“Wouldn’t the assertion that she wasn’t an invited guest or employee be enough evidence?”
Yes, a sworn statement would be enough evidence to meet the initial burden, but that wouldn’t be the end of the story. Then the supposed trespasser could put up a defense showing that he WAS a guest or employee. Maybe, for example, there are text messages between them showing them making plans to meet up for lunch at landowner’s place. Maybe the landowner sent a bunch of “I love you” emails to the trespasser after the event. Maybe a third person on landowner’s property heard the parties chatting like old friends at the time of the alleged trespass.
If you care about getting at the truth, you would give the supposed trespasser every opportunity to turn up that evidence, and you’d take it seriously once it came in front of you. That’s what some of these Title IX accused had.
So then the analogy is that the woman gives a sworn statement that she didn’t consent, and then it’s up to the alleged rapist to put up the defense that she did consent (text messages, emails, evidence from a third party, whatever). And if the alleged rapist can’t convince the jury, then he loses, just like the trespasser, right? She gives her sworn statement and then the burden of proof switches to him to rebut it.
I care about the truth, and I’d give the supposed rapist every opportunity to turn up the evidence. (And I don’t dispute that some college tribunals have been terrible, and have not done that.) But @Hanna, you seem now to be conceding that it is up to the accused to rebut the accuser’s sworn statement that she didn’t consent, just like it’s up to the alleged trespasser to rebut the landowner’s sworn statement that the alleged trespasser didn’t have authorization to be on the land. That’s my point. If you agree with that, we have no disagreement.
Except that you call the evidence the accused raises “victim blaming”? Because it will include inviting the accused to the room, engaging in pre-sexual activities, lack of verbal dissent, etc.
No, I call it victim blaming to say that if she did this or that, or if she didn’t do this or that (if she removed some of her clothes, say, or if she didn’t stop him from removing some of her clothes, or if she was so shocked she froze and didn’t leave when he started raping her) then she consented to being raped. Removing garments is not consent to sex. Not stopping one’s rapist is not consent to sex.
Inviting a guy into my house is not the same as consenting to have sex with him. Kissing him is not consent to having sex with him. Failing to stop him from raping me is not consent.
ETA: I do agree that if the accused attacker demonstrated that the alleged victim kissed him, or engaged in other activities of a sexual nature that sometimes are precursors to sex, that would be relevant to his claim of her consent. Not dispositive, but relevant. Those actions do not constitute consent, but they would be relevant in determining whether consent was given.
“And if the alleged rapist can’t convince the jury, then he loses, just like the trespasser, right?”
Well, the initial burden would satisfy a motion to dismiss or a motion for summary judgment, so the case can reach trial. But at trial, the jury can decide that the landowner was lying, and if they do, maybe the burden isn’t met.
“you seem now to be conceding that it is up to the accused to rebut the accuser’s sworn statement that she didn’t consent”
Conceding? When did I take an opposite position? Of course, if the defense is silent, I would expect the plaintiff to win by default in a civil setting. (Criminal, with its higher standard of proof, is a different story.)
I realize now that I shouldn’t have been thinking about the burden of proof (which, as you correctly point out, resides with the plaintiff/prosecution) but the underlying rights of the woman or the landowner. I don’t have the right to go on the landowner’s property unless he grants me that right. He doesn’t have to keep telling me that I can’t go on his property, because I never had the right to go on his property. If I’m caught trespassing, I don’t get to start whining about how if the guy didn’t want me to go on his property he should have been patrolling it with a shotgun and dogs-- I didn’t have the right to be there, whether or not he was patrolling with guns and dogs.
A guy doesn’t have the right to have sex with a woman unless she grants him that right. What so infuriates me about momofthreeboys’ comments is that she constantly emphasizes that the woman should do this or that. But the woman is not responsible for withdrawing a right from a guy that he never had. She doesn’t have to keep saying No, no, no, no, no. The answer is always no, up until she says or indicates yes. He never ever gets to assume that the answer is yes without finding out whether the answer is yes.
As I’ve mentioned several times…laws vary from state to state regarding consent and within the states how colleges have chosen to write their policies can be varied. Plus many if not most of sates and colleges misconduct rules and state sexual assault laws to not require a vocal affirmation to continue. I absolutely will and will ALWAYS counsel young people, men and women, to be careful to do “this or that” as you say. I think a world of hurt could be avoided if young people watch out for themselves and use some common sense.
momofthreeboys: what sort of counsel would you advise parents of sons give to those sons? I am truly curious after reading your posts so long. I am asking about specific advice, not generalities.
I only have one in college right now and relative to Title IX, I’m pretty straightforward and I’ve just told him to be very, very careful and to not hook-up with anyone that he doesn’t know very, very well and to be especially careful if the girl is drunk, even if it seems like she really wants it. But believe me most college boys that aren’t celibate or in a exclusive relationship are pretty aware of what’s going on with college tribunals regard to Title IX. Remember I’m the one with a son whose (best) friend was falsely accused in high school to “cover-up” her infidelity to her supposed exclusive boyfriend and because her mother didn’t know she was sexually active so on top of all of the college media noise, my kids are pretty cognizant of what can happen.
“A guy doesn’t have the right to have sex with a woman unless she grants him that right.”
Does gender have anything to do with this? Isn’t the opposite also true, and true for same-sex couples?
I don’t find that young people of any gender, drunk or sober, are good at indicating yes or reading whether they’ve gotten a yes. I also don’t think that tens of thousands more rape prosecutions is the best way to deal with that problem. I am not convinced that “affirmative verbal yes” standards help much either. We will have just as many disagreements about whether a “yes” was said as we’ve ever had about whether a “no” was said. Yeses will also be withdrawn in flagrante delicto – or so the accusations will run. (I’ve got a case like that right now.)
We need Canada-style multilateral sexual assault prevention training, for both genders, as part of comprehensive sex education, early in high school. That would make a real dent in the problem. But I don’t have any delusions about the political viability of that idea.
Does gender have anything to do with this? Isn’t the opposite also true, and true for same-sex couples?
Absolutely and women do “initiate”…they really do. Guys just seem to shrug it off if it doesn’t go well or if they get kidded about it the next day or the girl cold shoulders them after the event. Girls seem to internalize sex more deeply - but that is absolutely an opinion not a statement of fact. Anyway I agree about the education and it should start long before college.
momofthreeboys: Thanks for the answer. I always remember that story, every time I read one of your posts. Do you believe it is the responsibility of a young man to take care not to put himself in a situation where he may be falsely accused of rape? Should we expect him to take steps to protect himself?
Hanna: I keep thinking about the drunken young man in Missoula, seemingly modeling his behavior after what he had seen in porn films. Several times, Hunt has questioned the role of porn in all this. It wouldn’t have taken much to teach that young man that porn is fantasy, not real life. Of course, some may understand that without instruction. Education is always better. imho.
“I also don’t think that tens of thousands more rape prosecutions is the best way to deal with that problem.”
+1
As I’ve said before, the problem with Dear Colleague and the like is that it views this issue primarily as a failure of litigation processes. With the evidence of such process failure being the low conviction rates. So the policy focus is on litigation process reform.
The evidence seems to be that litigation processes really aren’t improving and probably can never be improved all that much. Because the best process still whiffs in the absence of strong proof. And there’s rarely going to be strong proof in these acquaintence rape situations. You will never litigate your way out of this issue.
“We need Canada-style multilateral sexual assault prevention training, for both genders.”
“I don’t have the right to go on the landowner’s property unless he grants me that right. He doesn’t have to keep telling me that I can’t go on his property, because I never had the right to go on his property. If I’m caught trespassing, I don’t get to start whining about how if the guy didn’t want me to go on his property he should have been patrolling it with a shotgun and dogs-- I didn’t have the right to be there, whether or not he was patrolling with guns and dogs.”
But I’m not trespassing if I am an invited visitor. So if there’s evidence and behavior from the landowner indicating that my visit was invited and welcome, then that is relevant.
Actually more prosecution may be the answer. There are 70,000 unprocessed rape kits in this country. Men don’t have to fight back. The system protects them all the way.
Yes of course. Gender only comes into play when we realize that the vast majority of rapists, not all but almost all, are men, and most victims, not all but most, are women.
I would like to see more rape prosecutions, because I think that a lot of guys are getting away with what every single person in this thread would agree is unquestionably rape.
They may not think it’s their responsibility solely, and sex shouldn’t be one person’s responsibility IMO, even if a girl is all over them asking for it which they do at times, but they darn well know that the system is NOT in their favor and they think the system is not fair. I think my college kid is far more cautious about his sex life than his oldest brother who was in college pre-Title IX expansion. My oldest worried more about unwanted pregnancies because that happened to friends of his – if he didn’t use a condom and a girl got pregnant he could be on the hook for a lifetime of payments for something he didn’t want which also can be construed by young males as “not fair”. My youngest is probably more worried about being accused of something he didn’t do because that happened to a friend of his so he’s more cautious about his sex life in that regard (hopefully along with the condoms learned from his older brother’s friends). So your experiences shape your thinking and your behavior if you are a guy in my opinion. They learn that trust isn’t something to be taken lightly. But I haven’t asked either of them point blank what concerned them most. I never know what my middle one thinks because he’s a clam and not as open with me in conversation.
Don’t be ridiculous. The system is hugely in their favor.
Which is bigger, momofthreeboys, the number of women who are actually raped, or the number of men who are falsely accused of rape?
To be sure, we need to teach our children to be prudent, because bad people might do bad things to them. We need to teach our daughters not to put themselves at heightened risk of being raped, and we need to teach our sons not to put themselves at heightened risk of falsely being accused of rape. It’s not fair-- women don’t deserve to be raped, and men don’t deserve to be falsely accused. But let’s not deceive ourselves as to which is the bigger risk.
I don’t think anyone knows the answer to your question, but I’m not going to get into yet another circuitous discussion about contractual rights or due process rights (especially in a public uni like UofM with a law school) who should know better.
Give it ten seconds of thought, momofthreeboys. The number of men accused of rape (whether falsely or truly) can easily be known, and even the lower bound of estimates of the true number of rapes is a lot bigger. So if the number of rapes is bigger than the number of men accused of rape, the number of rapes necessarily is bigger than the number of men falsely accused of rape.