Well, I think what @hanna is doing is trying to establish a rationale for why a young woman would act in a way that would not appear, on its face, to be reasonable. I am not sure that she was positing an argument as to why women who allege they have been assaulted should be disbelieved. I think this is an alternative albeit nicer theory than the theory that a woman would make a retroactive decision that she really wasn’t consenting to certain acts based either on how the relationship eventually developed or discussions she may have had with others who take a more militant view of sexual assault.
As far as PTSD being used as an argument as to why someone was not raped, such a theory would never make it into a court room without 1)some independent evidence that there was a prior case of sexual assault and 2)an expert who has the ability to testify that the theory you outline is an accepted psychological theory, which is usually done by reference to academic studies published in peer reviewed journals. Absent evidence of those two things, I would think a good criminal lawyer would have no trouble with such a theory before a jury.
That said, the fact remains that a prosecutor will have great difficulty convincing a jury that a woman who admits she had consensual sex with a man for a time but then non verbally withdrew that consent during a subsequent encounter was assaulted. This is because such behavior is outside our normal experiences, and juries are not populated with people steeped in victimology who may be more in tune with the various theories used to explain why victims behave in certain counter intuitive ways. In that sense, it does not have much to do with the burden of proof. It has much more to do with the fact that the people involved in the legal system are not primarily victim’s advocates.
There are obviously multiple complex situations that are being treated within a single framework, when they ought to be regarded as separate circumstances. I agree that if a couple has had consensual sex previously, it is going to be much harder to persuade a jury that a later encounter was nonconsensual.
My primary concern is cases where there is no objective evidence, which includes “first date” situations. I don’t know what Hanna was trying to accomplish with her theory. If Hanna’s theory were allowed into court, it would undercut the idea that PTSD is indicative of rape in the specific instance where the accuser says that rape occurred, at least to the extent of establishing reasonable doubt. If Hanna’s theory is inadmissible in court, that’s great as far as I am concerned. I don’t know whether it would be allowed or not in a university proceeding–probably that’s variable from university to university.
Ohiodad, I must not be understanding you here. Are you saying that it’s outside “our” normal experience that a woman would have sex with a man, but then in a subsequent encounter refuse her consent to sex? Or are you saying something else?
First of all, none of this discussion is about sending people to jail. Secondly, there are certainly clear nonverbal ways of indicating lack of consent, such as trying to get up and leave or struggling.
Let’s return to what we’ve been discussing, which is colleges dealing with accusers accusing other students of sexual assault. @hanna, I wonder in what fraction of your cases do you think the accuser was not asked for consent at the point where she alleges she didn’t consent, where if she had been asked, she would have refused.
We can imagine different scenarios ending up in a student being dismissed for sexual assault. In some cases, the student disregarded clear and indisputable lack of consent. In some cases, there was consent (expressed or not) at the time, but the accuser is either maliciously lying to get revenge on someone, or convinced herself that she didn’t want to engage in the activity when in fact at the time she did.
But then there are middle cases, where the accuser truly did not want to engage in the activity. Maybe she had PTSD and froze up, or maybe she was giving pretty good nonverbal signals and the accused didn’t pick up on them. But in any case, in these middle cases she didn’t want to be doing what she was doing, and if she had been asked, she would have said so. Anyway, these accused guys thought it was OK to go forward without getting consent, but they were wrong. Aren’t these exactly the cases the colleges are trying to prevent by instituting rules about explicit verbal consent?
I wonder, then, why you oppose rules about getting verbal consent. Your clients didn’t just fail to get verbal consent-- they failed to get verbal consent and there wasn’t any consent. Aren’t these guys exactly the ones who should have asked? Isn’t this exactly why guys should ask-- because they thought it was OK, but they were wrong?
In the non-hypothetical world, verbal consent to anything between individuals is the exception, not the rule. Almost everything in life, not just sex, proceeds based on nonverbal agreement.
I understand the reasons to try to impose a verbal consent requirement, but it’s completely artificial, especially since it seems that once is not enough. Additional consent may be necessary for each aspect of an encounter that one of the parties may consider to differ in some important way not previously discussed from other aspects (or, if previously discussed, someone has changed his or her mind). In real-world law, I can’t think of anything remotely like that. It’s a trap, even if it’s a morally beneficial trap. It provides a legal crowbar to pry apart aspects of a continuous transaction.
And in that very same non-hypothetical world, a substantial number of young college women think they have been sexually assaulted. This is not a good thing! This is not a thing colleges like and want to continue.
Have any steamy novels come out where the young female lover speaketh Yea Verily thrice as a prelude to further conjugation? Just askin’. Since this is to be the new standard - we should be seeing it our literature. A lot.
Glad to hear the device is making headway. I wonder if previously written novels should be banned because consent consisted of a wink, a bob of the head, a light touch on the ear or a popped button.
Just to try and bring this thread back to the original point, I think @“Cardinal Fang”'s point about a woman’s right to withdraw consent etc., illustrates the problem. The legal system is focused primarily on proving that the accused did an act which the society seeks to sanction. In other words, to make a determination of guilt. This requires clear rules developed over time as to what is acceptable and not acceptable conduct. When those rules apply, it is relatively easy to discuss “consent” with a son or daughter, which is kind of the whole point of our legal system. If you do X, you will get in trouble.
The tribunal system, on the other hand, seems much more focused on the conduct/mental state of the accuser, and less concerned with specific actions taken by the accused. In other words, the tribunals are not trying to establish clear rules of acceptable/unacceptable behavior, assumedly because of the current state of popular/progressive thinking on the way young women (primarily) may respond to traumatic circumstances. So we have constructed a system that requires no objectively reasonable conduct on the part of the accuser to express a lack of consent or to demonstrate impairment. While this may or may not be a good thing for young women, it is not a system which lends itself to a discussion of how men should behave, except in its broadest terms.
I agree with the first paragraph of your post, Ohiodad51. I see the issues in the second part somewhat differently. I agree that there is no consensus on acceptable/unacceptable behavior. Much follows logically from that.
I am not sure what behaviors you are focusing on with the reference to “popular/progressive thinking on the way young women (primarily) may respond to traumatic circumstances.” It’s not particularly popular/progressive to say that young women may freeze up when an assault starts. That is psychological fact, as far as I understand it. I think the situation is somewhat similar psychologically to soldiers freezing up in battle, and not firing their weapons. Historically (going back to WW II), I believe that the fraction of soldiers who actually fire their weapons in battle is quite small–and they have been trained to respond to battle.
I disagree that “no objectively reasonable conduct on the part of the accuser” is required, to express a lack of consent. Many universities have not yet gone over to a standard of “only yes means yes.” I don’t believe that my university would find culpability in a student who genuinely did not know that an act was non-consensual.
The issue of demonstrating impairment is a tricky one. In my opinion, anyone who roofies another student for any purpose ought to wind up in jail. A man who plies a woman with alcohol, while remaining comparatively sober, and then has intercourse is culpable, in my view, though this is not the same as the first situation, unless the woman is either unconscious or so clearly out of it that there could not be any doubt she is incapable of consenting. Even then, I see “roofie-ing” someone as more despicable. If the students are drinking together (the woman is not being “plied”) and then the couple has intercourse that appears to be consensual–in my view, this could be regrettable later, and perhaps both students should have counseling about alcohol consumption, but there is far less culpability (if any) in this case than in the previous cases.
Men who talk about “scoring” or especially “slaying” are badly in need of moral education. It is hard to see how this attitude would not carry over to interactions with women, but (at the very outer edges of conceivability) perhaps it is just “talk.”
The one piece of essential male wisdom my father tried to communicate to me – it took him the better part of an hour one evening to get it out, and he couldn’t look me in the eye the whole time – boiled down to, “When the other guys talk about what they do with girls, a lot of the time it’s just talk.”
Perhaps the real problem in many of the cases is that the evidence quality is low (often one person’s word against one other person’s word), so that a third party (whether a court or a university administration) making an accurate determination of guilt or innocence is difficult. It is likely that they guess incorrectly in both directions frequently; the standard of proof (“beyond a reasonable doubt” versus “preponderance of evidence” versus …) presumably shifts the type of errors, but probably not the frequency of errors.
As California is learning it is difficult to prosecute a yes means yes legal test. If colleges are going to publish clear directions on what does and does not constitute yes means yes, then I suppose we can “educate to that standard” to deal with honor code violations of those specific policies, but so far it’s been a bit of a minefield because no one can really define what it means and how to execute the concept. I rather liked this excerpt from WSJ last year and bookmarked it:
So boys if you are on a yes means yes campus, ask if you are the aggressor. And girls make sure you know what you’re getting into if you say yes. Girls if you are the aggressor you need to ask, too.