Law in Contemporary Society

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JenniferDayritFirstEssay 5 - 02 Apr 2018 - Main.EbenMoglen
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SOLUTION

Just as I do not believe that thinking that requiring affirmative consent will eliminate sexual assault, I do not think that there is one grand solution. However, I do think we should be asking more questions. Instead of only asking was there affirmative consent, we should also ask why was there not affirmative consent. If there are truly misunderstandings, why is verbal consent sometimes not enough? Why do people struggle with reading non-verbal cues? Why do some people stay silent or not walk away? Though there are not simple answers to these questions, I do think answers exist. Whether it is a lack of education in emotional awareness, unequal power dynamics, cultural emphasis on appeasement, or the way we view sex in general, the answers are worth exploring. Rejecting the false choice between strictly consensual and nonconsensual and stepping away briefly from ROC may allow us to explore these questions.
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The most important way to make this better, I think, is to be clearer about who the "we" is who should be asking more questions. If criminal law is going to be applied, as you say, there will be either guilty or not guilty, and this will depend on the jury's determination about the presence or absence of doubt about consent as a matter of fact. (That's an important point you didn't make clear enough in this draft: because reasonable doubt is a very exacting standard, a jury either has no serious doubt about the absence of consent, or it is responsible for acquitting the defendant.) But we cannot be sure that a jury does indeed consist of people who have internalized the Antioch Rules or their equivalent. Therefore we can expect a binary view of consent to arise everywhere within range of criminal prosecution, but cannot expect the definition of consent on which you depend for your hope that we will transcend it,

Other parties may indeed be able to "step away" from the idea of consent. Indeed, almost any lawyer's theory of social action that usefully embraces a realistic understanding of intrapsychic multiplicity and a state theory of personality will put in doubt the clarity of "consent," and the various states of culpability under the Model Penal Code, and most other forms of legal reasoning that depend on the presence or absence of a state of mind that is likely, in real people, to be present and absent in some combination all the time.

A therapist, a novelist, an anthropologist, a biographer trying to interpret human behavior rather than judge it will undoubtedly apply something more complicated than your rules of consent to her understanding of peoples' sexual lives. A university dean, a police detective, a prosecutor, a judge, and a jury foreperson might all have more complex views of the matter than their assigned social roles permit them to act out. We want everyone in the system of responding to social harm, wherever in society it occurs, to have a complex a view as possible. We also want certain standards of care and action—healing interactions with survivors, victims, families, etc.; due process for persons accused; respect for privacy rights; transparency to public scrutiny various social organizations' performance in responding to harm—to be observed by the relevant social actors, meaning that individuals will have to be complexly aware and rigorously careful to observe important and potentially conflicting guidelines.

Like other elements of justice, this is plainly a chaotic system in the technical sense: nonlinear in its dynamics, vulnerably subject to a range of initial social conditions, non-stable. You can't sum over all the locales and conflicts in 1,000 words. But by editing more sharply the parts you do have, removing every unnecessary word, you can make quite enough space in the next draft to address some of the "we" your current draft doesn't quite define.

 

Revision 5r5 - 02 Apr 2018 - 21:10:50 - EbenMoglen
Revision 4r4 - 01 Mar 2018 - 17:57:07 - JenniferDayrit
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