CF - Well, first off the main point of my post and the analogy to marital rape cases was that I was suggesting that maybe I shouldn’t be that concerned about these types of cases. Maybe my worry is irrational. But to answer your question -
Why am I that concerned? I think it’s a legitimate worry. We have to see how this plays out in real life. One big problem is that even though these proceedings aren’t criminal trials, they concern criminal conduct second only to murder in seriousness. Frankly, it’s emotionally hard for me to ignore that fact. I like living in a society where we’ve said that it’s better to allow 10 guilty men to go free than convict one innocent man. It may not apply here but it’s part of our society’s DNA. With a preponderance standard it seems like we’re saying that it’s ok to convict 1 innocent man if it prevents 1 guilty one from going free. I know you’ve said that you agree with this last point.
I disagree that there is a large burden on the woman to prove that she was too drunk. To me, the fact that she testifies that she was that intoxicated is itself evidence that I’d consider seriously. Even if there was no other corroboration whatsoever. Presumably the boy is saying the opposite. If that’s all the evidence then I’d need to figure out who was more credible. If the balance tips 50.1/49.9 one way then theoretically that’s the way you have to decide it. It doesn’t sound like you believe that’s true, so I think this may explain why we see this issue somewhat differently. I see some of these decisions as almost a coin flip.
If there’s witness testimony or texts that enable you to decide without guilt on your conscience then of course that’s great. Wonderful result.
Maybe you’re right about how prosecutors use the Intoxicated Person Rape statute. No idea. I should lookup what percent of the rape charges this makes up.
Also, in my limited experience the Occidental case isn’t that much of an outlier in the sense that the facts are undisputed. Frankly I’ve been very surprised at how closely the objective facts of stories seemed to line up. Maybe students are more honest than I give them credit for.
Kick, scream and lobby for any program that will get kids to stop drinking hard alcohol and shots and you will go along, way toward getting what you want. Insisting that colleges build relationships with local law enforcement for guidance and investigation would go along way to reducing the problem. I can probably think of three other things off the top of my head that are far better for our kids and for society in general than anything the colleges think they are supposed to do under Title IX. Pizza and I don’t see eye to eye on everything regarding this, but we agree that it is Title IX PLUS the criminal system. But it’s going to take probably at least another year of court decisions before everything settles down and the colleges do what they do best - counseling, mediating, educating and the criminal system does what it does best - investigating, trying and judging.
As far as “intent” it IS being tested right now and in California. Recheck the occidental case - the police AND the college’s own investigator claimed that there was consent (by intent) by the female, both the police and the college’s own investigator mentioned that both the male and female had been drinking, FIRE pointed out that technically they raped each other ( as others have speculated drunk sex is really all about) but still The Title IX official found the male guilty - and expelled him not suspended…expelled. This case however it is decided will help to codify and be pointed to over and over again.
My money is that Occidental settles this case, with cash on the barrel head and a cleaning of that guys record so he can get on with his college life. Only time will tell.
I’ve said before, and I now say, that I disagree with the preponderance of the evidence standard. I’d prefer the clear and convincing evidence standard. However, as a practical matter, how many cases fall in between those? That is, in how many cases do you believe the accuser, but not to a 75% (or whatever you call clear and convincing) standard?
If it’s 50% her way, 50% his way, then that’s no preponderance and he goes free. I don’t think my brain certainty is calibrated finely enough to distinguish 50/50 from 50.1/49.9.
In the real world, in civil suits, do jury decisions actually go this way-- “Well, I believe the plaintiff just one tiny itsy bit more than I believe the defendant, OK, I’ll award the $100 million judgment”?
CF - Upon reflection, I think there’s one more important emotional aspect that shapes people’s attitudes, at least in my case. I think people have the easiest time empathizing with potential injustices that they could see themselves in.
For example, I can’t ever see myself in a situation where I’d be credibly accused of forcible rape. As far as I’m concerned, arrest 'em, try 'em, and fry 'em. But take the affirmative consent standard as read literally. On one level, I totally get it. On the other hand, I think about my personal experiences and I know I’ve technically violated it many times. I’ve been woken up by lovers in the most intimate of ways, and conversely I’ve done the same. I didn’t complain and neither did they. It was just part of the parameters of our relationship and I have some very pleasant memories as a result. But since we were asleep there’s no way any verbal or implied consent was given.
Probably a very theoretical worry since it never occurred to anyone to file charges, but in principle they could have. However, since it’s part of my life experience I can see myself in a situation like this.
I might even argue that most people see it this way. California may have an affirmative consent law (but perhaps only for college students/too lazy too look) but does the majority of the US population?
California has an affirmative consent law for everybody, but I’m not sure how it is administered. The code says,
I don’t know that waking someone up in an intimate way would violate that, even technically, presuming they wake up right away and are not unconscious or anything like that. But as I said, I don’t know how it is applied in practice.
Agree Al. it’s especially bothersome to me when women tell the college that they don’t want to cause any problems for the male…yet proceed to file a claim or renege on their support for the claim. I remember back in the 80s when I was having babies and woman after woman would inform HR they were returning after maternity leave, take their leave, collect their salary and come back only to quit a day or two later. Made it so very hard for the rest of us to fight for equality for promotions and advancement. Made. Me. Furious. Anyway with regard to
there is some interesting torte law around this…regarding consent, intent, etc.
From the National Resource Center on Domestic Violence:
Not sure. I’ve never been involved in something like that. But something like that must be going on in cases where there are binary decisions at stake like the classic Solomon baby splitting story.
But in the case of deciding whether a college student was raped, it seems like there are only 3 cases. Either you’re either saying (1) I believe you, you were raped (2) I don’t believe, you weren’t or (3) it is an exact 50.00000% tie.
I think the only conclusion I can definitively come to is that I wouldn’t be a very good judge of these cases.
I always see the middle ground on subjects. I know a few of you won’t agree with that statement because you think I am taking only one side in this argument, but I can see both sides. I just find that some on here have gone overboard with only seeing one side of things.
Anyway, here is my problem with consent. Let’s take the Occidental case (or whichever one it was with the drunk texting girl). On the one had you have a girl who clearly indicated intent. Someone like that should expect to have people inclined to not believe her if she later is to file a complaint. On the other hand let’s create one of AW’s favorites (a hypothetical).
Girl plans to hook up and makes her intentions very clear. She then goes up to the guy’s room. Things progress naturally and the guy says “this is great. I’ve never $&^%^d a fat girl before”, or he wants to do something kinky and she isn’t in to that. She tells him he is a freak and she is leaving. He rapes her. That guy shouldn’t be allowed to get away with rape by showing the text messages etc and saying she consented. Consent at one point in the experience does not equate to consent during all aspects of it. Someone posted weeks ago that all sex acts between all partners should involve caring for the other person and mutual feedback as to what they like and don’t like, or what is working or isn’t working. Unfortunately it does’t work like that in many cases.
" I just find that some on here have gone overboard with only seeing one side of things."
I really don’t think this is true because the clear cut cases are not the ones anyone is arguing about. It’s what to do about the grey area cases that is the question and batting about accusations of a felony crime in a college tribunal strikes some of us as completely off the wall since there is no appropriate outcome possible in there.
Agree. For me it’s off the wall because it’s presuming that these kids are incapable of functioning with the rules and governance that exist outside the walls of the college. And if those rules and governance are not good enough then our wonderful government should be focusing it’s attention there, not holding federal dollars hostage over felony offenses that colleges and universities shouldn’t even be adjudicating. I hardly think that is going “overboard” with an opinion. If anything it’s reflective, i would posit, with the majority of people in this country if the majority of people in this country even knew what was going on in reality…although now they think it’s all a big lie thanks to RS and “Jackie.”
OK, but here’s my problem with the no affirmative consent rule: It means that I don’t have control of my own body. It means anyone else has a right to my body, and I have to constantly defend it. If I slip up for one minute, it’s my fault, and the other person has the right to use my body. The default is Yes, if I don’t say No and keep saying it.
If this is such a wonderful regime, then why don’t we apply it to your car and your kitchen, as well as my body? It’s your responsibility to tell me “No, you can’t have my car,” and that No you told me five minutes ago isn’t applicable right now. You have to keep saying No, to me, and to everyone else. If I can slip in, grab your keys, and drive off in your car, before you can say No, I haven’t committed a crime! I just say, “He didn’t say No,” and no harm done, I haven’t committed any crime, the police won’t go after me, your insurance won’t pay (because there was no theft) and I get to keep the car. If I can slip into your kitchen and get your laptop while you were out getting the mail, well, you didn’t say No, you left the door unlocked, it’s my laptop now. If you happen to return to the kitchen and I am a big scary person with a baseball bat, so you’re afraid to say No because you think I’ll beat you up, I can keep stealing things from your house, and make myself a sandwich at the same time. And the police will say, Why didn’t you say No?
Somehow, we manage to make arrangements with our friends so we can borrow their cars without asking, or go into their kitchens, without being arrested for theft and trespassing. Why are your possessions more important than my body? We can manage to make arrangements with our lovers too.
Actually both of you gave great arguments why “no means no” is so powerful. It is verbal. It doesn’t require any interpretation of a nuanced yes and it is recognized, tried and tested in law
I got kicked out of school for not going to class and not passing courses. It was richly deserved. I have no quarrel with the decision. After a year and a half, I got myself together, returned, and got straight As.
Great. Then I assume you won’t mind if you wake up one morning and find that I and a few friends have set up tents on your front lawn. No means No, but you didn’t tell us No. Don’t worry, we’ll leave when you tell us to go. And when we come back next week, again we’ll leave when you tell us No. And our friends will leave when you tell them No, too. Each time.
Perhaps you thought you had a right to your own front yard, and you don’t have to keep telling every bike tourist who happens along that your front yard is not available for their use. But No means No, and it’s powerful and verbal. It doesn’t require any interpretation of a nuanced Yes. It’s tried and true. So, no problem.
Where’s the faucet to refill my water bottles? I hope you don’t mind if we have a small fire. But if you do, you know what to do-- wait until we set fire to your shrubs, then tell us No.
I have no idea what argument you are making CF. Really. You can’t camp on my front yard, i can call the police and I can have you evicted no problem so not sure what this has to do with a person telling another person “No I don’t want you to touch me.” It’s not difficult at all to have personal freedoms, not at all. I’ve said no many a time to things that people want me to do. So both of you are arguing something that for me makes absolutely no sense. I’ve seen more people say “yes” to something and regret it because they really wanted to say no but either didn’t have the gumption or never learned how to say no.
I realize that some people don’t understand arguing by analogy. I’ll spell it out.
No Means No says that someone has the rights to use your body, momofthreeboys, until you tell them No. They don’t have to stop until you say No. And you have to keep saying No. I object to that, but you do not. So I say, if that’s such a good plan for your body, and for the bodies of cute college girls who’ve had too much to drink at parties-- if I can grab you, and kiss you, and squeeze you, and stick things into you, until you tell me No, and so can anyone else, and they can do the same to the college girls-- then why isn’t it a good plan for your front yard?
If I can do what I want to your body until you tell me No, why can’t I do what I want to your front yard until you tell me No? I’ll leave when you say so. You won’t even have to call the cops. Of course, you have to tell me No, each time, and you individually have to tell each of my cycling friends No, each time, but this is what you’re signing on for your body, and it’s what you’re signing me on for my body too. If it’s good enough for my body, it should be good enough for my front yard, and yours, too. I don’t know about you, but my body autonomy is a lot more important to me than my front yard autonomy.
This plan makes no sense to me. Then again, it makes no sense to me that people have any rights whatsoever to my body unless I explicitly grant them those rights-- but that’s what you’re telling me you support.
Personal freedom means you don’t have access to my body unless I give you permission. You don’t get to park in my driveway unless I say so. You don’t get to walk into my house.
I don’t have to say no. It is my choice… Not yours.