is to put ideas out there for people who share my views and have tool at their disposal that I don’t. Nothing I say is going to get an affirmative consent statute enacted in the next few years, or maybe ever. But I’m not going to be shy about saying that such a thing is possible and could work.

        Social change is a multi-pronged creature, and for every person out there trying to win hearts and minds, there are also people trying to use the legal system to cram ideas middle america resists down their throats. Howard Dean got death threats when he signed a civil unions bill, and the Massachussets and California courts were out ahead of the voters. In my view, some folks can make nice, and I’ll agitate for changing the rape laws.

        About Antioch, it’s not my understanding that students protested the policy. It’s my understanding that it was affirmatively popular among the very, very left Antioch student population. They circumvented it not because it was burdensome, but because it was meant to be worked around in practice. That’s a wholly different thing.

        You never answered my question. Would you agree with me that if one is not certain that one’s sex partner consents to any particular act, one ought to make sure before proceeding?

      • March 23, 2010 3:26 pm


        Believe it or not, I really do wish we lived in a world where women felt the same freedom to be sexually aggressive that men do, where everybody was open and outspoken about what he or she wanted sexually.

        Speaking as a man who’s rather timid around women in RL I can tell you it would do wonders for my sex life.

        Yes, I am the type of guy who wants to make sure the woman is consenting every step of the way – and most women I encounter are thoroughly TURNED OFF by that (they want a man who’s going to “take advantage of them” – anything less is considered unmanly and gay)

        So, if enthusiastic consent were a more widespread approach to sex, it would be great for me personally.

        Problem is, it isn’t.

        And we cannot get to that place where enthusiastic consent is mainstream by coming up with wild schemes to use the police and the courts to force people to agree with that approach to sexuality.

        Gatekeeper sex – with all it’s limitations – is still the dominant way that straight Americans have sex and that can only be changed by convincing people that enthusiastic consent is a better way to have sex.

        So, instead of wasting your time writing these long boring densely written incomprehensible legal briefs that by your own admission will never amount to anything, why not build a public relations campaign to sell the majority of Americans on this idea?

  23. March 23, 2010 11:25 am

    To all the readers of this thread, and this blog,

    First and foremost, I want to point out that I never in any way intended to deny the truth of anybody’s sexual assault or rape – as a survivor myself, I would never ever do that, or knowingly and willingly cause anybody to suffer any pain or anguish because of my words.

    I humbly apologize for any pain my words caused.

    With that said, I still have to uphold my previous objections to Thomas’ proposal.

    America has a long and ugly history of criminalizing the consensual sexual conduct of those perceived as Less Than and Other.

    Up until 30 years ago, consensual sex between men was a felony in all 50 states, the District of Columbia, all of the territories and in the Armed Forces – up until 2003, sodomy was still a crime in 14 states and man on man sex is still a crime in the military.

    Sex between Blacks and Whites was a crime in many states for over a century – the last of the Anti Miscegenation Laws were only overturned in 1969

    That touches me very personally – at the time of my birth in 1968, my parent’s relationship was a crime in my mother’s home state, just because my dad was White and my mom was Black.

    And, of course, America has a long history of Black men being jailed and even publicly tortured to death (that is, lynched) for the “crime” of having consensual sex with White women.

    Those men were charged with rape and their rapist status was the excuse for their persecution.

    In the South, there are still Black men in jail as I write for the “crime” of having consensual sex with White women.

    Even beyond the race thing, the cold hard fact is, we live in a very conservative country where the gatekeeper model is still how the vast majority of our fellow Americans, of all races, conduct their sex lives.

    For most American women, the only way they feel they can be sexual is to be passive and to drop hints to a man to get him to make the first move and/or to put themselves in a position where he can “take advantage of them”.

    Yes, this is problematical in lots of ways – both for nonaggressive men and for women who’s no really means no.

    But it’s a reality for most people in this country.

    Maybe your life is not like that – but not everybody is like you.

    And it’s unconscionable that Thomas would criminalize these women’s form of sexual expression because they aren’t willing to be sexual aggressors (a status that they consider to be unfeminine).

    As a former Communist Party member, I can tell you – I know Stalinism when I see it.

    So I do not take back a single word I said in opposition to Thomas totalitarian ideas about consensual sex and the law.

    Gregory A. Butler

    • March 23, 2010 2:20 pm


      The problem with your position is that by opposing affirmative consent standards you are not defending consensual sex. Affirmative consent is much more than just the word, “yes.”

      The affirmative consent standard requires that those who want to take sexual actions ensure that what they are about to do or have the other person do is truly consensual from the other person’s perspective and not just based on a guess about the other person’s perspective.

      This is the standard which upholds my right not to be sexually assaulted even if I interact with someone who believes my lack of willingness is really covert consent. This is the standard which legally protects me from a man who ignores my repeated no’s until I can’t fight him off any longer. This is the standard which legally protects me if I am frozen in fear as a man rapes me and who under many jurisdiction’s laws allows him to get away with claiming I consented because I didn’t clearly communicate my lack of consent.

      Without an affirmative consent standard the other person’s actual willingness is optional and many rapes are declared legal because actual lack of consent has been deemed irrelevant. I’m thankful to live in a state where the legal definition of sexual consent is an affirmative definition and where a lack of resistance cannot be used to prove consent.

      • March 23, 2010 2:28 pm


        “Affirmative consent is much more that just the word “yes””

        Are you kidding?

        So what kind of proof do you need to prove affirmative consent – a notarized contract?

        Do you realize how bizarre and extreme your ideas are?

        Gregory A. Butler

      • March 23, 2010 2:45 pm

        “So what kind of proof do you need to prove affirmative consent – a notarized contract?”

        Working from Gregory’s point, I’d add that I don’t have a problem with “enthusiastic consent” per se, especially as defined as including the following:

        “Well, that’s enthusiastic participation. If two people lean in to kiss each other at the same time and stick their tongues in each other’s mouths, I think we can be pretty clear on consent.”

        That, in itself, is great, and certainly “enthusiastic consent”, as broadly understood, is the best practice when it comes to sex. But the problem with “affirmative consent” as a legal standard is that the definition is pretty slippery. The original “Antioch Rules”, as I’ve read them, specifically *prohibit* the kind of non-verbal enthusiastic consent outlined in that statement.

        What I and many other critics take issue with in the more proscriptive definitions of enthusiastic consent, such as the Antioch Rules, is not that I have a problem with sexual communication (“you just don’t want real communication” being the common strawman presentation of arguments against the Antioch Rules made by its supporters), but that it mandates a specific style of sexual communication (in the case of the Antioch Rules, a specifically “Mother, may I” kind of communication). And most notably, backed by the threat of institutional power, which basically amounts to *policing* intimate communication styles.

      • March 23, 2010 5:49 pm

        Here’s MN’s criminal statute definition of sexual consent:

        (a) “Consent” means words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.

        (b) A person who is mentally incapacitated or physically helpless as defined by this section cannot consent to a sexual act.

        (c) Corroboration of the victim’s testimony is not required to show lack of consent.

    • March 23, 2010 3:08 pm

      Gregory, people have been asking you this question for the entire time you’ve been posting in this thread, and you’ve refused to answer. Is it because you know your position is indefensible?

      The question:

      Why is it more important for people who like the gatekeeper model to get off than it is for people in general not to be assaulted?

      Because even someone who likes the gatekeeper model has a right to say no – but according to you, another person who likes that model is bound to take “no” as “yes” and keep harassing them until they submit. So you’re literally talking about taking away everyone’s right to safety because otherwise criminals might be punished for committing crimes.

      You’ve also provided literally no evidence to support your theory that everyone and her sister likes the gatekeeper model.

      The other question you’re avoiding:

      How does a man who likes the gatekeeper model know if his partner is consenting?

      You’ve admitted that in this model, consent and non-consent are identical. Obviously, the only way to distinguish between them would be to talk beforehand with one’s partner about what one wants to happen after a “no.” But Thomas discusses that in his post. And you’re objecting to that. You’re saying that a man shouldn’t need to know if his partner is consenting.

      You are defending rape and rapists.

      It would also be nice if you would stop acting as if it’s racist to want people not to be raped. If anything, an affirmative consent model would help people of color, given that society and the media portray women of color as perpetually “asking for it.”

      Law enforcement is racist, and this is a problem. Deciding that it’s okay for women to be assaulted so that black men who assault them don’t have to go to jail is not the solution. (The solution is to put white rapists in jail as well, not to let black rapists commit crimes.)

      • March 23, 2010 3:13 pm


        To answer your first question, I believe in the presumption of innocence – that is, unless the authorities have probable cause to believe a crime is being or has been committed they should assume that people are innocent and leave them alone.

        So, the law should assume that, if a couple is having sex, that both parties are consenting unless one of them specifically says otherwise.

        Thomas regime would impose a presumption of guilt – where all men engaged in sex would be presumed to be rapists unless a woman says otherwise.

        If you can’t understand why that is repugnant then we have a very different view of the world.

        As for how can a man tell if a woman is consenting under the gatekeeper model – yes, that is a difficult question, and it’s one of the biggest problems with gatekeeper sex.

        But you’re not going to solve that by imposing police state regulations over consensual sex.

        Gregory A. Butler

      • March 23, 2010 3:41 pm

        And that is what this would do. There’s no reason to suppose that a change to affirmative consent would lead to police breaking into people’s bedrooms to make sure they’re not having sex on a gatekeeper model.

        Imagine the analogy of a murder trial. We know the victim was killed by the person on trial (we know sex took place). The suspect can say it was self-defense (that there was consent), but that’s an affirmative defense – the responsibility is on them to prove that it was self-defense, not on the prosecution to prove that it wasn’t.

        Alternately, I believe someone on this thread already used this analogy – if I call the police and tell them that my friend stole my car, the fact that I reported it and that the friend is in possession of the car is enough. There don’t need to be witnesses to the act. It doesn’t matter if I’ve lent the car to my friend or to other friends in the past. No one suggests that I gave the car to my friend and then decided I wanted it back.

        To say that the accuser’s word is not evidence is to treat rape differently from all other crimes.

        So, you can’t answer the second question. You’re admitting that you don’t care if men rape women. Thank you for being honest.

      • March 23, 2010 3:45 pm


        Like Thomas, you like putting words in people’s mouths.

        I’m as opposed to rape and rapists as anybody on this thread.

        I’m also opposed to police state repression, legislated morality and the criminalization of consensual acts.

        Gregory A. Butler

      • March 23, 2010 3:51 pm

        Except that you’re clearly not, since your “objections” are addressed in the original post. People who want to roleplay non-consent are free to do so. People who want to have sex without their partner’s consent could no longer say it was roleplay.

        You are defending rape and rapists. You are saying that it does not matter if a woman is consenting. You are arguing that it is oppressive to criminalize non-consensual sex.

      • March 23, 2010 5:59 pm

        Gregory, if you don’t have a reliable way to tell whether a woman is actually consenting then continuing means being willing to be a rapist. If you or any man is willing to be a rapist then you and those other men need to be willing to take the legal consequences for your choice. That means being charged and possibly convicted of a sex crime.

      • March 23, 2010 6:45 pm

        I guess you’re planning on building a LOT of jail cells – and alienating a LOT of male potential allies.

        Good luck with that….

        Gregory A. Butler

      • March 23, 2010 7:09 pm

        Someone who does not think consent matters is not an ally.

      • March 23, 2010 11:37 pm

        Gregory, men who are opposed to the idea of making sure they aren’t raping a woman are not allies in the effort to prevent rape.

  24. March 23, 2010 2:55 pm

    Some folks who share Thomas’ view that consensual sexuality needs to be subject to police state regulation:

    I should note, even other communists think of these folks as extremists (to give you an idea of just how far out Thomas’ ideas on sex and the government really are)!

    Gregory A. Butler

    • March 23, 2010 3:21 pm

      The State regulates sexuality, and all of us are for it.

      We’re all for prosecuting and jailing adults for sexual conduct with prepubescent children, right? Even if nominally consensual, right?

      We’re all for prosecuting and jailing violent rapists under some model and standard of proof, right? In fact, we’re probably all in favor of prosecuting a person who sexually penetrates another against the other’s express wishes, right?

      So all we’re talking about is what to do when no information on consent is expressly conveyed.

      If changing the substantive law that far makes this a police state, then we already have a police state.

      • March 23, 2010 3:33 pm


        You must be a great litigator.

        You’re good at putting words in people’s mouths and at making strawman arguments.

        It’s one thing to say that child molesters and rapists should be taken off the streets (personally, I think locked ward psychiatric hospitals would be a more productive and useful way to deal with these guys – but that’s another topic for another day).

        But we’re not going to stop rape by CRIMINALIZING CONSENSUAL SEX.

        And even TRYING to criminalize consensual sex is disgusting , repugnant and totalitarian.

        What part of that don’t you understand?

        Gregory A. Butler

      • March 23, 2010 3:36 pm

        That’s basically a “some law justifies any law” argument, which is not a sound one. It can be used to justify all kinds of things, and I’ve seen that *exact* argument used to justify pre-Lawrence era prohibitions on homosexuality.

        There are some very real differences in having the state prohibit criminal assault as part of sex and having the state micro-manage things like specific sexual acts, gender and race of partners, types of communication, and the like. I think things like the Antioch Rules go way beyond prohibition of assault, and cross the line into micro-management of private sexual behavior. It may do so for vaguely counter-hegemonic reasons (as opposed to the clearly hegemonic reasons for prohibiting homosexuality), but that in itself is not justification for such legal micromanagement.

  25. bumerry permalink
    March 23, 2010 2:57 pm

    I have relatives and friends of every race and SES bracket, many religions and literally global residences. I have never met anyone who has consensual sex under this “gatekeeper” model. Not my Amish and Mennonite classmates, not my Muslim friends, Not my fundamentalist right wing sister and brother in law, not my southeast asian friends, not my African American neighbors and coworkers and paper partners and friends, not my communist pen pal, not my great grandparents (southern), grandparents (southern), parents, other inlaws (many Navajo AND southern), and extended family. I have known two people (both legal genders, but also both non-trans) who at some point felt they needed to be drunk to have consensual sex, and neither wanted to be passed out, they were numbing themselves. Both of them felt this way because they had been raped, and both of them recognized that it was a symptom of trauma, and not a healthy sexual tendency.

    If 5% or 2% or 1/2% of American women feel that being ladylike is more important than ever experiencing sex where they are not being raped, I feel for them. I truly do. But in the matter of legalizing the bodily autonomy of all other people regardless of gender and correcting a legal error in which only in one one instance must consent be disproved by the plaintiff, the rights and safety of the overwhelming majority rightly take precedence over the preferences of the few. Real slut shaming must take precedence over imagined “ladylike” conduct – even if all women had access to the status of lady, which has never been true. All non-white women and none but the richest white women have access to that not-particularly-coveted status.

    Thomas, I have long held that rape is usually and child abuse virtually always legal. Thanks for giving the underlying legal philosophy this train of thought belongs in.

    • March 23, 2010 3:06 pm


      Let me clarify.

      The “gatekeeper model” means men are the sexual aggressors who make the first move sexually every step of the way and the women are passive, only being allowed to put limits on men’s sexuality and never allowed to assert their own.

      That’s the type of sexuality most Americans practice.

      You may have gotten confused by one specific TYPE of gatekeeper sexuality I described – which it appears obscured my main theme and for that I apologize.

      But I’m quite sure all of those conservative rural religious folks you cited in your post practiced one or another type of gatekeeper sexuality.

      Gregory A. Butler

  26. March 23, 2010 3:24 pm

    If the social constraints on a woman around sexuality are so great that she literally is unable to say, “yes” when asked, why do we think she could say no when she needs to?

    • March 23, 2010 3:29 pm


      Yes, that is a huge problem.

      But your proposal is NOT a realistic solution – and you yourself already admitted that.

      So why don’t we scrap your absurd and repressive police state legal proposal and come up with ways to educate and persuade those women that is is socially acceptable for them to make their sexual wishes – affirmative and negative – known?

      Isn’t that a more productive idea?

      Gregory A. Butler

      • March 23, 2010 3:43 pm

        No, because the problem is not women using the gatekeeper model. If they use a gatekeeper model and their partners use a consent model, the worst that will happen is that they’ll be sexually unsatisfied. Whereas if men continue using the gatekeeper model, the worst thing that happens is that they rape women again and again and again.

      • March 23, 2010 3:48 pm


        Let’s assume for a moment that you’re right and I’m wrong.

        So, how do you plan on convincing everybody else in this country to agree with your views on sexuality?

        Litigator Thomas admits that his legal proposal will never see the light of day.

        So what are YOUR ideas about how to change society so everybody practices enthusiastic consent sex?

        Gregory A. Butler

      • March 23, 2010 3:53 pm

        Presumably in the same way that you would, except I would be educating the aggressors (you know, the people who cause crimes), not the victims (who do not cause crimes). Doing the effective thing, not the victim-blamey thing.

      • March 23, 2010 3:58 pm

        Well, what ARE your ideas for educating the aggressors?

        Your posts seem long on heat and quite lacking when it comes to light.

        Gregory A. Butler

      • March 23, 2010 4:03 pm

        Obviously there are some people who are unlikely to change, which is why laws are necessary (civil rights laws didn’t make older people less racist, but the fact that they were no longer allowed to discriminate in certain ways was a good thing) – however, better health and sexual education for younger people would certainly do good. And of course, people would still be getting negative messages from the older generations, which is why strong positive messages in schools and in the media would have to be there to counteract those.

        What about you? What are your proposals for “persuading women that it is socially acceptable for them to make their sexual wishes known”?

      • March 23, 2010 4:08 pm

        Well, a public relations campaign making enthusiastic consent a mainstream sexual idea would be a good start.

        Gregory A. Butler

      • March 23, 2010 4:37 pm

        I do not concede that my proposal is not a realistic solution, only that I lack the power to implement it in the immediate future. Further, I believe talking about it does positive cultural work.

        Howard Dean got death threats when we signed civil unions into law, but the threat of full marriage equality has made civil unions a much more attractive proposal. I will not apologize for advocating a solution that is beyond what can be immediately achieved.

        Nor will I apologize for advocating the use of the criminal justice process to someone whose own proposals include vigilante justice. I view vigilantism as the more radical solution, since I believe it has many fewer constraints against mistake and abuse than even a very bad criminal justice system.

        I believe in hearts-and-minds campaigns, and I believe they work better in conjunction with pressure from courts and legislatures.

        You keep saying the same things, and I’m not finding them any more persuasive the fifteenth time than the first. If you’re expecting me to haul down the post and decide I was wrong, your expectations stand a 100% chance of being frustrated.

        Meanwhile, if you want to see other proposals for social change, you may wish to review the end of Meet The Predators.

      • March 23, 2010 6:53 pm


        Honestly, I have a lot more faith in community justice (or vigilantism, if you will) than I do in the criminal justice system, which exists for one real reason, to maintain the social order by terrorizing the poor and the marginal with cops and jails.

        Maybe you, as a very privileged American (White, male, upper class, suburban – an actual “officer of the court”) can believe in police, courts and jails BECAUSE THOSE INSTITUTIONS EXIST TO PROTECT YOU AND PEOPLE LIKE YOU.

        I don’t have that luxury – because those very same institutions that guard you exist precisely to protect the likes of you (and your privilege) from the likes of me.

        Which explains why you are so comfortable with giving cops, courts and prosecutors even more power than they already have – because you KNOW that those powers will never be used against you or people like you.

        And you really don’t give a damn if those powers are used against me or people like me.

        The fact that you’ve been justifying your proposed fascist sex law with THE SAME ARGUMENTS USED TO JUSTIFY THE PATRIOT ACT proves that.

        Gregory A. Butler

      • March 23, 2010 7:16 pm

        If “you or people like you” are people who rape other people, I am entirely comfortable with that. That is the side you are taking here when you argue over and over that it’s okay for men to have sex with women who aren’t consenting.

        You still haven’t told us why it’s important to protect black male criminals at the expense of black (and other) female victims. It is not Thomas who needs to take a massive privilege check here.

      • March 23, 2010 7:42 pm


        Speaking of privilege, you are skating on dangerously thin racial ice here.

        You might want to go easy – unless you like being blatant with your views of African Americans.

        Gregory A. Butler

      • March 23, 2010 7:45 pm


        Wait a minute, I believe I’ve argued with you before – on Amanda Marcotte’s blog!

        So I already know your racial politics – so its not that big a surprise that you’d start talking about “Black criminals”!

        Gregory A. Butler

      • March 23, 2010 7:51 pm

        Yes, we’ve argued there. You were whitesplaining to me on a subject with which you were completely unfamiliar.

        It wasn’t me who racialized this narrative. If you want to argue that a law that would crack down on rape is a bad thing because it would put black rapists in jail, you can’t object to the use of the words “black” and “criminal” together.

        Oh wait, you don’t think rape is a crime. Silly me.

      • March 23, 2010 7:53 pm

        (Ah, you posted two comments. Let me get to the first one now.)

        My views of African-Americans? As if I’m the one arguing that enshrining consent in the law targets black people? That, my friend, tells us a lot more about your racial attitudes than mine. I don’t think that black men are rapists, as a class, but you evidently do.

      • March 23, 2010 8:09 pm

        Gregory, when you ask, “So what are YOUR ideas about how to change society so everybody practices enthusiastic consent sex?” you are asking the wrong question.

        The question that needs to be asked is: How to change society so everyone ensures that those they assume are consenting or claim are consenting really are consenting?

        Part of the answer is to treat all rapes committed under the gatekeeper model as real rapes.

      • March 23, 2010 8:29 pm


        Actually, you were DEMANDING that I read a book by some White man from Algeria – and then trying to deny that he was a White man!

        So basically, your arguments there were both racist and illogical – and you always had to have the last word


        The problem is, you seem to have an almost Dworkinist definition of rape – basically, you seem to follow the method that any time a man has sex with a woman, we should assume it’s rape unless he can prove otherwise.

        Gregory A. Butler

      • March 23, 2010 8:33 pm

        If you want to continue that discussion, you’re welcome to return to the thread you flounced out of, rather than cluttering up Thomas’s blog with your assertions that racism that doesn’t fit your definition isn’t racism.

      • March 23, 2010 8:38 pm


        Like abyss2hope, you would also follow the Dworkin rule – that there would be a presumption that every time a man has sex with a woman, we should assume he’s a rapist unless she says otherwise.

        This view of sex is not confined to radical feminist extremists like you – for about 100 years, there was a presumption in the South that if a Black man had sex with a White woman, it was to be considered a rape (unless the White woman said different – and that almost never happened).

        A lot of Black men were jailed on bogus “rape” charges because of that law – and a lot of Black men were lynched.

        At the same time, White men who raped Black women were never prosecuted for rape (although sometimes the Black women were prosecuted as prostitutes – and one Black woman in Georgia was executed for killing her White rapist)

        So can you understand how I might be just a little uncomfortable about expanding the definition of rape so broadly that much of consensual sex would be criminalized?

        Especially since we all know (or at least I HOPE we all know) just WHO gets jailed in this country and who doesn’t?

        Just ask the Central Park Five about that….

        Look, you’re a White woman, so you can safely assume that the law will be on your side most of the time, generally speaking – I’m a Black man, I can safely assume that the law will not be.

        Gregory A. Butler

      • March 23, 2010 8:39 pm

        (Also, talk about putting words in other people’s mouths – I never asked you to read Derrida, much less DEMANDED. I got involved once you started erasing other people’s experiences and dictating the terms on which they record them, since I, as a human being, object to that.)

      • March 23, 2010 8:42 pm


        I’m not pleated trim – I don’t flounce.

        And I have no interest in continuing that debate – because you seemed pretty set in your racism on that topic, and I felt it would be disrespectful to confuse you with the facts, considering you already had a closed mind on that issue.

        So I’ll stick around her for a bit and debate you on your Dworkinite misandry (which does tend to drift into negrophobia, so there is some common ground between your wrongness on that thread and your wrongness on this one).

        Gregory A. Butler

      • March 23, 2010 8:47 pm

        We’ve asked you again and again: what consensual sex would be affected by this law?

        No fabrications about women who have to drink themselves unconscious to have sex, please. Firstly, that’s anecdotal; secondly, that is not consenting.

        Since we know that there aren’t cameras in people’s bedrooms to monitor their sexual activity, we must conclude that rape investigations happen when there are complaints.

        And if a woman likes the gatekeeper model and wants a man to harass her into submission, why would she report rape?

        On the other hand, it’s a convenient excuse for men who want to pretend they didn’t know their partner wasn’t consenting. Read coverage of rape trials – it comes up all the time.

        I ask again: what consensual sex would be affected by this law?

      • March 23, 2010 8:49 pm

        I don’t know, you seemed pretty ruffly to me.

        If you’re incapable of answering any of the points I raised, very well; you’re obviously not obligated to. I merely suggest that you might want to do less whitesplaining in future.

      • March 23, 2010 8:52 pm

        Perhaps you missed my comment. In case you really did miss it and you’re not just ignoring things that make you uncomfortable, I’ll ask again: why do you assume that black men don’t care about consent? Why do you assume that black men are rapists?

      • March 23, 2010 8:53 pm


        You’re not Queen Victoria, so please ease back on the “Royal We” and speak for yourself.

        YOU (in the first person singluar) have a question and I (speaking only for myself) will answer.

        Thomas’ standard will presume that all sex between cisgendered straight men and women is rape unless the man can prove that the woman specifically consented to every aspect of their sexual act.

        If you can’t see how horribly repugnant that idea is, then I’m going to have to break off this discussion because we have no common ground here – not even basic human rights and the presumption of innocence.

        Gregory A. Butler

      • March 23, 2010 9:01 pm


        I’m not the ambassador of Black America, so those other 22 million Black men will have to speak for themselves.

        But I do know that America’s justice system sure likes to put Black men in jail – and will use any excuse to do so.

        And that “law and order” and “get tough on crime” are codewords used by Whites (including liberals like Thomas) to call for putting more Black men in prison.

        I’m against rape and I’m for incarcerating rapists (ALL of them, including the rapist men of YOUR race) – but I don’t want to brand non rapist men as “rapists” in the process.

        Thomas proposal, which would criminalize consensual sex where the man didn’t get the express permission of the woman at every point in the act, would brand all straight men (including the men of YOUR race) as rapists.

        Since studies show that between 4 and 12 percent of men are rapists, criminalizing the 88% non rapist majority of men would give the real rapists an excellent hiding ground.

        In other words, if you really want to stop rape and incarcerate rapists, then you do NOT want to distort and expand the rape statute so grotesquely that lots of non rapists would be caught up in the dragnet.

        In other words – Thomas’ fascist law, the one you support,would actually OBSTRUCT the fight against rapists.

        Gregory A. Butler

      • March 23, 2010 9:03 pm

        I’m fairly sure I’m not the only person who’s asked you (second person singular, not first) that. “We,” you may recall, is an English subject pronoun that refers to more than one person.

        In any case, no, it doesn’t assume that. It assumes that sex without consent (you know, rape) is a crime, and that the presence of consent is an affirmative defense, as I’ve explained above.

        I (first person singular) will ask another question, then: In the analogy with the car, should the friend go free? Remember that I have reported the car stolen, and the friend is proven to be in possession of it. Or do I have to prove that I didn’t give it to her? Change it up so that rather than a car (that requires documents to formally transfer ownership), it’s a television. How would I prove that I didn’t give it to her?

        It’s an interesting philosophy, but one I doubt you subscribe to. Why do you insist on treating rape differently from all other crimes?

      • March 23, 2010 9:07 pm


        Indeed, you’re right, it is the second person singular.

        And, since you speak only for Rebecca and for nobody else (unless you’ve secured a power of attorney from those folks, of course) it would be helpful if you would stop misrepresenting yourself as those people’s spokesperson and speak for yourself.

        I’ve answered your questions, again and again and again – and you just don’t like my answers, because I refuse to support your backing of Thomas’ call to criminalize consensual sex and to presume that every cisgendered straight man is a rapist until proven otherwise.

        Gregory A. Butler

      • March 23, 2010 9:09 pm

        Please drop the facade of being against rape. It’s obviously not the case from everything you’ve posted here: you’ve argued and continue to argue that rape and consensual sex are the same thing, and that rape should be legal so that rapists shouldn’t have to go to jail.

        When you talk about non-rapists being caught up in a law that prosecutes sex without consent, please remember that your personal definition of rape does not include sex without consent (=rape).

      • March 23, 2010 9:10 pm

        If you’re actually interested in answering, I can give you a numbered list of questions that you’ve repeatedly failed to answer.

      • March 23, 2010 9:14 pm


        I do not have to justify my opposition to rape to you or anybody else.

        I am against rape and I believe rapists should be removed from off the streets.

        But rape and consensual sex are TWO DIFFERENT THINGS.

        You and Thomas want to brand all consensual sex between men and women as “rape” unless it fits into your narrow radical box.

        And that is bullshit.

        Not to mention so whacked out and bizarre that 99% of Americans would be utterly repulsed by your proposal.

        And with that I am done with you and your Dworkinite misandry – but feel free to keep talking to yourself!

        Gregory A. Butler

      • March 23, 2010 9:18 pm

        Not when you keep equating rape and consensual sex. Sex where the initiator does not have consent is not consensual. That would seem to be a tautology.

      • March 24, 2010 12:01 am

        Gregory, you claim Thomas wants to brand all consensual sex between men and women as “rape” unless it fits into a narrow radical box, but under your model that narrow radical box of what doesn’t count as rape is both people actually being willing to have sex.

  27. March 23, 2010 5:22 pm


    “The issue of people lying doesn’t change at all with a change in standard, right? If you think it does, please explain how.”

    You want to change a standard because you think changing the law will change behaviour but you don’t think that changing such standards of prosecution will not have any effect on how people are dealing with it? With respect to lying, recording their sexual encounters, whatever? You’re really a classic social engineer without any concern whatsoever for collateral damage, apparently.

    “The accuser’s words are sufficient proof for a conviction now, if the police, prosecutor and jury believe her, right? If a woman says, “I said no but he held me down and forced me,” that’s sufficient right now in most jurisdictions. Are you proposing to change that?”

    Well, I’m not sure what jurisdiction you’re talking about, but if there is no substantiating evidence for the accusation, there is no case. If it’s really just contradictory accounts of two people, then there is no way to get to a situation beyond “reasonable doubt”. Did you read the papers you cited? That’s why acquaintance rape is so hard to prosecute. There is usually *no* substantiating evidence, no one denies that sex occurred and short of a confession there’s really not much to do for the prosection.

    So, yeah, if the prosecution would still have to prove that there was no consent if he says there was, nothing would change at all. If her statement alone would be sufficient to get him convicted, then it would be quite substantial loss of civil rights.

    “we need to worry more about that and less about very rare false allegations.”

    I disagree. I think that – as both a social and legal principle – erronneously not prosecuting the guilty is far preferable to erroneously prosecuting the innocent. Mistakes are possible, as humans are fallible, but you sound like you have a crush on Robbespierre.

    “Would you agree with me that if one is not certain that one’s sex partner consents to any particular act, one ought to make sure before proceeding? I would think that you and I could agree on that.”

    I think that’s both right and, well, possibly ridiculous, and that’s where your legal argument becomes bollocks. OF COURSE one ought to make sure before proceeding if she likes, say, to have her clit licked – to continue with your example from above. But does that also entail the agreement to caress her labiae with my fingers? Would that require additional consent? Come on. If there’s so much trust between two people that she lets a guy go down on her, you think it is too much to ask of her to say no if she doesn’t like him experimenting in a particular way?

    See, you’re a BDSM guy, so you probably have a safe word just so you don’t have to negotiate every contingency. Except for the fact that the BDSM community seems to be very good at actually doing it, that’s exactly the same structure that exists in the outside world. Why do you think that it’s not possible to get to a point like this outside of your kinkster-universe. You didn’t need a law to make it happen, right?

    “The rule I’m proposing, _in_practice_, is “If you’re not sure, you must make sure.””

    And IN PRACTICE, that’s a good rule. In law, that’s a very bad rule.

    • March 23, 2010 11:53 pm

      I think that what Thomas proposed would legally not be significantly different from current law (depending on how it was written), but people would view it differently from current wording. The accused would still be innocent until proven guilty, but the weight of the trial would be shifted from proving the victim innocent to proving the accused guilty.

  28. March 24, 2010 1:32 am

    I think I grok your idea and it’s very good. The very long and legal presentation in your post makes it hard to follow, though. This would have been great as an academic paper, but I think the point could have been made more concisely for a general audience (if you want to reach a wider audience). This thread likely would still have devolved into a 175+ comment flame war, but it might have been in regards to what you actually said, instead of what people think you said. From what I’m seeing in comments, everyone against the post got something completely different out of it than I did. Perhaps they would have still reached the same conclusions had it been written differently, but it might have been easier for me to pull direct quotes out of it for rebuttal.

    • March 24, 2010 6:09 am


      Even though I do NOT support Thomas’ idea (I’m sure you figured that out) I do agree with you that Thomas should have taken his lawyer hat off and put his writer hat on before he wrote this thing.

      Honestly, If I was on trial for 2nd degree murder, was actually guilty and needed to delay the trial with endless reams of motions, Thomas would be a great lawyer for me.

      That is because he’s very skilled at writing densely written gibberish filled legalese, the kind of stuff that could delay the trial date for a couple of months before the judge and the ADA figured out what in the blue hell he was trying to say!

      Then he could write ANOTHER motion like this – and another – and another and before you know it 4 years had gone by, the witnesses memories have started to fade and the DA makes a deal and I get off with probation!

      But, as an actual WRITER (and I say this as somebody who’s been a blogger for a dozen years and has been published in print as well) Thomas is subpar at best (just read “Yes Means Yes” to see that – the weakest chapter? …he wrote it)

      But yeah, if he’d written his proposal in plain English instead of lawyerese I might have even supported it, instead of having to come hard against it like I did.

      So, in fact, it might NOT have become a 175 post flamewar if the proposal had been spelled out clearly, rather than been buried in jargon – for those of us who don’t trust lawyers (and God knows I do not – I’ve had too many friends who’ve done time and too many relatives who’ve lost homes to trust Thomas’ profession) anything that even hints at making it easier to send folks to jail is not going to be supported just on general principle.

      Perhaps Jacklyn Freeman could have written this instead – she’s a far better writer and I’d trust her word on the rape laws before I’d trust Thomas’.

      Gregory A. Butler

  29. March 24, 2010 7:07 am

    I accept that this could have been a shorter and less dense piece. However, the substance has produced zero agreement from beginning to end and I don’t see any productive discourse emerging from this thread now or ever. After 180 comments, I think we’ve all said all that is useful on this subject. Comments are now closed.


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