Demosthenes kindly pointed me to this recent appellate decision from California, People v. Braslaw, that summarizes existing California case law about consent and rape by intoxication:
I’m not going to link directly to her new work of art (a video) because of its graphic nature… Be forewarned – it is VERY graphic. Here’s a link to an article about it. The link to her video is at the beginning of the second paragraph.
Where is the “screaming paternalism” in the CA law? I believe that the standards for legal consent set forth in the Braslaw case apply equally to men and women. A man who accused a woman of rape could also assert he was not capable of giving legal consent because of the level of his intoxication/incapacitation.
@CardinalFang, but you see I DO think that he had “reasonable belief” that she was able to consent in the Occidental case. I won’t go over the details, we all know them at this point. (And yes, @dstark, I have read the documents publicly available on this case. Months ago: this is not the first time it has come up.)
Yes, CF, as you have pointed out in the past, she threw up and was stumbling. However, she did not do so in his presence. (Not to mention the fact that throwing up is something people do all the time while perfectly compos mentis: that in and of itself is no proof of incapacity.) She took every step to pursue sex with him: she clearly wanted to have sex with him at that time.
And, as all concerned testified, HE was also very drunk. Occidental chose to apply the standard of a SOBER person to him, but not to her.
@HarvestMoon1, the “screaming paternalism” is in Occidental’s rationale.
In actual fact, I don’t think that EITHER of them made a good decision to have sex that night. But I sure as hell don’t think that he “raped” her, and I can’t believe that any rational person would.
@Demosthenes49, I am not a lawyer, not do I play one on CC. I was using the word “active” in a purely descriptive manner, to indicate that she took active steps to pursue having sex with him, instead of, for example, simple lying there passively.
Quite so. But this is a matter of the adjudicator making a judgment call that you disagree with. You believe that if you or I, sober, saw what John Doe saw and didn’t see what he didn’t see, we would think that Jane Doe was sober enough to consent. The adjudicator thought otherwise.
But here’s a question for you. Do you think it would be obvious? Suppose you and I, sober, were sitting there, looking at Jane. Would we say, “Oh, yeah, she’s drunk, but she’s clearly sober enough to make this decision”? Or would we say, “Jeez, she’s plastered. Ummmm… yeah, I guess she’s OK to make this decision, maybe, but it’s really close”? Or, if we had a bunch of us from this forum, do you think some of us would say, “No way, that girl can barely walk, she doesn’t have a coherent idea in her head, NO” and others would say, “She’s drunk but not drunk, YES”?
It seems to me that if you admit that it’s a close call, and some of us would go one way and some another, then you are saying that the adjudicator made a close decision in a gray area. In that case, criticizing the adjudicator’s decision is not very interesting. Sure, you disagree, but saying the decision is one inch from right in a gray area is different than saying the decision is five miles from right.
But, as you know, this is irrelevant. They were charged with evaluating whether HE committed an offense. They were not charged with evaluating whether SHE committed an offense.
I don’t think it is irrelevant. I think it is very much to the point. I think that any process that applies such a standard in such an unequal way is very bad, and moreover, having read about how it went down I think it was very clear that the Occidental officialdom was very vested in A) persuading her that she was “raped,” and B) ignoring all evidence to the contrary and finding him guilty.
I think that if you and I sober, were observing the behavior of BOTH of them, we would look at each other and say, “Let’s try to get them both to bed in their own rooms.” That’s certainly what her friends did. (He was already in his own room, and stayed there.)
When I was in college I had a friend who one evening was acting similarly at a dorm party with a couple of guys. I got her to come upstairs with me, put her to bed, and locked the door as I exited. (In retrospect this last step was probably unwise, but she wasn’t at the alcohol poisoning level, just the horny and lacking in all discretion and common sense level.
@Consolation, do you then make a distinction between the case when both parties are very very drunk and both are active participants, versus when one party is sober and the other is very very drunk and both are active participants?
Yes, at least ethically. Particularly if the sober one has actually encouraged the drunk one to get drunk.
I still think that whether it should be defined as “rape” depends on other factors in the individual case. Whether or not it passes the sniff test for rape, it is definitely poor behavior for the sober person to proceed in such a case, except perhaps if the participants already have an established sexual relationship.
So then you think that being drunk excuses behavior that would be blameworthy if the person were sober? How should Oxy have reacted if John Doe had been completely sober, had not himself encouraged Jane Doe to get drunk, and everything else were the same?
I don’t think anyone in the Occidental case raped anyone. Whether they were both drunk, one drunk, neither drunk…there was no rape, just two horny kids.
If I were setting up college tribunals, I’d say that the tribunal has the right to itself initiate investigations of the accuser’s behavior in an incident brought to the college.
No, not in a blanket sense, as this statement implies to me.
I think the administrator should not have repeatedly met with the girl in an effort to convince her that she was raped.
She apparently didn’t think she was raped before those meetings: she thought she had gotten drunk and behaved in a way that made her unhappy afterwards. Which is exactly what happened. The college staff would have done much more good for both parties if they addressed what actually happened in a therapeutic manner, rather than imposing a legalistic rape scenario that was ultimately damaging to both parties. I think that the administrator was irresponsibly imposing her own political agenda on a human situation.
I think that if the incident were drawn to the administration’s attention, they BOTH should have been required to attend mediation/counseling sessions in which they BOTH were encouraged to address their behavior, including the drinking. If he were actually sober, I would be okay with him being put on probation if her behavior with him was such that it was obvious that she was very, very drunk.
As a matter of fact this is what I think should have happened in the actual case, minus the probation. No, let me amend that. I think they BOTH should have been put on probation for underage drinking.
Sorry, @Consolation, I wasn’t trying to put words in your mouth. I meant, do you think that being drunk in some cases including this one can excuse behavior that would be blameworthy in a sober person?
I have a big problem with them being required to attend mediation sessions before it has been determined that both people were enthusiastic participants. Would you only initiate the mediation sessions once the school was sure that both people were active participants? I’m deeply opposed to mediation in situations where one person says they were not an active participant; I don’t think anything good can come of it.
I’d say the right punishment would be suspension for both or neither if both were determined to be too drunk to consent; suspension for him if he was determined to be drunk but sober enough to consent and she was too drunk to consent.
Hypothetically, yes. The question is, in this case, what–and whose–behavior is being excused? I view their behavior as being almost precisely the same: they both got very, very drunk, they both chose to have sex for the first time with a person they didn’t know well while drunk. What is being excused?
Hmmm. That’s a good point. But in this case we do not have a girl presenting saying “He raped me.” In such a case, the girl should be encouraged to go to the police immediately, and offered support when doing so. If she is unwilling to do so, the college can investigate itself and offer mediation if appropriate. In some of those cases, you’d have a sober person who knowingly “took advantage” of a drunk person. I would hope that mediation would help the “victim” by enabling him/her to tell the accused what kind of pain they have inflicted. I would hope that this would result in the accused realizing the harmful nature of such behavior and teaching them not to do it again. In some cases, you’d have the “two drunk kids.” I think both parties would stand to learn and benefit from the experience.
In this particular case, the girl did not present as saying she was raped. She apparently had a realistic view of what transpired. There was no reason not to proceed directly to mediation.
I guess that the problem is the idea of it being “required.” I would have to think further about when that should be the case. From a restorative justice model, I believe the accused is usually persuaded to participate by an offer to lessen the charges or penalties. I don’t know whether that would work. (In the Oxy case, telling them both that they needed to attend or they would be charged with underage drinking would be the obvious ploy, but one the other hand one has to consider the potential of discouraging reporting.) It is complex, no doubt.
Consider a situation different from the Oxy situation: A woman comes forward, says that she and a guy got very drunk, and then he had sex with her without her consent, without her cooperation. I assume you would say if her description was correct, that however drunk this guy was, he had no excuse: he raped her. In the past, women have been forced or encouraged into mediation for this scenario. The Title IX guidelines may go too far in forbidding mediation for other situations, but in the situation where the accuser says they didn’t cooperate, I think mediation should be off the table. A woman should not be forced or even encouraged into mediation with her rapist.
She should go to the police, but assuming she was telling the truth, she would be very unlikely to get a conviction, and even less likely to see her rapist end up behind bars. This long document is worth dipping in to: https://www.ncjrs.gov/pdffiles1/nij/grants/237582.pdf
The researchers looked at all the reported rapes for 2005-2009 for the Los Angeles Police Department and the Los Angeles Sheriff’s Department. Hardly any of them ended in conviction. The report looks at the attrition at each stage of the process, with interviews and quotes from women who reported, police, and prosecutors.
As I said above, I believe that the very first thing the accuser should be encouraged to do is go to the police. And s/he should receive support in doing so: a ride, a companion, etc.
But, again looking at the restorative justice model, why is it a bad thing if mediation is offered to the accuser ? (Assuming that a police case is not going forward, or has ended.)
Doesn’t restorative justice usually start when the offender admits the offense? It’s hard to see how that would work here. If the guy admits he raped her, then she’s going to go right back to the police. And if he refuses to admit it, then we have no basis for restorative justice because he doesn’t admit there’s anything to restore.