November 25, 2014

New Jersey lawyers write new sex rules


From proposed New Jersey legislation:

    "Affirmative consent" means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that the person has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

    (...) it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances: (1) the accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused; or (2) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

    (...) it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances: (1) the complainant was asleep or unconscious; (2) the complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity; or (3) the complainant was unable to communicate due to a mental or physical condition.

Reason - The New Jersey proposal also lays out procedures and record-keeping requirements that colleges must follow when handling sexual assault, stalking, and domestic violence claims. And it requires colleges to adopt a "preponderance of the evidence" standard when adjudicating these cases. Under this standard (the lowest standard of proof used in civil claims), the accused must be found guilty if college administrators perceive more than a 50 percent likelihood that he or she is. "Traditionally," explains Cathy Young, "the standard for finding a student guilty of misconduct of any kind has been 'clear and convincing evidence'—less stringent than 'beyond a reasonable doubt,' but still a very strong probability of guilt."

1 comment:

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