I have long questioned how colleges can find one perpetrator in cases that have two intoxicated parties. When it comes to theses cases on campuses, I don’t think it’s fair for one person to be held more accountable just because they’re a man and/or only got drunk and not blackout drunk.
Colleges should not be expected to handle criminal cases. They simply aren’t capable. Sexual assault needs to be left to the criminal courts. It’s not fair to either student. Too many lives can be ruined by low burdens of proof and if you’re an actual rapist, you don’t need to just be off campus. You need to be off the streets and in a jail. This would solve so many issues.
I posted the link in a different thread, but I too, thought it was a very easy to grasp, easy to understand piece about the inherent trouble that unis and colleges were put in by expanding the definition of Title IX. For me these were the most salient points and always has been and a perspective that has demonized me in several poster’s minds. This author said it much better than I ever did.
I happen to think her lawyer is going about it the wrong way because the lawyer is publicly saying things like “she was s-shamed” and “(the punishment was) the act of criticizing a woman for her real or presumed sexual activity" and “You have a woman who was the sexual aggressor, and the school doesn’t really know how to deal with that situation,” for those quotes alone he/ ought to be fired because a rational person will never differentiate that from claiming that a male student in the same shoes is OK to demonize as a sexual predator and totally incapable of managing his sexual impulse tendencies and deserves to be suspended or expelled. I can’t post the Cincinnati Enquirer link because I am sure it contains a prohibited word, but there is plenty of news coverage in addition to the Atlantic article.
Or what if a woman gets drunk at a party with friends. She is walking home, and a drunk stranger jumps out of the bushes and rapes her. Are they equally to blame?
Of course not. She is not to blame at all, and he is entirely to blame. If she didn’t consent, then it doesn’t matter if she has never had a drink in her life or she is plastered. And that is equally true when she knows her alleged assailant.
A drunk man beats up a drunk woman. Both equally at fault?
No. When a person chooses to do something, whether they are drunk or not, they are responsible. If they do not choose to do the thing, they are not responsible. If a drunk woman, or man, decides to have sexual contact with another person, drunk or sober, who doesn’t agree to it, they are responsible for the assault.
@CardinalFang You’re comparing apples to oranges. A more appropriate analogy would be a drunk driver crashing into another drunk driver. If two drunk people have sex, neither is legally able to consent in many states. Let’s take a scenario in which a drunk woman at a party solicites another drunk man at a party. They both go upstairs to have sex. Neither party would be willing to have sex if they were in fact sober but they’re both drunk. This encounter is mutually nonconsensual. Under these circumstances, who is a university to punish? The person who reports the encounter first? What if both people plan on reporting but one gets to the administration first to tell their story? This is what happened in this case. Obviously I’m not talking about cases where someone jumps out of the bushes to rape someone. But if you have two people who drunkenly consent despite being legally unable to consent, who gets punished? Equating this scenario with the aggravated rape you describe is intellectually dishonest.
I’m very obviously talking about cases similar to the one in the article, when you have two drunk people who choose to have sexual contact with each other while drunk but legally, neither was capable of consent.
If the university has stated penalties for such an act, both should be subject to them in an actual equally mutually non-consenting situation (rather than making it a race to report first). But (a) it may not necessarily be “equal” (though it is not necessarily the case that the first reporter/accuser is less guilty*), and (b) it is not surprising that third party abjudication of unclear sexual consent situations is easy to make errors in. Of course, that is a convenient smokescreen for the true predators, particularly those targeting intoxicated or drugged victims, to hide behind.
*Analogy: two people get into a fight. One of them reports assault and battery to police. Police investigate and find that the reporting party actually initiated the fight and did not stop when the other party tried to disengage, so the police arrest the reporting party.
Plenty of young men have reported that Title IX is being misused by young women who have regrets after consensual sex or to get back at them for a break up. Schools that find too many cases in favor of the boys will find themselves under federal investigation. You don’t want any boy you care about to be the next case after a federal investigation has been announced.
In California, the relevant parts of the rape laws define rape as sexual intercourse with a person not one’s spouse where
it is accomplished by force against the will of the person (“force” here is defined as enough force to accomplish the act; the relevant part is “against the will”), or
the person is unable to resist due to an intoxicating substance and the accused knew or reasonably should have known it.
(There are numerous other kinds of rape defined in the law, but none relevant to this discussion.)
You might be thinking of California’s law about campus sex and consent, which says that in campus adjudications someone who “was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity” would not be deemed to have consented.
But one can be drunk without being so out of it that they can’t understand the fact, nature or extent of the sexual activity. Mere drunkenness doesn’t make someone incapacitated.
In any case, this campus sex law does not criminalize any behavior.
Are you serious or just being disingenuous? Every state has laws where a party may not be able to consent due to voluntary intoxication. Of course, this will vary somewhat between states. One state Supreme Court has declared consent is impossible when there is
CaliCash said in many states two drunk people are legally unable to consent to sex in many states. There is no state in which merely being drunk is sufficient to be unable to consent to sex.
Nice quote, @roethlisburger, but you left out part of it. It doesn’t prove what you think it does. Here’s the full quote:
This is from State v. Zeh, from Ohio. In Ohio, one kind of rape is engaging in someone when “The other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.”
In other words, the person has to be not just drunk, but “substantially impaired,” and substantial impairment must be established by demonstrating a reduction in the victim’s ability to appraise or control his conduct. Zeh was accused of raping a young man. The prosecution alleged that the young man was mentally handicapped (not drunk); the defense said he wasn’t “substantially impaired.” The appeal was based on technicalities about whether the defense was allowed to test the alleged victim’s mental capacity.
@“Cardinal Fang” Okay, I’ll bite. What if two substantially impaired drunk people have sex? Now we have the same scenario that I outlined above. Do both people get charged raping each other if both report an assault? Do neither? Does the one who reports first get labeled the victim?
Now we get into how impaired you have to be to be “substantially impaired.” Can you be substantially impaired and still initiate sex? Can you be substantially impaired and still seemingly consent to sex someone else initiates? The easiest way to get around this problem is to say that if you are very drunk, and you seemingly affirmatively consent, and you seemingly know what you consented to, you legally consented.
I have no problem with colleges having stricter rules, though. I have no problem with a college saying, “Don’t have sex with very drunk people.” And then if one complainant comes forward, and the college discovers that both students were very drunk and both students engaged in the sex willingly, punish both.
Notice the key phrase here: both students engaged willingly. We can also have the case where both students were very drunk and one of them raped the other; then of course the rapist should be punished and the other person not punished.
I went and read Doe vs. University of Miami. Flanagan’s summary of it is grossly inaccurate. I previously didn’t have much respect for Caitlin Flanagan. Now I have none.