As a general matter.
So as a general matter, you think men are always looking to get away something, even in a loving, consenting situation that isn’t disputed by anyone. Ok, then. That is pretty staggering.
I have two daughters who are or have been in college and in committed, loving relationships with two young men. I don’t believe for one minute that every time they engage in intimacy that the young men are looking to get away with something. I also know that was never true of my husband.
CF, but in the close cases, “yes means yes” always circles back to “no means no” eventually. I think that was the case in the Columbia mattress case. Didn’t they have a “yes” relationship for a period of time, and then the dispute arose over whether, and when, “no” entered into it?
I obviously didn’t make myself clear. That is not what I think at all. People in loving, consensual relationships don’t (as a general matter) have the attitude that they should get away with whatever they can get away with.
But there are men who are sometimes or always looking to get away with something. They have no interest in what their prey wants; they only care about what they want, and how to get as much as they want as they can, up until the objections of their prey become too hard to ignore. Those are the men whose attitude I deplore.
Having sex with someone when you have no reason to believe that it is what they want and have chosen-- that is despicable. It’s despicable well before we get to disputes.
As a general matter, Labrie’s pursuit of these young women is despicable because he didn’t care what they wanted. It’s despicable in the case of the 15-year-old, but it’s also despicable in the case of any 16-year old and 17-year-old prey, even though those young women have not brought forward complaints.
Ok, I get you now. It wasn’t clear but is now.
I absolutely think there are some young (and older) men who are looking to get away with something ALL THE TIME. However, I think there are some women who are predators, as well as men who prey on other men.
Absolutely true and that’s not ambiguous. The problem arises when the other person really does have reason to believe that is what the person he is with wants. Which does happen. It even happens that sometimes one person consents until after the fact and realizes what he or she has done.
Absolutely true; we are in complete agreement here.
Here’s what I was getting at: Right now, if a guy is accused of rape, he can offer the defense that she didn’t say no, as his entire defense. I say, that should not be a defense. Rather, he should have to supply something affirmative she did or said that indicated this was what she wanted.
Of course he can still lie. Of course there will be cases where he has good reason to believe she consents, but she actually doesn’t consent. Of course she can consent, and then later lie (or re-interpret, whatever) and say she didn’t consent. And those will be difficult situations. But the mere fact of her not saying no should not be interpreted as consent.
I support the idea that “yes” means “yes” and also some very careful consideration of how to implement that in practice, for unmarried people.
I would favor the idea that the man needs a time-stamped video recording of the woman providing consent, along with a private “safe word” that would indicate that the recording was not being made under any kind of duress, in case a charge of rape is filed. If the man knows the woman well enough to trust her not to file false charges, this would not be needed. If he doesn’t know the woman well enough to trust her not to file false charges, perhaps it is too soon for physical intimacy.
I also support having all bars provide swizzle sticks that can detect roofies, and having the bar go into lockdown mode, if roofies are detected in anyone’s drink. Welcome to QM’s Place!
Obviously, I don’t actually know how the either standard or the practice should be established. But from my experiences as a university professor, I am quite sure that what we have now is not working.
@midwestdad3, I concur with you; a “yes means yes” standard results in the same evidentiary problems already present in the current "no means no"standard. Will “yes means yes” lead to more convictions? I doubt it, but as I said, I don’t see more convictions as the primary value of a “yes means yes” standard.
There will always be a population of people (men AND women) who are pathologic. In the case of rape, there will always be a population of men who will rape women - strangers, acquaintances, whatever - regardless of the standard. “Yes means yes” will mean nothing more to them than “no means no.”
There will also, always, be that population of women who are pathologic as well. Perhaps, as Hanna suggested, prior assault victims who are no longer capable of handling/interpreting normal relations. Or women who will say “yes” but later recant out of hurt feelings, or pathology, or whatever. I see these women as just as much outliers as I see men who are true rapists.
These men and women will behave this way under any standard. I am not addressing these people. I am trying to figure out how to avoid unfortunate consequences for the large percentage of normal, healthy people.
I see “yes means yes” as a standard that is more protective of women AND MEN who make up most of our normal, law abiding population. If we teach the normal population of young men to seek out that “yes” every step of the way, because that is the standard, we will be that much closer to averting a lot of the hurt feelings and regret that might be triggering a lot of misunderstandings later. A nice young man trained under this standard will be a more careful and nuanced partner. A nice young woman trained under this standard will be in better charge of the encounter as well. And both parties, assuming they are part of our largely healthy, law abiding population, will hopefully be in a better position to honestly assess the encounter later, even if there are “hurt feelings” or regret or other things that come into play when all is said and done.
I see this standard as more of a preventive measure, not one that will lead to more convictions.
I mostly agree with prospect1’s latest post. If rapes are prevented, in my view that is better than obtaining more convictions (if one had to trade-off or balance the two).
@quantmech, what makes a college teacher/administrator any better at determining whether a rape has occurred than our professional police/criminal justice system? These people are not trained to properly investigate or adjudicate these things, and in my opinion they do a very poor job of it. I have absolutely zero faith that they reach the right result even 50% of the time. They simply are not trained to do this. We are not talking about disciplinary matters here; we are talking about a CRIME - rape. When college administrators and teachers act like police, judge and jury, they are going to get it wrong many times…and the consequences are going to be life changing for many men and women.
If we don’t like the way police are treating rape accusations, then we should make changes there. Not recreate the entire, costly system at each and every college.
I don’t know anything about the case you describe, but what if the college got it wrong when it banned the boy from the dorm? How would you react if you were innocent of a crime, but your college banned you from your dorm, or worse expelled you, without an actual trial? Maybe they got it right and maybe they didn’t…but this is the type of thing that makes NOBODY feel satisfied with the result. When people feel like they didn’t get their “day in court,” they can react badly, even uncharacteristically badly. And they also file lawsuits. And these things end up unsatisfactorily for many people, including the college footing the bill (and ultimately, all of us paying tuition footing the bill).
Don’t get me started on the cost of duplicating our entire criminal justice system at each and every college, when there’s already a professional police department just down the street. Isn’t tuition high enough? But that would derail this thread, and I don’t want to do that.
So…who is to supply the video equipment? Should we issue this equipment to our entire population (some people can’t even afford to eat, never mind buy video equipment). Must the entire sexual encounter be videotaped (what if a “no” occurs in the middle of the encounter?] Privacy issues?
I’'m thinking you might be kidding about ^^^^ this…? I’m not sure if you are though…
The campus system is not an alternative to the criminal justice system. It’s an alternative to the civil justice system.
Like the civil justice system, but unlike the criminal justice system, it uses a standard of preponderance of the evidence. Like the civil justice system, but unlike the criminal justice system, no jail/prison sentences can be imposed, so there is no deprivation of liberty.
Why can’t the accuser just sue her alleged attacker in civil court, you say? She could, but the civil system is unsatisfactory for dealing with the problem.
For one thing, it takes too long. A woman who has been raped will have forced to share her campus, maybe her dorm and her classes, with her attacker. By the time she gets a victory in civil court, he will have graduated and left: that is to say, the college or university will have conferred a degree on a rapist. Does the college want this?
For another thing, it costs money. To say that a student who is attacked must go to civil court is to say that only students with money get justice. Does the college want this?
@quantmech, I do like your swizzle stick idea. That could be an interesting startup. I would support that; sounds like it might not be expensive to implement, either.
@cardinal fang, the consequences of getting it wrong are very, very high.
You are seeing it through the eyes of a raped woman. We need to see it through the eyes of both parties. By the time a wrongly-accused/punished/expelled boy gets his day in court, he has lost years of his education.
So, it is critical to get it right. True justice can’t be rushed. It does take time. That’s just the way it works in our society. Why should a college campus be treated any differently than any other sector of our society? We are talking about adults here.
Victims in our society, sadly, must be patient. Gone are the days where a posse rounded up the criminal and hung him/her. We, as a country, have decided it is more important to spend the time to get it right; this is hard on victims, but we Americans have rejected the alternative (the rush to justice posse).
Not every boy accused of rape is a rapist. Not every girl accusing a boy of rape is a hysterical liar. We need to protect everybody here. Rushing the outcome is NOT fair to anybody.
You haven’t offered a plan to get it right. You’ve offered a plan so that aquaintance rapists don’t get punished ever.
@cardinal fang - “Ever?”
The victim of a sexual assault in the real world has many options at her disposal, including going to the police or seeking IMMEDIATE injunctive relief in civil court. These real world avenues for relief are just as available to college students on college campuses.
Here’s my concern. I am bothered by the “every step of the way” standard. I think yes means yes can be served quite well by (a) ensuring the ability of both parties to consent, and then (b) affirmatively giving consent clearly and unambiguously. Once that is done, I think no means no should become the appropriate brake to forward motion. I think it would be ludicrous to actually have to consent every single step of the way, and who would decide what is a separate step from the prior or the subsequent? I think that’s just silly. But I emphatically support unambiguous, uncoerced consent by a person able to consent.
@prospect1 We have multiple standards of proof in many areas.
For example, if you commit securities fraud, e.g., by forging a client’s signature, you may be charged with a crime by a federal prosecutor. If it goes to trial, the prosecutor has to prove your guilt beyond a reasonable doubt. You can plead the Fifth Amendment and refuse to testify.
However, if FINRA, the industry regulator, investigates and you refuse to testify, you are kicked out of the securities industry. It is allowed to draw the “adverse inference” that you plead the Fifth Amendment because you did something wrong. Even if you do answer the questions, the tribunal will discipline you if it seems probable that you did forge the signature. Nobody requires that the forgery be proven “beyond a reasonable doubt.” You lose your job. You can’t get hired by a bank or securities firm. That’s a pretty stiff consequence.
If before that, you’re hauled into the office of your employer and asked if you forged your client’s signature and you answer “I plead the Fifth Amendment” or simply say “I’m not answering any questions” you can be fired. Most employers WILL fire you.
We do NOT require that the employer or the industry just sit around on their hands and wait to see if the wrongdoer is charged with a crime–or convicted.
I really have never understood why so many people think colleges ought not to be able to conduct their own investigations and use a lower standard of proof in sexual assault cases. I certainly don’t understand why people think the evidentiary rules should be the same. A jury isn’t going to find out that six other young women claimed the accused sexually assaulted them.
If there’s something wrong with the COLLEGE process for investigating sexual assaults, FIX IT. Don’t say “Do nothing. Let the police deal with it.” Make it better.
And, in many states, it’s near impossible to get an order of protection–is that what you mean by a civil injunction? Until George Huguely’s conviction, you couldn’t get one in Virginia unless you were in a relationship with someone.
I do think rape cases are changing, but it’s due to technology.
Back in my high school days, an allegation of rape like this might never have led to charges. It would have been “he said/she said.” The friends would have described talk about the “senior salute” stuff as “just guys talking about girls.” It would have been alleged the freshman had a crush on the attractive senior boy. etc.
Now, however, many of the conversations are retrievable in written form, tagged with author, recipient, date, time–even threaded. Some devices even leave location tags. The electronic trail on both sides showed he was obsessed with pursuing her. She? Well, I didn’t read in the reports of any texts or emails she sent to anyone on the topic.
There’s far more evidence as to state of mind, motive, and immediate reactions.
@jonri, you make a very good point. A college is in charge of its environment, just as an employer is in charge of its own environment, just as regulators of various industries (in your example, FINRA), are in charge of policing certain aspects of their industries.
However, I see an enormous difference between a college regulating its environment in disciplinary matters vs a college in effect adjudicating such stigmatized and criminal matters as rape.
In your example, and in similar “real world” examples, the investigating bodies are very specially and specifically trained in these matters (i.e., the Labor Board, FINRA, the SEC, the Medical Board, on and on). They are considered to be important administrative arms of our civil justice system.
Who are the specially trained persons in the Dean’s office who are qualified to decide whether a rape has occurred, and if so, how it should be punished? Look at the Labrie trial. We are 1277 posts into this discussion and there is no consensus that justice was done. I am not comfortable leaving these types of life changing decisions in the hands of educators.
One problem with fixing the college process by providing the administrative resources necessary to properly duplicate the systems we already have in place, is cost. Tuition is already prohibitively high for many Americans.
I am not suggesting that colleges do nothing. I am suggesting that when the college is presented with an alleged crime, the college should be permitted to advise and counsel the accuser, and assist where necessary, in directing the accuser to the appropriate authorities and avenues. I know that Title IX does not permit this; I know that the college is required to have a tribunal to adjudicate these matters. I am not blaming the colleges for what has been forced upon them. I am merely voicing my personal opposition to this system, as I believe it is not serving anybody’s interests effectively.