I hear you. But as the mother of a daughter headed off to college next year I feel the same, although for different reasons. My son is currently a HS sophomore so he follows in 2 years. The education process for both of them regarding these issues started long ago.
Maybe that’s mind boggling to an Ohio lawyer, but I expect better of lawyers in my state of California. In California, a man’s intoxication is irrelevant to whether he is expected to be able to tell whether a woman could consent and did consent. The California Supreme Court is clear on the matter; the standard is what a reasonable sober person would have thought. If a reasonable sober person would have realized that the woman didn’t consent, then the fact that the guy was drunk is given no weight.
I expect lawyers to be more careful in their statements. The burden of proof has not been flipped. Rather. the standard of proof has been lessened, to the standard of proof for civil suits, preponderance. In previous discussions on CC, most posters have agreed that a higher standard of proof would be preferable.
Perhaps you can quote the part of the Dear Colleague letter where these terms are used? I read the entire document and did not find those terms.
Again, I’d appreciate a citation from the Dear Colleague letter. The letter I read said that either both parties can have advocates, or neither can have advocates. The letter I read discourages direct questioning, but allows the parties to submit questions, so that the arbiter can ask them.
Fair enough, I was loose in my language and relying on writings about the policies spawned by the dear colleague letter rather than the letter itself. My mistake. As near as I can tell, the letter itself only uses victim and perpetrator once, in the second paragraph, but the language of the letter itself not generally biased. It does include the 1-5 statistic which I believe has been widely debunked, and quite obviously is intended as a response to an assumed epidemic of sexual assault against women, but the language itself is not as I described. As near as I can tell it doesn’t mention a right to counsel for either party.
All that said, to argue that the dear colleague letter and the policy it expresses was intended as or interpreted to be anything other than an effort to make it easier to convict men of sexual assault in campus tribunals is, in my opinion, disingenuous.
And Cardinal Fang, I may be a mere Ohio lawyer, but I have tried cases in California, which is indeed its own special little place. In technical terms, the California affirmative consent law is nuts, and widely derided by the non advocate legal profession. Either way, the distinction I was referring to isn’t a variation of the reasonable man standard which you are alluding to. It is that to my understanding immaterial under many of these policies whether a reasonable person (drunk or not) would have assumed a woman was able to consent to sex. It is instead that the woman’s subjective, post event belief that she was intoxicated somehow is used to invalidate actions a normal person would consider consensual, even in the absence of outside indicia of impairment. I am aware of no concomitant difference in the policy treatment of men who are impaired.
@Ohiodad51 not sure what document you are referencing. The terms “complainant” and “alleged perpetrator” are reference throughout the letter. See below link:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
They are, as I said the language of the letter was not as bad as I thought.
A) Why the need for personal insults yet again, B) Thanking my lucky stars I don’t live in California, C) What does California, in its great wisdom that exceeds all other states, say about MALE consent, and MALE sobriety? Anything? Crickets? Enquiring minds want to know.
@Consolation Gov. Andrew Cuomo is pressing for the enactment of affirmative consent laws mirroring California’s in NY state. Many NY colleges have already enacted them on campus. I have not researched it but I think every Ivy League school with the exception of H has some form of affirmative consent already enacted.
http://www.reuters.com/article/2015/01/17/us-usa-new-york-sexcrimes-idUSKBN0KQ0U820150117
I wasn’t talking about the new affirmative consent law, @Ohiodad51. I was talking about well settled California case law applying to all, not just students. In California, rape by intoxication can occur when a woman is not unconscious, but is intoxicated. [People v. Giardino:](http://caselaw.findlaw.com/ca-court-of-appeal/1299638.html)
Moreover, in California, an accused rapist cannot use the defense that he was too drunk to realize that his victim did not consent. [People v. Potter:](People v. Potter :: :: California Court of Appeal Decisions :: California Case Law :: California Law :: US Law :: Justia)
As I’m sure you know, California law with respect to rape is gender-neutral.
I’m okay with the concept of affimative consent – though I think the 12 step processes that the colleges have put together to help students define consent borders on voyeurism and infantiliization. (If college students need to ask each other WHY they are engaging in a sexual act, perhaps they should stick with backgammon.)
What I’m not okay with is the manner in which the colleges determine if the alleged victim was too drunk or drugged to give consent. Each college has its own definition – and its own terms: incapacitation, intoxication, impairment, drunk, extremely drunk. Passed out or falling down, throwing up drunk is not at issue.
The grey area is an accuser who was able to function – walk, talk, text, possibly seduce. Looking back on an event that took place weeks or months in the past and aided only by input by the accuser herself and random witnesses, it’s nearly impossible for the committee to make a valid judgement call. This is not a DUI, where police are on the scene with breath and walking tests. This is an event that took place often over a period of several hours, often a long time ago.
Determining incapacitation is even worse than a “he said, she said” consent situation. This is a “she said and we have to believe her because we can’t disprove it” situation. Because there are so many variables, any amount of alcohol could invalidate a consent.
The McLeod/Duke case is a good example. McLeod met the accuser at a bar. She was under age and shouldn’t have been served, but one way or another she consumed alcohol both at the bar and before hand. McLeod didn’t however see her consume alcohol at any time that night and he was with her for several hours.
She and McLeod danced, then took a taxi back to his fraternity house. They chatted with the taxi driver. They were observed coming and going by two fraternity brothers and chatted from a distance. After having sex, McLeod went to sleep and the accuser asked another brother for help getting a taxi.
Each of these four people, whom McLeod attempted to call as witnesses, would have characterized the accuser as coherent. None would have called her incapacitated. Yet, that was what the committee decided, based mostly on the report of an anonymous witness and friend of the accuser who corroborated the accuser’s claim that she was drunk.
Among other procedural violations, McLeod claims
=))
Another case - this time from Brandeis: a gay man, who was found ‘guilty’ of various sexual assault charges 9 months after he broke up with his boyfriend of 21 months (fellow student), is suing Brandeis under Title IX that his fair process rights were violated. Of interesting note, the couple met during freshmen Orientation - when the alleged perpetrator was 17 years old and in the closet and the accuser was 18 and publicly out – and dated for 2 years and then these allegations were submitted their senior year, after they broke up.
Read the lawsuit here: https://kcjohnson.files.■■■■■■■■■■■■■/2013/08/brandeis.pdf
(warning – it’s pretty alarming – not the allegations against the perpetrator, but the fact that Brandeis, allegedly, released information to various potential employers (of the perpetrator’s, including his internship supervisor who promptly fired him) related to the fact that the alleged perpetrator was found guilty of violating various assault policies).
And yes, it’s just one side of the story, but nonetheless…
That’s a good point. We’ve seen that recently in the case of the Oregon basketball players, one of whom was investigated for sexual misconduct at School A, moved on before being expelled to School B (Oregon) from which he was expelled, and is now playing again at School C. The Oregon student who claims she was raped by the player (and two others) claims that the college was negligent in admitting him. I think she has a point.
The CU-Boulder case shows what a tangle colleges can get themselves into. As part of the settlement, the college agreed not to reveal the former student’s sexual assault record unless the student authorized it. They agreed to a scripted response that, I think, would be misleading to the inquirer. But they did not agree to expunge or reverse the decision from the student’s record.
To me, this is an impossible case of the college trying to have it both ways and not succeeding at either. If they think he’s responsible then they shouldn’t cover it up. If they think he’s not responsible then they should clear his record.
If guys don’t do this, either they don’t believe people had non-consensual sex with them, or they don’t care.
Or they may fear–and not without justification, in my opinion–that they’d be ridiculed by some people and attacked by others if they did this.
Fair enough, as that is what generally happens to women.
We’ve discussed this issue at great length before, and we always get bogged down in discussions of mutual drunk sex. I think there may be a fundamental disagreement about how often mutual drunk sex happens. Some people obviously think it happens a lot, and others seem to think it is unusual. I think it’s probably true that this fixation causes us to lose focus on the problem of predatory men, who may use alcohol (or drugs) as a tool of predation. However, the fixation is inevitable for those of us who focus on civil liberties and fair process issues.
So here’s a question to ponder: are there a large number of sexual encounters on college campuses that occur when one or both of the participants are too incapacitated to legally consent? If so, is it the case that most of these don’t get reported to the authorities because neither party believes himself or herself to be wronged?
In other words, do you believe that if two people are in a sexually active relationship, and then they both get very drunk, and have sex again, that this should constitute felony rape on the part of one or both of them if one of them later complains? Would you still think it should be felony rape if neither participant complains, but it is observed by a third party who calls the police? And if you think those situations are different, what is the principled difference?
That Brandeis case is all kinds of messed up. I hate reading these stories (like the one at Yale) where the accused can’t even find out the specifics of what he’s been charged with. How on earth is that right?
The guy at Yale also lost employment and fellowship opportunities after the accusation against him (vague as it was, it certainly implied sexual misconduct) went mysteriously public.
As far as the mutual drunk sex—I was a serial monogamist in college, and I had mutual sober experiences and mutual drunk experiences. It was more rare to have an encounter when one was sober and the other had been drinking, because we usually partied together. I never felt taken advantage of, and I don’t believe my partners did either. It never would have occurred to me, even after breaking up, to call those drunken experiences a crime.
When I was in school, though, I don’t recall there being such a focus on the effect alcohol has on consent. I can’t remember it ever being mentioned except in the obvious “don’t have sex with people who are passed out”. It was really a strong focus on No Means No. If you said yes, it didn’t matter if you were drunk or high—yes meant yes and if you woke up the next morning thinking “crap, what did I do–and with HIM?” you just vowed to drink less next time.
The question about the 3rd party observing and reporting: for me this goes back to some early discussions where we talked about the butt grab, and how some people would call the cops, and others would find it annoying but not a big deal. Some opined that those who would ignore it were still legally victims of sexual assault EVEN IF they did NOT feel so themselves. I guess they might report a butt grabber on the loose, but I would think it would still be up to the woman whose butt was grabbed to press charges?
The Stanford article I linked earlier indicates it is up to the victim to define what happened. If a 3rd party reported an incident and the two having sex both say they define it as consensual, I would think that means case closed? Or could the police say, “it doesn’t matter if you think that ma’am, law’s the law and Sam here saw you down 5-10 shots and hop into bed with Jeff. At 5’2”, that makes you definitely intoxicated and it makes Jeff here a rapist."
In theory, they could say this. Indeed, it’s what they would say if the victim were, say, a 12-year-old girl. In reality, they don’t do this, without a complaint.
There is a distinction between what happens with the police and what happens in the tribunals. A third party’s testimony that they assumed a woman was intoxicated would never get into court, and even if it did that testimony would not overcome the reasonable doubt standard, especially if the “victim” testified that she was not drunk. You have to remember that virtually all of the situations we read about were looked at by the police and no indictment was sought. In other words, all of these cases involve situations that do not generally fit the definition of provable assault anywhere but on college campuses.
dstark has some links for you. With any luck, he’s bookmarked them someplace by now.
That’s the weird part. If we were talking about age, it would be a no-brainer that it had to be rape. If we were talking about mental incapacity, someone who is an adult but has to have a guardian with POA, it had to be rape. But we are talking about a temporary condition, that may be gone by the time any testing can be done.
Now we are talking about, at one point in time, someone was drunk or drugged or fully conscious and responsible. In my case, I wasn’t raped but I was assaulted and was rather close to being raped by my estimation (you don’t strip someone in order to say “have a nice evening, see you”). I would have gone to the hospital the next morning when I woke up for processing and all, if I had been raped. I don’t know if they would have determined if I was as drunk as I surely was (waaaaayyy too much alcohol, in retrospect, especially for someone who rarely if ever drank) 12 hours later. I do know there would have been DNA evidence, but I did pass out after the guy left, and was in no condition to fight back (I was so drunk I couldn’t speak right before I passed out, I did do a mental “pshew!” when he left).
I guess if I would have been responsible enough to go the next morning, I would tell them to call the frat house where I was at the party (he was NOT a brother by the way) and get corroboration of me being really really drunk when I left. And us not doing more than talking at the party.
The whole idea of the university somehow taking control of my assault instead of the police is extremely distasteful. If he was convicted of a crime, I suppose he would have been expelled. If he was not, what business was it of the university’s if he was accused of the crime? Do I bet he had raped before or since? Probably. But if he were not convicted of a crime, I do agree with the accused suing a university for purporting to be beyond the law, making up their own laws…
Unless the university had a strict “no sex” or “no drinking” policy and then the girl would be expelled as well or instead…
In loco parentis at universities gets quite ridiculous sometimes. We had dormmates who were shagging quite frequently, and pushed their beds together. But my goodness, don’t let people of the opposite gender room together, they might have sex! Like many same sex couples already are in university dorms! We had to move off-campus because we were straight.
Another thing I would like to see is how many crimes, on campus and in the real world, are unreported or reported and dropped. If you have something stolen, and you really have no proof you had it in the first place, won’t they close the case? If someone hit you, and you complained about it three months later, would the police laugh at you? Maybe not if you had gone to the doctor right away and gotten documentation of what happened.
But rape is “special” because sex has such an odd role in American society. Would you rather be raped or have your eye gouged out? Would you rather be raped or have a finger cut off? If you are beaten up badly, is that better or worse than being raped while you are passed out drunk? Can we make any real comparison between rape and other crimes? What other crimes are judgement calls depending on the situation - even killing someone in self-defense goes to trial?