So it seems that you are saying someone is obviously impaired if the exhibit outward symptoms evidenced by a BAC of .1 to .125 - impairment of motor coordination (walking by her self), slurred speech (couldn’t seem to talk), euphoria (giggling aimlessly), and if not at that level, then certainly by a BAC of .13 to .15 - gross motor impairment/loss of balance (really can’t walk), and maybe the anxiety is causing the aimless giggling. Either way, the outward markers you suggest make for an “easy” determination of impairment show up far below the standards of .2 and .25 that we were discussing just a few pages ago.
“if colleges are saying that having sex with someone incapacitated is against their conduct rules even if it is socially normative they’re going in the right direction.”
Agree with both of these points.
“To me this is a highly subjective, unreliable chain of reasoning, especially when there are multiple witnesses who may have interacted with the accuser over a period of several hours and who may have different opinions of the accuser’s physical state.”
Right. Another confound is that during the several hours after a person stops drinking, they can get more drunk, less drunk, or both across time, as the body is both absorbing and metabolizing alcohol. You saw her 30 minutes before the incident; she might be in much better or worse condition by the time the sex occurred.
(1) It’s difficult for adjudicators to evaluate how drunk the accuser was
(2) The adjudicators are charged with evaluating whether a reasonable, sober person would have thought the accuser was too drunk to consent to sex, not whether the accused person thought she was too drunk to consent to sex
(3) It’s more difficult to figure out whether she was actually visibly too drunk than to figure out whether he thought she was too drunk.
I agree with (1): it’s difficult to figure out, later, how drunk she was. I take issue with (3). I say it’s easier to figure out how drunk she seemed than to know what he was thinking.
The reasonable man standard in situations like this is kind of a trick question. Basically, in a case where you are relying on an investigator interviewing witnesses about their perceptions of someone’s behavior in the past, the only thing the investigator has to go on is whether the accuser exhibit symptoms which would lead a reasonable person to determine if s/he was incapable of providing consent. In other words, the same evidence that would convince an investigator that the accuser was “too” drunk will convince the investigator that a “reasonable man” would have perceived the accuser to be incapacitated. It is not really a two part analysis in practice even though it is written as such. This of course assumes that the investigator actually talks to third parties who can credibly report the condition of the accuser on the night in question (something I think is practically impossible after more than a couple, three weeks have passed) rather than just take the accuser’s statement of her condition as evidence.
I love the sleight of hand when drunk is interpreted as incapacitated in the field when it comes to females, but in arguments it is always about “Look, no one is against drunk sex!”
That’s not exactly what I meant. Let me try again. I’m using " too drunk" instead of intoxicated/incapacitated to be clear that I’m not talking about cases in which the accuser is passed out, unconscious, staggering, vomiting but rather someone who has consumed enough alcohol to feels its effect.
Agree: The adjudicators are charged with evaluating whether a reasonable, sober person would have thought the accuser was too drunk to consent to sex, not whether the accused person thought she was too drunk to consent to sex
It’s impossible to determine verify or quantify how drunk the accuser was at the time that the alleged sexual assault took place if there are no eye witnesses. If the accused and the accuser contradict each other, it’s impossible to verify which one is telling the truth. Because we’re talking about perception and unquantifiable levels of drunkenness both could be telling the truth, just using different definitions of how drunk is too drunk.
It’s therefore very difficult to determine whether a reasonable, sober person (had that fictitious person been a fly on the wall) would have decided that the accuser was or was not too drunk to consent. The witnesses used as “benchmarks” may be mis-remembering details if the event took place weeks or months in the past, may biased toward the accuser or the accused one way or another, may have never observed the accuser when sober, may have no way of knowing how much alcohol was consumed and most importantly, were actually not there a the time when the assault happened, which could span several hours.
I can’t think of any parallel situation to use as a guideline. Judges and juries evaluate level of drunkenness when the drunk person harms a person or property, as in DUI. The ability to judge drunkenness may be an issue in trials of people who served alcohol – bar tenders, parents – if the person served then harms a person or property.
But I don’t know of any case in which Person 1’s level of drunkenness is the determining factor in deciding whether Person 2 has committed a crime because s/he didn’t recognize that Person I had surpassed an unquantified level of drunkenness, and that Persons 3,4 etc. are used as surrogates to establish that if Person 2 saw what Persons 3&4 saw (though at another time or place) then Person 2 should have understood that Person 1 had surpassed that unquantified level. It is incredibly convoluted.
The closest comparison I can think of would be statutory rape in which the accused may claim “S/he looked like s/he was 18.” In that case, it’s black and white. The victim either was or was not 18 at the time of the sexual act. By comparison “too drunk to consent at the time of the sexual act” is a slippery and ever changing metric.
Cardinal Fang speculated that borderline too-drunk cases rarely come before college Title IX boards. Of course we can’t know for sure, but I would tend to think they are becoming more common because of the recent trend by advocates and law makers to define too drunk to consent as sexual assault.
Of the 50 or so recent lawsuits in the past two years by students who claim to have been unfairly treated, I’d estimate that in about 20 cases too drunk to consent was a factor, so obviously it’s a contentious issue that the colleges need to do a better job addressing.
Here’s an interesting one in my state with lawyers involved, again where the student was found not guilty in the criminal system and guilty by the college. Perhaps there is life after expulsions and legal wranglings.
Right – so here the girl does what you say all alleged victims should do and reports to the police. And as is so often the case, no criminal charges result. The college tribunal however, which operates under different evidentiary procedures and standards of proof, finds in her favor and expels him. He sues but drops his case after being accepted at another university.
So the alleged victim is happy that he is no longer roaming around MSU and another university may have a problem on their hands.
That MSU case is weak. He claims that the college didn’t accept polygraph evidence of him believing that he hadn’t had sex with her without her consent. But polygraph evidence in cases like that is so weak. First of all, polygraphs are inaccurate, which is why they aren’t accepted in criminal courts. But more importantly, the issue isn’t whether he believed she was incapacitated (in this case, incapacitated because she was unconscious) but whether a reasonable, sober, non-horny person would have thought she was incapacitated. And the polygraph tells us nothing about that, because non-rapists believe they didn’t rape, and rapists also believe they didn’t rape.
I’m not passing judgement on the merits of the case, there is no info to pass judgement on - but the thread is men fight back and this was a pretty low-key case that isn’t reflected in any database. My suspicions are that it IS indeed more common these days.
More details on the MSU case. I think this really illustrates why women are reluctant to report. “Ashley” ended up being escorted out to a police car escorted by uniformed police in full public view.
And it looks like he pulled one over on University of Michigan as well. “Ashley” contends he was only able to transfer because at the time of his application the matter was ongoing and it was not yet on his transcript.
The report from MSU that “Ashley” received and reviewed included the fact that someone whom she did not know stepped forward and told them that the accused had approached them and asked where he could get “roofies.”
And this guy is now roaming University of Michigan’s campus.
On a technical note, I noticed in this case it was again brought up by the accused in his lawsuit that he could not mount an adequate defense in the college tribunal for fear that anything he said could be used against him in a legal proceeding. I know this is not the first case where I have seen this brought up.
Not all of these cases where men are suing involved a simultaneous criminal issue, but in the ones where the accuser also went to the police it seems to be a factor in the lawsuit, especially if the accused is advised by a lawyer who is telling him he shouldn’t testify.
These “trials” (college and criminal) are supposedly separate proceedings but they bleed into each other.
How can the accused defend himself in a college proceeding without possibly hurting himself in a criminal one? Or is the answer, “he can’t.”
On the other hand, I guess if the accused has nothing to hide and is completely blameless and innocent, it doesn’t matter what he says in the college trial as it won’t make him look any worse to the cops, and may in fact help him.
You don’t have to testify at all in a criminal proceeding, and the presumption of innocence and clear and convincing standard of proof ensure that you are not held liable because you invoke the 5th amendment. If there is one thing that seems clear in the reports that we have seen, it is that the colleges do not really believe in all of this presumption of innocence stuff.
And on kind of tangential thing that really bothers me about this issue. Recognizing that I am a guy, and that for some people that means I can not hold a “valid” opinion on the subject, but the presumption that an eighteen-ish year old person knows better than the police how they should do their job is a real problem. People have sometimes unrealistic expectations about how the world is supposed to work, and I am very afraid that the presumed tenor of the college disciplinary hearings feeds into that mistaken world view.
Correct me if I’m wrong, but I’m pretty sure that in a college hearing (or in civil litigation in general) the fact that the accused won’t testify CAN be used to draw a negative inference (i.e. “used against them”).
Still, if someone was facing potential criminal charges and their lawyer advised them to not testify, I’d tell the guy to not testify and just accept the fact that’s he’s probably going to get expelled because of it. Still better than taking the risk of being convicted of a felony.
Was this thought in response to the complainant in the MSU case having an issue with the “train” of police cars that responded when the dorm supervisor called to report a possible rape after she confided in him/her?
@Ohiodad51 --I wasn’t sure but am surprised. Can you really not see how someone (male or female) would be upset with that response?
In this particular case “Ashley” was in the process of doing everything that you and other posters say she should do in circumstances of campus sexual assault. And although she is the alleged victim, multiple police cars arrive at the dorm and escort her out into waiting police vehicle in full view of the rest of campus. The general student body and her dorm mates have no knowledge of what has transpired and would you not agree that “Ashley” is now publicly portrayed as the wrong doer?
Speaking as someone who values my privacy this is my worst nightmare.
Yes, and she let her PPO expire which I’m surprised about. I’m not exactly sure what more MSU could have done to satisfy some activists’ wishes. In this case, MSU followed the course of action activists ask for. MSU reviewed and expelled this student who then went to court for a stay and then transferred.
The expelled student followed procedure when requesting to come back to campus when he could have, on that huge campus at that huge event just showed up with his parents without following the rules imposed on him. The university considered his request and notified Ashley like they should have done. Following procedures like this is exactly how advocates demand universities act but they still aren’t happy. I’m not sure what more MSU could have done and the accused exercised his rights outside the college tribunal as well as followed the rules set forth by the tribunal.
I am shocked that if Ashley is claiming that she was drugged that the prosecution has done nothing unless the tox screen showed nothing and ‘water pong’ was actually beer pong and something isn’t quite right with the story.
I do think it was abit overkill if multiple police cars arrived at the dorm or wherever she was. That seems alittle extreme. But good for whomever called the police. How they respond is something MSU should work on procedures with the police.