That’s the problem with the proof, but not with the elements of the offense. That is, if drunk #1 has passed out, and drunk #2 sexually assaults him or her, we agree that’s an offense. In some cases, drunk #2 will have committed the offense, but there will be no proof, and he or she will go free. In other cases-- coughVanderbiltcough-- we have ample evidence, and #2 will be nailed.
I don’t think anyone here disputes that in some cases, someone will make an accusation, and we won’t be able to verify it. Some of those accusations will be true and others untrue, but if an accusation can’t be verified (to the standard of proof we’ve decided on, and, again, nobody here agrees with preponderance) then the person will go free even if they’re in fact guilty.
By the way, of all the questionable cases we’ve discussed here, is there any one where the issue is the questionable nature of the proof standard, rather than other issues of due process or the college’s definition of being incapacitated?
“That’s the problem with the proof, but not with the elements of the offense.”
The problem with the proof is about 1,000 times more important than the elements of the offense.
You can go on endlessly with the law school-type exercise of positing various consent hypos where one or both parties are under various shades of conduct and perception altering impairment – tipsy, somewhat impaired, falling down drunk or unconscious – at various times during an evening. You can also debate law-school style about the difference between a person’s actual subjective consent/non-consent as compared to legal consent (which is more of an objective reasonable man standard). But the elements of consent (despite the various yes means yes proposals) are actually quite simple and well established. Juries and judges sort that issue out all the time.
The real issue is almost always proof. First, there’s only two people present. Second, an unconscious person can’t testify by definition. Third, very drunk people have poor memories at best. Often they are fully conscious but have zero memory later.
Once a seriously drunk girl goes behind a closed door, she pretty much loses the ability to prove anything. Unless she does something that can be discerned by a third party. Like (as I’ve instructed my girls) screaming, breaking stuff, fighting back. As the links above show, that is by far the best thing to do. Especially in the college/campus situation where the guys is not likely to be armed.
The real issue can never even come to be proof until you figure out what the elements of the crime are. If you haven’t yet defined the crime, you certainly will not be able to prove that someone committed it.
Less than 4 hours of deliberations in the Vanderbilt case. Although the usual problems of proof were avoided in this case because of the video, perhaps this will encourage more women to report. The judicial system will show these guys no mercy with cases as clear as this one. Not sure how these boys go forward from here.
I wouldn’t call something that varied so much from state to state to be “well-established.” The definition of a person being too incapacitated to consent to sex varies wildly in US states. In some states, a person is not incapacitated unless they are unconscious. In other states, varying levels of intoxication demonstrate incapacity.
CF – lack of consent as an element of the offense of rape has been well established as a legal matter for hundreds of years. Same for the elements of the defense of consent. There’s really nothing new or different on that.
The question is rarely “what is consent”? It is typically “was there consent or not”? Which is a proof issue.
Did anyone doubt what would happen in the Vanderbilt case…i was particularly heartened by this response to the guilty verdict from the college and it continues to reinforce my belief that it is of the utmost importance that colleges work WITH local police.
Frankly I would like to see colleges suspend students while the trial is ongoing, officially expelling after the verdict is announced because it sets the precedent but there was so much evidence in this case I think the outcome was far more than likely.
Yes, the newspaper article reported that fact. They have had plenty of time to figure out where they were going next frankly. There are still two more trials to go for the other two accused of participating in one form or another.
