A Tennessee judge has ruled in favor of a student who sued the UT Chattanooga for wrongfully finding him responsible for sexual assault and expelling him, a ruling that may have significant bearing on Yes Means Yes regulations.
In brief: Corey Mock and Molly Morris had drunk sex. Morris claimed that she had been too intoxicated to consent. Mock claimed that Morris wasn’t all that drunk, and that she “consented through her actions”. The university administrative law judge who heard the case concluded that Morris’s claims of incapacitation were not credible and found Mock not responsible for sexual assault. Then, after Morris appealed and the UTC Chancellor interceded, the same adjudicator – with no further information or evidence – found Mock responsible and he was expelled.
Judge Carol McCoy ruled the affirmative consent standard implemented by UTC was fundamentally unfair because “the UTC Chancellor improperly shifted the burden of proof and imposed an untenable standard on Mr. Mock to disprove the accusation”
In other words UTC assumed Mock was guilty and forced him to prove his innocence.
The University of Michigan has settled with former student Drew Sterett who sued the university for violating his constitutional rights and wrongfully finding him responsible for sexual assault. In 2012, he was suspended for 4 years.
Under the settlement the determination that Sterett was responsible for sexual assault was “vacated” and his record was cleared. The accuser is mightily aggravated by this development.
San Diego State University has lifted the suspension of Francisco Sousa “after finding allegations of sexual misconduct against him were unsubstantiated.” Sousa is pressuring the university to issue a public apology “for sending a campus-wide email that told students he had been arrested” and to investigate the person who he claims falsely accused him.
I wish I could report that these recent “victories” (of sorts) for the wrongfully accused have resulted in better management of campus sexual assault cases, but based on recent filings by former students at Clark and Colgate, it seems that colleges are still floundering in arbitrary and capricious proceedings.
The problem with this theory is that it assumes that Mock had the right to have sex with her, and she has to prove she withdrew it.
Momrath, do you think that anyone has the right to have sex with you at any time, and if they do, and you say they raped you, then you must prove that you withdrew that right? 'Cause I say that nobody has the right to have sex with me, unless I give them permission. If it’s up to him to get permission, why is it up to her to prove that she didn’t give it?
Suppose I am found with my bike in the middle of some’s private, posted property. I’m charged with trespassing. There’s no way I could have accidentally strayed into this property, because it’s fenced and signed. The homeowner says, “She was trespassing.” Do I get to fold my arms and say, “You can’t convict me unless you prove that I didn’t get permission to be on this land”? I don’t think so. I’m not allowed to be there unless I’ve got permission, and it’s up to me to show that I have it.
Get up and leave if you don’t want to have sex. Some of these women have gotten up to go to the bathroom, but never left the room. Some of these women have had sex in a bedroom with a roommate present. Rape is rape, but some of these claims are really, really tenuous at best and in that case the college better darn well do a very, very good job of investigation or better yet, let the police investigate with all the powers they have. Colleges are failing at this. I’m not sure why it is so very difficult to understand. That says nothing, absolutely nothing about whether the women are lying or NOT lying and everything to do with colleges doing a poor job for men and for the women. The Clark and the Colgate suits are very good examples. The Colgate guy should have gone for an injunction so he could graduate and then let the civil system sort out whether the college did a horrendous job or a stupendous job.
How can I make this clear to you, momofthreeboys? People do not have the right to have sex with me. It’s not up to me to withdraw that right, because they never had it. It’s not that they have the right to use my body until I do this, or until I do that, or until I do the other thing. They don’t have the right to my body. Period. It’s mine.
Then what does that say about a women who CAN leave, who CAN stop the situation but doesn’t. Yes you have a right to your body as do I, but I do not have a right to accuse someone else years later of about something I did have control over and that is what the criminal system has been dealing with for much longer than universities and with much stronger investigation powers. I cherish my rights and especially my right to my body, but with rights come responsibilities and that goes not only for women but for universities who are acting as de facto legal systems. No one is a mind-reader…not men trying to figure out what women want, not women who think they know what men think, not universities without subpoena powers and investigative resources and certainly not untrained people who have to make decision without evidence.
It says to me that you’re blaming the victim. It doesn’t matter whether she stops the situation: he is still responsible for illegally starting the situation.
CF, you are correct, but the analogy you are using seems simplistic. Isn’t the analogy for these situations closer to the following She seems to indicate (but doesn’t actually say) or may actually say that you can to leave your bike in the yard. Then, when you return, you have no problem taking it out the yard. Several days or months later, she says that you trespassed because either she never gave explicit consent for you to park there or gave consent but was not capable of doing so.
“People do not have the right to have sex with me”
Of course they don’t. And you don’t have the right to get someone expelled based on your interpretation of an event. You have to prove (at least 51%) that things occurred the way you say they occurred.
The initial burden of proof is on the accuser because the accuser is the one seeking a change to the status quo. This is true of all judicial and quasi-judicial proceedings in our tradition. The plaintiff, or the prosecution, has the initial burden of proof because they are asking the decision-maker to impose a penalty of some kind. You have to justify that request of the decision-maker. You don’t have to justify inaction, or the status quo.
I suppose we could write a presumption into the law that all sex is rape by and against both parties until proven otherwise. But in every act of sex, we have (at least) two landowners and two potential trespassers, so I don’t think that would get us very far.
People like to use the words “victim blaming” as an argument to obfuscate a situation or create a stawman, no one is blaming anyone except the women that are blaming and accusing the males…people, both those accusing and those accused, should be held accountable for their report including their actions and that I wholeheartedly believe in and frankly that is what the criminal justice system does. It starts in the sandbox when Johnny comes crying that Teddy hit him. Well why do you think Teddy hit you? is generally how the conversation goes. Not, OK Teddy you’re booted out of pre-school. Sometimes I think our nation has lost the ability to use common sense.
I have a hard time seeing how they got to 51% in the Sterrett/UM case in the first place. There was a neutral third-party witness about four feet away throughout the whole encounter. He was clearly awake because he sent an angry message to his roommate in the middle of the night complaining about the ongoing sex noise from both partners and demanding that they have a roommate discussion about this rudeness the next day. He also said that he never heard her say no, even though he heard everything else. The accusation was filed five months later, after (according to the accuser’s close friend) the accuser’s mother found her sex diary. There’s just too much doubt there to justify a finding of sexual assault IMHO.
Assume that both parties agree that sex occurred. She says it was without her consent. He says it is with her consent (apparently, for momofthreeboys, the consent is always there and has to be removed?). Hanna, you say that she has to prove that she did not consent.
How is that different from me being discovered in on someone else’s private property, acknowledging that I knew that it was private property, and asserting that the property owner has to prove that they DIDN’T give me permission to go there? Don’t I, instead, have to prove that I did have permission to go there?
In both cases, the property owner’s case and the case of the woman saying that someone had sex with her without her consent, I say that the initial situation is that there was no permission/consent. The property owner/woman doesn’t have to prove it, because that’s the default case. The property owner doesn’t have to prove that I didn’t have the right to go there-- I never had the right to go there unless I got explicit permission. The woman shouldn’t have to prove that he didn’t have the right to have sex with her-- he never had the right to have sex with her unless he got her permission.
I don’t see the analogy here at all. If I assert that the property owner seemed to indicate that it was OK for me to ride across his land, and the property owner denies this, it’s going to be up to me to prove that I had permission. I’m a mountain biker. I know about claims about trespassing. When a mountain biker gets caught “poaching” (trespassing), they don’t just get to blandly assert that they had permission, and then everything’s hunky dory. I can assure you that my bare assertion that I had permission, absent any proof and with the denial of the landowner, is not going to get the judge to dismiss my citation.
I might defend myself by saying that I didn’t realize I was on private land: I was riding legally on public land, and the road or trail I was on crossed onto private land but it wasn’t signed so I had no way of knowing. But it’s up to me to raise that defense. If I knew or should have known that I was on private land, it’s going to be up to me to prove I was allowed to be there, not up to the landowner to prove that I didn’t have permission.
“Hanna, you say that she has to prove that she did not consent.”
She has to prove that he raped her. So, yes, she has to prove that there was sexual penetration without consent.
“How is that different from me being discovered in on someone else’s private property, acknowledging that I knew that it was private property, and asserting that the property owner has to prove that they DIDN’T give me permission to go there? Don’t I, instead, have to prove that I did have permission to go there?”
Nope. If the landowner is the plaintiff, the burden of proof is on him. Let’s say the landowner sues the trespasser for damages. The homeowner has to prove each element of the claim. So the homeowner must prove: 1. that he owned the property, 2. UNAUTHORIZED entry by the defendant, and 3. damage. The landowner has to have evidence that the defendant wasn’t an invited guest, employee, etc.
Wouldn’t the assertion that she wasn’t an invited guest or employee be enough evidence?
Suppose I am discovered having ridden my bike onto someone’s private land and camped there. I had a campfire, which got out of my control and burned down the barn. The landowner sues me for damages. He proves that he owned the land by showing a deed. He proves the damage by giving the insurance report. He proves that I caused the damage, let’s say because I admitted that it was my campfire. What does it take for him to prove that my entry was unauthorized? Isn’t it sufficient that he asserts that he never authorized me to be there? Isn’t it then up to me to come up with the proof that he did authorize my entry? How could he even prove the negative?
Are you saying that I can get away with setting the fire and accidentally burning down the barn, just on my bare unsupported word that I had permission to be there, when he denies that I had permission?
Totally different, if you go into some one else’s space and undress yourself or allow someone else to undress and then don’t leave when you have every opportunity to leave the situation needs close examination. In many of the controversial cases the women went to the men’s room, or invited the male over, or there was a pre-existing relationship etc. and not the men going to the women’s room. That is more closely aligned with your bike rider cutting across someone’s property with the bike rider needing to defend permission. Yet if someone even utters a question about the motivation of one of these women they are labeled a victim blamer…when in fact it has not even been established if there really is a victim. Each case is unique although there are similarities between types of cases. A huge chasm between “I said he did this, therefore he did this” and asking intelligent, probing questions. That is why some of these end up in court. Universities cannot simply assume that “she said he did this therefore he did that.” Some posters, although not I, have probed whether in some of these cases the male was actually assaulted.
Someday some guy is going to charge that and then it will be interesting to see how the unis, if they still legally have the power to do so, handle the situation. It may have already happened and we simply haven’t heard anything or they haven’t expelled the woman. The best advice for young people is to think about the consequences of your actions and it goes equally for young men and for young women. That is common sense and not victim blaming.
How do you propose that an accused prove they had consent? Even if they had consent in writing, it seems you are still open to the accuser claiming to have withdrawn consent at some point even if the withdrawal was not voiced. How in the world is that operable in real life?
Millions of women prove lack of consent every year. They have rape kits. They have sexual victim’s units. It happens every day. How does your scenario happen? You want to impose a standard that the accused must prove they had consent. Tell us how they can accomplish it. If you cannot, then it is not a reasonable standard.
It’s not operable in the “real world”, and that is why it isn’t working outside the criminal system and in the absence of mediation and it may come to pass that it won’t cut it even within the judicial system in those states that are trying to enforce yes means yes. If you start having sex with someone because at first you wanted to and you change your mind you better get up and LEAVE and if you can’t because you are passed out, drugged up or forced…then when you “come to” you better call the police because you were raped, you really were and you deserve the full force of the judicial system on your side. The blame game of pointing fingers at other people for things within your control, or situations where you look bad because of your actions is a losing game.