Take gender and orientation out of it. Aren’t we going to teach our kids, male and female, that the goal is to please your partner as well as yourself? We aren’t going to encourage them to be selfish lovers, are we? That just isn’t acceptable behavior in my mind.
I am not imagining many of us had that explicit a conversation with our kids, but they certainly pick up our attitudes about this.
adding: PG, again I want to say how sorry I am you had that experience.
Bearpather’s example is not rape. It was a woman who for whatever her personal reason went along with something that she could have easily put a stop to. That is not rape. That is not assault. You don’t expel, suspend or put in jail someone who begs another person for something that is not illegal and the other person capitulates. This is actually a pretty instructive example for young women of what not to do and what does not constitute assault or an honor code violation if you want to bring it on home.
I am reading it also as an instructive example of what young men shouldn’t do. This is despicable behavior on his part, in my opinion, even if it isn’t illegal behavior.
True, begging is unbecoming for man, women, child or dog.
Look, I apologize to all of you whom I have offended. I appreciate @alh 's request that I try to find a different way to approach this, and maybe that way is going to have to be silence,
Just to be clear:
I do not believe that when anyone, woman or man, consents to have sex with anyone else, either person becomes the other’s “party doll,” or that being gossiped about is worse than being raped. Suggesting that I had said those things was offensive. But so be it. I was being provocative, too, although trying to be respectful, both in the way I address you and in my attention to your positions.
The point of my hypotheticals was that we don’t begin to protect young people from all the harmful things that can happen to them. The first one is more telling, because on the terms we have been using here that’s pretty clearly a rape: The use of coercion to obtain acquiescence, but not exactly consent, to sex, although again muddled by a shifting consent line during a continuous encounter. I know of no data to back this up, but I would flat-out assert that emotional coercion is far more common than physical restraint in the sex lives of young people. Anyone disagree? So what do you want to do about it? And the second hypothetical is a different sort of offense, one that goes much more directly against the kind of community the college wants to create. Should the college be going after that? How?
All the hullabaloo I have sparked is because I keep insisting on a split between private morality – what we should really be telling our sons and daughters about consent, the original subject of this thread – and public or semi-public justice systems. I hate to break this to some of you, but just because something is bad, horrible even, does not mean that there is an effective public remedy for it . Most of us, I included, believe it that the Ryo/Casey facts, if proven, could easily be called rape. But I don’t believe that in the history of the world, in any legal system, there has ever been a rape conviction, or even a rape prosecution, on facts like that. If anyone knows differently, please let me know.
So it’s completely useless, harmful even, to tell Casey to go to the police with those facts, because Casey will have no chance of vindication by that route and every possibility of being treated very poorly by “the system.” That doesn’t automatically mean that Casey’s college can’t provide some effective administrative sanction – like expulsion – to punish Ryo for doing a bad thing and to give Casey some sense of vindication. And that’s what a whole bunch of the issues around the college administrative tribunals are about. Changing the standard of proof to preponderance of the evidence, prohibiting representation of the accused by counsel, not requiring confrontation and cross-examination of witnesses – the point of all of that is to remove some of the reasons why a criminal conviction is impossible.
For me, whether that’s a good idea comes down to two questions. (Maybe there are more, but I have only been addressing two here.)
First, can colleges run a fair process that could determine facts at a granular enough level so as to give people confidence that they have indeed established the nuanced Casey/Ryo facts certainly enough to support a punishment as severe as expulsion for Ryo? I don’t think so. I don’t think it’s even conceivable unless you trick Ryo into confessing without understanding the consequences, and I don’t think that comports with our basic notions of fairness. And I think if you hold a fair proceeding, you are never going to establish facts with the fine-grained clarity of the hypothetical. It would be a circus, ultimately demeaning to everyone involved, including the tribunal. So it’s not worth trying. Others are free to disagree.
Second, and here is where more people may disagree, is the enormous effort it would take to rid the college of Ryos worth it? Does Ryo, does the potential presence of Ryo in the student body, so undermine the college’s mission to educate Caseys that we should spend the time and money necessary, and risk hurting a kid who might be innocent after all, to uncover and to punish the Ryos? And my personal answer to that is no. Unlike the more predatory offenders in some of the other Yale hypotheticals, I don’t think Ryo’s very wrong behavior undermines the institution enough to justify an institutional commitment to eradicate it. I think many other kinds of wrong behavior threaten the institution as much or more, and the institution hasn’t tried to do anything about them, so I find it questionable that this particular one is so much the focus of attention.
When I sent my children to college, I did not look to the college to protect them against a romantic partner in an ongoing relationship who might, in the middle of sex, engage in some form of coercion, physical or emotional. Did I think that would be OK if it happened? Of course not! But I didn’t think for a moment that the college could or would protect them against that, or that in the end they needed the college to protect them against that. If it happened, they would deal with it, and it wouldn’t likely interfere with what they were at college to do. I didn’t want to have to pay the college a lot of money to try to protect them to that degree, either.
So, how about you, @“Cardinal Fang” , @alh ? I understand that it’s important to condemn Ryo’s actions as described, and I agree with that. I understand that it may be offensive to you that I suggest anything other than that the thunderbolts of heaven should cast Ryo immediately into the fires of hell, that somehow Ryo’s sins are less important to a college than some others, or more difficult to get at. But did you really look to your children’s college for this? Are you willing to pay for the college to do it well, and to ask others to share that cost? Is it really that clear-cut to you?
Of course. No one is arguing it’s gentlemanly behavior. Personally, I don’t much see the appeal of sex with someone whom I don’t love.
It’s not morality but practicality that makes me say to my kids - it’s best to reserve sex for people who are special to you, with whom you are in a relationship. The odds of all this misinterpretation go down drastically. A guy who cares about a girl is going to respect his girlfriend’s no, and a girl who cares about a guy isn’t going to cry rape when in fact she decided halfway through she wasn’t into it.
I just found out a couple hours ago that a friend of a friend’s son is going through this at his college. I cannot get out of my mind his eagle scout picture on her desk :-(. I’m for two for two with knowing real cases and not two for two in a good way.
“Aren’t we going to teach our kids, male and female, that the goal is to please your partner as well as yourself? We aren’t going to encourage them to be selfish lovers, are we? That just isn’t acceptable behavior in my mind.”
Of course not. But I don’t think the college should adjudicate whether or not someone was a selfish or self centered lover.
Bad analogy, but bear with me for a moment. Casey and Ryo are having fully consensual relations. Casey looks at Ryo’s naked body and says - Ryo, you sure could lose some weight. Look how jiggly this is. I’m really not attracted to you anymore now that I see you naked. You should look at Morgan as an example - I’d be more attracted to you if you got your body to look like Morgan’s. Can you keep your shirt on and can we dim the lights in the meantime?
No one would argue that Casey isn’t being terribly hurtful, mean, and cruel. No one is arguing that Casey’s words won’t cause real psychological distress. No one would argue that Casey isn’t a real jerk for talking to Ryo this way. Everyone involved wants Ryo to stand up, get dressed, and walk out. But colleges can’t / shouldn’t adjudicate this. Nor should / do courts.
JHS: Thank you for taking the time to write that. I have to be quick because I’m headed out…
but I am old enough to understand all wrongs don’t have appropriate redresses and that sometimes there just isn’t a right answer. I understood very clearly you were never writing that force/restraint was acceptable in your mind.
I have no clue what the plural of redress is and would rephrase if I had the time
Google is a big help in determining whether in the history of the world, in any legal system, a man has been prosecuted for continuing to have sex with a woman after she withdrew consent. In fact, contrary to JHS’s opinion, men can be and are prosecuted in exactly those circumstances.
In [Maouloud Baby v. State of Maryland (2008)](http://www.washingtonpost.com/wp-dyn/content/article/2008/04/16/AR2008041602921.html), the Maryland Court of Appeals ruled that sexual consent can be withdrawn even after penetration. The case involved a guy named Mahmoud Baby allegedly having sex with a woman for only 5 to 10 seconds after she withdrew consent.
In [the UK](Sex with consent ‘can still be rape’ | Metro News), the High Judge issued an advisory opinion on a case where a woman agreed to have sex with her husband on the condition that he withdraw, but once he started he said “‘I’ll do what I want” and did not withdraw. The court said he would be guilty of rape.
In California, [People v. John Z (2001)](http://caselaw.findlaw.com/ca-court-of-appeal/1072298.html), the Appeals Court ruled that John Z. could be found guilty of the rape of “Laura” if she was found to have revoked consent after he penetrated her.
The case of John Z. and Laura seems exactly like the Ryo/Casey case. John Z. claimed he got initial consent from Laura. But the trial court found that Laura subsequently revoked her consent and John Z. continued for another minute or so. If the Ryo/Casey case had occurred in California, and Casey had texts with Ryo acknowledging what he did, he could be prosecuted.
Tell them, don’t put any part of your body into any part of another persons body, unless there is trust between you and they have indicated they would like you to do so.
As I demonstrated in my previous post, Ryo committed the crime of rape. So your answer is yes. Yes, I think that my son’s college should expel rapists. I don’t have the slightest hesitation in saying that when his college determines that a student has raped another student, the rapist has to go.
This is separate from proof issues, which I understand can be thorny. That’s another discussion, and as you’ll recall, I’d prefer a higher standard of evidence than preponderance. But assuming the college has the goods on Ryo, he should be expelled. Because he’s a rapist. Not a poor misunderstood delicate flower, but a rapist who raped someone.
I don’t think you demonstrated anything. In the Maryland case the court ordered a new trial, the second is in the UK so not relevant to this country and the third seems legit, but who knows since it was a long time ago and odder things have happened in California including the recent consent laws which numerous intelligent people in California have articulated means virtually nothing because of proof issues and will be subject to tests sooner rather than later. Whether the woman is subjectively happy or subjectively unhappy is really not relevant to the discussion of rape.
I don’t think you are understanding how courts work, @momofthreeboys. When the [Maryland Appeals Court](http://caselaw.findlaw.com/md-court-of-appeals/1049247.html) wrote:
they are announcing what the law is in the state of Maryland. That’s how legal precendents work. The court ordered a new trial on other grounds.
Moreover, @JHS asserted that no one in the history of the world had been prosecuted for rape after initial consent to penetration. I gave examples contradicting that statement.
Wow! Lots to talk about since I left for my week in Texas, where I visited seven colleges. I’ve got seven in Florida coming up next week. While in Texas, I also heard from a couple of new potential Title IX clients, and saw some interesting signs on dorm bulletin boards, and…there’s a lot.
So I’m sorry for not responding to a number of requests on the thread. I’ll try to get through them before I leave for Florida tomorrow, but I might not get to everything.
With regard to my stopping-in-the-middle-of-sex case, she says that she did say stop verbally (30+ minutes into the encounter), and he says that she did not, at least that he could hear. She did not claim that she was in pain, that he introduced a new move, or anything like that. Both parties agree that she abruptly freaked out, panicked, and ran away in the middle of what was apparently a good and consensual act. That’s the part that’s undisputed, and that I found weird and consistent with the possibility that something triggered a memory of an earlier assault.
““Her theory has the effect of discounting PTSD in the victim as an indicator of anything, with regard to a specific encounter.””"
I’ve never seen the accuser having, or not having, PTSD serve as an indicator in a case, so the idea of taking away a piece of valuable evidence didn’t even occur to me.
Hi, @Hanna.
Could you clarify what the alleged offense was with regard to the woman who says she said she wanted to stop 30+ minutes into the encounter? Does she say that she said to stop, but he didn’t stop, or does she say she never wanted this in the first place and never consented?
I am also wondering @Hanna if you have to rely on the veracity of your client’s version of events? I thought any hearing transcripts and documentation relating to the specificity of the charges were never released because of FERPA. While certainly copies of any decisions would be released to the accuser and accused, I was under the impression those decisions were “bare bones” so as to protect them both.
I guess what I am asking is that absent litigation where the documentation finds it’s way into the public domain, what is the vehicle that the accusers version of events is communicated to you?
Of course, minimizing the disclosure can also makes it more difficult for either the accuser or accused to challenge what s/he sees as a botched or unfair judgement, thus protecting the college from such challenges.
@ucbalumnus the colleges have to release when there is an actual litigation challenging the fairness of a decision. They become part of the court record and thus in the public domain.
@momofthreeboys, I’m sorry that your friend is experiencing a situation where her son is being accused of sexual assault. And perhaps he didn’t do anything wrong. But with all due respect, I don’t believe that an Eagle Scout is incapable of misconduct and I don’t believe that parents always know what their children are capable of. Indeed, I don’t think we ourselves always know what we are capable of doing until the situation arises. I highly doubt that the parents of those two Virginia Tech students charged with planning and murdering a 13 year old girl would have ever thought that their children were capable of such a horrendous crime.