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[Auto-generated transcript. Edits may have been applied for clarity.]
Kimberly, thank you very much for joining me. Thanks so much for having me.

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So I've decided to entitle this conversation How to Think About Rape like a lawyer shamelessly ripping off the title of of one of your articles.

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And what I understand you to be doing in that article is really just trying to

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disentangle and explain a whole bunch of phenomena around the law of rape and consent,

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blame worthiness for sexual offences,

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and to try and help provide a better understanding for people the kind of concepts that we're engaging with when we have these sorts of discussions,

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and then also hopefully to pre-empt certain misunderstandings that people often have when they have these discussions.

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So following on from that, the first question I wanted to ask you was, in your view,

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what is maybe one of the most or the most significant kind of common confusion,

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maybe, that people have about either the law of rape or consent or related concepts.

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So I'm going to give you two instead of one. I with the first one comes from having been part of the American Law Institute's uh,

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committee advisory committee in drafting new sexual assault provisions for the Model Penal Code.

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And one thing that I found in there was that everyone has the paradigm of what case they're thinking about when they're thinking about consent.

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And so if you're thinking about two people who met at a bar who barely know each other,

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what you think the rules for consent are should be look really different than when

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you're imagining a married couple who's been together for five years or five years.

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Ten years. Right. And and so I think that we have to be really careful as we craft rules,

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that we think about the fact that the law isn't just going to cover sort of first timers.

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But in fact, people who have long term relationships and we may think, well,

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we'll just rely on the fact that, well, the married couple violated the rule, but they'll never prosecute it.

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But it's kind of problematic to think that we have a law that sends an expressive message that this is wrong,

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and then we really mean like, oh, no, but we don't really mean this for this entire class of people.

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But it will include them. Technically. Yes yes, yes.

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And then to rely on something like, oh, things don't go wrong in the marriage or oh, there's prosecutorial discretion or whatever the case may be.

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So I think it's really important when we think about these cases that we kind of understand for very different kinds of groups,

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how the the rule is going to apply. Right. And you think when we're in seminar rooms or maybe when this is discussed in the media,

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the paradigm that we typically have is more the paradigm of strangers meeting in a bar.

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And we're thinking about crafting rules around that as opposed to thinking, well,

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what are those rules mean for people who are in long standing relationships, you know.

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Do they fit in the same way? I think that's exactly right.

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I think the other thing that I would say, that's a kind of common mistake, is that we use the word consent in two different ways.

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So we use the word consent to express the kind of yes.

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Right. And then we use the word consent to express yes under sufficient conditions of freedom and knowledge and capacity.

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And so what I mean by that is imagine that someone um, has, you know,

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somebody breaks into the victim's home and holds a gun to her head and then says,

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you know, and she says, okay, well, I'm really afraid of, um, getting Aids.

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Will you use a condom? And then she says, and then I'm not going to fight you.

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And and so what do you want to say about that case?

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Well, some people are going to say it's common in sort of standard discourse to say she consented at gunpoint.

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Which is to say, we've got the yes, that kind of internal kernel.

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But guess what? It's not going to count legally because it was at gunpoint.

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Other people want to deny that that in fact counts as consent at all, that it's.

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Yes. Plus there's nothing that kind of undermines that.

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Yes. Before we get to call it consent. And so we can get confusions where we talk past each other, right, where somebody can argue.

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And this actually happened. This the case I gave you was a real case where the grand jury refused to indict.

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Well, why would you refuse to indict there?

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You've got to refuse to indict there, because there's some sense in which a defence attorney can say, well, she consented.

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Right. And that can't possibly be right. And so we have to be really careful when we use the word consent, how much we're trying to capture.

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So one of the things that I think you set out really well in that paper is the way in which when we ask questions about consent,

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such as did ex consent to this sexual activity with Y.

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And this obviously is often the essential question in a rape case.

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We're actually asking what is deep down quite a philosophical question about

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the conditions that are needed that are required for valid consent to obtain.

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And even though it can be presented that way, these are not straightforwardly factual questions.

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They're deep down questions of moral argument. And this comes out in difficult cases in grey area maybe cases.

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And one of the examples you use to explain this is the example of coercion.

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So we can be presented with all kinds of cases, maybe along a spectrum where somebody issues threats and says,

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you know, sleep with me or else I will do this from the very trivial to the much more serious.

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And we we argue about at what point and which kinds of cases is consent invalidated.

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So in that sort of example, how would you think that through?

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How would you work through the various effects of coercion in these different cases on a person's consent?

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So I guess I would say that coercion is an incredibly tricky philosophical concept, right.

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To figure out what's going to count. Right? But but you want to start by recognising everyone's going to say that a gun is going to undermine the.

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Yes. Right. We've got a yes and we've got something else that's being imposed on the the victim, some sort of threat.

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And you want to say, is that threat the kind of thing that doesn't give the victim sort of a fair

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sort of opportunity of choices in a way that we think significantly undermines.

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Right. The. Yes, that she's giving.

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So, um, under the new drafted Model Penal Code, I guess I takes to explain every state in the United States has its own code.

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But there's the American Law Institute, which is a group of lawyers and judges and academics that sort of propose model rules.

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And they had a terrible old Model Penal code that said things like, uh, marital rape exemption.

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And it was extremely narrow and written in the 1960s.

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And so they decided to revise it. And so as part of that revision, we started asking all of these questions again.

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So the way that code is written, it says that if you threaten an official action against someone, that counts as coercion.

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So if a cop says, I will give you a $10 parking ticket unless you have sex with me, that currently is coercive and undermines consent.

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And we might think that's wrongful. We might think the police officer should be fired.

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But it's a different question whether you think that, in fact deeply undermines the yes in a way that we want to call it sexual assault or rape.

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Sometimes I think that in tutorial discussions or things like this with students, people often bring in the law, um, as almost an argument stopper.

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Well, the law says ex um, that this does or doesn't count as valid consent, but the law can't really answer these questions for us, right?

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Because it can simply be wrong. Absolutely. And sometimes we're asking where the law should go.

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And that the law has has covered too few cases. And so we want the law to cover more.

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And we may think the law even then should be a little bit under inclusive, right,

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that there's going to be morally objectionable, yucky sex that we don't want to bring the state into.

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So that's also a contested question.

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What's the point at which something becomes so morally wrong that the state should step in?

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It's just the same way that somebody, a friend, can deeply betray you.

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Why is a friend you deeply betray you? Not a crime, but it's not a crime.

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Right. So the law is always sort of a smaller circle of the sort of broader moral wrongdoing that could be out there.

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So moving on to a different kind of debate within the philosophy of consent.

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One very long standing discussion that lawyers have, the philosophers have is what people call the ontology of consent,

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by which, if I were to try and put it in plain terms simply, what is consent?

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What is it? Kind of basically, as you put it, I think in one of those papers, is consent something you do or is consent something you feel internally?

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People also juxtapose the mental view versus this performative view of consent.

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So I wonder if you could just maybe explain what are these two positions and why are they at loggerheads.

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So I actually think that it's a bit of a mistake to think that the mental view is how you feel.

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I think it winds up being misleading to think about it as a feeling.

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I think that no matter what, we should think of consent as an act.

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And then the question is, is it a mental act?

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Is it purely internal to the person, or is it something that has to have some sort of expression in the world?

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So mental acts decide what you'd like to have for dinner tonight.

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Add 27 plus 35 things you can do without anybody else being, you know, involved or seeing any manifestation of it.

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So the example that I like to use of the mental act view, just the first one, is that I, and I use this, um,

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I think it's a grudge I must hold against my neighbour who used to cut through my yard, um, in new Jersey.

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And, you know, in my hypotheticals, I always think this is okay with me.

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Although in real life, I always thought he was trespassing. But the the question is,

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can I just look at his behaviour as he's about to step on my lawn to cut through to the to the street in front of me and thank that's fine.

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And that changes the world.

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It changes it from there being a sort of moral gate to dropping the gate so that he can walk through my lawn and it's perfectly okay with me.

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And then he doesn't wrong me. He doesn't trespass because I've chosen to allow him to do that.

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Right. So that's the kind of idea behind the mental act view, which is that even in cases of sex,

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it's possible to choose to allow conduct without actually physical manifestations of that conduct.

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Uh, so, uh, another example I like to use is, you know, a couple has just had sex and then, uh,

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the they wake up in the morning and even though the man is still pretty groggy, the woman decides to perform oral sex on him.

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Right. And, you know, rather than feeling sexually assaulted, he thinks this is the best alarm clock ever.

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So if he thinks that without saying anything, without saying yes.

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Uh, does that count as her not wronging him anymore?

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Uh, and I want to I should pause at this moment to be clear and say, even if you had a mental act view,

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you could still think that the other person could be doing something culpable because they don't know they have the permission.

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So my neighbour might be still attempting trespassing because he thinks, uh,

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I don't care whether Kim's consenting or not, but he's not actually violating my rights because I say yes.

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Okay, so that's the mental act for you. So one thing that you may think that's odd about the mental act view is that if consent is about two people,

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how can consent just be this thing that goes on in someone's head and that motivates I want some external signals.

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So the first thing you could say is, well, okay.

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The man in the alarm clock case not only has to think it, but what if he sent an email to her the night before?

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That said, I'd really like you to wake me up this way tomorrow morning.

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Is that enough that it's sort of in the world and expressed, or do you need it's in the world and expressed.

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And she read it such that the only reason why she's, you know,

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engaging in the behaviour is because she's got, you know, what philosophers would call uptake.

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Yeah. Right now that's actually he really thinks it.

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Then he thinks it and says it, he thinks it and says it and she knows it.

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Right. That's one way to go. And the other way to go is to sometime.

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And this is sort of in some of the kind of affirmative consent thinking is the, um, we're just looking for signals that count as.

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Yes, Right. And like yes counts as yes. So when when you say no means no, that doesn't mean she really means it.

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It's just no is a red light. So if no is a red light then yes is a green light.

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And then what we're doing is saying we want a convention or a signal that counts irrespective of what's going on in someone's head.

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You know, and I think there are reasons to be worried about that. Right. Because sure.

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Then all of a sudden you're looking at what someone does or says and not what they actually think.

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And when those two come apart, I have concerns about that as well.

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But I think all of those possibilities are out there for different ideas of the ontology are like what consent really is.

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And so just going back to your neighbour case, trespassing. So your analysis of that case would be that he doesn't know any better.

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Right. As far as he's concerned. You know, he has no reason to believe that it's okay with you That he's walking on your lawn.

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But the fact that you know that he's doing it and you think to yourself, that's okay with me,

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makes it the case that even though we might say, well, you know, he's he's a bad guy because he doesn't know any better.

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He actually hasn't done that. Without your consent, that would be the the mental act for you.

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That's exactly right. And I'm wondering, so this is the view you subscribe to in this.

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Um, and I'm wondering what you think is the greatest challenge to that view then, you know,

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are there any difficult cases that that come up where that view might give us a counterintuitive answer?

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So first, I guess one thing I want to do is just make the pitch for it.

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Yeah, sure. Which which is that? If we think, you know,

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we usually have these barriers and that the reason why we want consent is because it's morally meaningful to be able to let people in.

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Right. Were these, as Heidi would say, these Heidi Herd would say these moral magicians.

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Right? Right. And it's grounded in our autonomy rights. Right.

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Our ability to say, I get to let people in my house, or let them touch my body or let them touch my stuff.

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Um, that. It seems odd to think that doesn't totally rest with me, that I get to choose what I allow to happen to to me and my things.

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And so in many ways, it's supposed to be very victim empowering, right?

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It empowers us and makes us the authors of, you know, our moral boundaries.

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We don't need anyone else to have heard it or heard us say it to make it effective.

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And and I think that's a really compelling way to think about consent.

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That leads, though, to the. But wait a minute. It takes two to tango.

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There's this other person. And I think the biggest challenges come from the fact that there can be mistakes on the other side,

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and it winds up being, uh, you know, in particularly in the law.

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Right? Not particularly victim protecting if you think that there's a lot of possibility of error.

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Right. And it allows for people to, um, you know, not wrong you when they are being disrespectful.

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So there's the side of who cares that the victim has said yes in her head.

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If the other person doesn't know it. Right. Like why?

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Why should that be good enough for anything? Right. Can we talk more about culpability?

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Sure. Because I think, of course, on some level everybody understands that culpability, blame worthiness is sort of part of what rape is,

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but they might not understand the precise way in which it's part of the offence of rape.

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And that exactly how we define or flesh out those, those culpability requirements actually varies between jurisdictions.

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And, you know, within the same jurisdiction. It's changed what we call menswear in criminal law or the guilty.

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State of mind that a person has to have to commit an offence.

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Um, so in your view, what what is the culpability?

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Um, that in here is in rape, which kind of makes rape blameworthy. So to, to take a step back.

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Right. So we said that there's sort of the kernel of the yes, which I'll call ascent.

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And then the extra factors you need. But most of the debate I think doesn't often turn as much on sort of,

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sort of what's the mental state involved in deception or what's the mental state involved in coercion, although it could.

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Right. So, uh, an example might be that, uh, a man, you know, I don't know where your viewers will be from, you know, in the States.

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You know, there will be plenty of people with guns. So a man who.

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I hope there are fewer people here, I think probably, but. But a man who's got, you know, just like lots of guns displayed in his car, his house.

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And, you know, she's looking around and nervous, right?

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She's thinking, oh, like, is this force?

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You know, he could have a whole bunch of views, right?

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He could think he could be completely oblivious. Hey, I live in Texas.

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I got a lot of guns, right? Or he could think she seems nervous and keeps glancing at the wall.

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Uh, maybe she's afraid, right?

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Which would be what we'd call recklessness. Or he could know. He could be practically certain nuts doing the work.

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And so you can have different mental states as to coercion.

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But I think a lot of times when theorists talk about it, they're talking about and they call it consent,

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but they're talking about that kernel of what that, that, uh, yes is right.

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Do they what is their mental state have to be the defendant's mental state as to what's going on with the victim?

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Right. And so then there are kind of a range of things that could be going on with the defendant, right?

191
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The defendant can be acting intentionally. The defendant knows he doesn't have a yes.

192
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He knows it's a no. He's doing it anyway. Right.

193
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Completely unproblematic. There's um.

194
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The defendant is consciously disregarding the risk that there's a no.

195
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So just like the sort of gun case, I'm not quite sure what these signals mean, but these signals might not be consent.

196
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I don't care, I'm going ahead anyway. That's what's called recklessness.

197
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Otherwise, the defendant could be unreasonably unaware so that there really isn't consent.

198
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But the defendant isn't aware of the fact that there isn't consent, or there's what's called strict liability,

199
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which is even if a reasonable person would absolutely 100% not know that there wasn't consent in this case.

200
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There really wasn't. And so the defendant's on the hook for that.

201
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So the the reasonableness position is the position that we have in English law.

202
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Um, the the culpability standard is lack of reasonable belief that the person consented.

203
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And this then opens up the inquiry about reasonable mistakes, since a reasonable mistake will exonerate.

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Um, I think some people at least find it difficult to get on board with the idea of a reasonable mistake.

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They think, well, how how could somebody reasonably mistake a person for consenting when they're not consenting?

206
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You know, what would that even look like? Um, so, I mean, how do you see that playing out?

207
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Well, what would explain, for instance, how reasonable mistakes get made.

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So I think one thing that's incredibly tricky to begin with is that we're supposed to understand who the reasonable person is or what counts,

209
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And then we have all kinds of social norms and weight conventions in terms of how we communicate things.

210
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And so. You know.

211
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Here's, you know, the craziest example is someone who, uh, the where the victim just is, is new to the country and doesn't know.

212
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Yes. From know and means you don't know the meaning literally, literally thinks yes as no one knows yes.

213
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Right. Or nodding your head just has the conventions wrong.

214
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Do you want to have sex? And she thinks she's saying no, right.

215
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That that would be, you know, an incredibly clear example.

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I don't think we think that's really what's going on with sex. Right.

217
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I think that what we think is going on with sex is that we live in a society where women typically have not been free to be,

218
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to just sort of be incredibly forthcoming and sex positive.

219
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And yes, let's go have sex tonight. And so it they've always had to sort of dance around that.

220
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And as we're trying to evolve, we're trying to figure out what those norms look like, what counts.

221
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When is it that mere sort of non-resistance counts and when it doesn't, it's and it's really weird to think about what non-resistance is, right?

222
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You can imagine things are escalating. Both people seem to be into it.

223
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But he's taking her clothes off, and we might look at that scene in a movie and think, that's fine.

224
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Or, you know, Michelle Dempsey always says, you know, I have a student who calls it the dead fish example,

225
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you know, how do you not read the body language of someone who just ceases to be responsive?

226
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And so we just have these questions about how to understand, you know, what what that signal looks like.

227
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so. So social meanings. And what means what?

228
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What communicates what? You know, in a in a culture really is integral to this question of is it a reasonable mistake?

229
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So the example you gave with the foreigner, if the foreigner thinks no means yes and yes means no, a person hears that.

230
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And let's say in other ways, you know, they behave as if they consent.

231
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It's a reasonable mistake.

232
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But then you're saying the problems that come in concern when those social meanings, those communications maybe are ambiguous or maybe are evolving?

233
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Um, and maybe when people actually disagree about what means what.

234
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So if we discovered, for instance, that women typically thought that a certain behaviour didn't signal consent,

235
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whereas the majority of men took the same behaviour to signal consent?

236
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Um, then that becomes very difficult, right? For the question of does this entail a reasonable belief?

237
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I think that's absolutely right.

238
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And so when you have a society that has an unfair or unjust signal or convention, you have to figure out what you're going to do with it, right?

239
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How are we going to move the norm? How are we going to get people on the same page?

240
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And it's definitely a problem if we are sort of setting up rapists and victims,

241
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because we're not speaking the same language about what constitutes consent.

242
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And then the real question is, do you want to use the criminal law as the way to move the norm?

243
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And I think that there are a lot of people who think, yeah, that's exactly what criminal law is for.

244
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Like if we want to change behaviour, we make it a law.

245
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And there have been times we've been wildly successful with this. Drunk driving right is a is a huge example of people who behaved badly.

246
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And then the law said like we're going to punish you and people started thinking it was wrong.

247
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And so there's a a tremendous sort of success story to saying the criminal law goes first and then people are going to fall in line.

248
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I just think that there can be some cost to that. So this brings us kind of nicely back around again to the affirmative consent debate.

249
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Right. Because that would be maybe the proposition and the proposition that a lot of people seem to be on board with,

250
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which is that if there are these problematic, maybe dangerous,

251
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ambiguous social meanings around consent leading to rape, whether or not somebody has a reasonable belief,

252
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you know, for at least for the victim, the experience is the same.

253
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I suppose the argument goes, well, why not just solve the problem through stipulating a new rule,

254
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even if it's not the rule that everybody is following right now?

255
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The law simply says, okay, from now on, only yes means yes, or only either a verbal yes or some kind of conduct that,

256
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you know, unequivocally, affirmatively, whatever that means.

257
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Right. It's probably, um. Expresses consent. Means.

258
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Yes. And you can see the virtues of that. Right? The ostensible virtues.

259
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Anyway, um, you know, it takes away anybody's excuse around wishful thinking, um, or not taking ambiguity very seriously.

260
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There's a kind of a burden on people to make absolutely sure, um, it protects potential victims.

261
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All these kind of things seem to go in favour of of affirmative consent as the answer.

262
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But you're very sceptical, um, that this should be the answer.

263
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I wonder if you could say a bit more about that. So we have people who are doing one thing.

264
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We want them to do something else, and we're going to use the law to shift everybody.

265
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Well, we use the law to shift everybody by putting a lot of people in prison to say to in some sense.

266
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Make an example of them to say, look what happens when you disobey this norm.

267
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But we think that ignorance of the law is no defence. So how do people know what the law is?

268
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I don't think that if you went to any particular jurisdiction, they know.

269
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I mean, the United States goes from everything where it's, you know, still force.

270
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I mean, forget, like, you have to know you have affirmative consent.

271
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If you don't have physical force, you're done. Right. So people don't know what jurisdiction they're in there.

272
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Don't they don't know what rules apply to them. Um, and and so push putting people in prison when you may think under the rules we have now.

273
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Right. They they're not doing. And the victim may really be internally consenting.

274
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So a victim who's really internally consenting, who doesn't token. Yes.

275
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Right. That person isn't actually wronging her.

276
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We're going to say we're putting you in jail because we want to change the norm. Right. And and how do you have that kind of notice?

277
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Right. So the worry is that there will be all these people who may not be getting a verbal yes or whatever the law defines as an affirmative.

278
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Yes. But under the current conditions about how things are expressed, let's say,

279
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in which people do still express consent very tacitly or in the right condition silently, their apprehension of consent is actually reasonable.

280
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So you're saying, you know, they they could be innocent insofar as that standard is concerned.

281
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And what we're suggesting in using the criminal law for this is just kind of instrumentally using them,

282
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I suppose, and say, well, we want to shift the norm and it's too important to change the norm.

283
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So just put those people in prison.

284
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And then eventually, I think, as you say in your article, enough people will get the message and it will be worth it.

285
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And I think that somebody might say, that example seems crazy to me.

286
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Like, how are you going to know about this? But, um, there have been discussions, you know, that college dorm rooms, believe it or not,

287
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roommates will have sex with the other roommate there or not there, right?

288
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So if roommate number one is in bed and roommate number two comes in and starts having sex with someone,

289
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and roommate number one doesn't hear a yes, right?

290
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You actually can have roommate number one. Think I'm going to report that a sexual assault has occurred, right?

291
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Because they never heard whatever that communication was that's required.

292
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So it's not actually impossible that we would wind up absolutely, positively enforcing this.

293
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And not just, you know, people who I mean, otherwise, you have to imagine that people who thought yes later decide to like, put people in prison.

294
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And that would be really weird and terrible world.

295
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Not that it wouldn't be possible to have happen, but there can be people, you know, bystanders who then are witnessing things.

296
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I think there are a couple other problems that I think it's worth raising. One is what are we using the yes for?

297
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Are we just using yes for sexual intercourse or we're using yes for behaviours short of sexual intercourse.

298
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Right. What. When do we want this?

299
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If we go the word. Yes. How. How many to.

300
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What do we want it to apply to? Right.

301
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If we're thinking all sexual activity then that covers quite a huge amount of things that that are only then legitimate.

302
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If you get the verbal yes or no. And you might think that that like, breaks up something valuable.

303
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May I kiss you? May I take off your shirt? May I put my hand on your rear end?

304
00:31:05,950 --> 00:31:09,470
You know, like, if you had to constantly ask questions, you know it.

305
00:31:10,270 --> 00:31:16,550
You could. You could worry about whether people will comply and then what it would do to sort of ordinary sexual conduct.

306
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Also, again, just a reminder. Are we doing this with married couples or can married couples like stop saying yes all the time?

307
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A couple of arguments that I have heard are pushing the pro affirmative consent side and maybe kind of going to some of your worries,

308
00:31:33,210 --> 00:31:40,650
um, are, in the first place, this idea that will the burden of double checking is so minimal, it's so light.

309
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So if the law is requiring somebody to not proceed until they get the verbal yes or the nonverbal yes, whatever counts as that.

310
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Um, yes. There may be a mismatch between what the law is saying and what the social practices are now.

311
00:31:56,890 --> 00:32:01,090
But, you know, so what? It's almost nothing. And consider the stakes, right?

312
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You know what? What happens if it goes wrong? Then there's a miscommunication. So that's one argument that I hear it.

313
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It's just so easy to double check. So how is it unfair if somebody then fails to do that.

314
00:32:12,650 --> 00:32:15,730
And a kind of related argument could be to do with notice.

315
00:32:17,170 --> 00:32:25,270
Um, so again, I've heard it said that if the law is clear enough or some policy is clear enough, it says, well, from now on, only this will do.

316
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And then everybody has sufficient notice. Everybody is put on their guard that unless you get that verbal yes, you cannot proceed.

317
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This will count as sexual assault or rape.

318
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Then again, the idea is, well, is it really unfair to then penalise somebody after the fact when they had that warning?

319
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If we had a rule that everybody knew with perfect notice and you said so, you got to wait, what are we going to lose?

320
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We're going to lose a little bit of victim autonomy or non victim autonomy that people have to say yes when they don't feel like it.

321
00:32:59,270 --> 00:33:03,390
Right. We're going to lose a little bit of defendant autonomy that they got to wait for the light.

322
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You gotta turn the light on to green and you got to wait for a green light.

323
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And that's a little you know, we don't like stopping waiting at traffic lights.

324
00:33:11,750 --> 00:33:18,830
Yeah. But it's I agree, that's not in some ways. I mean, I like my law to mirror morality, but I understand why if you want to,

325
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it wouldn't be such a problem to kind of change the convention and it wouldn't be so freedom limiting that.

326
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I think that it would be a huge problem for the law to get there.

327
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I'm more worried about how the law gets there and the noticed component of that.

328
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And so then I just think it's too easy to say, we'll just make sure people have notice, because I think we do imagine in some ways,

329
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something like a college campus where everybody knows the rules and they can go to orientation and, you know,

330
00:33:51,370 --> 00:34:01,010
the world is full of people, right, to whom these rules apply that aren't, you know, liberal elite college students.

331
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And so I think we've got to be really careful about our assumptions that a rule that we create, you know, that some of us, you know,

332
00:34:11,170 --> 00:34:16,130
it's just what we ordinarily know, like, yeah, of course we know what affirmative consent is,

333
00:34:16,370 --> 00:34:19,770
is going to be able to be easily distributed to the population.

334
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And whether the people who hear, you know, who don't hear the rule might be more likely to have a rule enforced against them than others.

335
00:34:27,640 --> 00:34:31,800
So this is really interesting because up until now, you know,

336
00:34:32,080 --> 00:34:38,320
up to some point we were thinking about the criminal law or that was the paradigm when we're thinking about affirmative consent standards.

337
00:34:39,440 --> 00:34:47,760
Um, but are you suggesting that when it comes to college campuses, which really are a context in which affirmative consent has has been grasped,

338
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and there's a lot of momentum behind affirmative consent in college campuses.

339
00:34:52,600 --> 00:34:56,440
Do you think these considerations about fairness and notice then play out differently?

340
00:34:56,960 --> 00:35:03,040
Because there you can get everybody together in a room and say, this is the rule, and now you will have notice.

341
00:35:03,840 --> 00:35:07,280
Yeah. So I am a lot less concerned about notice on college campuses.

342
00:35:08,600 --> 00:35:13,400
I think the biggest problem on college campuses is that we don't know what to do with intoxication.

343
00:35:14,520 --> 00:35:21,860
Right? And when I was we were working on the Model Penal Code, people went back and forth on how do you craft a rule?

344
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You know, getting back to our initial conversation about what counts as incapacity.

345
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So there's the sort of question about how much do you have to know and control to be able to say yes, and that we're going to have a debate about.

346
00:35:35,100 --> 00:35:39,780
Right. That's a a moral debate. I think more I think less, right.

347
00:35:40,020 --> 00:35:45,900
It's just like drinking ages and when people should be able to drive and and you know what what that is.

348
00:35:46,460 --> 00:35:51,500
And then we're going to have the question. Let's say we all agree it's exactly here.

349
00:35:53,660 --> 00:35:57,020
How do you craft a rule that people can follow. Right.

350
00:35:57,860 --> 00:36:00,940
Thou shalt not have sex with people who are completely passed out.

351
00:36:01,300 --> 00:36:05,140
Super easy. Thou shalt not have sex with somebody when you've seen them.

352
00:36:05,340 --> 00:36:12,540
Have a sip of alcohol. Nobody wants to enforce that because sex and alcohol go together for people who want to have sex.

353
00:36:13,100 --> 00:36:19,040
Right. And so, uh, you know, you wind up with.

354
00:36:21,320 --> 00:36:25,640
Is it slurred speech? Is it vomiting? Is it what?

355
00:36:26,120 --> 00:36:29,440
What's the stage at which we say no?

356
00:36:29,920 --> 00:36:35,840
And I think getting back to college campuses. Blackout being blackout drunk.

357
00:36:36,960 --> 00:36:40,640
You somebody can manifest that there. Right. Okay. Right.

358
00:36:41,040 --> 00:36:45,240
That's not someone who's necessarily, uh, manifesting that.

359
00:36:45,400 --> 00:36:48,880
They're, like, about to throw up all over the place or pass out.

360
00:36:49,360 --> 00:36:55,000
And so then there's there's all those questions again. So you got the yes and then the yes doesn't count.

361
00:36:55,520 --> 00:36:59,000
Right. And so maybe it should count. Maybe it shouldn't count.

362
00:36:59,480 --> 00:37:03,680
How do we handle that. So to answer to go back to the first part.

363
00:37:04,200 --> 00:37:07,880
Yes, I am less concerned about notice on college campuses because I think that

364
00:37:08,040 --> 00:37:12,720
communities can set higher standards than even what morality itself would require.

365
00:37:13,280 --> 00:37:21,140
We can just say, look, we don't want any mistakes. We, you know, we don't care that we're going to make life a little bit harder for some people.

366
00:37:21,660 --> 00:37:25,700
This is just what we do to give each other assurance that we know that we have consent.

367
00:37:26,500 --> 00:37:29,580
Okay. Now figure out what you want to do about drinking.

368
00:37:30,260 --> 00:37:34,260
Because if intoxicated, yes equals no.

369
00:37:35,540 --> 00:37:38,380
We haven't solved anything by by requiring yeses.

370
00:37:39,700 --> 00:37:46,100
I wonder if we could speak just briefly in more general terms about consent versus enthusiasm versus desire,

371
00:37:47,100 --> 00:37:55,140
because part of what I maybe understand the affirmative consent movement as trying to do, which is maybe laudable,

372
00:37:55,900 --> 00:38:03,180
is to get people to think about consent in general as something that isn't just kind of agreement,

373
00:38:04,060 --> 00:38:13,060
even if it's grudging agreement or just submission or just, you know, passive acceptance, but something more like actual, you know.

374
00:38:13,340 --> 00:38:15,300
Yeah. Enthusiasm, desire.

375
00:38:16,160 --> 00:38:23,080
Um, make sure somebody really is into this, you know, wants to have sex with you and that that makes a certain amount of sense.

376
00:38:24,200 --> 00:38:31,000
Um, but of course, the way in which it's doing it is to try to redefine consent as those things.

377
00:38:32,280 --> 00:38:35,240
Um, what is your take on that? Do you think that that.

378
00:38:35,600 --> 00:38:41,400
See, if we if we're not thinking about penalising people, we're just thinking about changing the way in which people think about consent.

379
00:38:42,200 --> 00:38:47,520
Is that a legitimate way to go? I think it's highly problematic to do that,

380
00:38:47,880 --> 00:38:54,840
because I don't think you want to give up the distinction between something that's a consent and something that's a request.

381
00:38:55,640 --> 00:39:02,800
When I see my neighbour across my lawn, I can consent. I should never be wildly enthusiastic that he's crossing my lawn.

382
00:39:03,080 --> 00:39:06,120
I don't have to think like, yay! Thank you for crossing my lawn.

383
00:39:06,360 --> 00:39:09,600
I just have to think it's okay with me. And that's enough to give him the permission.

384
00:39:10,240 --> 00:39:13,600
If I want him to come to a dinner party, then, right.

385
00:39:14,200 --> 00:39:20,220
I'm actually requesting. I'm giving him a reason. I'm not just saying it's okay, but please do this.

386
00:39:20,860 --> 00:39:26,260
And I think that we want to allow for the distinction between consent and request.

387
00:39:27,620 --> 00:39:32,100
Then you might say, well, do I want all of sex to be a request, right.

388
00:39:32,860 --> 00:39:40,980
And, you know, maybe lots of good sex includes requests and is rarely just consent.

389
00:39:41,500 --> 00:39:45,020
But again, I think we've got to be really careful who we're imagining.

390
00:39:45,940 --> 00:39:54,260
I think there's something deeply problematic about people for the first time, having sex and it just being okay with them.

391
00:39:55,020 --> 00:40:00,100
Like, you shouldn't want to just have sex with someone who's like, it's like trampling on your grass, right?

392
00:40:00,500 --> 00:40:08,740
But when you think about people in longer term relationships, ways that they'll agree to things, the ways that they might care about each other,

393
00:40:09,100 --> 00:40:15,920
and therefore I decide that not because they desire it, but because the other person desires it,

394
00:40:16,200 --> 00:40:19,480
that gives them enough of a reason to sort of say, okay.

395
00:40:20,360 --> 00:40:23,640
Even though they're not wildly enthusiastic about it.

396
00:40:23,960 --> 00:40:28,680
And even if you think about the ways that people negotiate the form of sex that they'll have.

397
00:40:29,000 --> 00:40:36,320
So, um, I'm not I'm not feeling in the mood to have intercourse, but why don't I perform oral sex on you?

398
00:40:36,880 --> 00:40:41,480
Isn't a I'm wildly enthusiastic about performing oral sex on you,

399
00:40:41,600 --> 00:40:47,360
but it's a I'm deciding to do this because I'm not, you know, excited about the other.

400
00:40:47,640 --> 00:40:50,320
And I think we allow couples to have those kinds of conversations.

401
00:40:51,160 --> 00:40:59,880
And so I do think that that is that we are being so protective, protective of a particular population at a particular moment.

402
00:41:00,400 --> 00:41:01,320
And I think you're right.

403
00:41:01,840 --> 00:41:09,320
We've got to be really careful about blurring our concepts to sort of protect that, because we don't want consent to be that all the time.

404
00:41:09,840 --> 00:41:14,780
I mean, you can send to the doctor doing all kinds of things to you. You should never be wildly enthusiastic about, right?

405
00:41:15,340 --> 00:41:17,940
I mean, so. So let's keep consent clean.

406
00:41:18,580 --> 00:41:22,900
And then if we want additional requirements, we should figure out why we want or need additional requirements,

407
00:41:23,700 --> 00:41:27,060
why the lock should want them, or why we morally should want them. Yeah.

408
00:41:28,340 --> 00:41:32,060
Um, as a final topic of conversation,

409
00:41:32,820 --> 00:41:40,780
I've wanted to ask you about something you mentioned as an observation in one of your papers that resonated with me.

410
00:41:41,340 --> 00:41:49,500
And this is about teaching sexual offences and the fear and the discomfort that you were reporting.

411
00:41:50,260 --> 00:42:00,260
A lot of law professors seemed to have these days about teaching this topic, in some cases to the point that some people just say it's not worth it.

412
00:42:00,460 --> 00:42:06,180
I don't want to teach this anymore. Um, for kind of understandable reasons that it's it's very fraught.

413
00:42:07,340 --> 00:42:11,380
Um, it's a sensitive topic, especially if you're in a lecture theatre.

414
00:42:11,780 --> 00:42:13,000
So Say this. You know 200 people.

415
00:42:14,360 --> 00:42:21,680
You know for a fact that a not insignificant portion of those people will have experienced sexual assault of some kind.

416
00:42:22,720 --> 00:42:28,600
And so it's very, very charged. And and it's understandable that that people are worried about teaching it.

417
00:42:29,600 --> 00:42:32,840
And you teach sexual fantasies. And I also teach sexual offences.

418
00:42:33,320 --> 00:42:40,440
And I wanted to ask you, how do you navigate for yourself the sensitivity of that topic when you're teaching?

419
00:42:41,480 --> 00:42:48,320
So I try to start by talking to students about how important it is to teach it.

420
00:42:48,640 --> 00:42:48,640
Right.

421
00:42:48,960 --> 00:42:56,840
So I mean, you have to I think sexual offences actually require us to be more reflective about why we cover something than almost anything else.

422
00:42:57,160 --> 00:43:02,360
Right? I'm going to cover mental states because you need to know mental states. But why do I cover homicide and not theft?

423
00:43:02,920 --> 00:43:05,960
Right. Is it about the number of homicides versus the number of thefts?

424
00:43:06,280 --> 00:43:10,120
Right. Should I be covering possession offences? That's what's all out there.

425
00:43:10,400 --> 00:43:16,220
So we we make all kinds of judgements sometimes just because of the casebook were handed in the kinds of things you know,

426
00:43:16,820 --> 00:43:18,140
the people in the past have covered.

427
00:43:18,940 --> 00:43:33,300
But when you teach sexual assault, you, you have to think, I'm, I'm inflicting pain, like there are people in here who are going to be harmed by this.

428
00:43:34,660 --> 00:43:39,180
What's my justification? And I've heard some justifications I think are terrible.

429
00:43:39,740 --> 00:43:45,900
Like I actually know somebody who says, the men in this class, you know, men need to be trained like,

430
00:43:46,140 --> 00:43:54,420
I'm not here to train like this isn't honour code or or like, you know, let's learn how not to violate people's sexual freedom.

431
00:43:54,740 --> 00:44:00,460
I mean, that's not what I see myself doing. I think that it would be a I think it's an incredibly important crime.

432
00:44:00,780 --> 00:44:06,740
I think sex touches everybody's lives. And I think it would be a betrayal of women not to teach it.

433
00:44:07,060 --> 00:44:13,280
Right. So at one point in time, they didn't teach sexual offences because, you know, women couldn't stand to hear it.

434
00:44:13,880 --> 00:44:20,520
And and so to not cover it is to sort of not take it seriously and to sweep it under the rug.

435
00:44:20,880 --> 00:44:25,920
And when I've had conversations with victims of sexual violence, they typically want me to teach it.

436
00:44:26,720 --> 00:44:30,280
That, though, does mean things can go wrong.

437
00:44:30,960 --> 00:44:37,240
And I think that's sort of the worry, is that there really are people who have had horrible things happen to them.

438
00:44:37,480 --> 00:44:43,280
And you you want to vindicate the wrong by teaching it without inflicting more pain.

439
00:44:43,600 --> 00:44:47,120
And, you know, I've had years where things go better than others.

440
00:44:48,320 --> 00:44:54,800
Uh, I try and do things like, now I have them, they're able to sort of post anonymously questions or concerns,

441
00:44:56,160 --> 00:45:02,360
uh, so that we can deal with any ground rules in advance. Kimberly Faison, thank you very much for this.

442
00:45:03,200 --> 00:45:03,920
Thanks for having me.