<p>I read a little about Restorative Justice. I’m trying to understand how it works when the alleged offender denies that they have committed the offense, or denies that there was any offense. The examples I’m reading deal with cases where it’s clear the offense happened and the offender did it.</p>
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<p>No one said it did. But the point is that outside legal recourse is the only available response for “bungled” (to use your term) decisions. And of course, outside legal requires a hefty retainer, so such outside appeal is limited to those with financial means.</p>
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<p>There are two cases to distinguish here: the person was unconscious at the time of the event, or the person was conscious at the time of the event but doesn’t now remember what happened. I’m assuming that neither Consolation nor momofthreeboys is talking about waking up, discovering that someone penetrated you while you were unconscious, and concluding that you must have consented while you were unconscious. </p>
<p>Rather, we need to consider the case where the person is very drunk but still able to make voluntary actions, but was unable to form memories of the event. They had an alcoholic blackout, which means in the morning they don’t remember what happened. As I understand it, this is the same kind of process that sometimes happens after a head injury, or as a person is recovering from anesthesia: they can walk and talk, but they can’t form memories, so later they don’t remember. The same thing also happens with Alzheimers, as some of us know all too well. The person was walking, was conversing, but now doesn’t remember.</p>
<p>Our policies about consent need to consider whether a person that drunk is able to consent, and whether, if they are not able to consent, how the other person is supposed to recognize that they are unable to consent. The Amherst guidelines use the standard of a reasonable sober person. If a sober reasonable person could have recognized that this person was so drunk they didn’t know what they were doing and therefore could not legally consent, then the accused person is also responsible if they didn’t notice the lack of consent. Obviously in many cases it will be hard to determine what the hypothetical sober reasonable person would have concluded, but in some cases evidence will be available.</p>
<p>Cardinal Fang wrote:
I had assumed that the accusers who didn’t want their attackers to suffer serious consequences were making accusations of more minor offenses.</p>
<p>In the John Doe v Columbia case, where the woman claimed non-consensual sex (serious offense), she both apologized to John Doe in person after his punishment was handed down, AND filed an appeal herself to get his punishment reduced. Both his appeal and her appeal were denied.</p>
<p><a href=“http://www.docstoc.com/docs/170243512/Doe%20v.%20Columbia%20Univ%20-%20Complaint%20re%20Due%20Process.pdf”>http://www.docstoc.com/docs/170243512/Doe%20v.%20Columbia%20Univ%20-%20Complaint%20re%20Due%20Process.pdf</a></p>
<p>see pages 29, 31, or read the whole thing, it really is a disaster.</p>
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<p>But rape is not just another crime: you can’t really compare it to theft. And in context that most rapes are perpetrated by a relatively small fraction of rapists…suppose, instead, that your son was held up at gun/knifepoint, possibly injured, and his laptop stolen on a campus/community where similar strong-arm robberies occur regularly (to the extent that many call it a culture of armed robbery). Even if he had no clues as to the identity of his attacker, would you still consider it ethical for him not to make a report? Or suppose (this is emotional territory here, I’m sorry if this triggers anything) he was found dead and the ruled cause is homicide, but there are little or no clues whatsoever as to the identity of his attacker. Would it still be ethical to not make a report?</p>
<p>This extends beyond the victim. What about witnesses? What about friends/relatives? What about authorities other than law enforcement? In the hypothetical above, is it ethical for ER staff/a medical to not make a report? Is it ethical for a school to be aware of a murder or strong-arm robbery, to investigate it even, and not make a police report?</p>
<p>And personally I don’t get the logic of not reporting a crime because doing so will be futile (I suppose the implication here is that the cops will not do/are not doing their job?). Well, I suppose I can understand it a bit, coming from a country where 95% of the police force could well be replaced by goldfish for all the good they do, but the American electorate does have the power to induce change. If the system is broken, why not fix it instead of eternally trying to go over, under and around it? (I know, I know, so naive, but why not?)</p>
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<p>The tl;dr of my post is that case by case, it should be up to the victim (with adequate professional advice) whether sexual assault is <em>handled</em> as a criminal or a civil offense, <em>even if</em> the police are involved. AFAIK there is no such provision currently.</p>
<p>CF: Thanks for clarifying. I have never had the experience of drinking so much I don’t remember what happened. I get sick before that point and always did. So one more way blind luck helped me out.</p>
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<p>It’s not, necessarily, that one thinks the police won’t do their job. It’s part of the justice systems’s job not to arrest people they can’t convict. “Beyond a reasonable doubt” is, rightly, a high standard. Jonri’s building owner might not report the allegedly light-fingered handyman, because it would be hard to prove he stole the items beyond a reasonable doubt, and it’s an enormous pain to report him and get nothing. But after the second or third report, the dude is going to get a pink slip. </p>
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<p>I can’t speak for anyone else, but I have no problem with that. It’s the “and no further action” that bugs me. Ethically speaking, the building owner SHOULD evict the tenant, and (s)he SHOULD report the incident to the police. Or some sort of sex offender watchlist. Or something. Maybe the problem is that the police approach everything with too heavy a hand? Maybe we need some sort of non-violent vigilantes? But by simply kicking out the tenant our hypothetical building owner is pushing the problem on someone else. He’s going to get housing somewhere, and the women/children there will be unsafe as a result. Even if he remains homeless, he’s (to use a cliche) still prowling the streets. Apart from his fellow tenants and the owner (and maybe their social circle), no-one knows what this man is capable of, and he remains a danger to society. Maybe it’s just me, but I’m not comfortable with that.</p>
<p>But what can you do, when you think someone is a criminal but can’t prove it beyond a reasonable doubt? If you live in the apartment building with the light-fingered handyman or the doorman who is too “friendly” with the kids, don’t you think the management should get rid of the person they think is a thief or a child molester, even if they can’t prove it beyond a reasonable doubt?</p>
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sure and they need to be darn certain - one of two things will happen, the person being booted out of the building will move out and on to another place or if the person feels that they have been unjustly accused and they can afford to they will sue the condominium association or apartment manager to stay in their unit. The point is the business, the apartment manager, the condo association, the college…anytime they are going to do something that is going to damage a person’s reputation or their livelihood, etc should probably stop and ask themselves if they have the facts and are reasonably certain they aren’t screwing over the person they are ejecting. That’s really not that difficult. </p>
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<p>No, actually, they don’t have to be darn certain. If I lived in an apartment, and my child was molested by a doorman that the management had already concluded was probably a child molester, but they hadn’t fired him because they weren’t sure beyond a reasonable doubt-- well, as dstark said, soon I would own that building. </p>
<p>“No, we didn’t fire him because we weren’t certain he was a child molester… Well, three other parents had already said that he molested their kids, but he denied it, and we didn’t have video… Oh, well, yeah, there was that case where he turned the video system off, but he says he needed to reboot it…” That’s not going to fly. I’d be sitting there in court, watching the cash register ring up more and more tens of thousands of dollars for me. But I’d rather just not have my child molested by a person the building management had already thought was probably a child molester.</p>
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<p>That there’s the problem. Outside of a police investigation, everyone has their own standard of reasonably certain, and as independent agents are free to act on that standard (to a large extent). For some people, reasonably certain is word of mouth. For others it’s “pics or it didn’t happen”.</p>
<p>@jonri. Awesome. Intelligent and reasoned. Thank you.</p>
<p>And now that I’m caught up, I’ll just give my opinion that more of us should study the law and the approach.</p>
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<p>We keep not dealing with the obvious gendered quality of rape. </p>
<p>In the case of two drunk kids (e.g., the Occidental case much discussed a few dozen pages ago), neither one of the participants could have claimed innocence under this standard: both were obviously, provably too drunk to understand fully what they were doing. (I changed the standard a little, because both obviously, provably knew that they were planning to have sex, and then having it.) The “accused person” is always the male person (unless there are no women or no males, but in those cases I think we assign male and female roles to the participants). So if a reasonable sober person could tell that the woman was too drunk, the man is guilty, even if he himself was too drunk to tell what a reasonable sober person could tell. </p>
<p>Personally, I don’t have trouble with that, but I think most people want the law to be more sex-neutral than that, and I think any number of courts might say that the Constitution or Title IX required the law to be more sex-neutral than that, at least in a college setting. </p>
<p>Two brief personal stories that relate to what we are discussing:</p>
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<li>I was about to write that if the man is not drunk, and a reasonable sober person would have known that the woman didn’t understand what she was doing, he was just a predator, and I don’t care about him. Then I remembered that at one point, at 16, I was that “man.” I was on vacation with my family in a tropical place. There was a group of 17-year-old girls there, to one of whom I felt powerfully attracted. During daylight hours, she would barely give me the time of day, but on several occasions, late into the evening, she would have a completely different attitude. In case I had missed it, her friends made sure to tell me that it was a combination of rum and codeine talking then, not her. I didn’t care then; I was head over heels in crush, and it felt like magic. (At the time, I didn’t think her friends were telling me to keep my hands off her at night; I thought they were telling me not to bother trying to talk to her during the day. Maybe I misread that, though.)</li>
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<p>A better person would have refused to accept her attentions under those circumstances, but it took me a few years from then, and a lot more confidence, to grow into a better person; I doubt I would have been there yet at 18. From my vantage point at the time, she had all the power, and I had none, and if she wanted to get wasted and mess around with me that was evidence of divine grace. The point being – I don’t think I was being a predator in that circumstance, even if I wasn’t being fully honorable, either. I’m glad my life wasn’t destroyed because of it.</p>
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<li> I had a close friend in college who absolutely had blackouts. He would often wake up someplace in the morning and have no idea how he got there (and sometimes – horribly – no idea where his car was). It was really common for him to have lost his glasses on those nights, too (he had very bad eyesight), and at some point I figured out that one would often find his glasses at the last place he actually remembered being. His periods of non-memory were often hours long, and included things like driving 20-30 miles for booty calls with an ex-girlfriend, or crashing his car into trees. It’s horrifying to think about it now, but, at 18-20, it took me and his other friends a long time to realize that this was pathological, not zany.</li>
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<p>“Why is the Harvard Title IX office not “structurally impartial,” why is it stacked against the accused, and how would a different office be structurally impartial?”</p>
<p>Fundamental conflicts of interest.</p>
<p>You don’t want the same office to wear all these hats: (i) support and counsellor to the victim, (ii) compliance officer for the university (i.e. watching out for the school’s back), (iii) detective, prosecutor, defense, judge, jury, executioner and appeals court. Poor Dean Eramo at UVA could not ever possibly do all these conflicting jobs that have been given to her. </p>
<p>The American tradition is an adversarial system where those roles are separate and where the proceedings are presided over by a neutral arbiter. That system also involves a right to counsel, including providing one where a party cannot afford it. </p>
<p>JHS, I appreciate the honesty of your post #2954.</p>
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<p>This is not as gendered as you say, JHS. If the reasonable sober person could tell the man was too drunk, our friend SoWhat/Christos’ sexually aggressive woman is guilty, if the man maintains he didn’t consent and brings a charge. </p>
<p>The system is “gendered” because more women than men bring charges, and when men bring charges it’s usually against other men. But a similarly situated man is free to bring a charge against a woman, and ought to be subject to the same system. The Oxy guy didn’t bring charges because he didn’t think his consent was invalid, not because he was a guy.</p>
<p>I’m not convinced, from what I’ve read about the Oxy case, that the parties were so drunk as to be unable to give consent under a reasonable standard. [s]They were drunk enough not to be able to give consent under Oxy’s standard, since each one had had a drop of alcohol, but nobody here is defending that standard.<a href=“on%20edit:%20Having%20read%20further%20on%20the%20case,%20I’m%20not%20so%20sure%20about%20this.%20Both%20students%20say%20they%20were%20drunk%20almost%20to%20the%20point%20of%20unconsciousness.%20That’s%20very%20drunk%20indeed.%20%20A%20reasonable%20sober%20person%20might%20well%20look%20at%20a%20woman%20who%20is%20about%20to%20fall%20unconscious%20and%20say%20that%20she%20is%20too%20drunk%20to%20consent.”>/s</a></p>
<p>As to the case of your blackout-having friend, JHS, I wonder if students nowadays would be so blase about someone who repeatedly drove his car when he was drunk. We had a different social attitude about drunk driving then.</p>
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<p>Is that how it works with the apartment owner with the handsy doorman and the light-fingered janitor? There’s a neutral arbiter?</p>
<p>For me personally, JHS’s story in post 2954 is my fear for boys these days. That and the liar but I realize that the liar is rare. I think many more boys (in college) fall into this category than rape advocates want to admit. As far as the predators (people who plan to rape etc) and gang rapes etc, I care not an iota for them. That is the main reason I do not support a system where only expulsion is the punishment. Add in a lack of due process and then it gets scarier. </p>