In the Cornell case, the woman claimed she had 15 drinks. Again, I’m not defending the result, the investigation or the process, but presuming she had 15 drinks, it’s no stretch to think she was incapacitated. They didn’t conclude she was incapacitated from drinking three drinks; they concluded she was incapacitated from drinking 15 drinks.
If they were wrong, it was not in using the wrong standard, but being wrong about the facts.
This is a pointless cheap shot. “Politically correct” sounds like you think that colleges would ban sex at universities, if only those pesky liberals didn’t stop them. Surely you don’t think that most conservatives would be in favor of banning sex at universities. Come now. Fraternities are bastions of conservatism, and they would oppose this idea. It would be unpopular from both the left and the right. The idea is a complete non-starter.
She claimed fifteen drinks in ten hours. I believe he said less than ten in the same amount of time. They also had at least one meal during that time. Either way, according to the article I saw (talk about proof) a number of people witnessed her behavior and did not find her impaired.
And forgive me, but your argument is too cute by half. If the standard is always what the accuser says (ie she said she had fifteen drinks) then you admit that it is a subjective standard, and the fact finder is charged with determining whether her self reported conduct fit within the definition in the particular sexual assault/misconduct policy. In other words, the relevant starting point is always what the accuser says. I just find that logic circular, and anti-ethical to how the legal process works.
The standard is not “what the accuser says,” and I never said it was. The starting point is always what the accuser says, because of course it is-- they’re investigating the accusation made by the accuser. But they then must do factfinding. They may discover that the accuser’s statement is backed up by the facts, or they may discover it is falsified by the facts, or they may conclude that they can’t tell.
This is just the same as a trial court. The jury is presented with alleged facts, and they have to decide what to believe. Similarly, the college adjudicators are presented with the result of the investigation, and they have to decide what to believe.
If the investigation is shoddy, or if the adjudicators are incompetent or biased, that doesn’t tell us whether the standard is right or wrong. It just tells us that the college screwed up the process.
There is nothing circular here. The rule at Cornell is that a student can’t consent if s/he is incapacitated and unable to exercise judgement (or something like that). The adjudicators must decide, based on the evidence, whether that is true. If the standard is subjective, the subject in question is not the person alleged to have been incapacitated, but the adjudicator. That’s no different than any other standard. Adjudicators have to apply rules to cases. That’s what they do, and it’s not always cut and dried.
If you were the adjudicator in an incapacitation case, it would be your job to determine whether the person was incapacitated. You’d listen to what they said about the event in question (if they remembered anything; often they don’t) but you’d also listen to the rest of the evidence, and it would be up to you to decide whether in your opinion the person was incapacitated, and whether a reasonable person would have been able to tell they were incapacitated.
In the Amherst case, CF, shouldn’t the guy suing to say that he was blacked out (and hence incapacitated) and she initiated sex and thus he was sexually assaulted? How should/would the Amherst tribunal handle that?
I think most dad’s would be in favor of it though. And yeah, maybe I was being a mite snide, but I do think there is a larger point, namely that current thought about gender relations (as it has been explained to me) tells us that, particularly in reference to younger women, we need to remove the stigma from sexual activity, and reinforce the idea that a woman is not a victim, and has the right to behave as she pleases with her body. I think there is concern that if you delve too deeply into discussions of how to not put yourself in situations where you can be taken advantage of, or that having sex with someone you don’t like very much (like the Amherst example) is a bad decision made possible by alcohol consumption, this larger message is then somehow blunted. So instead we as a society seem to have developed a rather muscular effort to define sexual misconduct broadly in order to allow young women the freedom to experiment and discover their own limitations with the intention of removing both the risk of unwanted sexual contact and the social stigma that previous generations would have applied to such behavior. (Sorry, but my sister the gender studies grad was in town last week)
I think this stream of thought makes it difficult to adopt what seems to me to be an obvious weapon in the problem of potentially non consensual sex on campus, namely that the kids (both genders) should be educated that we all must bear responsibility for the decisions that we make. Just because you regret something that happened does not mean that someone else forced you into a position where you made the wrong decision. And speaking as a father of an exceptionally bright, beautiful young girl, there are simple biological facts which put her more at risk of being forced to have intercourse than her much larger and stronger older brother, and which can make the consequences of a less than sober decision to engage in sexual activity greater for her. I fully concede that threading the needle between those two objectives - that she is the master of her own universe but that she is also at greater physical risk for making the same stupid decision - is difficult, but that doesn’t mean it is not necessary.
He could say that, and if he did, the college should investigate, see if they think he was incapacitated, and discipline accordingly. There might be something about a de facto statute of limitations, but certainly at the time, he could have made this accusation, and if he had, the college should have investigated, and if they found that he was incapacitated they should have disciplined the woman. If expulsion is the penalty for that offense and she was found guilty of it, then she should have been expelled.
But having blacked out is neither necessary nor sufficient to determine incapacitation. It’s suggestive, but not necessary and not sufficient. Probably a student who was incapacitated would have no memory of the event, but sometimes women who were clearly incapacitated, drifting in and out of consciousness, have fragmentary memories of the event. And people can have blackouts with a level of intoxication well below the level tribunals have been finding necessary for incapacitation.
I asked my DD what percentage of girls that she knows have had sex with a “very drunk guy”. She asked me to define “very drunk”. I told her that it was at least stumbling and slurring but not bad enough to have someone carry them.
She said that she knows of 5 girls out of 50 friends who have not had sex. She said of those ~45 girls that “maybe 85% have had sex with a really drunk guy”. That means in her very average (and, IMO, normal) peer group that 76.5% of women have had sex with a very drunk guy.
I realize @“Cardinal Fang” that it is not a scientific sample, but of her large group of friends at various colleges that was her estimate.
I don’t know about that. I don’t get the impression that the dads here would be in favor of it.
@Ohiodad51, have you seen this study?
http://www.nejm.org/doi/full/10.1056/NEJMsa1411131#t=abstract
It might not have been posted in this thread, but it’s a super result if it pans out. Researchers gave freshman women at three Canadian colleges a four-session class on, basically, how not to be raped, and it reduced the rape rate by half among that group.
Is your daughter in a sorority, @TV4caster? I’m wondering how she even has 50 friends. She must be very extroverted.
And I think this is precisely why many of us think that colleges are just not equipped to do what they are being asked to do. Police departments and prosecutor’s offices have decades of experience in doing investigations. They have subpoena power, trained investigators, the rules of evidence. Plus, in the vast majority of cases, Judges are by their nature neutral. I do not share the same faith in the neutrality of the people who sit on the college tribunals or who are the appointed “advocates”.
This is why, if I were King, I would require the colleges to employ one or two trained investigators (there have to be retired cops around) and then set up the disciplinary panels like arbitration. Let the accused pick one faculty representative, the accuser pick another and the two chosen representatives pick a third. I would suspend any proceedings of conduct which could, if proven, result in a felony conviction until the police decide not to investigate or the prosecutor decides not to prosecute. I would be ok with a preponderance standard up to say a semester’s suspension but require proof to a clear and convincing standard for anything above that or anything that would be placed on a student’s permanent record. Arguing against my own interest, I would be OK with no lawyers in the room for either side unless it was a proceeding under the clear and convincing standard.
@“Cardinal Fang” Nope, no sorority, just very outgoing and friendly (like her mother). My DW has more friends than anyone I know, probably because she is the nicest person on the planet (a sentiment echoed by everyone who knows her). DD is a close 2nd.
Yes, but, as we see with the LAPD/LASD report, all too often that experience is experience sweeping accusations under the rug. All too often police refuse to investigate or make arrests for any accusations that involve nonstrangers, or DAs refuse to charge. The accuser would be banking on getting the kind of cop and the kind of DA that will be willing to investigate/charge acquaintances, and the chance they’d get them isn’t all that high.
When the day comes that an accuser of an acquaintance doesn’t have a high probability of having her accusation being dismissed out of hand by the criminal justice system, maybe I’d accept the idea that accusers should go to the police. That day is not near. Meanwhile, we can fix colleges.
@Ohiodad51 - YES! That’s also what I’ve been saying. The colleges are trying to reinvent the wheel and they’ve home-brewed some lopsided squares when instead there are a whole bunch of perfectly round wheels just lying around. In the business world, literally hundreds of thousands of arbitrations take place every year.
I’d even take it a step further than you did. There are lots of very experienced retired federal and state judges who serve as arbitrators. IIRC, the total cost of hiring 3 judges and having a week long panel that is run professionally would be about $25,000 from start to finish. That may sound like a lot, but it’s less than 1/4 the annual cost of a single Title IX administrator, and you’d get better results. Much better than having some rank amateur faculty members or administrators serve as panel members. The only hard part is getting them to be available on short notice.
I’d agree with all of this except the part about the police deciding not to investigate or the prosecutor decides not to prosecute. In the LAPD/LASD report, there were four year old accusations still nominally “open.”
Is that in the report or are you making assumptions? I would bet dollars to doughnuts that the main reason for the low percentage that you refer to (7% or whatever it was) is more a result of a lack of evidence than anyone “sweeping accusations under the rug”. We keep going around and around with this, but too many times non-stranger reports come down to he said/she said cases and in our justice system those are never going to be prosecuted.
Seems to me that a group could set up a business investigating and judging sexual assault cases. There’s a good business opportunity there.
But, remember, Occidental hired an outside investigator and an outside arbitrator, and people are still unhappy with the result.
@“Cardinal Fang” yeah, you have a point about open files that are not investigated. So let’s say that you suspend any proceedings for four-six months. If an indictment isn’t sought in that time, then go ahead with the college process. And I understand your point about the LAPD report, but I do not believe that 1) police routinely sweep credible, provable allegations of rape under the rug and 2) that the appropriate response to a perceived lack of vigor from the police is to do an end run around the system. Nothing gets fixed like that. If the system isn’t working, fix the system.
The report goes on to explain that when the “victim is guilty until proven innocent” detectives refused to arrest, they present their findings to the DA, knowing that DAs don’t generally pursue cases when the police didn’t make an arrest. As a result, if the victim ends up with one of those detectives, her assailant is not going to be charged no matter what the facts of the case. And the report indicates there are a lot of those detectives.
No offense @“Cardinal Fang” , but just reading that snippet you posted makes it seem like the point is that people either agree with the position staked out by the survey’s author or they don’t. For example, I do not believe that a “reluctance or unwillingness to arrest in he said/she said cases” is evidence that the police are doing anything at all wrong. I would hope that if my neighbor walked into the police station and said that I whacked him over the head with a bat the police would need something more than his word that it happened before they arrested me. And I also think it is a horrible idea to “engage the victim as an ally in in the investigation” police investigations are supposed to operate without influence from the victims. The system is pointed towards justice, not retribution. One of the best ways to keep the needle pointed where it needs to be is to separate the investigation from the victim.