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Hookup culture has made it extremely difficult, if not impossible, to discern sexual consent, mostly because of the amount of alcohol consumed. Most hookups occur while both parties are inebriated, with both women and men affirming in studies that they need to drink in order to overcome normal inhibitions that accompany having sex with a stranger. This short by Jason Reitman is a funny look at what young people are up against, and it doesn’t even address the drinking factor:
Recently, though, this has become an issue of enormous contention and no one is laughing. Except maybe Alex Knepper, who wrote a piece about sexual consent for The Eagle at American University that has landed him on talk shows all week, and in the crosshairs of the feminist media. As a result of all this publicity, I suspect that Alex can look forward to numerous job offers when he graduates. The fact that he is openly gay lends an interesting twist to his views, and has foiled the usual attempts of angry women to cast him as a heteronormative pig. He begins:
The yin and yang of masculinity and femininity is what makes sexual exploration exciting. Sex isn’t about contract-signing. It’s about spontaneity, raw energy and control (or its counterpart, surrender). Feminism envisions a bedroom scene in which two amorphous, gender-neutral blobs ask each other “Is this OK with you?” before daring to move their lips any lower on the other’s body.
Here’s the part that really caught the attention of angry women students, who called Knepper a rape apologist and began confiscating all the issues of the paper they could find on campus:
Let’s get this straight: any woman who heads to an EI party as an anonymous onlooker, drinks five cups of the jungle juice, and walks back to a boy’s room with him is indicating that she wants sex, OK? To cry “date rape” after you sober up the next morning and regret the incident is the equivalent of pulling a gun to someone’s head and then later claiming that you didn’t ever actually intend to pull the trigger.
“Date rape” is an incoherent concept. There’s rape and there’s not-rape, and we need a line of demarcation. It’s not clear enough to merely speak of consent, because the lines of consent in sex — especially anonymous sex — can become very blurry.
I don’t agree with Alex Knepper that walking to a frat house late at night constitutes consent, not by a long shot. But I do agree that date rape is an incoherent concept, and that the boundaries around consent have gotten extremely blurry. This scenario is a recipe for potential disaster for both parties. It sets them up for a dangerous set of circumstances that can easily devolve into He Said/She Said.
In March of 2007, the British government proposed that a statutory definition of drunken sexual consent be created and made law. Sir Igor Judge deemed it impossible, saying:
It would be unrealistic to endeavour to create some kind of grid system which would enable the answer to these questions to be related to some prescribed level of alcohol consumption….Provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves.
Someone suggested that women carry sex breathalyzers, which would tell a woman when she was past the legal limit for sexual consent. Should she then be prevented from having sex even if she wants it? In typical British fashion, humor found its way into the debate. Both men and women commented that they would have a lot less sex if they couldn’t wear beer goggles, and couldn’t be seen through them.
The natural conclusion of cover-all consent laws would be that it might be illegal to have sex with a woman unless she signs and dates – soberly – a certificate for each assignation. Something of a passion killer.
Which brings us right back to Jason Reitman’s spoof!
Back in the 90s, now defunct Antioch College caused a national uproar when a group there calling themselves Womyn of Antioch sat down one night and wrote a sexual consent policy. It was later modified slightly, but the college accepted it in this form:
ANTIOCH SEXUAL CONSENT POLICY (excerpted, italic comments are mine):
* Consent is required each and every time there is sexual activity. (even in the same night)
* All parties must have a clear and accurate understanding of the sexual activity.
* The person(s) who initiate(s) the sexual activity is responsible for asking for consent.
* The person(s) who are asked are responsible for verbally responding.
* Each new level of sexual activity requires consent. (May I touch your boob now? May I have permission to insert a finger? May I insert P into V?)
* Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs. (I’m picturing semaphore here.)
* Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity).
* At any and all times when consent is withdrawn or not verbally agreed to, the sexual activity must stop immediately.
* Silence is not consent.
* Body movements and non-verbal responses such as moans are not consent.
* A person can not give consent while sleeping. (No more sexy wakeup calls? Damn!)
* All parties must have unimpaired judgement (examples that may cause impairment include but are not limited to alcohol, drugs, mental health conditions, physical health conditions). (Well, we know how that turned out.)
Here are examples of rape cases I have personally heard about first hand, all of which involved heavy drinking by both parties:
Was her consent valid if he changed the terms of the agreed upon act? Or was it rape?
Was it rape?
Was it rape?
It’s tempting to say that no one knows exactly what happened except the parties involved. Except that too often, the parties involved are not reliable witnesses themselves. Memory lapses are a common side effect of drinking. How can the word of anyone who was profoundly drunk at the time be trusted? How can intent or consent be measured in a valid way?
III. The Failure of Schools to Issue Sanctions Against Perpetrators
Recently the Boston Globe wondered why there have been only 4 expulsions from area schools out of 240 confirmed attacks in the last five years. Recently the University of Massachusetts – Amherst acknowledged that a student who confessed to raping a friend last fall, a felony, was still enrolled and had avoided discipline. Victim advocates are understandably outraged:
“It’s a rape; it’s a forcible contact without someone’s consent,’’ said Colby Bruno, an attorney with the Victim Rights Law Center in Boston.
Of the 240 attacks, there were 24 suspensions. An additional 59 students were sanctioned in various ways, including “getting counseling, performing community service, writing a letter of personal reflection, or staying away from the victim.”
The schools point out that witnesses and physical evidence are rarely present with most complaints.
This is the crux of the matter. However, this does not explain why, when a student is found guilty of the attack, or confesses, as some do, the felonious assault does not earn the attacker more than a letter of personal reflection. Schools cite the frequent unwillingness of the victim to pursue campus discipline after reporting the attack.
Boston University has 21 reported sexual assaults from 2006-2008. Eleven cases went through the disciplinary process, and none resulted in expulsion. When interviewed, many students say that the difficulty in understanding and prosecuting sexual assault cases can be traced back to the school’s alcohol culture, and the problem of getting to the facts. Sarah Merriman, a campus activist said,
At BU, as with a lot of other colleges in America, there’s not really much of a dating culture. It’s more of a hook-up culture.
This is the essential problem. We don’t know what the crime is, exactly. We don’t know when crimes have been committed. We must rely on testimony from parties who were drinking, often heavily, when the event occurred. We must acknowledge that when drunk both women and men make poor choices. Some women may act on regret by denying responsibility. Some men may become coercive when drunk. Some men may believe that a woman has given consent, when, in fact, the laws in that state hold that consent would be impossible.
If you are too ashamed or embarrassed to do something sober, then it’s worth thinking twice about. The only solution to preventing real and perceived sexual assaults on college campuses is to separate sex from drinking. If you do choose to get drunk and hook up, you need to understand that you will have little to no legal recourse for anything that goes on in the privacy of a stranger’s bed.