<p>“How many college kids have spouses or significant others? Why give an example from a population that are not even impacted by Yes means Yes laws? Most college sex is with mere acquaintances, or with perfect strangers. Your point is a complete strawman.”</p>
<p>I disagree that “most” of it is with mere acquaintances or perfect strangers. People do still have boyfriends / girlfriends. Not enough to put a ring on it, necessarily, and not intended for life, but please … it’s not just all casual hook-ups.</p>
<p>Here’s a good example of why I think it is so misguided for the Feds to use the title IX club to force colleges into having quasi-judicial systems to adjudicate rape. And why the idea of “just make the colleges do a good job” with such adjudications is so problematic. Here’s an actual case, which I think is a pretty typical fact pattern:</p>
<p>Under 21 gal is in a bar. Has five mixed vodka drinks and a shot. Drunk enough that her memory the next day is foggy with several periods completely blacked out. But not incapacitated. Conscious. Able throughout to walk, talk, take a cab ride and (later on) have sex. Meets an underage guy in the bar. Never met before. She gives him her number. Later they leave in a cab, go to the guy’s apratment. Sex ensues. She later says rape, he says consensual. Who knows.</p>
<p>Girl goes to police. SVU detective investigates. DA doesn’t conclude the guy is innocent, but decides there’s not enough evidence to warrant prosecution. For 95% of women in the U.S., that would be it. Turns out, though, that the guy and girl are enrolled in the local college. </p>
<p>None of the events in question happened on campus. Guy/girl don’t even necessarily know that they are both students. But just because they are students (and because the Feds send student loan and Pell grant dollars to the school) the girl gets to file a title ix case since she’s dissatisfied with the outcome of the criminal case… </p>
<p>Accused hires a lawyer on his own dime. Accused gets two title ix lawyers provided free of charge. School hires a retired judge to hear the case. Discovery ensues. Two day hearing. Written fact findings. Then the decision can be appealed. The title ix case has been dragging on for months, decision has not yet come down. </p>
<p>The school in this case (Florida State) is doing things the right way. The alleged perp (if you haven’t guessed by now) is FSU football star Jameis Winston (by all accounts a sleazy dude). But think of how much this title ix case is costing!! Is there really a reason to have a do-over of the police/DA investigation SOLELY because the two kids involved are college students? Does it really have anything to do with title ix (designed to prevent gender discrimination in education)? Any reason to think that the title ix faux court will (or should) conclude differently than the cops/DA did?</p>
<p>Does any of this make sense? Does any of this really even have anything to do with the college? Any reason why lower risk college girls need this extra layer of federal protection? But just for the few years between 18-21? Any reason not to just leave this with the real court system? </p>
<p>I think everyone is focusing on the text of the SB 967 law. That ISN’T directly relevant to students, so parsing its language is only of limited use. What is relevant is what California colleges adopt as their new codes of conduct.</p>
<p>Here’s what the University of California adopted in early 2014. This was before SB 967 passed, but I believe it was in anticipation of SB 967’s requirements (thus, SB 967 actually was irrelevant to students in the UC and CSU systems).</p>
<p>Consent is informed. Consent is an affirmative, unambiguous, and conscious decision
by each participant to engage in mutually agreed-upon sexual activity.
Consent is voluntary. It must be given without coercion, force, threats, or intimidation.
Consent means positive cooperation in the act or expression of intent to engage in the
act pursuant to an exercise of free will.
Consent is revocable. Consent to some form of sexual activity does not imply consent
to other forms of sexual activity. Consent to sexual activity on one occasion is not
consent to engage in sexual activity on another occasion. A current or previous dating
or sexual relationship, by itself, is not sufficient to constitute consent. Even in the
context of a relationship, there must be mutual consent to engage in sexual activity.
Consent must be ongoing throughout a sexual encounter and can be revoked at any
time. Once consent is withdrawn, the sexual activity must stop immediately.
Consent cannot be given when a person is incapacitated. A person cannot consent if
s/he is unconscious or coming in and out of consciousness. A person cannot consent if
s/he is under the threat of violence, bodily injury or other forms of coercion. A person
cannot consent if his/her understanding of the act is affected by a physical or mental
impairment.
For purposes of this Policy, the age of consent is consistent with California Penal Code
Section 261.5.</p>
<p>Incapacitation is defined as the physical and/or mental inability to make informed,
rational judgments. States of incapacitation include, but are not limited to,
unconsciousness, sleep, and blackouts. Where alcohol or drugs are involved,
incapacitation is defined with respect to how the alcohol or other drugs consumed
affects a person’s decision-making capacity, awareness of consequences, and ability to
make fully informed judgments. Being intoxicated by drugs or alcohol does not diminish
one’s responsibility to obtain consent. The factors to be considered when determining
whether consent was given include whether the accused knew, or whether a reasonable
person should have known, that the complainant was incapacitated. </p>
<p>JHS, consider section (2), the part about sex being accomplished against a person’s will by force or duress. In the hypothetical where the person has not offered “positive cooperation” as in 261.6, how could any sexual act by the alleged perpetrator not be by force? </p>
<p>If I passively resist arrest, by doing nothing to aid the officer who is trying to arrest me, I’m going to have to be arrested by force. Similarly, if I do nothing to aid the person who is trying to have sex with me, they’re going to have to do it by force. And if I do do something to aid the person who is trying to have sex with me, then that constitutes “positive cooperation.”</p>
<p>Two kids meet in a bar. They drink. They leave. Later have sex. He said, she said. Could have been rape, but really hard to know. The cops can’t figure it out (for better or worse). The behavior is similar to that often engaged in by 20-somethings not enrolled in college.</p>
<p>I fail to see why the factoid that they are enrolled students justifies all the extra procedure and all the extra expense. You get a parallel universe court system just because the Feds send Pell money to the college? It is just dumb.</p>
<p>northwesty, did you forget to mention the part about the woman at Florida State calling the police at 3:22 in the morning saying that she had been raped, about her being bruised, about the police not bothering to get the video of the encounter that they knew existed, about them not bothering to identify the alleged attacker let alone interview him for weeks, even though it would have been a simple matter to find out who he was? The woman went to the college tribunal because the police blew her off. The police investigation that you refer was bungled, in the sense that the police didn’t bother to do an investigation.</p>
<p>If the cops had actually wanted to figure it out, they could have, y’know, looked at the video that the friend took. Or asked for eyewitnesses. Or done an investigation of any kind.</p>
<p>That’s all fine and good, just don’t legislate your morality. Don’t engage in what you don’t want to engage in. But let others do what they want. </p>
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<p>I didn’t say it is <em>all</em> casual hook-up. I said <em>most</em>. You disagree. I won’t debate that. I will simply encourage all parents here to call up their kids and ask them what really goes down in college campuses, or even after that throughout the 20’s. </p>
<p>Speaking out of ignorance about the hook-up culture doesn’t help things. Speaking out of ignorance about the binge drinking culture doesn’t help either. Talk to your kids. Get educated.</p>
<p>The Jameis Winston case is not a good example for those who say that accusers who go to the police right away will get their cases taken seriously. She went to the police right away, and they blew her off. It wouldn’t have been just a matter of he-said, she-said if the police had done their job and gotten the video that the friend took.</p>
<p>Police (and the U) withheld docs from the prosecutor, too. The athletic dept initially failed to communicate with the U T9 folks. Nothing says she got her attorney (a family contact) “free of charge”. The two addl attorneys were brought in my her first atty. Police thing dragged on for months. Etc etc etc. </p>
<p>Advocacy groups can advocate for whatever they in my book, within legal reason. However, they lose me when any example is used as justification, even a female accuser who may be troubled and being proved a fabricator. If they have very limited to no standards on whom they showcase as examples of their cause, then I naturally question what standards they are using for the stats and other things they are saying. </p>
<p>Consistency matters. You cannot display pretty much an anything goes standard in one arena and then think people are not going to assume you are not applying the same loose standard elsewhere in your organization. </p>
<p>Sure the cops screw these things up too. That is totally not the point. We know the colleges screw this up too. </p>
<p>Why don’t the Feds try to fix the cops? That would protect all women. Why just focus on the 5% that just happen to be college students?</p>
<p>Winston totally could have raped this girl. The guy is at a minimun a sleaze. But why do only college girls get federal do-overs when other girls don’t? Maybe we should we give every girl in the U.S. (student or not) a federal do-over and a second parallel court system? And why limit it to rape? Let’s have every single crime in America have a federal second opinion do-over!!</p>
<p>The connection to title ix and education in this is completely accidental/coincidental. Assume the exact same facts, except that the girl in the bar is an FSU drop out or recent FSU grad rather than a current student. The Feds and FSU would have zero jurisdiction. There would be no do-over. Just up to the cops. How does any of this make sense?</p>