Hanna, you are fortunate in most of the cases you have encountered. I have personal knowledge of cases in which multiple, clear statements “no” did not deter an attacker.
Here are some questions that I think would be worth discussing, that seem to me to be more pressing than the issues that Suk raised:
What is the dividing line between “reasonable doubt” and “unreasonable doubt”? At what point in the odds do doubts become unreasonable? Does the boundary line depend on the consequences, if “reasonable doubt” is not thought to exist? Personally, I could see odds of one in a trillion as still leading to reasonable doubt. Probably many people consider that level to be unreasonable, already.
The Office of Civil Rights of the Department of Education apparently sent out a “Dear Colleague” letter in 2011, urging educational institutions to adopt a “more likely than not” standard of evidence in allegations of rape. Is that fair or reasonable, considering the consequences? Some institutions previously had a “clear and convincing” standard of evidence. I see this as weaker than “beyond a reasonable doubt.” Is it not? What standard of evidence should an educational institution adopt, in your opinion?
Is it possible for a person to obtain consent fraudulently? Is that still consent?
Is it possible for a person to obtain “consent,” at least in the form of “yes,” by physical coercion? Is that still consent?
Is the idea of a “Senior Salute” actually all that rare or recent? I believe that it existed at one of the local, suburban, public high schools far from New England, and think it may be more widespread than is being portrayed.
Are women under the age of consent being lulled into a false sense of security by their legal status?
Some more to follow . . .
I have read that if a woman manages to escape somehow, she is most likely to avoid completion of an assault [more than verbal resistance, I believe]. I do not know the statistics on the use of physical violence by a woman against her attacker. Is this likely to result in greater physical harm to her?
The phenomenon of a woman’s giving consent at one point and later regretting it probably does exist. Of those women, what fraction suffer from post-traumatic stress disorder, with flashbacks? Of those women, how many later suffer from suicidal ideation?
Some people have adopted a rather cavalier attitude toward trigger warnings, in my view. If a classroom discussion sets off a traumatic flashback during class, are faculty members prepared to deal with that? What if it sets off a flashback at 3 am? Is there any recourse for the student? What if a student suffers a flashback during an exam, due to a trigger-category question? Is there any recourse, or is that just “Tough luck”? What if a student’s performance is affected adversely, but no actual flashback occurs?
Are one’s views on these questions affected by personal knowledge of victims? Probably. I was removed from a group of potential jurors during the voir dire in a rape case, by a peremptory challenge. I suspect that it may become increasingly hard to impanel impartial juries in such cases. Could that actually be a problem?
Do college faculty members, who probably hear accusations of rape by one student against another more frequently than most people do, have a different view of this issue than the general public? Do older people, who have had more time to accumulate knowledge of women who have been attacked, have a different view of this issue than younger people?
Do current students not know what “completes the act”?
Are young women in the boarding schools not taught that some young men will profess love that they do not feel? My public school included this statement in the curriculum for junior high girls. Do people doubt that it is true that some young men will claim to love someone they do not love?
What is your take on the fraternity at Yale that had pledges going to the freshman-residence part of campus and chanting, "No means yes . . . "? [and sorry, I cannot finish this quotation.] I think that arguing about whether there is or is not a “rape culture” is not worthwhile, because the terminology hardly matters. But I think that young women should be protected from men who think this sort of thing is funny. What are the admissions folks thinking?
One more: What per cent of women do freeze up, when an assault is initiated? As a first estimate, I would guess this is about the same as the number of soldiers in combat who never fire their rifles. And that is much higher than you would think.
QuantMech said:
I sincerely hope that you are never selected to serve on a jury. There would be no possibility of a conviction in any case at all if that were the standard. The whole criminal justice system would have to be dismantled and no crimes prosecuted. Seriously, that’s probably the most disturbing thing I’ve read on this board in a very, very long time.
Re #1224: That is probably why in our area college professors rarely wind up serving on juries. It is a sincere question, though. If I were a juror in a capital case, I would be very concerned about where the boundary of reasonable doubt lies, and I would probably push it pretty far out.
Personally, I am not comfortable with the standard of “more likely than not,” which the Department of Education wants universities to adopt in rape cases (as I understand it), since the result might be expulsion. I see this standard as weaker than “clear and convincing,” which in turn I see as weaker than “beyond a reasonable doubt.” [Weaker, that is, in terms of the level of proof required to conclude that an assault was committed, with university-related consequences as opposed to criminal consequences. In a criminal case, the accused would still have to be presumed innocent from the start.]
On the other hand, if a university adheres to “clear and convincing” rather than “more likely than not” as the standard, I think that some young men will wind up getting away with rape. I am not comfortable with that, either. At the moment, I have no good answer with regard to the standard of proof that universities should adopt.
Do you agree with the Department of Education standard?
A professor at Penn studies consent in the medical setting, such as when a doctor hands you a waiver to sign before a procedure. It is much harder to obtain unbiased consent than many people imagine. The wording of the form, the manner in which it is presented to you, the pressure you feel to sign something once you are already in your hospital gown, whether or not you are starting to feel the effects of relaxation drugs, whether or not you have family members present (and how they are influencing you) all bear upon the “quality” of consent that is given.
Moving to a “yes means yes” standard in the campus relationship arena will bring its own set of uncertainties.
Going back to the issue of reasonable doubt–do judges instruct the jurors on the meaning of this phrase? Is there a set legal understanding of what constitutes reasonable doubt, and what is unreasonable?
I agree with MidwestDad3 about the issues with consent in a medical setting.
QuantMech, after the Rolling Stone UVa debacle, we discussed the Dear Colleague letter in several threads in minute detail. I’ll summarize:
A number of posters think that colleges have no business dealing with sexual assault at all. Sexual assault is a crime, we have a criminal justice system, and these posters believe that colleges and universities are not equipped to run quasi-judicial tribunals.
Of the remainder, most thought that the “preponderance of the evidence” standard (which is mandated by the Office of Civil Rights) was too weak. They preferred the stronger “clear and convincing evidence” standard. A rough rule of thumb is that preponderance of the evidence means that there is a greater than 50% chance that the accused person is responsible for the alleged conduct, while “clear and convincing” means there is a greater than, say, 75% chance that the person did what s/he was accused of doing.
Juries are instructed as to the meaning of “reasonable doubt.” These definitions have been applied for centuries. They are the cornerstone of our criminal justice system. When you sit on a jury, you are instructed as to how to apply the this burden of proof. You MAY NOT apply your own burden of proof. If you are incapable of doing this, you should reveal your reasons during voir dire and be excused for cause.
Nothing about the Labrie case has convinced me that we need to apply a new legal burden of proof in ANY criminal case; rape is no exception. Is rape worse than capital murder? Even capital murderers and child killers and assassins are tried under the burden of reasonable doubt. Sometimes heinous criminals escape conviction by the application of the “reasonable doubt” burden (OJ Simpson anyone?) Talk about a miscarriage of justice…and yet, even that case did not change the burden of proof in this country. I hardly think the Labrie case is worthy of opening that type of discussion.
I am 100% opposed to educational institutions applying their own, lesser burdens of proof (including their own punishments) to criminal activities. I believe all crimes should be referred to the police so that appropriate due process can be employed by professionals who specialize in the business of crime, not by professionals who specialize in the business of education.
I do believe it is natural and probably common for women (and men) to freeze during an assault, sexual or otherwise. This is one - of many - reasons I support a universal “yes means yes” standard to determine whether a rape has occurred.
I think there is no question what “preponderance of the evidence” means. Is there agreement that “clear and convincing” means 75% likelihood?
I am glad that juries are instructed as to the meaning of “reasonable doubt.” I agree that in criminal proceedings, this needs to be the standard. Is there a numerical probability associated with it? Or what are the instructions given to jurors? Is 99% likelihood “beyond a reasonable doubt”?
In law, some kinds of fraudulently obtained consent count as consent, but others do not. For example, in California (and other states, I think) a crooked doctor who tells a patient that she must have sex with him to cure her disease is committing the crime of rape, as is a person who tricks the victim into believing s/he is having sex with his/her husband/wife. “Consent” obtained by force or threat does not count as consent, so a person who threatens someone with, say, deportation or arrest in order to have sex with them is raping them.
On the other hand, it’s perfectly legal to pretend a romantic interest in someone in order to have sex with them.
Re #1229 Just recognize that proof will still be an issue in “yes means yes.” I’m not sure this particular case would have turned out any differently under “yes means yes.”
@quantmech, google “burden of proof” and “reasonable doubt” and you will find many examples of jury instruction that are actually employed in criminal cases, at the state and federal level. While they are clear, they do leave room for some debate among jurors during their secret deliberations, which is also a wonderful and somewhat unique aspect of our American jury system, that most of us treasure.
That particular number is just a rough rule of thumb, but there’s agreement that “clear and convincing” is a higher standard of proof than preponderance.
“The phenomenon of a woman’s giving consent at one point and later regretting it probably does exist. Of those women, what fraction suffer from post-traumatic stress disorder, with flashbacks?”
What I suspect I’m seeing in many cases is accusers who arrive at college survivors of sexual trauma. They’re having flashbacks, etc. during consensual acts. They’re feeling terror and coercion when there is no threat, because they are re-experiencing a threat from the past.
Can’t prove it. But it’s a darn good explanation for a bunch of cases where both sides tell compelling, believable, and totally incompatible stories.
Lots of people have flashbacks during nothing–during sleep, or sitting in a room.
Sure, that too. But being underneath a guy like the one who raped you will bring bad memories out real quick.
QuantMech – I know plenty of college professors who have made fine jurors, meaning that they possessed basic common sense. It is stunning to me that an educated person could say that odds of 1 in a trillion could somehow give rise to reasonable doubt. That’s not how criminal trials work.
Kids seem so reliant on their phones. I’m wondering if an effective consent app could be developed.