And this is a document for professionals trained to deal with he sexual assault and he said/she said situations. I can’t even imagine universities dealing with this stuff.
I believe all our kids are intelligent enough to understand the rules on consent in their university policy handbooks.
My kids grew up watching Law and Order SVU. I guess that was my lesson plan.
I agree that kids in college generally understand the rules and all know that assaulting a passed out/extremely drunk woman is completely unacceptable and illegal both under college rules and the law. The challenge, which is not easily defined, is figuring out the line between drunk but able to consent and too drink to consent, even if consent is given at the time either verbally or through enthusiastic interaction. I also think withdrawal of consent after it was given is not always clear: does it have to be verbal/physical or can it be simply a reduction in enthusiastic response? That doesn’t mean that men don’t assault or rape women who are clearly so intoxicated that they cannot or did not give consent and then lie about consent. That is what makes it so difficult for the colleges: how can they determine after the fact whether the level of intoxication was sufficient that consent could not be given and that the inability to consent should have been clear to the perpetrator.
Take the Amherst case discussed earlier. In that case, the woman texted someone about the encounter and was not upset but later said she did not realize she had yet accepted it had been rape, so texted as if it had been consensual and that she was worried her roommate, who had been casually dating Doe, would find out. Doe was not told about the text messages and so did not have access to them for his defense, but if Jones’ response is that she wasn’t ready to call the encounter non-consensual, how could Doe defend himself almost 2 years later?
While I agree this is true, I don’t see how it applies to the Amherst allegations. She says she stopped oral sex and he physically forced her to continue. If you have to force someone because they won’t do it if you don’t force them, that’s a teeny clue they’re not consenting. I have no idea if the Amherst accuser is telling the truth and I don’t know how Amherst could know, either, but if she is describing the situation accurately, it’s not ambiguous.
Agree, and I should have made it clearer as that the first part of my post was not referring to the Amherst case necessarily but to the issue more generally in response to the comments about college students understanding the Rules enough to implement them in the moment. Absolutely, if she pushed him away and he held her head, then she withdrew consent and he is responsible. The text messages don’t make that point, however and would support Doe. But if she can then come back and say she didn’t recognize that she had withdrawn consent and thus was raped until much later, not sure how the college or anyone can figure out what actually happened.
You will have the passage of time issue in the criminal justice system as well. In many states there is no statute of limitations for sexual assault. While it varies considerably from state to state it ranges from 3 to 30 years to make the claim.
We know this? I don’t know this. My experience of a mother claiming this lies entirely within the realm of novels and drama. Could you provide some kind of citation of this well known fact?
In at least one state, the courts have interpreted the consent issue as
I would assume anyone drunk enough to blackout would be drunk enough to have a reduction or decrease in their ability to act or think, although it might not always be obvious to others how drunk they are. I don’t see how anyone can honestly claim to completely understand these definitions unless they’re lawyers or spent a lot of time reading through the case law.
Well in the state that utilizes that definition there will be lawyers interpreting that standard. That’s the definition/standard they would use in the criminal justice system.
Colleges use the definition and standard set forth in their conduct codes which is usually something along the lines of what a reasonable person knew or should reasonably have known about the ability of the person to consent. Easy enough to understand – as always the hard part is trying to determine the answer. It will be very dependent on what evidence is available to support the alleged victim’s condition at the time of the alleged assault. Sometimes you have enough to draw a reasonable conclusion but I am betting a lot of these get resolved with an “insufficient evidence to support the claim.”
The data we do have indicates there are not a large number of expulsions which I assume would be the penalty for that offense. .
Hard to say only 3 states have yes means yes laws on the books for the state so there probably aren’t too many “test legal cases” and, some have it on the books for public universities only so difficult to see how a criminal court would handle a sexual assault case that hinged only on the accuser saying they did not give consent or repealed consent somewhere along the way. I would assume many cases that rest solely on withdrawn consent even if both have been drinking are classified as insufficient evidence. The ones that go forth seem more of a flip of the coin depending on who has got better corroboration as to the events before and after if the tribunal even allows corroboration or questioning the claims to the table.
So much discussion about what constitutes “blackout drunk”. If both parties are drunk why is one incapable of control (consent, controlling urges) considered a victim while the other is incapable of control (controlling urges) yet considered the criminal.
Why don’t we back up and put much more emphasis on the problem of alcohol. We need much more education on alcohol and binge drinking on campuses. Sexual assault issues would become much clearer if these kids did not all feel that it is there right to binge drink and get “blackout drunk” for fun.
Let’s start by EMPHASIZING and EDUCATING about responsible drinking.
For the same reason that when a drunk driver hits a drunk pedestrian, the driver is to blame. Being drunk is not an excuse for committing a crime, and having a drunk victim is not an exoneration for committing a crime.
If a drunk person forces sexual acts on a non-consenting drunk person, that is sexual assault. In California, at least, the definition of “force” is merely enough force to achieve it.
So Cardinal Fang, in the cases where both were drunk, what penalty do you recommend for the woman for committing sexual assault?
@“Cardinal Fang” I fully agree with you that if a drunk person forces sexual acts on a non consenting drunk person that is sexual assault. I wasn’t disputing that fact.
I’m talking about the cases where the “rapist” and the “victim” are both drunk. They party, flirt then have sex. No force involved! But now the victim gets to say “I was too drunk to consent”
In the case of the drunk driver we say “if you’re going to drink DON’T drive” or if you’re going to drive DON’T drink"
Well maybe alcohol education and drinking responsibly should be compared to driving when sex is involved.
The alleged victim is the party who has filed the complaint. Did the other person involved in the sexual encounter file a complaint with the Title IX office? If not then why should the alleged victim also be accused of sexual assault? A college cannot accuse someone unless a report has been filed.
If the other party files a complaint against the alleged victim or someone reports that person was sexually assaulted, then the process is the same – an investigation, a hearing if the investigation bears fruit and a penalty is imposed.
Posters seem to believe that the college is going to make the complaint for someone because 2 people were intoxicated and one claims he or she was assaulted. No, you have to file the complaint that you were assaulted or a third party that has reason to believe you were, can also report it to the Title IX office. Absent that report the college is to going to investigate on your behalf.
If you read upthread, you will discover that I said someone would be deemed incapable of consent if they were unable to make a decision to do something. If we have two people who are both unable to make a decision (however bad the decision, however drunken the decision) to have sex, no sex is going to occur and there will be nothing to punish. I specifically said that someone who was in a blackout state, in the sense that they weren’t going to remember the next day what they had done, could nevertheless consent to sex in some cases, depending on their degree of impairment.
If on the other hand someone drunkenly consents to sex that they subsequently regret, well, too bad.
I’m not saying that factfinding in these cases is easy. It is not. But we can all agree, I think, that there are cases where someone is so drunk they are unable to give or refuse consent, and most of us agree that there are many cases where someone is drunk, even very drunk, but can nevertheless give or refuse consent.
I can’t, so you’ve got me there and I hereby retract the claim.
There was an interesting article in the New York Times on Tuesday, related to this topic. It is called “What Experts Know about Men Who Rape.” The research of Dr. Mary Koss, a professor of public health at the University of Arizona, showed that when the subjects were asked whether they had penetrated against consent, the subject would say yes, but when asked if they had done something like rape, they said no. (I didn’t spot a date on Koss’s study in the article, though there might have been one; but there is a link to her web site, in the online article.) The research of Dr. Antonia Abbey, a professor of social psychology at Wayne State University, showed that men who blamed their victims were more likely to be repeat offenders. The research of Dr. Kevin Swartout, a professor of psychology and public health at Georgia State, suggests that “low-frequency offenders are more common on college campuses than previously thought.”
Re Cardinal Fang’s recent post: It would be interesting to know the views of the mothers of the men who blame their victims.
“Would it be illegal for someone who did not know this guy to have sex with him, when he was full of energy, talky and outgoing? I doubt it.”
Police wouldn’t necessarily pursue this, but Title IX inquiries do. I’ve had several cases where the accuser’s lack of memory plus the accused’s acknowledgement that they had sex was the basis the finding of responsibility. In a couple of my cases, the fact that one drunk person remembered and the other drunk person did not was the key explanation for why one was considered a perpetrator and the other a victim.
Re MADD, I am totally on board with distributing smart phone breathalyzers and using them to establish a bright-line rule (even though some people are much more impaired than others at a given BAC). I do worry that idiotic kids will use them to compete for the highest BAC rather than to make sure people are safe. And of course, they don’t measure other drugs.