Rape - "Moaning Means Yes," Rules Judge

Major Complications With the "Yes Means Yes" Standard of Consent in College Date Rape Cases
 
 
"Yes Means Yes" Isn't Realistic, and Can Complicate Process
"Yes Means Yes" Isn't Realistic, and Can Complicate Process
WASHINGTON - Jan. 12, 2015 - PRLog -- A male student accused of rape has been acquitted under a university's "yes means yes" standard which requires "clear" consent by the female to avoid a conviction of rape.  The finding was apparently based upon his testimony that he interpreted the complainant's moaning during the sex act as the physical and verbal manifestations of affirmative consent required by the standard.

This is only the latest indication that adopting a "yes means yes" standard of consent to sex may complicate - rather than simplify - the already complex process which colleges must go though in deciding date rape cases, and it is especially telling in this situation, says public interest law professor John Banzhaf, because of many factors:
1. the decision was made by a retired federal judge who is far more qualified to try difficult cases than a typical college disciplinary panel composed of inexperienced lay persons
2. the proceeding was a long and complex one involving 10 witnesses during 11 hours of hearings, several lawyers, and a complete written transcript
3. unlike typical "he said, she said" cases, other witnesses were able to present apparently relevant testimony, and there was other evidence as well
4. the university had adopted the lowest (i.e., easiest) burden of proof to establish guilt - preponderance of the evidence
5. the proceeding was a highly publicized one, with many media and others watching to help guarantee fairness and prevent any coverups
6. unlike many such encounters where, for example, 60% of the females were too drunk to have any memory of the event, this complainant was not drunk and was able to testify about it

Here, despite the fact that we have a very large university which can afford to engage a retired federal judge to oversee its proceedings to insure expertise, experience, and impartially, and to conduct long complex hearings in cases where there are several relevant witnesses, and although its rules require affirmative verbal as well as physical consent to avoid being guilty of rape, and apply the lowest possible burden of proof, a claim by the accused that he interpreted her moaning as sufficient consent to sexual intercourse was apparently decisive in his exoneration.

Although Florida State University [FSU] has more than 40,000 students as well as a huge budget, and several legal and other sex assault experts assisted at the hearing, the transcript shows many problems if not fatal flaws in the process, notes Banzhaf, including several instances of not knowing what steps were to occur next in the hearing, and even to failing to have on hand a device to play a recording of a 911 tape which was a crucial piece of evidence.

In sharp contrast, says Banzhaf, are the numerous proceedings at small colleges whose underpaid and under-trained campus police are unlikely to have both the training and the sensitivity to investigate reported sex crimes, where the primitive hearing procedures are barely capable of handling drunkenness and water balloon fights on campus, much less serious felonies, and of avoiding at the very least the appearance of a conflict of interest.  One can hardly expect more from a tiny college with only a few hundred students than from a giant like FSU.

As set forth in the official decision of the case, FSU requires "Consent" which is defined as "the willing and clear participation in the sexual act. . . . Consent is not freely given if no clear verbal consent is given."  Consistent with this standard, the New York Times reported Winston's defense as follows:  "[Judge] Harding asked [respondent Jameis] Winston 'in what manner, verbally or physically,' did the woman give her consent to sex.  Winston said his accuser provided consent not with words, but rather by 'moaning.'”

But moaning or any other outcrys made during sexual intercourse are obviously ambiguous, and may indicate strong objection to the act or great enjoyment of it.  Numerous movies and TV programs feature scenes where police or others rush to aid a woman in another room who appears to be screaming - only to find that they are screams or loud moans of joy from sex.  On the other hand, a university police officer once failed to come to the aid of a female student being raped, claiming that he interpreted her verbal outbursts to be sounds of joy rather than pleas for help.

One problem with requiring affirmative consent to each step in the sexual interaction, and then permitting that consent to be made non-verbally as most "yes means yes" standards do, is that non-verbal communications, as shown here, can be ambiguous.  A male student might well interpret a woman's action in moving her body, brushing back her hair, touching him on the neck or ear, or making unarticulated sounds as signs of consent she never intended.

Isn't it much clearer and obviously less ambiguous to provide that the woman must simply say "no" (or "stop" or "don't") to make it abundantly and incontestably clear that she has not consented.  Such a system, which as been the law for more than a century, has worked well because it is consistent with the way most people think and behave, says Banzhaf, who has taught it for many years.

Requiring that the female provide affirmative consent to each and every step in the lovemaking process - rather than simply saying "no" to the one step to which she objects - is how people in the real world behave - as demonstrated by literally hundreds of movies, TV program, novels, and discussions on radio and television.  Who could imagine a love scene - fictional or real - where the man keeps asking "can I do X to your Y," and the women repeatedly saying yes to each of the dozens of steps in the process.

Lawyers and legislators have long since come to realize that laws which require people to behave in ways which are unnatural - e.g., slowing down and looking both ways at each intersection while driving - are usually not obeyed, and tend to create confusion and unfairness.  "Yes means yes" appears to be another example, suggests Banzhaf, who has actually proposed several methods for responding to concerns about rapes on campus.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf

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