Judges across the country are saying “no” to the “yes means yes” standard of affirmative consent for date rape.
The legality of the standard – adopted on California and New York campuses by state legislatures and in effect on numerous other colleges throughout the country – is in question following a series of recent rulings that cite a lack of due process.
“These decisions are harbingers,” said John Banzhaf, a professor at George Washington University Law School and a public interest lawyer. “It does take time for new ideas to percolate through the system.”
Under the standard, the accused, typically a male, has to prove he obtained consent, even if neither party remembers what happened. The standard forces the accused to prove his innocence, rather than be proven guilty.
Proponents of the “yes means yes” law claim it’s a necessary step to combat sexual assaults, which some studies suggest occur at a high frequency on campuses.
But judges in California, Tennessee and Virginia say it goes too far.
A student expelled from the University of California-San Diego had an “unfair” hearing, Superior Court Judge Joel M. Pressman ruled in July. The John Doe accused in the case said he was unable to cross-examine his accuser and other witnesses. He also said he was forced to submit questions to a hearing panel in advance, and many of his questions were then rejected. Pressman agreed this was a violation of his due process rights.
A student found guilty of sexual misconduct by the University of Tennessee because he couldn’t prove he obtained verbal consent had his verdict overturned by a Chancery Court judge on Aug. 4.
A student expelled from Washington and Lee University for alleged sexual misconduct will be allowed to continue with his gender bias lawsuit against the school, U.S. District Court Judge Norman Moon ruled on Aug. 8. In the lawsuit, a Title IX officer at the school is quoted during a presentation she gave to the woman who later accused John Doe. The Title IX officer is alleged to have said “regret equals rape” and “went on to state her belief that this point was a new idea everyone, herself included, is starting to agree with.” Shortly thereafter, an allegation of misconduct was launched against John Doe. The Title IX officer played a significant role in the investigatory process.
A right to due process at state universities may seem like a novel concept, but Banzhaf said the fourth amendment protection was never intended to apply solely to the court system.
“The Constitution trumps everything else,” he said. “So no matter what the Department of Education or Department of Justice suggest, regardless of what a state’s statute provides, or what the University decides, the Constitution trumps it all.”
The Supreme Court somewhat settled the due process question in its 1976 Mathews vs. Eldrige decision, a case cited by Chancellor Carol L. McCoy in the University of Tennessee decision.
“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner,’” McCoy wrote. “Due process is flexible and calls for such procedural protections as the particular situation demands.” ...
On her website, Central Florida dominatrix "Goddess Jude" says she enjoys spanking, flogging, whipping and other fetish activities. The dominatrix also advertises "financial slavery" for clients who wish to "pamper" their mistress.
Dominatrix operates local 'dungeon'
But in a lawsuit filed in Seminole County Circuit Court, former client Alex Abrams, 68, claims Judith Gumbrecht took their sadomasochistic relationship too far, draining more than $500,000 from his bank and credit card accounts, as well as taking ownership of his 1,450 square-foot townhome in Casselberry.
"Given his mental and physical condition, he was exploited," said Abrams' attorney Brian Mark, who claims his client was suffering from clinical depression, dementia and Alzheimer's disease when he added Gumbrecht’s name to his financial accounts.
Mark claims Gumbrecht violated a Florida statute that makes it illegal to exploit an elderly person or disabled adult. An elderly person is defined as someone 60 years of age or older who is suffering from the infirmities of aging, according to Florida law.
"Our client has not been served with the lawsuit, so we are not able to provide any comment on it," said Gumbrecht's attorney, Lawrence G. Walters.
However, based on what he and his client know about Abrams, Walters said there is no merit to Abrams' legal claims.
Abrams met Gumbrecht about four years ago after divorcing his wife of 32 years, Mark said. According to the lawsuit, Gumbrecht told Abrams "it was of the highest honor to be her financial slave," and convinced him that such servitude "would bring her the most pleasure."
"Gumbrecht continued to reward Abrams with sexual favors," states the lawsuit, which adds that "Abrams would be punished" if he failed to adhere to the dominatrix's financial requirements.
On her website, Gumbrecht states she is a BDSM professional who "will NEVER perform illegal sexual acts."
Mark acknowledged it is not illegal for a dominatrix to offer sadomasochistic and financial slavery services. However, the attorney claims Gumbrecht knew about Abrams' diminished mental state because she accompanied him to an appointment with a neuropsychologist and psychotherapist in 2013.
"She went with him to the doctor when he was diagnosed," said Mark. "She was fully aware."
In May 2014, Abrams signed a deed transferring his Casselberry townhome to Gumbrecht. The property has an assessed value of $101,537.
In the lawsuit, Abrams accuses Gumbrecht of exploitation of an elderly person, theft, and unjust enrichment. He is seeking damages, interest and attorney fees. ...
A few days ago now, Melissa Hill wrote in her new column “Dandelion Seeds” that she thinks that “Polytheism and Polyamory are a Natural Combination.” I remember how difficult it was to be a new columnist, and how spectacularly I stuck my foot in my gob more than once, so even though Yvonne Aburrow took her to task about some of her commentary regarding polyamory vs. monogamy, I am not intending to be as harsh. But I do have some objections to things that were stated in the article.
As my regular readers probably know by now, I’m polyamorous. I live in a committed polyfidelitous trio. I am married legally to Erin; I’ve been with him for about twenty years, married for ten. We are also in a relationship with Jamie, who was a good friend and my lover for many years before he came to complete our trio two years ago. For the most part we’re just like everyone else, except that the poles around which the relationship move are different.
I have never been monogamous, as far as I can tell, though I tried; I really, really tried. To complicate matters I am also bisexual. I fully absorbed our culture’s beliefs about how “good girls don’t like sex” very well; so well that I was anorexic and bullemic by the time I was fifteen; which, experts will tell you, is partially a tool to repress one’s sexuality.
My very first long-term relationship was with my high school sweetheart. I gave him my virginity when I was sixteen after two years of dating. By the time I was eighteen, however, I was also in a relationship with a lovely girl named Erin, with full consent of both of my partners. I suppose I never would have been, since I was trying so hard to be monogamous, but my boyfriend Brian’s family moved away; he didn’t move back until I graduated from high school. I was honest with everyone; we tried to figure out how to make it all work. Rejecting the culturally-proscribed ideals of love, relationship and sex was relatively easy by then, since I’d already been required to do all of that in order to claim my sexuality in the first place and I was in the process of coming out; far more scary to me then than having two relationships.
So I’ve done this polyamory thing for a long time. I’ve joined Facebook groups and Yahoogroups before that, trying to figure all this stuff out. And I have some thoughts about the polyamory thing that are probably not what you’d expect. You see, while I was spurred to write this by Melissa’s article, I don’t think much of what I’m taking exception to is directly a fault of Melissa’s. I think a good deal of it is the narrative that the poly community spins for itself that’s the problem.
That narrative is one that was necessary in order to gain self-acceptance in our culture, in which monogamy is assumed to be the default, and people are criticized as being morally deficient somehow if they are not monogamous. But I think this narrative is immature and potentially damaging; and that’s the narrative that says that love is free and infinite; that monogamy is about possessiveness; and that the only thing that stops a person from having infinite loves are their own moral deficiencies of possessiveness and jealousy. Friends, I’m here to tell you after more than twenty years of polyamory, and some really hard lessons, it’s just not true. Furthermore, I think this attitude is reckless and can lead to heartbreak where there doesn’t need to be any.
This belief — that what we call jealousy is a result of one’s own personal failings — has led both myself and my spouse into situations in which we felt that we could not say no when the other started a relationship that made us feel threatened. When it was me who felt threatened, I felt that I had no option but to accept the new girlfriend because I was a bad person if I refused. The girlfriend was much younger than I was, and prettier, and certainly I had reasons to feel threatened. But there was also a subconscious awareness that she was not concerned about my fate at the time; she was lonely and I was an obstacle. I felt like a failure because I was unable to get over my own jealousies and self-doubts. Eventually they broke up and our relationship survived and got past the point of crisis.
Years later, it was I who was in a relationship with a much younger man and my husband and then-boyfriend who felt threatened. I was angry. When I was the one who was concerned, I was expected to shut up and swallow my fears. Knowing this, my husband found himself in a position in which he felt that he would be a bad person if he expressed his feelings and fears, and Jamie, who had never really been in a polyamorous relationship before, felt that he should follow Erin’s lead. That was unfair to them and I never should have put them in that position. But I honestly didn’t realize that they didn’t feel that “no” was an option. When I realized how badly I was hurting our relationship, I ended the affair. I didn’t want to, but that’s what our relationship needed and so I did it.
The poly community would spin this story as me being controlled by two of the three men in my life. They would be wrong. I realized that if I truly was devoted I needed to make a sacrifice, as my husband ultimately had several years ago when faced with a similar situation.
My partners and I are also swingers. We play grown up games with other people. We don’t try to have relationships with them. And why should we? I think the idea that we must love everyone we have sex with is leftover morality we haven’t seriously thought about yet. The truth is that this subconscious belief is what created the problem with the younger man I was involved with. I had a very powerful sexual attraction, and I cared about him. Surely that had to be love? Otherwise I would be a bad person, right?
But there’s nothing in Pagan ethics that supports this need to love all of our partners. I think it’s residual societal programming; good girls don’t have sex with people they’re not in love with, after all. Well, why not? For a Pagan, there’s resounding silence instead of an answer. For a Wiccan, there’s even encouragement, because “all acts of love and pleasure are Her rituals.” Surely if we believe in equality of the sexes, women can have sex because they want to, for their pleasure, also? As long as there is consent all around — from the person you’re having sex with, from your partner(s), from their partner(s) — then what’s the harm? And if there’s no harm, are we not encouraged to do as we will? ...
The recent Supreme Court ruling on same sex marriage makes it seem as if marriage equality has finally come to the U.S. But that is not actually accurate. The celebration is great step forward, but in truth, there's more work to do if we as a nation want to truly recognize and celebrate the diversity of love, relationships and family.
For example, polyamory. Polyamorous partners do not have the privilege of legal marriage. What's worse, many are closeted for fear of discrimination in housing, employment and child custody. Prominent organizations such as the National Coalition for Sexual Freedom (NCSF) have brought attention to how polyamorists and other ethically non-monogamous people are targets for discrimination in the same way that LGBTQ folks have been. See here.
The ironic thing is, there would be no big deal about a person who just happened to be sleeping with more than one lover. But call it polyamory -- in other words, a public, ethical stance about loving more than one partner with honesty and integrity -- and that seems intolerable to so many. Currently, polyamorous people do not have equal protection under the law, because anything other than monogamy is seen as a fringe/freakish/immoral lifestyle choice and not as a valid sexual or relationship orientation.
I interviewed author and poly advocate Dr. Anya Trahan about the Supreme Court Decision, and what she sees as the way forward for those who embrace ethical loving with multiple partners.
Question: Do you think polyamory is a sexual orientation? Is it a choice or is it inborn?
Trahan: One of the great things about being human is the ability to choose the language and the labels that best articulate our values. I have heard many polys say that their way of living is a sexual orientation. That is a totally valid label, and I support anyone who wishes to use it. And, it may even be that from a legal standpoint, embracing the label of sexual orientation to describe polyamory may help prevent discrimination in the future -- because it is already commonly understood that to discriminate based on one's sexual orientation is not only wrong, but illegal.
The way I personally think of polyamory is as a relationship orientation. In my work as a relationship coach, I have found that a surprising number of my clients consider themselves "partners" or "family" with those whom there is no sexual interaction. In other words, polyamory seems to be more about coming together for the purposes of co-creating a life together, a support system, based on mutually shared values and philosophies. Responsible sexual expression may be enjoyed, of course, but that is not necessarily a prerequisite to form loving, intense, committed connections.
Question: You are a public figure, an author and a spokesperson for polyamory. Have you suffered any negative consequences?
Trahan: When I first came out as poly back in 2012, I lost a number of close friends. Members of my biological family reacted with open hostility and judgment, resulting in a period of estrangement. Since my book about polyamory, Opening Love has been published this year, I have been fired from two jobs. I have no desire to bring this to the courts (legal battles are, for me, not a good use of my energy), although I know that I would have at least a small shot at winning a discrimination case, because one of the organizations stated openly in writing that the reason I was being fired was for being openly polyamorous. In theory, I could sue on the grounds of sexual discrimination. ...
When the U.S. Supreme Court ruled that states must recognize same-sex marriages, dissenting Chief Justice John Roberts wondered whether polygamy will be next. Some legal scholars have responded that yes, the arguments for gay marriage could apply to relationships among more than two partners, as well.
William Baude, a law professor at the University of Chicago, wrote, “By those lights, groups of adults who have profound polyamorous attachments and wish to build families and join the community have a strong claim to a right to marry.”
There’s a more basic question here: Why is government in the business of conferring a right to marry at all? What is it about this thing called marriage that justifies a grab bag of legal benefits? That would include tax advantages, inheritance rights, hospital visitations and the ability to make end-of-life decisions for one’s spouse.
The recent Supreme Court case disposed of the idea that only a man and woman can provide a stable home for children. Many gay couples do a better job of raising children than some heterosexual pairings.
And in any case, children have never been a requirement for marriage.
Baude inadvertently points to the illogic of tying any benefits to state-sanctioned marriage by using the word “polyamorous” in referring to polygamous relationships.
Merriam-Webster defines polyamory as “the state or practice of having more than one open romantic relationship at a time.”
It makes no sense that having a romance (or two or three) should entitle one to leave an estate to a partner tax-free or get in on another’s company health plan.
We can be totally in tune with the notion that such benefits help families.
And we can agree that children tend to be better off in households headed by devoted parents.
Marriage is a wonderful institution, but it does not follow that government should be defining it. Let ministers, priests, rabbis, imams and ship captains tie the marital knot. And have government recognize civil unions only.
Civil unions need not be between romantic partners. The pairing could be close friends, cousins, office mates. And of course, it could be a church-sanctioned spouse.
Sorry, polygamists, only one civil union partner at a time. If your lawyers should design plausible legal group arrangements, we’ll reconsider. ...
Four days after the U.S. Supreme Court’s epochal 5-4 decision to legalize gay marriage nationwide, a Montana threesome applied for a polygamous marriage license. If denied, the trio intends to file suit to topple the law against bigamy. Husband Nathan Collier was featured on “Sister Wives,” so “reality TV” now meets legal and political reality.
More significant was a July 21 op-ed piece in The New York Times, that influential arbiter of acceptable discourse and the future agenda for America's cultural left. University of Chicago law professor William Baude, a “contributing opinion writer” for the paper, wrote, “If there is no magic power in opposite sexes when it comes to marriage, is there any magic power in the number two?” To him, “there is a very good argument” that “polyamorous relationships should be next.”
Baude was a former clerk for Chief Justice John Roberts, who warned against precisely that possibility in his opinion for the court’s four dissenters. Baude observes that tacticians needed to downplay the polygamy aspect that could have harmed the same-sex marriage cause, but with the Supreme Court victory this next step can be proposed candidly.
The savvy Washington Post had a solid polygamy analysis soon after the Court’s ruling. As Godbeat veterans are well aware, polygamy was practiced in the Hebrew Bible (Old Testament). So it's now time to ask Jewish and Christian thinkers why it became so abhorrent and whether and why it should remain so as the post-biblical West sets out to redefine marriage.
Opponents fear powerful and wealthy male polygamists might scoop up too many marriageable women, Baude says, but in these unbuttoned times a woman may also take several husbands. Also, “plural relationships could well be (and in some circles today are) between multiple people of both sexes, not all of whom are strictly heterosexual.”
Last year the Unitarian Universalist Association rewrote its non-discrimination policy to add tolerance toward varied “family and relationship structures.” The denominational directory includes a 15-year-old “polyamory awareness” caucus, which says the liberal faith has thereby recognized “polyamorous families and relationships” as well as “a variety of family and relationship structures different from polyamory.” ...
Polyamory has been gaining publicity over the last few years, fromNewsweek’s“Polyamory: The Next Sexual Revolution?” to Neil Gaiman and Amanda Palmer’s open marriage, to Benedict Smith’s article inVICEabout growing up in a polyamorous household. The recent Supreme Court decision to legalize same-sex marriage opened floodgates of alarmed and snarky speculation from detractors about whether it sets a precedent for the legalization of polyamorous marriages, and the Internet has largely responded in the affirmative. And there is a growing community of polyamorous people in the Pacific Northwest—including here in Corvallis—many of whom want legal recognition of their relationships and are considering what legal polyamorous marriage might look like.
One local man, Mike, is currently in a relationship with two long-term partners and one new partner. He said, “The subject of marriage often comes up when thinking about legal issues. Emotionally, I consider both of my long-term partners wives but legally I am only allowed to marry one of them. This has caused some emotional distress.”
It’s true legalizing polyamorous marriages would be very complicated. Would a person married to multiple partners have multiple marriage licenses? Bigamy is currently illegal everywhere in the US, but even if it weren’t, how would those different marriage licenses acknowledge each other in order to avoid disputes of property distribution and decision-making? Or would three or more people need to be married under one marriage license, even if they are not all romantically involved with each other, such as in a polygamist* relationship?
Currently polyamorous people have a few legal options open to them: distribution of property can be assigned through wills and trusts; more than one person can be given power of attorney for medical decisions. But only one, legally married spouse can participate in the other spouse’s insurance coverage, and insurance companies would almost certainly oppose expanding coverage to an indefinite number of partners.
Additionally, custody arrangements might be complicated if children are involved, and polyamorous parents are disadvantaged in a number of ways. One woman I spoke to, Julia, said she had difficulty compromising with her ex-husband on how to introduce new partners to their children. Smith, in his article, writes about the time a disapproving neighbour called CPS on his parents. Polyamory itself is not a reason to remove children from their home, but it has caused parents to lose custody of children during divorce and post-divorce proceedings. As practitioners of an alternative sexual expression, polyamorous people face suspicion and discrimination, and children of polyamorous people face bullying.
Though he has not faced overt discrimination due to his polyamory except from some family members, Mike asked for anonymity because he works in the area. Julia’s ex-husband outed her without permission to her family, and she has found, “all in all, my family’s reaction has been the most difficult part of being polyamorous.” She is lucky, however, that she is able to be open about polyamory at her work.
In Portland there are several groups dedicated to polyamory that meet regularly, and fairly openly, each boasting hundreds of members. The Corvallis community is much smaller, and many of those I spoke with did not want to be named.
Perhaps a first step for polyamory activism would be to fight for anti-discrimination laws. Besides facing alienation from some resources monogamous people have access to (it can be very hard, for instance, to find a relationship counsellor who is willing to counsel a poly couple), poly people face discrimination because polyamory is not a protected class. There is disagreement, even among polyamorous people, about whether polyamory is a lifestyle choice or a more fundamental identification. ...