I’m weary of the following notions: 1. Absence of evidence is evidence , actually. 2. Claims about the existence of evidence are equivalent to said evidence. 3. Evidence is evidence to the contrary, actually.

"Politically, I call it rape whenever a woman has sex and feels violated." —Catharine MacKinnon, Elizabeth A. Long Professor Emerita of Law at Michigan Law "Men as active and women as passive in sex; women as subjective and men as objective; women with feelings and men with reason; women with no role in shaping events in the world and men with all responsibility for them: have we ever heard those ideas before?" —Janet Halley, Royall Professor of Law at Harvard Law School The Cornell Jane Doe case takes place within a decades-long argument inside feminist jurisprudence about sexual assault and female agency. Beginning in the 1980s, scholars like Catharine MacKinnon argued that the law's traditional focus on force and resistance missed most of the sex women don't want, and that under conditions of male domination a woman's apparent agreement can't be taken at face value. That critique produced real reforms, from the recognition of acquaintance rape to the rule that no means no, and it eventually produced the affirmative consent standard that New York now requires of every college in the state, Cornell included. Along the way, other feminists began to argue that the movement had overshot, and that in protecting women from sex they didn't want, it had started treating them as unable to know their own minds. Janet Halley is the sharpest of those critics, and her analysis of what affirmative consent does in practice reads like a forecast of the Doe case. Halley targets the branch of feminism, often called dominance feminism or radical feminism, that MacKinnon founded. Its premise is that because women live under conditions of male domination, their agreement to sex can't be trusted, so law should stop asking whether a woman consented and start asking whether she wanted the sex. Halley objects that once you put that premise into rules enforced by tribunals, it does things its advocates don't intend. To show how, she breaks consent into three kinds. [1] Positive consent: agreeing to sex because you actually want it. [2] Constrained consent: agreeing because, given the options as you see them, yes looks better than the alternatives, such as an awkward refusal, a scene, or disappointing someone, even though you don't want the sex itself. [3] Performative consent: what you communicate through words or actions, regardless of what you feel inside. Halley groups the first two as "subjective consent," since both are states of mind that only the woman can report, while performative consent is the only kind anyone else can observe. Her argument is that affirmative consent policies like Cornell's, which New York has required of every college since 2015, blur these three kinds together. The standard defines consent as a "knowing, voluntary, and mutual decision," which describes a state of mind, and then says it can be expressed through words or actions that give clear permission, which describes a performance. The policy never says which one controls when the two diverge, when a woman says yes but privately doesn't mean it. That leaves it to each tribunal to decide whether the question is what she signaled or what she felt. The choice matters because of who can testify to what. If the question is performative, the man can describe what she said and did, and that testimony carries weight. If the question is subjective, the complainant becomes the only witness to her own past state of mind, and anything the man says about her words or actions can be answered by her saying she didn't mean it. Halley stresses that the hard cases don't involve liars. They involve women who sincerely believe something different now from what they believed then, whether because their memory was wiped by drinking they chose to do, because friends or family persuaded them afterward that what happened was assault, or because ambivalence at the time hardened into a conviction that they couldn't have consented. A standard that lets the later belief override the earlier one changes incentives going forward. A woman who finds it awkward to say no, or who can't decide what she wants, no longer has to settle the question in the moment, because she can settle it later in the form of an accusation. Halley calls this "protective legislation" and predicts it will do what protective legislation has always done: "entrench the protected group in its weakness." The Cornell case runs through these categories in order. In her sworn statement, Doe described positive consent to the first encounter, agreeing because of how attracted she was to Male Number 1. She described constrained consent to a later one, in which the men "were asking me to have sex so many times that I finally gave in." Throughout, by her own account, she gave performative consent, telling the men yes. Within days she texted one of them that nothing illegal had happened and that she'd liked being with him. Then came the group chat, the slut-shaming, the disinvitation from the Halloween party, the forum post calling it a gang rape, and only after all that did she go to the police, and a year later her civil complaint says none of it was consensual. Halley wrote two hypotheticals to illustrate her worry. In one, a young woman follows a fraternity brother to a back room, goes along with sex because she thinks that's what is expected, and files a complaint after her friends tell her the next day that she was assaulted. In the other, a woman acts on a desire she considers shameful, wakes up horrified, and her denial gradually becomes a conviction that she was imposed upon. She wrote those in 2015. Doe's story tracks both. Doe's lawyer's way around all this is to say she was too intoxicated to consent to anything, which makes the three kinds of consent irrelevant. But that is a claim about capacity, not about consent, and New York criminal law sets a high bar for it: unconscious, physically unable to communicate, or drugged against her will. Her own statement describes her as the most functional person in the room during the first encounter, checking on one man who'd fallen asleep and comforting another who was dry heaving. Three of the men now say they were the ones too impaired to consent, and most of us find that claim absurd. Halley's point is that our sense of its absurdity rests on assumptions we would reject in any other context: men as responsible, women as passive, men as objective, women as subjective. Before any of us decides that what happened at Cornell was rape, it's worth asking her question, "have we ever heard those ideas before?" From Janet Halley, "The Move to Affirmative Consent," Signs (2016): q/The dominance-feminist goal has long been to shift the risk of nonpersuasion to the accused. Under the coercive conditions of sex inequality, MacKinnon argues, “to counter a claim that sex was forced by inequality, a defendant could (among other defenses) prove that the sex was wanted—affirmatively and freely wanted—despite the inequality, and was not forced by the socially entrenched forms of power that distinguish the parties” (2005, 247–48; emphasis added). She argues that affirmative consent should be an “affirmative defense”—the accused person’s burden of proof (483, n. 37). This would literally be “guilty until proven innocent.” It is a genuinely radical idea, repugnant to most if not all Liberal and liberal thought. And I think it is not a radical left idea: it envisions statist social control in a social-conservative way. [...] The complainant’s burden of persuasion is easier to bear if the case rests on subjective consent (either positive or constrained) than on performative consent. If performative consent decides the case, the accused can relevantly testify to what he perceived her to communicate to him. She can still deny that she made those communications, or testify that it would be unreasonable to conclude that her gestures or words could communicate consent. Technically, it would not matter that she did not intend to signal consent by speaking or acting as she did, but even so, if performative consent is enough, the testimony of the accused will have some kind of weight. On the other hand, if subjective consent is needed, the complainant will be talking about her own past state of mind. She is the world’s single most authoritative voice on it. If the accused says that she communicated consent, her denial that she meant it cuts deeply into the value of his proof. The respondent can attack the complainant’s credibility, but most of the difficult cases that are swept in by the shift to affirmative consent won’t involve lying complainants. For all the furor over that, in my experience the hard cases involve good-faith plaintiffs whose assertions we might or might not believe. This includes complainants who say now that they didn’t consent then but whose memory was destroyed by the voluntary consumption of mind-altering substances at the time, or whose memories have morphed since then; complainants who have been convinced by friends, boyfriends, or parents that “what happened to you was assault” when they didn’t feel that way at the time; complainants who were ambivalent at the time but have since become more negative about the episode, to the point where they are now convinced, sincerely, that they did not consent then; and complainants who feel angry or shameful feelings now that convince them that they could not have consented at the time, or that they should not have so they must not have. It is near-anathema in feminist circles to say that these women should sometimes not be believed when they state that the sex was wrongful under the legal rules. Founding the claim on the lack of affirmative consent, and leaving the door open to construing the required consent as subjective consent, simultaneously opens the door to holding those accused in these types of cases responsible for serious, possibly expellable, misconduct. And if affirmative consent, via the ALI MPC or otherwise, makes it into criminal law, it could open the door to conviction for sexual crimes. Defining constrained consent narrowly—for instance, limited to constraints deliberately imposed by the accused for the purposes of gaining social leverage on the complainant—includes the man who threatens a woman to extract her consent. This seems like a good idea: it includes the man I have hypothesized who threatens the woman with a knife or keeps her from leaving as she seeks to do (though we can also punish these bad actors without an affirmative consent requirement). But defining constrained consent broadly includes most of social life—we all act under circumstantial constraints all of the time—and this rule has been authored by feminists seeking to install in law their idea of pervasive conditions of male domination. Some really nefarious exploitations will become punishable, but so will sexual interactions that are—even if you do believe that women live under pervasive conditions of male domination—entirely innocuous. Once again, the rule exposes many, many people to randomly distributed punishment. And it encourages its intended constituency, women, to relinquish rather than exercise the social powers they do have in sexual encounters with men. If the only constraint is that they find the social costs of saying no too high, or that they are ambivalent and can’t decide what they really want, they can wait and decide later, in the form of an accusation. This is protective legislation, and it will have the classic and predictable social consequence of protective legislation: it will entrench the protected group in its weakness. Under feminist auspices, it brings back the gender mores of the gilded cage. Meanwhile, a requirement of positive consent will deliver the boon many feminists are seeking: sex that women have that is dysphoric to them at the time will be punishable. This rule is entirely indifferent to the degree of wrongdoing by the accused: the best guys and the worst will be swept into the scope of punishment. Except to the extent that it gives the force of punishment to the will of individual accusers, its enforcement will be quite arbitrary. It introduces into sexual life an omnipresent in terrorem threat that unhappiness of almost any kind can result in sanctions. [...] The California affirmative consent statute may look feminist on its face, but, as a guide for real-world procedures, it installs profoundly conservative gender values and visions. They are embedded deep in the affirmative consent requirement – a law reform project positively advanced by dominance feminist advocacy. I’m not suggesting that dominance feminists, in their ambivalent push for affirmative consent laws, have engaged in yet another collaboration with conservatives; rather, that they are conservatives in today’s left/right politics. The emphasis on punishment as the premier means toward the premier end of social control; the resentment of civil-liberties-based brakes on criminal punishment and severe civil sanctions like expulsion with a stigmatic transcript; the reassertion of dichotomous gender roles reminiscent of the gilded cage, including the encouragement of male responsibility and female passivity; the division of the world into a mere two sexes and the reduction of the dazzling array of human sexualities into a model of (heterosexual) male domination and female subordination—all of these are strong markers of conservative social values. Let’s add up the costs of following this conservative feminist trend. Drafters can follow the ALI proposal that I examine above, which requires performative consent, or the California statute, which permits decisionmakers to impose liability where constrained consent is shown, and to define constrained consent broadly or narrowly, or to go all the way to a positive-consent requirement. There may be other ways to draw up an affirmative-consent requirement, but these seem to be the main options that the movement has advocated so far. Each has benefits but comes with considerable costs in the form of overinclusiveness—that is, people punished who did nothing wrong. Requiring performative consent focuses decisionmakers’ attention on behavior that seems “objective,” that gives the accused something concrete to testify about, and corresponds with the real-life conditions that promoters seek to foster. But as we have seen, these benefits come at the cost of enabling people to punish their sex partners for engaging in sex that the complainants passionately desired at the time. The rule doesn’t sort out cases in which the complainant is in good faith from those in which she is in bad faith. Given the huge range of sexual contacts happening every day in the United States that are not preceded by performative consent of the kind that can readily be proven months later, this exposes many, many people to randomly distributed punishment. These punishments will also be arbitrary if the purpose is to promote sex people participate in enthusiastically./q signsjournal.org/currents-af…

I feel misunderstood and possibly libeled.

Sadly a dead end, given the technological lineage and its inherent intractable limitations. Hopefully the same capability can be realized by other routes.

RT @AntSpeaks: On the left, you have an image of Gazan militants captured by the IDF and stripped of most of their clothing. On the right…

Subscribed to dropout just to watch this film, and now I’m sobbing because Don just kicked my brain in the nuts. 10/10, would recommend. Watch Paper Trail from @dropout watch.dropout.tv/videos/pape…

There is a reason why these calls to reinterpret the law only seem to come from NGOs, and why it will only ever be activist rhetoric. Lowering the criteria to where this conflict would meet them, and applying them retroactively would open up practically every nation that has ever engaged in armed conflict to plausibly be indicted for genocide, as well.

🧵 The Gaza "genocide" allegation faces an awkward and fatal reality: many of its leading advocates admit they want to broaden the standard for proving genocidal intent away from "only inference," effectively admitting that Gaza fails the existing court standard. 6 examples: 1/

Yes. MA requires the state to prove criminal responsibility beyond reasonable doubt under the broader ALI/McHoul test (appreciate wrongfulness or control conduct). AL places the burden on the defense by clear and convincing evidence under narrower M'Naghten (appreciate nature/wrongfulness only). Reversing them would raise the bar for Clancy, making a conviction likelier than the hung jury leaning NCR. Williams raised the defense then pleaded to life; MA's rules might have favored trial over plea and altered the result based on the evidence.

The only Cube theory I bothered to learn was the cube theory of starch/protein for food identification. Not sure where Polonium fits, maybe 'Sushi' based on your image above?

😭😭

The solar system’s (there is only one, fyi) gravity is also not real to an observer outside of our universe, in the same sense that the gravity of a simulated planetary system is real to an observer inside that simulation.

Clowns vs. Jokers.

Wow, this Negan guy sounds like the biggest jerk ever.

A "double-digit" number of devices have been found around the power station, according to Germany's interior minister -MAZ

Everything that happens in the history of the universe happens once and only once. How can an event defined by discrete coordinates in spacetime happen more than once, rather than being something else happening?

The only thing more awkward and uncomfortable than talking about Africa is talking about talking about Africa. 😬

X has now confirmed a Chinese bot farm of 200K fake accounts intentionally trying to manipulate public opinion against data centers. People might want to consider how common this has become and how it is manipulating multiple policy discussions on social media.

“That is the last thing we want to do.” So, what they’re saying is that it is a thing they want to do.

A reminder to everyone that strong language is a useful tool in the writers arsenal if and ONLY if you keep your powder dry. Profanity bypasses the normal part of the brain that processes speech. (Hence why folks with left hemisphere brain injuries can often still swear without difficulty). Regular exposure to strong language tends to slot those words back into normal speech rather than using the 'express routes' that profanity is usually afforded. Words retain linguistic meaning, but lose the additional neurological and physiological punch. This is, by the way, way the PG-13 F-bomb always hits harder than a movie with 50 of them. What does this mean for writers? Screw realism. However much swearing you think is realistic, you are always, in every situation, better off using less that whatever you deem realistic. This isn't to say never use coarse language. This is a plea to use it smarter. Use that neurology to make it count.

Rest in power, Peter Cullen. One of one. You will be missed.