Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

In a message dated 11/1/03 12:02:17 PM, 

 
writes:

<< How do you believe consent should be defined? >>

why do we needlessly complicate this issue?

how is consent defined in the school's policy against theft?? - 

verbal consent is a ridiculous policy for the reasons stated AND b/c some 
people are mute -- or in shock -- or drunk -- and let's not forget that in 
our 
increasingly violent culture where beating each other during sex is 
considered a 
form of freedom, the latest take on the value of saying "no" is that "no 
sometimes means yes" -- and words are not as important as freedom -- so it is 
very 
important NOT to overemphasize the value of verbal action -- 

I am strongly opposed to any policy that focuses on what the victim did or 
said b/c all that does is shift the analysis toward whether what she did or 
said 
was adequate -- 

while lack of consent is awlays an element of the offense, the question 
should always be "what did he do to ascertain clear consent" -- and if he 
says he 
asked and she said yes -- and she says he never asked and she never said yes 
-- 
then it's a credibility issue -- so what? - 

I have prosecuted countless cases where the perep - when asked -- could not 
even come close to showing that he had obtained consent -- 

When the perp cannot show he obtained clear consent in a theft case where 
someone's money is stolen, we don't wring our hands -- we convict him.  We 
don't 
scrutinize and pick apart the effectiveness of how the victim said or didn't 
say "take my money" -- we scrutinize and pick apart what the thief did to 
ascertain permission to take the money -- 

lack of consent is an element of theft but we don't angst over how to prove 
it -- we simply focus, as we should, on what the taker did to get permission 
- 
and we need to adjust our focus to reflect the simplicity of the issue when 
thinking about consent in sexual violence cases -- 

schools needn't codify this idea -- and they shouldn't obsess about whether 
students will understand the parameters without clarity in a written code - 

schools have managed successfully and without controversy to teach the idea 
that students cannot take away the money or property of another student 
without 
clear consent b/c rights of ownership of money and property are important.  
Students understand that the burden is thus ALWAYS on the taker to obtain 
clear 
consent.  And if the burden is on the taker, then equivocal consent is 
INSUFFICIENT -- 

this simple idea is easily adapted to the more compelling situation of sexual 
assault where the rule is -- students cannot take away the bodily integrity 
of another student without clear consent b/c rights of ownership AND personal 
autonomy are even MORE important than property and money.

wendy murphy