“seemingly not too drunk and who consents through words or actions…”
We could lose a lot of this angst if we weren’t trying to set levels of drunk. Eg, when we ask for a designated driver, we don’t get sidetracked- “I had three but I’m ok.” Instead “You’ve been drinking, I’ll drive.” Why not, “You’ve been drinking, let’s hold off on the sex?”
Why not? Because we get bogged down with all the “Yeah, but.” Yeah, but maybe she flirted. Yeah, but maybe she was the aggressor. Yeah, but maybe he was too drunk to think.
You are in so deep you are not even reading what people write anymore and just assuming you know what they are saying,
In my post, if you read closely enough, you will notice I was never addressed the issue of who and how education and prevention works in this area.
What I did was specifically address the fact that the examples given were not examples of people involved in the prevention area. I addressed solely the logic of the three examples cited. And again, the three examples cited were not examples where prevention was the modus operandi of said advocate. I never said that all advocates were not into prevention, just the three examples given were not such examples.
An idea which has come up on several of these threads is whether women have been assaulted if they don’t perceive the action as assault. I have posted that in the 70s, at my college, there was no such thing as acquaintance rape. There were only very bad dates and women who should have been more careful. When the legal definition of rape expands, then a crime exists whether or not the victim defines it as such. imho.
Several threads back, Poetgrl introduced me to the idea women aren’t necessarily granted autonomy of their bodies by society. It seems to me when we women believe this idea (which seems culturally pervasive and rather difficult to disengage from) then women not recognizing assaults as rape is more understandable. Do they get to define the act or does the law? Cardinal Fang: what do you think here?
adding: There are a lot of different discussions going on in this thread. One has some very intelligent posters interested in exploring the difficult Title IX cases, in a very intellectual and dispassionate way. I respect that, but am not even attempting to participate in that particular discussion. I am reading along and learning a lot.
The fact is that in law (and in life in general) the “Yeah, but” technically matters a whole lot, and is often the decisive factor(s) in understanding what took place and why something happened. It is not a simple issue of getting “bogged down”; it is the issue that the distinctions matter, especially when dealing with communication and interpretation.
I stated before that you are so specific and literal in how you read things that it is lost on you that people do not live or act like that - so literal and specific. And therefore, to apply such a standard to their actions is absolutely impossible, and actually downright silly, because people’s actions and intent are rarely that cut and dry and literal.
A lot of support is going to be lost for this effort because people are looking at their lives and they know that the “yeah, but” does matter to them and in their lives and a lot of what they do is not based on literal and cut and dry decisions. There are often times extenuating circumstances. Therefore, the grey areas mentioned by @mom2and and others before matter.
On a larger note, I cannot think of a court case, which I have been involved in that did not revolve around the “Yeah, but” aspects of the people involved and around the grey areas of actions. Not one. This issue will end up being no different.
I agree the “yeah but” is the most essential part of any process or procedure discussion and especially so when talking about law.
Absolutely women get to “define the act”…if you weren’t assaulted then there’s nothing to report right? If someone grabs your wallet but you only had $5 in it, you might not report it to the police. If your car and another car clip each other but no one has much if any damage you might not report it to the police OR your insurance company. People define if they are a victim or not. The law just sets the minimum boundary for what the judicial system feels should be punishable through fines or imprisonment. If someone doesn’t feel they were criminally assaulted then there would be no reason to report the assault to the police. At least that is how it works in the real world.
I don’t think it’s true that everyone agrees that a crime is committed if a man has sexual intercourse with a woman who is visibly incapacitated because she can’t walk a straight line and can’t speak coherently. In many states, this is not a crime.
Moreover, in this thread we’ve mentioned the case at Occidental many times, and several posters have vociferously disagreed with the college’s decision. Let’s review the facts there. The woman was visibly intoxicated: she was vomiting, she couldn’t walk a straight line, she was slurring her words. She was very, very drunk, and nobody disputes this. She, however, was able to send texts, indicating her agreement to sex, and make her way (vomiting along the way) to the guy’s dorm room. She was clearly exceedingly intoxicated, and she clearly indicated unambiguous consent to sex.
Occidental hired an outside adjudicator to evaluate the situation. This adjudicator, following Occidental’s rules, which are also the law of California, needed to determine if a sober observer would think that she was too incapacitated to consent to sex. If she was too incapacitated, then seeming consent would not matter, any more than seeming consent matters when someone is roofied, or when a person is accused of having sex with an eight-year-old. If a person can’t give legal consent, then they didn’t give legal consent.
The adjudicator concluded that she was too incapacitated to consent to sex, and a sober observer would have realized she was too incapacitated to consent. That means the guy raped her, in the judgment of the adjudicator.
A lot of people disagree with this judgment. I disagree with it myself, just barely. I think it’s a difficult case, and is just on the borderline.
It is on the borderline because we accept drunken college sex as the norm. We don’t adequately educate young men to respond to these situations. A few years from now this won’t seem a borderline case. (I hope) The responsibility for preventing rape (as defined by too intoxicated to consent) will be the responsibility of men as well as women. imho
and yes - I’ve read the feminist theorists who argue the opposite
That is flat out wrong. The DOJ definition of rape says that it was rape. The laws of most (ALL) States define it as rape (or felony sexual assault in the few that don’t use rape as a term).
I’ll respond to this, because alh asked me, but I don’t have much useful to say about it.
[quote=alh]
I think we’re swimming in the culture we’re in, and we don’t realize our motivations. Moreover, there are a lot of different actors, with a lot of different motivations, and we don’t always realize what consequences will ensue from the systems we set up.
So personally, I prefer to look at the situation as it is, without assigning blames or motivations, except insofar as we need to look at people’s motivations in order to change our procedures into better procedures that will produce results we like better.
Here’s the investigative report from Occidental - I just skimmed it but saw nothing about vomitting etc just as an FYI. Perhaps you are referring to a different case?
This one is also in the courts right now. According to reports the adjudicator found that it was more likely than not that the accuser “engaged in conduct and made statements that would indicate she consented to sexual intercourse.” Yet the adjudicator also found that the accuser was “incapacitated” and therefore her consent was invalid. In making this determination, the adjudicator did not correctly apply Occidental’s written incapacitation standard: an individual “cannot make an informed and rational decision to engage in sexual activity because s/he lacks conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why or how of the sexual interaction) and/or is physically helpless.” This definition of incapacitation cannot be reconciled with the text messages between Doe and his accuser, which make clear that the accuser had conscious knowledge of what she was doing. Instead, Mirkovich found that the accuser was incapacitated because her judgment was impaired due to alcohol.
This case should also determine if colleges and universities can “ignore” their own written rules and regulations when adjudicating Title IX claims.
3949 - thanks. Your perspective has been very useful to me because you are so much more logical and less emotional than I am about these issues. I think you are seeing things maybe as clearly as is possible.
I’ve had my disagreements with awc, but in this I agree completely. If we are setting up systems, we need to figure out how the systems will respond to difficult cases.
I’m a software engineer, so this comes naturally to me, and it’s why I want to use hypotheticals. When I write a piece of software, I have to test it. I test the easy cases: does it do the right thing in the simplest cases? (Usually, the first time, it doesn’t.) But the real testing is the difficult cases, which are just on the borderline.
The same thing is true here. When we propose a solution, we need to look at how it would handle difficult cases.
So, for example, some people here say that if a college comes to know of a sexual assault, they should immediately call the cops, and not do any punishment themselves. And it sounds so simple. But let’s look at a real situation, and see how that works.
A freshman athlete, before fall classes have even started, comes to a party already very drunk. He sees a beautiful young woman. She leaves the party. He says, “I’m going to go get some of that.” His teammates attempt to dissuade him; this young woman has shown no interest in him. He goes after her, but is stopped by his teammates. A team leader is so concerned about this woman’s safety that he stakes out her room. The drunk athlete returns later that night, breaks into her room to assault her, but is stopped, in a fight that breaks things, by the teammate.
The young woman is a foreign student from a conservative culture. She doesn’t want to press legal charges because it would bring shame on her and her family (though obviously she has done nothing wrong).
The teammates want nothing more to do with this guy. They want him gone. The coach throws him off the team the next morning. There is overwhelming evidence that the guy intended to assault the woman. He admits it, but says that he was ordered to rape the woman as part of hazing, something that every single other person, including the female students whose party it was, denies. The guy has no defenders.
Because the woman doesn’t want to go to law enforcement, should that student remain on campus to assault another young woman? Do you want this guy on your child’s campus? Or should the college summarily expel him?
Basically there is no right choice, only a choice among lesser of evils. imho. Do we protect the young woman from a conservative culture from avoiding shaming, or other potential victims of this man? I know I’m not smart enough to decide.
adding: I posted the fat man experiment upthread. I fail there, too.
The conservative woman will refuse to press charges. So the college has the choice of acting and throwing the assaulter out, or doing nothing and keeping him on campus.
Reposting because I screwed up the attributions in 3949. Apologies to HarvestMoon.
I’ll respond to this, because alh asked me, but I don’t have much useful to say about it.
I think we’re swimming in the culture we’re in, and we don’t realize our motivations. Moreover, there are a lot of different actors, with a lot of different motivations, and we don’t always realize what consequences will ensue from the systems we set up.
So personally, I prefer to look at the situation as it is, without assigning blames or motivations, except insofar as we need to look at people’s motivations in order to change our procedures into better procedures that will produce results we like better.
This is an important case that cuts to the heart of some of the current discussion.
Deputy District Attorney Alison A.W. Meyers declined to prosecute, writing, “Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment …. It would be reasonable for [Doe] to conclude based on their communications and [the accuser’s] actions that, even though she was intoxicated, she could still exercise reasonable judgment.” This decision ended police involvement in the case. The college adjudicator said that it was more likely than not that the accuser “engaged in conduct and made statements that would indicate she consented to sexual intercourse.” Yet the adjudicator also found that the accuser was “incapacitated” and therefore her consent was invalid. So the police said they were both drinking but from the text messages and her statements the sex was consensual - effectively a drunk hook-up…the adjudicator for the college admitted that she made statements and comments that indicated consent but it wasn’t consent because she’d been drinking. He has been expelled and the case is pending.
The foundation for individual rights in education appealed to Occidental but heard nothing back"
FIRE asked Occidental to reconsider its finding, pointing out that “[t]he fact that the applied definition of incapacitation would make both parties guilty of sexually assaulting one another brings into stark relief the fundamental unfairness and lack of substantive due process present in Occidental’s actions against Doe.”
3955 - I thought the question was still mandatory reporting. Given those two choices, I'm kicking him off campus. How do we deal with the fact we are protecting our kids at their college but sending him someplace else? I am okay with putting the incident in his permanent record. I am less concerned with potential damage to his reputation and future than that he will rape someone. That is my choice between bad alternatives. The best scenario is that he's educated out of this behavior, if that is possible. I'm not wild about giving up on an 18 year old as lost to society. If we can rehabilitate, let's do so.