Affirmative consent required or you're a rapist

[Berati]

Ok, here's what's making news up in the Great White North.
http://www.huffingtonpost.ca/2014/11/25/ndp-harassment-allegations-massimo-pacetti_n_6216184.html
http://news.nationalpost.com/2014/11/28/pacettis-incident-with-ndp-mp-could-be-a-misunderstanding-not-an-assault-former-colleague-says/

I'll just summarize for my American friends,

A female NDP party politician has accused a male Liberal party counterpart of having "sex without explicit consent,” . What she explained this meant was that even though she never said "no", she never said "yes" either.

Here's what she says happened:
They have been playing in a mixed sports league together for about 1.5 years and know each other well. The teams often go out for drinks afterwards.
Later in the evening he invited her back to his hotel room for drinks (past midnight I believe) She said that once she was in his room it became clear that he wanted something more. She said she froze.
She also says that she went to washroom and when she came back out she sat on the bed and gave him a condom, so I guess she didn't "freeze" all that much.
She said that she had been sexually assaulted as a teenager and that's why she "froze" even though it seems quite clear that she could have chosen the exit door instead of the bathroom door or perhaps not given him a condom.
They then had sex but as noted, she never explicitly said "yes" but she does admit that she did not say "no" either. 

For his part, he of course denies any wrongdoing and says he thought it was totally consensual. Also, he is a married man if that makes any difference to you. He has been publicly named and suspended from his position pending an investigation. She remains anonymous. 

So, is he a rapist as many here have been calling him?

I bring this up because there is a "yes means yes" campaign going on in the USA. So this is not just a Canadian issue. California has enacted a  law that forces the state's colleges to adopt a policy of  "affirmative consent"

So, what are your feelings? Is there such a thing as unspoken language? Is "affirmative consent" how lawyers have sex? Is it the death of passion? Or is it necessary to protect women?

[Shiranu]

I think it is problematic because in many cases it is necessary to protect women... but at the same time it is something that could be exploited.

So yes, that was very vague answer.

[Poison Tree]

I think that a reasonable person could interpret her coming back, sitting (next to him?) on the bed and giving him a condom as consent.

[AllPurposeAtheist]

Wait! She didn't explicitly rip his clothes off and force him to get a hard on then tie him to a telephone pole and rape him on video so its obvious he's guilty of something..

[Johan]

So, is he a rapist as many here have been calling him?

Based on the presented evidence, rapist no, adulterer yes.

[PopeyesPappy]

Not. Fucking. Guilty.

[kilodelta]

Legal sex:

[hrdlr110]

I've had less affirmation than that before moving forward! Jfc, this can't be right!

[stromboli]

Handing him a condom in my view constitutes acceptance on her part. Guilt afterwards is not rape.

[Berati]

I think it is problematic because in many cases it is necessary to protect women...

Apart from the fact that laws requiring affirmative consent would never prevent someone intent on assault or rape, my issue with this kind of law is that it treats women like children. It's telling society that women are fragile and sensitive and are incapable of speaking to a man as one adult to another.

I know that sexual assault is a problem and I have no issue with harsher treatment of offenders, and an easier process of convicting them that does not involve victimizing the victim... but we also want women to be strong and empowered. How is that possible if we make laws that say women don't have to stand up for themselves and tell a man "No!" when he does something, anything that they don't like? It may be good intentions but I see long term harm from treating adult women like children.

[The Skeletal Atheist]

In general I only hand someone a condom on two very distinct occasions:
1: they're going on a date and I want them to be safe.
2: I'm about to bottom, I WANT to bottom, and I fully understand that I'm about to have a man's penis inside of me.

This isn't fucking hard. When you hand someone a condom and then have sex with them it's consent. Have I had sex and then regretted it afterwards? Yes. Did I call it rape? Fuck no.

[Sargon The Grape]

I'd say that letting a guy put his penis into you without being forced is a pretty clear "yes" signal.

[Mermaid]

This isn't fucking hard. When you hand someone a condom and then have sex with them it's consent.

I do not agree with this.
This particular case is muddy, which opens the door for all sorts of speculation. But there are lots of cases where a victim asks the rapist to wear a condom. There are also cases where consent is given and then it changes.

[The Skeletal Atheist]

I do not agree with this.
This particular case is muddy, which opens the door for all sorts of speculation. But there are lots of cases where a victim asks the rapist to wear a condom. There are also cases where consent is given and then it changes.

By her own testimony she went to the washroom, came back, sat on the bed, and gave him a condom and then proceeded to have sex with him. I fucking hate those who blame the victim, but to any reasonable person being handed a condom in such a situation implies consent. If she didn't want yo have sex she could have exited the room, said no, not hand him the condom, anything to indicate that she didn't want it at that moment.

As per consent being rescinded, yes that would be rape if he continued. I don't see anything in her testimony that indicates that she rescinded consent.

She is not a victim, she is a person who had sex and then regretted it. I realize rape is a sensitive issue, but her own testimony damns her. She's doing a disservice to actual rape victims.

Next time I have sex I'll get them to sign a consent form and have a notary public watch to make sure nothing rapy for goes on...kinky.

[Berati]

This particular case is muddy, which opens the door for all sorts of speculation.

What is muddy about it? The man has not made any statements so there is no one contradicting her testimony.
IMO it comes down to "affirmative consent". All the talk about her handing him the condom avoids the discussion I was hoping to have on the necessity of having affirmative consent as a legal principal as has already been passed in California.

But there are lots of cases where a victim asks the rapist to wear a condom. There are also cases where consent is given and then it changes.

I completely agree. BUt "no means no" takes care of these situations by still making it clear that those cases are clearly sexual assault. I think if the women were incapacitated in some way, then you would dispense with having to actually indicate "no" but I believe there is already legal precedent  in those situations.

In the past, men had used the defence that since the women came back to his room with him, whatever happened next was consensual. This is pure BS and "no means no" as a legal principal is meant to clarify this.
I don't know what requiring affirmative consent does other than bring a lot of confusion to the real problem of sexual assault. Affirmative consent is what muddies the waters IMO.