Exactly my point. The defendants said you’d let them use the car. You said you didn’t let them use the car. There was no objective evidence (I’m guessing) that you had not given them permission to break into your car and drive it. Yet the police believed you and not them.
@“Cardinal Fang” , the fact that the person had your lap top in his possession is some of the “other evidence” as would be the (presumed) fact that 1)you reported it promptly to the police, 2)he did not know any of your passwords, 3)there was no pre existing relationship between the two of you which would suggest that you might loan him the lap top, 4)there are physical signs (he also has your messenger bag, or there is a window broken in your house) etc. You put all these things together and an impartial finder of fact can say they are convinced beyond a reasonable doubt that the guy didn’t have permission to take your lap top.
On the other hand, if the cops see your lap top on the front seat of your ex boyfriend’s car when they pull him over for speeding, the fact that you later say he stole your lap top and he says you left it at his house and he had been meaning to return it is not by itself enough to sustain a conviction for theft.
Make sense?
You mistake my argument, Ohiodad. Suppose my laptop wasn’t password protected, or the alleged theft was something that couldn’t be password protected-- suppose I had left my bike unlocked outside a store for a minute, and the defendant had ridden off on it. By incredible good luck, suppose a police officer had been right there, and had apprehended the thief riding my unlocked bike. And then the police had arrested him for stealing my bike.
No more evidence. The guy had my bike, the guy says I said he could take it, I say he stole it. Are you telling me the judge and the jury will not convict this guy? They won’t discount his testimony because it’s implausible? They’ll say, yeah, maybe Fang wanted this guy she’d never met before to have her favorite bicycle that she loves?
@“Cardinal Fang” sex isn’t tangible. Very different thing going on there.
He said/she said is only when there isn’t verifiable evidence.
Testimony would show a thief had no connection, or that a person had something that didn’t belong to them. While sex is not a physical possession.
Please scroll back to see what I was agreeing with:
I’m just saying, as hanna said, that fact-finders are entitled to decide whether what he said is credible, and whether what she said is credible. They are entitled to conclude that what he said is implausible on its face, and give it no weight at all. That’s part of their job.
Well, I guess the first question is why did the police officer decide to arrest the guy? I am assuming something else had to happen for your example to be rational. Police officers don’t simply stand around outside stores and say - “Hey, that doesn’t look like the kind of bike a guy like that would be riding, I am going to arrest him.” There has to be something that triggers the arrest.
And for what it is worth you added two pieces of “other evidence” to your hypothetical. One, that you did not know the person, and two that you cared a lot about your bike (and presumably were not in the habit of letting everyone borrow it whenever they wanted) even if you may have left it unprotected this one time.
In case it isn’t obvious, we are talking about consent cases. In the legal world, more will be required, as a matter of law, to convict someone under a beyond a reasonable doubt standard than a woman saying she did not consent to/withdrew consent for sex. Most people would believe that such evidence would exist, in most cases. There will be evidence that the two individuals were close before the event, but avoided each other after, in today’s world there are likely text messages between the two, it is at least probable that the woman would have confided in someone about the event whether a friend or a counselor/health professional, there may be some physical evidence. There are a plethora of things a good, trained investigator will look into in order to establish a change in a behavior pattern which I think most of us would expect to occur in most cases of actual assault and/or rape. I would say even with that type of evidence, a conviction under a reasonable doubt standard would be extraordinarily hard, which is why so few consent cases actually go to trial.
The overarching problem arises though because victim’s advocates and health professionals tell us that not all victims of sexual assault act in a way we would expect. In my personal opinion, the OCR’s zeal to account for all types of shock or stress induced behaviors in sexual assault cases the tribunal system untethers itself from things we all use everyday to determine whether someone is credible or whether an event actually occurred.
So circling all the way back around, you say why would a woman give her bike to a guy she never met at a store? Maybe he said “my house is on fire, and I need to get home, can I borrow your bike?” Maybe instead of saying no, the woman “froze up” because she had PTSD since she was in a house fire as a child and the guy assumed he had consent to take her bike. Even better, maybe she said yes but really meant no because she is 5ft 1in 105 pounds and the guy is 6ft 3in 290. If you are on that jury, and that is the evidence, are you going to convict the guy of theft?
Let’s turn the dial another notch. How about if the guy takes the bike and the woman doesn’t report it. Then he brings the bike back to the store, the two hit it off and start texting each other. Maybe they meet for lunch every once in a blue moon. Then three months later the woman shows up at the police station and says “this guy stole my bike three months ago, arrest him”. If the cops don’t arrest the guy is it because they don’t care about theft?
@cardinal fang, as to your second post, what I am saying is that as a practical legal matter, a simple credibility determination, without more, will not support a conviction under the beyond a reasonable doubt standard. I feel confident in saying most if not all courts of appeal are going to toss a conviction based on such evidence, assuming that it was somehow possible such a case would ever get to and through a trial. I admit that a clear and convincing standard is somewhat closer, but I still have a hard time believing that an appellate court would sustain a verdict under a clear and convincing standard based on a credibility determination. Personally, I have tried a fair number of cases in a fair number of states under a clear and convincing standard, and I can’t think of one where the case hinged solely on the credibility of a witness.
Come on guys, this is silly flyspecking.
It is pretty implausible that you would have given a complete stranger permission to borrow your car at 3 AM when you are not around or awake. Just like the consent defense from a stranger rapist would often be found implausible.
The consent defense is going to be MUCH more plausible coming from a guy in an acquaintance rape situation. There, the victim knows the guy, was flirting with the guy, was making out with the guy, invited the guy into her room, got undressed in front of the guy, had sex with the guy previously etc. etc. etc. None of those factors equal consent. But those factors are certainly consistent with a consensual situation.
In that context (which is the most common context), he said/she said means the victim’s case will not be proven if (as is almost always the case) there’s no other proof corroborating non-consent. That’s why it is so important to train girls to act up loudly if possible.
Mattress Girl has said that the problem with prosecuting rape cases is that they depend on the kind of proof that rape victims rarely have. Exactly right.
I don’t see why you’re putting words in my mouth, Ohiodad. I agree that in most college cases, if all we’ve got is he said/she said, then he will not be sanctioned, and moreover he shouldn’t be sanctioned.
All I’m saying is there are cases where the factfinder is going to find one party’s story so implausible that they’re not going to believe it. I have no problem with that, and I don’t think you do either.
@“Cardinal Fang” I am not trying to put words in your mouth. Sorry if it appears that way. I am trying to illustrate that events don’t occur in a vacuum.
And I don’t think it is accurate to say that men are not being sanctioned in he said/she said cases on campus. In fact I think we have seen several cases where there was a fair amount of evidence establishing the guy’s version of events which was ignored by the tribunal and sanctions were imposed. Hopefully the cases we hear about are the outliers, but I have no reason to presume that to be the case.
As far as your last point about credibility, I agree with you when deciding under a preponderance standard. Under a heightened burden of proof, and assuming hypothetically that the rest of the evidence is equally balanced, I don’t think credibility alone carries the day.
A major problem is that we don’t have disinterested, impartial fact-finders. They are looking after the interests of the institution. In the past, that has usually meant hushing up the accuser. Now sometimes it means expelling the accused. But it’s the same old CYA in response to different political pressures.
I cannot believe the story of the two Title IX coordinators. Simply incredible, on so many levels.
The discussion around some campuses is that someone who was drinking and/or doing pot or coke or other drugs, is not capable of giving consent.
Since it is impossible for a student to assess whether people will later judge that the amount the person was drinking was “excessive” to say the actions weren’t consensual, students need to assume that no consent was given.
Besides, how is one to know if the person you just met is on their first or third drink? If they are drinking on an empty stomach or full? It is their first drink ever or they are an alcoholic who built up tolerance?
Sure, if a person is “falling down drunk” or passed out, that is clear. But that is not where the line is anymore.
@Consolation, that’s who’s deciding these cases. I imagine that there are ill-considered trysts at judicial conferences, too, but we have yet to hear of an accusation stemming from one. Can you imagine being a party to one of those reopened cases at IU – on either side?
If the accusation is found to be unsubstantiated, I doubt that he will demand her removal from the professional organization, nor will the completed matters she’s worked on at NYU be reopened.
Re Ohiodad51’s post #557 and subsequent posts: In the following real-life scenario which has happened to more than one of my students, I do not see how there could be other evidence: The two people have known each other casually for a while, but have not previously been alone together. The male is not so foolish as to talk to friends about his use of force, or to make a video. The two are alone during the encounter, and either the people in surrounding apartments are gone at the time (most likely) or for some other reason, there are not witnesses. The rape is forcible, but does not leave bruises. The man substantially outweighs the woman, or outweighs her a bit and is considerably stronger. The woman is afraid to injure the man, for fear of being more badly injured. In several of the cases, the woman reports the rape immediately to the police. In several other cases, she is in shock, and does not. The two have no future contact.
Ohiodad51 wrote: “All that said, there is always other evidence when you have competent investigators involved (on the criminal side) or a robust discovery process (on the civil side).”
I do not see how this could be the case–certainly not enough evidence to meet the standard of proof beyond a reasonable doubt. In the cases of which I am aware where the woman did report the rape immediately to the police, no charges were filed. It seems to me that the only realistic hope is that the man has a conscience, and confesses. But he won’t do that if he hires a lawyer first. I doubt that even the standard of clear-and-convincing could be met, if the man denies the accusation.
Even “preponderance of the evidence” seems doubtful to me. If the woman has developed PTSD, and Hanna’s theory is generally accepted, then it could be argued that she suffered from a flashback during a consensual encounter. While one could probably establish a point at which a woman had PTSD, it would be very difficult, I imagine, to establish the exact earlier point when she did not have PTSD.
If there is social contact prior to the rape which ceases afterwards, that is evidence that some event occurred. So is the fact that the encounter was reported to the police promptly. If the rape is forcible, then a rape kit and a competent exam will show some signs of trauma. Certainly a rape kit will show dna. All of these things are evidence which can be used to establish that the woman’s version of events is more likely true than the man’s.
Absent significant signs of trauma is it enough to sustain a conviction for rape? Don’t know, but I doubt it. I also doubt that in the commonly understood use of the term “forcible” that there won’t be signs of trauma.
As far as a woman who “freezes”, that is a question of consent, not forcible rape. In my mind, those are two different things. And yes, I am sure there are reasons that would explain why a woman who actually does not consent to a sex act would not verbally or otherwise indicate that she wants the behavior to stop. But in that scenario, what conduct are you trying to punish exactly? Or is our system supposed to be just a punitive exercise where a victim can go to get validated?
And that is really the point. We as a society have made a decision that we are willing to tolerate a certain level of injustice by allowing individuals to evade punishment for crimes because we have, for the last several hundred years, believed that the greatest injustice is to use the power of the state to restrict the freedom of a citizen unjustly.
The system in place in colleges seeks to strike a different bargain for a specific type of offense, and says we will tolerate throwing out a certain percentage of innocent men so that we don’t “miss” a case of sexual assault. I find it unwise to leap so far based on what is to me an obvious political motivation.
If the man is larger and stronger than the woman, which is usually the case, I would not count on signs of physical trauma to indicate that a rape that I would consider forcible had occurred.
I agree that colleges need to differentiate different types of offenses, and that it is often very hard to do that, given the types of evidence that are available. Establishing the default assumption (suggested by Cardinal Fang, I think) that the default response by a woman is “Not with you,” unless there is clear evidence to the contrary, would be helpful in the current climate on campus (in my opinion).
I think society is injured by throwing out innocent men. I think society is also injured by the number of actual rapes that are occurring on campuses.
If the concern is truly that we need to be able to prove rapes occurred in the absence of any physical or circumstantial evidence, then the “yes means yes” standard does nothing at all. By your own logic, a guy could always lie and say the woman said yes and you would be in exactly the same position. If however the purpose of yes means yes is to flip the burden of proof and presumes that any intimate contact is rape unless affirmatively proven otherwise, it is likely such a standard would be unconstitutional. Although I will agree it appears that this is where at least some of the college tribunals are going.
Re #574
Seems like the police in your area are lazier about investigating reported rapes than the police at Cornell who recently arrested a suspect, or the police in California who arrested a UIUC student on suspicion of sexual assaults during summer break.
Someone may have posted this, but here is the cleaner version of Consent as Tea video. Only yes means yes. https://m.youtube.com/watch?v=fGoWLWS4-kU