Category Archives: Civil Liberties

Affirmative Consent Is the New Sexual Puritanism

California’s new affirmative consent standard for university disciplinary proceedings puts the onus on the accused to prove that consent was “affirmative,” “voluntary,” and “ongoing,” rather than on the accuser to overcome the presumption of innocence. In so doing, it leaves those subject to its purview unclear as to how the standard functions; it institutionalizes assumptions about the fragility of women; and it effectively places entire realms of sexual exploration off limits to adults who happen to be attending university.

UNCLEAR APPLICATION

The chorus of voices defending the law like to write about what sort of sex is acceptable and what sort is not. Amanda Marcotte, for example, assures us that:

The drafters understand, as most of us do when we’re actually having sex, that sometimes sexual consent is nonverbal and that there’s a difference between drunk, consensual sex and someone pushing himself on a woman who is too drunk to resist.

This is a dodge. The issue is not whether most of recognize, in the moment, what nonverbal consent or consensual, drunken sex look like.

The real, and infinitely more difficult, issue is how a university disciplinary body makes an after-the-fact determination in the face of different versions of, or different perceptions about, what occurred. How does it ascertain—in the presence of conflicting stories—whether what happened was drunk, consensual sex or “someone pushing himself on a woman who was too drunk to resist?” How does it decide what possible demonstrations of nonverbal consent are sufficient to excuse the accused from punishment?

The affirmative consent standard does not further the quest for truth where one of the parties is a predatory liar, willing to tell falsehoods in furtherance of a malicious agenda. Nor does it add anything to the process where both parties tell the same story about an encounter that constitutes rape under existing criminal laws and procedures.

Those are not the cases that will be impacted by the new standard. Its target, rather, is those situations where the parties give consistent or reconcilable accounts of an encounter involving mixed signals and ambiguities; and they have divergent perceptions about whether it was meaningfully consensual.

How affirmative consent functions in such cases remains to be seen. Slate’s Amanda Hess, a defender of the law, concedes, “enthusiastic consent is often communicated in body language or knowing looks.” Is the university to determine whether the “knowing look” described by the accused constituted affirmative consent? Must it parse whether the accused elicited a gasp of pleasure versus an exhale of pain?

As Michelle Goldberg, blogging at The Nation, writes:

Now, most of us know what this kind of consent looks like in practice, but as a legal standard, it’s hard to imagine how it would be implemented. Do moans count as consent? How about a nod, or a smile, or meaningful eye contact? If a woman performs oral sex on a man without asking him first, and if he simply lies back and lets her, has she, by the law’s definition, assaulted him?

Thomas MacAulay Millar at the Yes Means Yes blog, does his best to clarify:

There are lots of ways to ask for a yes. If you lean in to kiss someone and they lean in to kiss you back, that’s yes. If you ask someone if they want your cock and they say, “I want your cock,” that’s yes, and if they put their mouth on it, that’s yes, too. If you’re fucking someone and holding them down and you’re both sweating and maybe bruised and you lean in and your hand is on their throat and you say, “can you still say no?” and they say, “yes,” that’s yes. We’re not kids here, right?

It is the last example I find most interesting. In this scenario, the accused (remember, the standard only becomes relevant if one of them ends up accused) leans in and, with his hand on the accuser’s throat, asks a question to confirm that the accuser can still say no. Then, having confirmed the accuser can still say no, the accused deduces from the fact that no has not been uttered, that it is all right to proceed.

How is that different from the old standard in which the absence of “no” was taken to be indicative of consent?

INSTITUTIONALIZES ASSUMPTIONS ABOUT THE FRAGILITY OF WOMEN

As noted, the standard does not enhance the quest for truth where one party is a criminal willing lie; the liar merely adjusts the lies to the new standard. Nor does it add anything meaningful where the accused admits conduct constituting rape under existing laws and standards. Rather, it is aimed at situations where one person has negative perceptions of the encounter, either during or after, but for any number of reasons did not effectively communicate non-consent—and the other person says, “I would have stopped if I had known.” It shifts the burden of avoiding the encounter away from the person who did not want it, but failed to say so, and onto the person who wanted it, but failed to ask.

But why?

If accuser cannot be held responsible for making preferences known and demanding they be respected, why does the accused have to shoulder that responsibility?

I suspect the reason has to do with the accuser usually being female and the accused usually being male. Just reading the copious text written in its defense confirms its proponents assume the standard it will function to protect women in their encounters with men:

The new California law will make it harder for men who enjoy having sex with the unwilling to argue that her nonconsent was “ambiguous” in order to escape punishment.

Looking for a woman who said “yes” (or any variation of it, which can be expressed in a variety of ways, both verbal and nonverbal) instead of focusing on whether she said no in exactly the right words will help put the role alcohol plays into focus. It will clear up some of the murky gray areas, such as cases where a woman is too drunk to be articulate in her refusals but not so drunk that she passes out. It will also offer a degree of protection for scared men, because a somewhat intoxicated woman who explicitly asks for sex will have a hard time convincing the courts she hasn’t “demonstrated intent” to bone. It’s an easy way to get more guilty men convicted while offering protection for innocent men.

“I had a friend who was like, ‘I had sex with this guy and I was really uncomfortable—I wish I’d said something,’?” says Trina Bills, a student who graduated last year. “But she didn’t, and so he didn’t know. When she finally told him, he said, ‘You should’ve told me. It would’ve been fine—we just wouldn’t have done anything.’ The communication aspect of this is real. And everyone communicates differently.”

Maybe I am wrong.

Maybe proponents of this standard envision it being used to expel young women from university, after they have expended extraordinary sums to attend, for having an encounter with a wasted male classmate, without pausing to be “Pretty Damn Sure” it was consistent with his sober, higher-order values and preferences. It seems more likely, however, that the standard will be used to revive, institutionalize, and perpetuate the age-old belief—now under new management—that the woman is the fragile partner in any sexual encounter with a man; and that for her, the default position should be no sex, because the consequences of anything less than wholehearted consent are all too terrible.

ELIMINATES SEX DISAPPROVED OF BY THE ORTHODOXY

Proponents will argue that there is no downside to this burden-shifting of responsibility to the higher-power party, of eliminating those sexual encounters where the power differential renders consent ambiguous or uncertain.

In an amazing essay for BookForum called “Fifty Shades of Beige: How E. L. James created an unlikely cottage industry in sanitized s/m,” Kerry Howley writes about French philosopher Georges Bataille’s description of eroticism as:

“[A]ssenting to life up to the point of death,” … about a moment of freedom from the prison of isolated existence, a moment in which an essentially discontinuous body might experience the kind of continuity with the universe we’ll all presumably find when our lives are over. In the erotic we bump up against the possibility of dissolution …

… There is in the erotic that hard jolt of coming undone, the “elemental violence,” as Bataille put it, “which kindles every manifestation of eroticism.” Where we find the erotic we find anarchy, an unraveling, a falling apart, dissolution. We find, as in the work of Sade, Anaïs Nin, and the pseudonymous Pauline Réage, that a sexual frenzy spills readily into savagery.

Howley juxtaposes the narrative arc of Fifty Shades of Grey with the standard commentary on the success of the trilogy. In the book, the female protagonist “cedes control” and “allows a billionaire she doesn’t really know, and suspects is a sadist, to chain her to a wall in his ‘playroom.’” As Howley recognizes, this “not behavior we associate with the ideals of self-preservation and delayed gratification.” Nevertheless:

The model Fifty Shades of Grey think piece…is a defense of the book…though these defenses do not extend to anarchy, or chaos, or ecstasy at all. In the Fifty Shades think piece, the book is a teaching tool, a means of instruction, Our Bodies, Ourselves with a stronger narrative drive.

Fifty Shades, we learn, is a force for “good” because it “gets women talking about sex.” It is good, we learn, because it “encourages a dialogue.” Fifty Shades, insists a panel of experts on The Dr. Oz Show, is an educative tool permitting healthy adult women to express their desires within the realm of companionate heterosexual marriage.

Howley insightfully recognizes that the dissonance, between what occurs in the book and the insistence it must be healthy for women, emanates from the needs of “anxious arbiters of cultural meaning” to “attempt to remove the erotic from the realm of the savage and claim it for civilization.” I see some of the same motivations at play in the debate about affirmative consent. The law functions as an effort by the collective to domesticate sexuality, “claim [it] for civilization,” and ensure it only occurs under carefully constructed circumstances deemed “healthy” by the enlightened.

Not everyone wants to live within those confines; some men and women enjoy life closer to the edge. A substantial number of both, for example, enjoy ravishment fantasies. Some of them live out these fantasies via role-playing in which consent is determined to be ongoing where a safety word is not uttered. This allows a participant to “protest” without bringing the encounter to an end.

Are university students allowed to engage in this type of role-playing? Can “affirmative” consent be proved by the failure to utter a safety word that is nothing more than a mutually agreed upon replacement for the word “no?”

Conor Friedersdorf of The Atlantic has posted a very interesting letter from someone claiming to be a recent graduate cataloguing his experiences with “affirmative consent.” The writer claims, for example that, on their second night together, one of his first partners, threw up her hands in disgust:

“How am I supposed to get turned on when you keep asking for permission for everything like a little boy?” She said. “Just take me and fuck me already.”

After repeatedly seeing disappointment in the eyes of his female partners when he did not fulfill the leadership role they wanted him to fill in the bedroom, he learned to take an assertive lead that involved proceeding unless he got a “no” (which included any nonverbal suggestion he was about to cross a line).

It would be easy to dismiss this as a man’s inability to correctly perceive what is really going on with women. But I know women who would agree with everything said in his letter. And who could forget this Best of Craigslist post, which appears to be written by a woman, calling men out for their increasingly beta male approach to sex?

Friedersdorf’s anonymous correspondent further claims to have, more than once, experienced situations where his partners put up “token resistance” that they wanted him to overcome. When Rush Limbaugh said something similar, he was lambasted. But yet again, I have personally known women, mostly of an older generation (but not all), who are most comfortable with a dynamic wherein the woman dutifully resists, thus demonstrating her purity, and then succumbs only after being seduced, thus confirming the man’s prowess.

Do I like that dynamic?

No. I find it grotesque.

But once we accept the proposition that only “healthy” sex deserves defending, the bedroom becomes yet another sanitized, domesticated landscape where people’s—and especially women’s—experiences are carefully managed by the cultural elites; where risks are discouraged; where optimal health is achieved via careful planning; where regrettable sex is forbidden alongside super-sized sodas, trans-fat and incandescent light bulbs; where barriers are erected to prevent us from treading too near the place of dissolution.

And feminism becomes the new Puritanism.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

John Grisham Had A Point On Child Porn Punishments

John Grisham, a lawyer famous for his legal thrillers who has advocated for a more reasonable approach to crime sentencing and is on the Board of Directors for the Innocence Project, has caused a stir with his comments on some men who watch child porn:

“We have prisons now filled with guys my age. Sixty-year-old white men in prison who’ve never harmed anybody, would never touch a child,” he said in an exclusive interview to promote his latest novel Gray Mountain which is published next week.
“But they got online one night and started surfing around, probably had too much to drink or whatever, and pushed the wrong buttons, went too far and got into child porn.”

Mr. Grisham referred to a person he knew from law school who got himself in trouble regarding 16 year old girls:

“His drinking was out of control, and he went to a website. It was labelled ‘sixteen year old wannabee hookers or something like that’. And it said ’16-year-old girls’. So he went there. Downloaded some stuff – it was 16 year old girls who looked 30.

“He shouldn’t ’a done it. It was stupid, but it wasn’t 10-year-old boys. He didn’t touch anything. And God, a week later there was a knock on the door: ‘FBI!’ and it was sting set up by the Royal Canadian Mounted Police to catch people – sex offenders – and he went to prison for three years.”

“There’s so many of them now. There’s so many ‘sex offenders’ – that’s what they’re called – that they put them in the same prison. Like they’re a bunch of perverts, or something; thousands of ’em. We’ve gone nuts with this incarceration,” he added in his loft-office in Charlottesville, Virginia.

Reaction has been negative, and somewhat predictable. Think Progress was quick to condemn. Others have gone beyond condemnation and gone straight to calling for government intervention. Rosie O’Donnell has hinted that he should be targeted by the police:

(…) “Did John Grisham feel like these people needed a champion and he was it? I actually was horrified by what he said, as was most of the country because now he’s issued an apology… Nobody accidentally stumbles onto child pornography. If I were the police, I’d look at John Grisham’s hard drive right now.”

Despite the rage, Grisham has had defenders, including Radley Balko of the Washington Post:

Grisham certainly could have chosen his words better. But he isn’t wrong, and the invective he’s receiving right now is both misinformed and wildly over the top. There are Twitter users calling him a pervert, or for his home to be raided by the FBI. It isn’t all that different than suggesting that people who criticize the drug laws must be doing or selling drugs.

Take this quote out of context, and one could make Grisham look like he thinks the biggest problem with the criminal justice system is that old white guys are getting locked up for looking at child porn. But context is important. Grisham has spent a great deal of time, money, and influence advocating for criminal justice reform. He helped found the Mississippi Innocence Project, and sits on the board of directors for the Innocence Project in New York. He wrote a nonfiction book about a wrongful conviction, and helped another get published. He testified before Congress about the need for reforming the forensics system, addressing the problems he’s seen firsthand in Mississippi.

Grisham, feeling the heat, apologized:

Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography—online or otherwise—should be punished to the fullest extent of the law.

My comments made two days ago during an interview with the British newspaper “The Telegraph” were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable.

I regret having made these comments, and apologize to all.

Even the “law school buddy” he was referencing, a Gulfport, MS personal injury lawyer named Michael Hollemann, has stated that he deserved his punishment:

Speaking to the Daily Mail, Mr Holleman, once one of Mississippi’s top criminal lawyers, said that did something illegal and it was right to have received punishment.

“I did something wrong and I don’t have a bit of resentment about the way I was treated,” he said.

“It’s illegal and should be punished. If it’s a crime, it’s a crime. There’s a violation of the right of privacy involved. There’s people now who, because of the internet, who are making child pornography so they can share it across the internet. There are good reasons for it to be illegal and punished.”

It’s important to note one thing: no one involved, including myself, is stating that downloading child pornography should not be punished. It should be, without a doubt. Plus, even Grisham admits he spoke poorly.

However, the larger context of Grisham’s overall point is one about inflexibility. In Hollemann’s case, he was looking at a site of women advertised as 16. It is illegal – in both the United States and Canada1, where the sting was conducted – to look at pornography involving anyone under 18. But the age of consent in many states is 16; that means that some states have determined that 16 year olds are mature enough to decide when they want to have sex. We currently sentence looking at a 17 year old – such as former porn star Traci Lords, as noted by Balko – as harshly as looking at children half that age, despite the fact that that 17 year old can enlist and fight in a war if they want.

Of course, Holleman was guilty of looking at a site that clearly advertised 16 year olds. There are no provisions in the law as it stands for looking at something that’s not advertised as such. There’s also no allowance for minors looking at minors (e.g.: sexting). This has allowed a few attorneys general to make grandstanding pledges to arrest and charge all of the kids involved in cases where sexting has gone wrong – such as images being leaked, be it maliciously or via hacks like the recent Snapchat hack – with either possession of or manufacturing child pornography.

In both cases, the issue isn’t just the threat of jail time, it’s being permanently branded with a scarlet letter via the databases created by Megan’s Law. The intent behind the law is noble, but the consequences have been people being branded as heinous sex criminals – forever limiting their ability to get and hold a job, travel, or even live peacefully – for accidentally downloading child pornography, or for sleeping with the wrong teenager in the wrong state who has the wrong father. The ends do not always justify the means.

On a troubling note at a societal level is the call for John Grisham to be raided by the FBI. The fact that such a call flaunts the very purpose of the First Amendment – that government cannot punish people for their opinions or statements – is flagrantly obvious, but many people would be willing to trample the Constitution If It Protects Just One Child™. It’s easy to laugh at Rosie O’Donnell because she’s Rosie O’Donnell, but any time someone gets busted for anything relating to child pornography, there’s an arms race of sorts to see who can think of the best way to punish the perp. Lifetime jail term! Chemical castration! Execution! Mob mentalities accomplish nothing.

This is a bipartisan issue as well. The left is generally concerned with protecting victims, while the right is generally concerned with removing society’s unfit, but they both agree that children must be protected. This is noble. But the calls to raid John Grisham show why it’s very hard to get moderation on this issue: any calls for such are perceived as the person in question proclaiming that child pornography is a wonderful thing, and to Hell with the kids. Nothing could be further from the truth, but it makes even agreeable goals such as fixing Megan’s Law or adding provisions for things such as sexting leaks virtually impossible to reach.

John Grisham wasn’t railing in favour of child porn, he was really coming out against mandatory minimum sentencing, which is consistent with his statements on this subject for years. We can’t shred the Constitution because it’s popular. In the meantime, I urge people who have the welfare of exploited children in mind to consider supporting or donating to the Rape, Abuse and Incest Network or to the Polaris Project.

1 – Canada’s federal age of consent laws – key here, draw a line between regular sexual activity – where the age of consent was raised from 14 to 16 in 2008 – and that which “exploits” the person in question, with listed examples being that of pornography, prostitution, or anyone in a position of trust, e.g. teachers, caretakers, coaches, etc. Source: Canadian Department of Justice.

Christopher Bowen covered the video games industry for eight years before moving onto politics and general interest. He is the Editor in Chief of Gaming Bus, and has worked for Diehard GameFan, Daily Games News, TalkingAboutGames.com and has freelanced elsewhere. He is a “liberaltarian” – a liberal libertarian. A network engineer by trade, he lives in Derby CT.

NSA’s Internet Spying Program Harms Not Just Civil Liberties, But The Economy Too

I published a piece for the R Street Institute Friday on how the NSA’s internet spying program is not just harmful to civil liberties, but also harmful to the economy as well. The reason why, companies around the world have lost faith in the security of their data and software from American companies.

Last week, U.S. Sen. Ron Wyden, D-Ore., hosted a forum in Silicon Valley on NSA spying as a means to drum up support for proposed reform legislation that has been stalled in the Senate.

Attended by executives from Google, Microsoft, Facebook and other tech companies, the forum found a receptive audience, as these companies are worried about their prospects of doing business abroad. A 2013 report warned that American companies could lose up to $180 billion in lost technology sales as a result of the NSA spying allegations. A report in August of last year found that American cloud computer services alone could lose up to $35 billion a year in lost overseas sales as a result of the revelations.

Read the rest here

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

President Obama Appoints Drug War Opponent To Head DOJ’s Civil Rights Division

President Obama has appointed attorney Vanita Gupta to head the Department of Justice’s Civil Rights Division. What should be of interest is Ms. Gupta’s opposition to the Drug War and calls for prison reform.

Reason has more:

A drug-war denouncing, prison-reform crusading, longtime civil-rights attorney is President Obama’s new pick to head the Justice Department’s civil rights division. Venita Gupta, 39, will take over as acting assistant attorney general for civil rights next week, and the White House will likely propose making it permanent within the next few months, according to The Washington Post.

Gupta has called the drug war “disastrous”, the asset forfeiture program “broken”, and police militarization “out of control”. She supports marijuana decriminalization and eliminating mandatory minimum sentencing. “It’s time for states to end the costly criminalization of marijuana and recalibrate sentencing laws so that the punishment actually fits the crime as opposed to a politician’s reelection agenda,” she wrote in a September op-ed for CNN.

This is a positive step from an administration that has been all talk on drug policy. While it is unknown if Gupta supports legalization, even just moving towards an approach of decriminalization, eliminating mandatory minimums, and reining in police militarization and the asset forfeiture program would be a very big positive step for civil liberties.

There has been one positive to the Eric Holder Justice Department, which is that the Holder Justice Department has been relentless in launching civil rights investigations in response to police brutality committed by local law enforcement. Gupta’s record and previous writings show that she would be as aggressive in this role as her predecessor, which is a very good thing.

All in all, this is a very good appointment by the Obama Administration that should be praised by anyone concerned with civil liberties.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Re-post: The Right to Life Also Implies a Right to Die

Brittany Maynard says ‘I don’t want to die.’ The 29 year-old is is not unique in her desire for self-preservation as most of us do not want to die. What does make her somewhat more unique is she has tragically been diagnosed with a stage 4 glioblastoma. To put this in laymen’s terms, she has terminal brain cancer which will end her life if nature is allowed to take its course.

Brittany, however; has other plans. She has moved from California to Oregon to take advantage of Oregon’s ‘right to die’ law. Her goal is to live until her husband’s birthday on November 1st. If she lives until November 2nd, Brittany says she wishes to die on her own terms on that day. “I may be alive on Nov. 2 or I may not, and that’s my choice,” Brittany explained.

Back in June of 2007, I wrote a post entitled: The Right to Live Also Implies a Right to Die. I wrote the post in response to Dr. Jack Kevorkian’s release from prison. While I appreciated the gravity of physician assisted suicide then, it was still a bit abstract. Since that time I have seen friends and family members waste away to terminal conditions and it is truly horrifying to witness. I cannot say for sure that any of these friends or family members would have opted to make the same choice as Brittany and others have made but they should have had the choice. The state should not stand in the way of end of life decisions by the person who owns his or her life.

The following is a re-post of the original article I wrote in 2007.

Dr. Jack Kevorkian has finally completed an eight year prison term. For what exactly? For helping a terminally ill and suffering man exercise his right to a have a dignified and peaceful death. I find it very irritating that the media has given Dr. Kevorkian the nickname ‘Dr. Death’ as if he were some kind of serial killer.

Dr. Kevorkian has done our society a great service by bringing this issue into the national debate. On what basis can society deny a person his or her right to die? If we truly believe that every individual has the inalienable rights of life, liberty, and property, then the individual cannot be denied this right on any of these measures.

The individual has the right to life but this does not mean that government can force an individual to live. The individual has the right not to exercise his or her rights. The individual has the right to keep and bear arms but the government cannot force an individual to own a gun. The individual has the right to his or her liberty (provided he or she does not infringe on the liberty of others) but he or she can willfully surrender his or her liberty to be subjugated to a cult or religion. The individual has a right to his or her property (which would include his or her body by the way) which means he or she can do with it whatever he or she wishes (again, provided he or she does not infringe on the life, liberty, or property of others).

Thomas A. Bowden has an excellent piece on this issue at Capitalism Magazine.

The Declaration of Independence proclaimed, for the first time in the history of nations, that each person exists as an end in himself. This basic truth–which finds political expression in the right to life, liberty, and the pursuit of happiness–means, in practical terms, that you need no one’s permission to live, and that no one may forcibly obstruct your efforts to achieve your own personal happiness.

[…]

For these reasons, each individual has the right to decide the hour of his death and to implement that solemn decision as best he can. The choice is his because the life is his. And if a doctor is willing (not forced) to assist in the suicide, based on an objective assessment of his patient’s mental and physical state, the law should not stand in his way.

The fear by those who oppose the inherent right to die is that the government would eventually start killing those who are suffering regardless of the wishes of the individual. But upon closer inspection, recognizing an individual’s right to choose his or her manner of death is protecting the individual’s right to life. The individual does not live for the purpose of pleasing society or the religious sensibilities of others.

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