There is no question that there are sexual predators on college campuses, or that some colleges let them get away with raps on the knuckles for sexual assault or worse. There is also little question, though various parties and activists deny it, that what constitutes genuine sexual assault and even rape has been so thoroughly politicized and muddled by irresponsible rhetoric, dubious statistics and cynical political maneuvering that addressing the problem of actual campus sexual assault is becoming impossible without harming, indeed destroying, the innocent in some cases.
At Stanford, women are rallying for a more stringent process and harsher punishment after student Leah Francis protested in an e-mail to the campus that she had been “forcibly raped” by a fellow student and he was permitted to graduate. Of course, Stanford didn’t find the she had been raped: her assailant was found guilty of sexual assault. The loose use of “rape” to describe sexual assault for political purposes is one of the reasons universities seem incapable of finding a satisfactory balance in handling such cases. At the risk of getting ahead of the post, I would say this: if it is alleged to be rape, then turn the matter over to the police and the justice system. Schools are not allowed to use internal procedures to investigate and punish murder; it makes no sense to permit them to do so with the serious crime of rape. The fact that the standards of proof and the requirements of due process are less stringent in a campus procedure is what simultaneously leads to inadequate sanctions for the guilty and railroading of the innocent. The solution to this problem has always been available: treat allegations of campus rape like any other kind of rape.
Unfortunately, colleges are often in thrall to the political agendas of feminists and their allies, so “rape” can mean many things, as can “sexual assault.” In the casual, morality-free sexual atmosphere now not merely tolerated but nurtured on college campuses, lines of consent are blurred, and missteps are inevitable. At the same time, the permissive sexual environment is a playground for predators, exploiters and manipulators. How are the genuinely culpable sexual assailants to be distinguished from the clumsy, the confused, the misled, or the drunk and overly aroused?
The answer is: with great difficulty. The principles of American justice and Constitutional law give the benefit of the doubt to the accused. Sexual politics, in contrast, which is among the Democratic Party’s current weapons of choice, demand that the campus system favor the accusers, who are almost always female. That’s a recipe for injustice no matter how you look at it. And injustice is what we have.
The problem has been exacerbated, as predicted, by the Obama Administration Department of Education’s April 4, 2011, “Dear Colleague” letter , which requires colleges and universities that accept federal funds to utilize the “preponderance of the evidence” standard of proof when adjudicating sexual misconduct cases on campus, as opposed to a “beyond a reasonable doubt” standard. What this means, in essence, is that a student can be deprived of his education and be tarred as a sexual felon in an investigation, prosecution and judicial determination by those untrained in legal process and unconstrained by established standards of fairness.
As Joe Cohn of the Foundation for Individual Rights in Education wrote at the Volokh Conspiracy:
“Colleges decide for themselves who will preside over these hearings and serve as fact finders. In some instances it’s a panel of faculty, students, and/or administrators, the last of whom may have a powerful incentive to come to the conclusion that is most convenient for the institution. (In the real court system, we are very careful to avoid any hint of this bias from our judges and juries.) Even worse, some colleges have a single administrator designated to serve as both judge and jury.
Similarly, the parties to these hearings frequently have no right to counsel—even if they are able to pay for representation. Neither party has the benefit of discovery, and the rules of evidence don’t apply. Hearsay and even irrelevant “evidence” are regularly considered. Parties are usually not placed under oath and may not be subject to discipline if they lie.
Unless and until schools decide en masse to change such kangaroo-court type procedures, which is highly unlikely, requiring the preponderance of the evidence standard only diminishes the reliability of campus hearings further. Indeed, for all practical purposes, the standard of evidence is the only procedural “safeguard” an accused student is likely to receive. When what is essentially a coin toss on credibility is all that stands between a student and the end of his or her academic career—an accurate description of the stakes and the odds in college tribunals adjudicating claims of sexual assault by using the preponderance standard—injustice isn’t just a realistic possibility. It becomes predictable”
Thus at Occidental College, a student was found “responsible” for sexual assault despite the fact that police refused to charge him with any crime and text message evidence indicates that both parties consented to having sex and were thoroughly intoxicated. Occidental professor Danielle Dirks, according to the accuser, counseled her to register sexual assault charges against her sex partner because he “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family.’” Occidental’s investigation report revealed that text messages between the alleged sexual assailant and his accuser leading up to the sexual encounter included the accuser asking the accused, “do you have a condom,” telling another friend “I’m going to have sex now”, and, in an exchange spanning 24 minutes, coordinating with the student eventually accused of rape to sneak out of the dorm and go to his dorm for a roll in the hay.
After a hearing in which the accused student was unable to meaningfully cross-examine his accuser, the Occidental “adjudicator” found that it was more likely than not that the accuser “engaged in conduct and made statements that would indicate she consented to sexual intercourse,” but since the accuser was “incapacitated” by alcohol, her consent was invalid. Of course, it was also true that her “rapist” was similarly incapacitated: applying the standard equally to male and female would require the conclusion that the two students raped each other. Never mind. The “preponderance of evidence” standard of proof was enough to have the accused expelled.
At Duke, Australian transfer student Lewis McLeod was treated even worse, not the least of which was the fact that his name was released. McLoed was expelled, lost a promised Wall Street job, and may yet be forced to leave the country after another alcohol fueled sexual encounter with a female student that began with consensual sex and ended with the woman weeping, at which point the encounter ended. Not soon enough, said Duke, violating its own published standards. Starting with this case, no longer does a female have to say “no” for continued sexual activity by the male to constitute rape. Now a woman has to say “yes,” verbally, regardless of her actions, or lack of consent to sex will be presumed due to intoxication.
By simply pointing out (albeit with his trademark contempt for modern liberalism, most appropriate in this instance) this anti-male, anti-democratic, kangaroo court approach to sexual assault allegations at some colleges and the Obama administration’s role in encouraging it, conservative columnist George Will found himself labelled an apologist for rape. The St. Louis Post Dispatch dropped Will’s column, and “apologized” to its readers for scalding their tender eyeballs with legitimate criticism of feminist bullying, campus cowardice, and Obama administration pandering to women. The Chicago Tribune refused to run the column: yes, news media bias and ideological indoctrination extends to outright opinion censorship now. But then, as Hillary Clinton reminds us, “we cannot let a minority of people hold a viewpoint” that the self-declared majority finds offensive…even in an opinion column. Even if the viewpoint is accurate and true.
Sexual assault on campus is a real problem, and George Will did not suggest otherwise.There is witch hunt on, but the witches are real: women who are victims of sexual assault from fellow students, and many are, need to be protected. Well, that’s what the legal system is for. Campuses are too steeped in bias and cowardice to be fair, and now, for purely political motives like absolutely everything this amateurish, inept government does, the Obama administration is trying to use the threat of lost funding to recruit them in its “war on women” campaign strategy. If universities were ever fit to be trusted with adjudicating such accusations, the intervention of the government to encourage pro-accuser bias has made trust impossible. Rape and sexual assault are crimes, and accusations involving them should be assessed by the standards society uses in crimes, by professionals, not campus “gender studies” vigilantes with agendas, giving equal due process to both parties.
Sources: Washington Post, Campus Reform, The FIRE, Volokh, LA Times, Stanford, Sydney Morning Herald, Huffington Post
Graphic: Top News
143 thoughts on “The Campus Sexual Assault Witch Hunt Ethics Train Wreck, Complicated By The Fact That The Witches Are Real”
I think this would be better:-
After all, campus “gender studies” vigilantes with agendas, giving equal due process to both parties, would be acting properly and not letting their agendas bias their actions.
Have you ever started typing a reply, stopped, deleted it, repeated the process like five times, typed probably three hundred words and just stared at the screen in frustration? Welcome to my last ten minutes.
My frustration stems from confusion on my part. I’m not sure if you were being facetious there, PM. So either Kudos, or please read below, depending.
“Gender Studies” is the egalitarian sounding term for ‘women’s studies’. This was never about men, or equality, or fairness, except in their own definition, from a dictionary the vast majority of people don’t ascribe to. They don’t actually teach scientific fact or sociology-backed theory, they teach feminism 101: Rape culture, man-bad woman-good, man-aggressor woman-victim, privilege checking, social justice warrior dogma. In their mind, they ARE giving both parties due process, because their frame of reference is so fundamentally fucked it isn’t even funny.
And that’s what Jack was saying, ‘rape’ doesn’t mean ‘rape’ anymore. If you define rape like Mary Koss, a feminist who works for the CDC, a man can never be raped. She took a survey that was fundamentally skewed by not asking the same questions of men and women (The women were asked about their experience as victims, and the men were asked about their experience as aggressors) and absolutely cooked the numbers. Rape suddenly included instances where the woman didn’t think she was raped, but was found to be too stupid to realize she was raped (examples being intoxicated, even in long term, sexually active relationships or financially dependant upon the man). So the real statistic on 1 in 24 women raped in the US over their lifetime suddenly became the 1 in 4 statistic bandied about. Even the 1 in 24 statistic wasn’t accurate though, because for whatever reason (and I have theories, but they aren’t really germane) women who experience rape tend to be re-victimized several times, but Kost’s numbers treated every rape as if it was a unique person.
But what about the men? Well…. What about them? They can’t be victims. Her numbers absolutely ignored man on man prison rape statistics. (Because if you include them, and include every rape as unique like she did, more men are raped than women annually. And in cases where a woman was found to have coerced sex from a man, it wasn’t classified as rape, it was classified as “forced to penetrate”. Kosts numbers showed a 98/2 ratio. The 2% was man on man, outside of prison rape.
Is rape a problem? Absolutely. Is it hard to prove? Probably the hardest crime TO prove, because the only thing that differentiates rape from sex is one person’s refusal and the other person’s cognition of that approval. Killing someone is always illegal, sex happens millions of times daily, billions of times annually, and 90,000 rapes were reported last year. Are Kost’s numbers used by the government? Not officially…. But the 1 in 4 statistic doesn’t make sense when using the official math, but it’s still used. Is there a problem? Yes. What is the solution? The law, properly applied, with due process, by authorities and not the kangaroo courts education facilities use.
“Rape Culture” policies may eventually accomplish what religion hasn’t been able to accomplish. Sexual abstinence before marriage.
It occurred to me sometime after the last comment I made as I was reading these other comments that what feminists seem to want to do is actually very dis-empowering towards women. They are shifting responsibility, hurting agency, and seem to be fighting the whole idea of consent. There was a post-secondary education facility (I forget the name, but I could probably find it if someone was interested) that put the burden on the men, not only to receive verbal consent, but enthusiastic and constant consent. (“Can I take your pants off?” “Yes!” “Underwear?” “Yes!” “censored?” “YES ALREADY!!!”) Another example is Simon Fraser University in British Columbia, where they started a campaign that is supposed to ensure “enthusiastic” consent to sex on campus. They’re giving a little pink box to students, that they’re calling the consent toolbox. Inside the box is a condom, lubricant, and a small form. With the form he can express his request for sex and she gives her response madlibs-style, requesting sex by filling in the blanks and then her circling an answer on the bottom. (One of the options, by the way was “Maybe later, I’m with someone else tonight.” Which I’m sure every guy on the planet wants to see circled, right?)
I wonder why they want to change our rape jurisprudence. enthusiasm has not been required as an element of consent in 2,500+ years of rape jurisprudence. One would think that to deal with rape, we must reinforce and not undermine our legal, moral, and ethical traditions.
Because there’s an amount of social currency in being a victim class. Rape statistics have been falling for decades, and the only way to retain the value of their victim hood is to find new and exciting ways to be a victim, and fewer ways to avoid it.
For the record, there is a branch of feminism who’s adherents seriously argue that all cases of a woman having sex with a man are in fact non-consensual. It goes something like this: Since women grow up in and are surrounded by the power imbalance of the patriarchy, any consent comes from a place of defacto power imbalance (similar to inappropriate work relations between a boss and an employee). Therefore any sex a woman has with a man, even if she consents, is in fact rape.
Ponder on the values and rationality of a group that believes that for a moment. Even considering the scale of that idiocy is mind numbing. Like looking at a mountain and being asked to count the rocks.
Sure they might be radicals, but they’re radicals that operate with censure from the broader feminist community. Thinks on the values and rationality of a group that wouldn’t immediately disassociate themselves from that line of thinking. Now imagine them playing a role in American political and social evolution. Shiver…
I think you must mean withOUT censure.
Sure do. Too bad the comment system doesnt include the ability to edit comments… sigh…
I don’t want an edit feature. Or at least not an open ended edit feature. I would be cool with a 10-15 minute window of edits before something becomes permanent without moderator approval.
OOOOOOOO…. I like this. Give you a window to fix your errors without allowing people to go back and dishonestly change their arguments.
Yeah, but if you wanna date one of them, just figure out whatever cologne their father’s wore, put that on and then treat them like a jerk.
Those “Radfems” who view all sex as rape are often criticized by mainstream feminists. It is not necessarily honest to use what radfems believe when discussing feminists.
It isn’t dishonest either. It’s possible, perhaps even easy to get ten feminists together, ask a question and get not only ten different answers, but ten extremely different answers. Feminism is similar to Islam that way…. There’s no prevailing authorities, and so every batshit crazy individual has just as much authority to vent their craziness as the moderate voices. Sex-Negative feminism is a thing, it has followers, and voices.
Well I have, in conversations (and even arguments) with other feminists, especially ones who tell me I am being a bad feminist, asked who is the arbiter of what a good feminist is and where can I find that book.
There are things that a vast majority of feminists do agree on, and one of those is that the radfem idea that “all sex is rape” is crazy is one of them.
I wonder how this would apply to sobriety tests when people are pulled over for drunk driving.
“Since the defendant was drunk, the consent he gave to perform the sobriety test is invalid, so the results of the sobriety test are inadmissible due to lack of consent.”
(Police officers typically do not have warrants when they do sobriety tests.)
If the government merely stepped aside while colleges expel male students, but not female students, merely due to unsubstantiated rumors of rape, or expelled rape victims because they require female students, but not male students, to remain virgins until marriage, it would not violate constitutional rights.
But the government either mandating or rewarding colleges for adjudicating sexual assault claims without requiring the stringent protections afforded in federal courts implicates constitutional rights.
But if they were both drunk to the point they could not consent, then they both lacked the sufficient mens rea to be guilty of rape.
Ultimately, to fight rape culture, we must reinforce the values of the Sheva Mitzvot B’Nei Noach and the integrity of our criminal justice system. Undermining either will only encourage rape.
Campuses should stay out of this topic altogether. Some colleges may be swept up in “feminist fury” but others might just want to sweep allegations under the rug — especially if the student in question is high profile, parent is a donor, they don’t want the negative publicity, etc. So, given that the colleges’ decisions can be called into doubt either way, best thing to do 100% of the time is call the police. They shouldn’t even have a crisis center offering medical treatment, as collection of evidence in alleged rapes is critical. At most, they can offer education and counseling.
All that being said, it’s not as if the police are great at investigating rapes either — and some jurisdictions are better than others. As a mother of daughters, I have to teach them to be smart, to protect themselves, but not to the point of having them fear all men. If I do my job right, they hopefully never will be a victim and will have healthy adult relationships.
To WyoGranny’s point though, it’s not just about abstinence. I won’t recount all the number of incidents and near-misses I had in my youth, but I was given the date rape drug once at a bar when I was in my early twenties. I don’t know who did it, but thankfully I was with some friends who made sure I got home and stayed with me. I don’t remember anything from that night — and I had less than one beer. It makes me wonder if a culture demanding abstinence might have the effect of more violent sexual crimes against women?
Well, we’ve had both. Which one produces/produced more violent sexual crimes?
From the standpoint of a person who believes there is a God. A God who will judge more effectively and justly than any human court. I believe that a society that believes people’s actions will be judged by a supreme being will produce fewer people who take the law into their own hands. When every person is a law unto themselves they don’t feel a responsibility toward anyone but themselves.
Don’t wonder. It wouldn’t.
Well, this certainly is not the case in Islamic countries where abstinence is demanded as a matter of law and religious doctrine. Women are routinely raped and brutalized. Same is true in India which is predominantly Hindu. It’s actually quite the epidemic.
Sort of legit. Its true, but inappropriately applied. The kinds of cultural values that those ultra misogynist societies have, have been stagnant and anti-female for centuries. Treating there stagnation as our regression would be an apples to oranges comparison. For the record though, the last thing America needs is a broadscale return to religion. It needs a broadscale return to classic American concepts of decency and moral / ethical responsibility.
Unfortunately, these have been so thoroughly savaged by the entertainment industries race to the bottom (Jersey Shore anyone?) that future generations probably wont be able to fight their way out of the anti-value ocean of American media. I would also add that the rise of that ocean directly corresponds with the progressive ideology’s acceptance of moral relativity and rejection of negative reinforcement of behavior.
“It needs a broadscale return to classic American concepts of decency and moral / ethical responsibility. “
And those magically derived from thin air?
Certainly not. They are, in fact, derived from our judeo-christian heritage. They are not, in fact, inseparable from that context though. Judeo-christian value systems were the cultural training wheels of yesteryear. But going forward, they are too archaic, rigid, and flat wrong for modern society.
I think your last sentence taken as a universal (can be interpreted as a negative or a positive) is too broad and isolates an incredible swath of values and ethical determinations we still use which were honed in the cauldron of Judeo-Christian Europe.
Judeo-christian value systems are undoubtedly powerful and successful. Id argue that they are among the highest functioning value systems any culture has ever produced. They also contain a lot of really negative things that have been used (and in some places continue to be used) as justifications for terribly unethical behaviors.
The rub is, that in the context of religious value systems, the good is inseparable from the bad. You cant rewrite the bible to exclude the idiotic parts and you cant stop people from getting trumped up on god given righteousness and inappropriately messing with other peoples lives.
Outside of religion, you can certainly cherry pick the good parts and keep well away from the righteousness associated with God’s word. Theres nothing stopping folks from being religious on top of that, but as far as broader social value systems are concerned, there’s a clear advantage to non-religious.
For further thought, Id add that this is likely a significant reason behind our founder’s separation of church and state. And that despite this separation, American foreign policy is already seen as aggressively self-righteous in more than few spots in the world – how much worse would it be if our cultural values were explicitly based on religion rather than the cherry picked implicit basis we have enjoyed (prior to the onset of cultural decay and the rise of progressive idiocy)?
I guess I will dissent here. Colleges are not society. They can, and frequently do, have different standards than society at large. Students at BYU, for example, are frequently expelled for living with the opposite sex. At Grace College, a woman was expelled for being a lesbian. I personally believe that a person should thoroughly investigate a college before they enroll, and learn what their rules and policies are before you hand over your money and four years of your life to them.
So I don’t have a philosophical problem with a college’s rules on sexual assault being stricter and/or different than a criminal charge of sexual assault. Colleges can define for themselves what behavior they will or will not tolerate on campus, and often it is way less than what can be found in a criminal code. Why single out sexual assault out of all the categories? If nothing else, the wheels of justice work very slowly. A student accused of sexual assault might have years before he goes to trial. If a college tribunal determines that he is probably guilty of violating their code of conduct, why should they be forced to keep a probable predator on their campus, free to prey on other people? Kick him out, let him go elsewhere if he can.
As far as George Will goes, I think a lot of people had a huge problem with his assertion that being a victim of sexual assault is a “coveted status.” That seemed a slap in the face to the lived reality of millions of women, to say the least.
If they could do a good job at policing this level of criminal activity, I might agree. But they don’t, and the consequences of being wrong and unjust are intolerable.
Moreover, universities ARE part of society, just like a church is part of society. There is no more justification in allowing a college to enforce society’s laws than there is allowing a corporation to do so. Should a college be able to declare rape acceptable? Handle the murder of a student by another student its own way, with a suspension? Come on.
Will was correct that in current progressive ideology being a victim is coveted status conferring power, benefits and privilege, and not just at universities. That’s what the whole silly Redskins controversy is in a nutshell—people claiming to be victims of something that they know isn’t harmful, isn’t intended to be harmful, isn’t regarded as harmful by those most affected by it, and has not been considered harmful. But claiming injury confers power. I think Will has been under attack because he nailed it.
You seem to be confusing two different processes. The college has it’s own separate process for violations of student conduct, which can also cover certain criminal behavior. But the standards don’t have to be the same, nor the process for concluding that a student has violated the student code of conduct.
I believe that rape allegations should also be forwarded to criminal authorities, though they are very good reasons why a person may not want to do that. The college could easily handle the murder of another student with a suspension under it’s own rules, to use your example, though I would imagine that the criminal justice system will have it’s own method of punishment.
Private entities have their own system of punishment. To use your corporation example, companies routinely fire people for harassment charges. Should they forward the allegations to the police and await the results of a criminal harassment charge before deciding to act? How is a college any different?
George Will is an ass. So many victims of sexual assault refuse to come forward precisely because of the stigma associated with it. There is no “coveted status” to being a sexual assault victim.
Will is a truthteller. You saw the cases—the alleged victim leads rallies; the accused is railroaded out of an education, and subjected to a double standard. Victims acquire status and immunity from criticism. The whole Democratic base is made up of “victims,” who then get special considerations, a prime place in line, presumed virtue, benefits, leniency, amnesty, lowered standards and expectations, affirmative action, on and on. Sunshine is a disinfectant, and Will was shedding light on a dark truth.
Institutional punishment for sexual assault should only occur AFTER due process has determined that the crime has taken place. For serious crimes, a school simply doesn’t have the expertise and training to sort out the facts fairly, and the consequences of mistakes are too devastating.
I agree that an employer could legitimately fire an employee for suspicion of theft if it was strong and supported by evidence, and if the employee had a fair hearing. But the point remains: institutions should not handle investigations of serious wrongdoing themselves. Two words: Penn State.
Sunshine is a disinfectant, and Will was shedding light on a dark truth.
Which is why the whole weight of Progressive outrage descended on him. He gets too close to the truth.
I agree that an employer could legitimately fire an employee for suspicion of theft if it was strong and supported by evidence, and if the employee had a fair hearing.
Could an employer do the same with strong evidence of rape between employees? Why or why not? Otherwise you are advocating that institutions can act to protect themselves and their populations from small crimes, but not larger ones, which seems perverse. Otherwise you are saying that institutions should be able to expel students that cheat on a test, but not students that rape other students. The consequences of a mistake are the same for either infraction, and unlike the justice system, such mistakes don’t involve jail time.
But the point remains: institutions should not handle investigations of serious wrongdoing themselves. Two words: Penn State.
I think the big mistake with Penn State was that it did not pass along allegations to the authorities, not they conducted their own investigation. I think the victims of sexual assault should be given the opportunity to file criminal charges, but I don’t see any reason why the two separate procedures need to be connected.
One difference is that an employer can not unilaterally confiscate back pay from an employee that, for example,. embezzled company funds. If they want to get back money from an embezzler, they have to go to court, where an impartial judge or jury will decide the facts.
A college expulsion essentially takes back the academic credits earned by the student; there is no refund. It does this without going to court, where an impartial factfinder deciding whether the student did the conduct that justifies expulsion.
For a model as to how colleges should handle sexual assault claims, one could looks to he U.S. Naval Academy in Annapolis. When there are allegations of rape, the case is referred to the Naval Criminal Investigative Service (NCIS). NCIS does not report to the Annapolis administration. If there is a credible case, the accused midshipman is subject to a general court-martial. (Of course, it may turn out that the midshipman may have engaged in sexual misconduct that, while not being rape, violates Academy regulations and is properly handled by the Academy’s disciplinary process.)
A college expulsion essentially takes back the academic credits earned by the student; there is no refund. It does this without going to court, where an impartial factfinder deciding whether the student did the conduct that justifies expulsion.
But wouldn’t that would be the case with all college expulsions, including those for theft or cheating? Why single out rape cases in particular?
Yes, it is.
In my view, this constitutes a contract issue, and a court is the proper forum to adjudicate whether a student violated the contract.
As for singling out rape cases, I refer back to my Annapolis example. The Academy’s internal disciplinary process is adequate for handling accusations of theft. In addition, a midshipman accused of theft has the option of demanding a court-martial, with its extra protections, as well as the risk of greater punishments. Rape is too serious a matter for the Academy’s administration to even investigate, let alone punish through its own internal processes.
The armed services have their own procedures, which can include jail time as a punishment. But when you sign up for the military, you are aware that you have put yourself on a different sort of code.
For someone who has committed a crime in college, you have also signed up for a different kind of code, one that works parallel to the criminal/civil justice system. A person could conceivably have investigations going on in both systems for the same case, but owing to different expectations and standards for the different systems, could easily come out with entirely different outcomes.
I don’t think colleges should have to adhere to a “beyond reasonable doubt” standard for cases on their campuses. It makes sense for criminal cases, because we are deciding whether or not someone’s freedom should be curtailed, but for colleges, it is merely deciding whether or not a person should continuing being a student there, a far lesser restriction. Colleges already restrict who can and cannot be a member of their society, so I fail to see how this is an overreach.
Even so, they should not adjudicate the cases themselves. As a matter of public policy, they should either go to court and sue the student for the academic credits already received, or else refund the tuition in exchange for the academic credits being returned.
Not every case of expulsion results in the person being unable to transfer the credits already earned. That seems to depend on what they were expelled for and the university in question.
But if anything, the onus should be on the student to sue to get back the credits, if the student feels they were unjustly ripped away without due process. Most colleges student codes of conduct are available online, and would detail what a student can be expelled for, and happens when a student is expelled. If a student doesn’t like what they see, they can just not enroll in that particular university. By enrolling, they have consented to be governed by those codes of conduct. I don’t see the breach of contract as long as the school has followed its own outlined process.
Well deery, I suppose the obvious difference between military tribunals and college kangaroo courts, aside from a national standard that are known before enrollment, and are actually within the framework of the law (because what do those things matter, right?) is that you don’t have to enroll in the military to succeed in life. The single largest determinate of success is education, and the system is set up to preclude people based on an accusation a la McCarthy.
Jack: “Two words: Penn State.”
Or, better yet: “Catholic Church.”
They routinely investigated such matters internally, not as matters of crime, or mental illness, but as sin. If the offender was contrite and reconciled with God, they figured there was no need to get the authorities involved. And, they are roundly criticized for that approach.
But, what annoys me about the criticism of George Will is that his article was NOT about rape allegations. It was about how colleges and universities, the bastions of progressivism, did not like becoming victims of their own ideology. The issue of sexual assault was just one example he raised to illustrate that point. So, the critics focused on that one example to criticize him, ignoring the real point of his article.
Jack, I am seeing red just reading your comments. Here is a fact: most women who are sexually assaulted rarely tell anybody because they are ashamed. This is not a coveted status. These rallies are trying to educate women NOT to be ashamed. George Will IS an ass on this subject and he seems to think that “rape” only happens if it is “the stranger in the alley scenario.” “Date rape” seems to be a foreign concept to him.
I do disagree with Deery though. Colleges shouldn’t be doing this — once a student enters this process, everything is subject to a confidentiality agreement. Evidence can be destroyed, and there is just as much risk of the colleges wanting to sweep these allegations under the rug as there is over-prosecuting. Plus, no offense to campus police, but they are not trained to be investigating rapes.
I’ve read Will’s piece several times, and that’s not what he said, nor was he making a general statement about rape. He was talking about college campuses and how the Obama administration encourages institutions to reward percieved victimhood. David Bernstein wrote a good summary of what Will was saying in the Post, beginning with Will’s quote:
“Colleges and universities are being educated by Washington and are finding the experience excruciating. They are learning that when they say campus victimizations are ubiquitous (“micro-aggressions,” often not discernible to the untutored eye, are everywhere), and that when they make victimhood a coveted status that confers privileges, victims proliferate. And academia’s progressivism has rendered it intellectually defenseless now that progressivism’s achievement, the regulatory state, has decided it is academia’s turn to be broken to government’s saddle.”
“So Will is making two points here. First, that university culture encourages students to perceive themselves as victims, and those that can credibly claim victimhood are sometimes given higher status. I don’t think that’s reasonably debatable, as it’s exactly what the apparently common trope, “check your privilege” is about; students seen as “privileged” by dint of skin color, sex, wealth, etc., should shut up and let the more authentic and wise voices of members of societies’ victim classes proliferate. And the general rule is, if you subsidize something, you get more of it, and there’s no reason to think this wouldn’t include self-perceptions of victimhood or self-identification as a victim.”
That’s how I read it too, because that’s what he meant, and wrote. You or anyone should see red because legitimate victims of sexual assault are being forces to share status with phonies who are convinced by counselors that they should cry rape because their partner “fits a profile.”
How would you feel about the term privileged status? It has significant, even outweighing, costs to acquire in most cases, but it comes with significant benefits as well. The costs don’t eliminate the benefits, or vice versa. But the benefits are why we get people faking crimes against themselves. I believe Will used the generic term victim, not the more specific term rape victim. Actually being raped is not desireable anymore than an actual physical assault for being black is, but we’ve had people fake at least the latter.
A better statement would be that being perceived as a victim is a coveted status, even though actually being a victim is not. That being said, the rewards will also encourage people who otherwise might accept responsibility for being stupid while drunk to claim victimhood instead.
What do you think happens more? Alleged/actual rape victims seeking special status and attention OR women not reporting these crimes because they fear being ostracized, blamed, questioned? This whole conversation is pissing me off.
What difference does it make which happens more? Neither should happen, neither should be incentivized by campus policies, and opposing one shouldn’t require or suggest giving a pass to the other. So to make it easier for rape victims to come forward, we should allow false accusers to be automatically believed, declare them beyond challenge or reproach, and gut due process for all accused?
Where did I advocate anything of the sort? No system is perfect — so let’s focus on the real problem here.
There is no “real problem”, this isn’t a one-issue discussion, this is a multi-faceted, complicated group of issues, and addressing one of those issues does not preclude addressing the others. And that’s why I have to discount your point. It’s too one-dimensional.
But maybe I’m wrong. and if I am, please enlighten me. How do you propose to create an environment where victims of rape feel more comfortable coming forward, without eroding the fundamental protections Americans are guaranteed under the law?
There are two problems at least: preventing sexual assault, and ensuring procedural protections and due process for the accused. I’d add mutual accountability and acceptance of responsibility for ill-considered, impulsive or irresponsible sexual encounters.
Have you ever talked to a woman who has ever reported a rape? Typically, she gets asked questions like this: “What were you wearing? Are you sure you didn’t want to have sex with those 4 boys at the frat party? Why were you at that party so late? How many men have you slept with before tonight?” Or some sort of variation on this theme. The initial instinct of the police (who still are mostly men) is that it is somehow the woman’s fault or that she must be confused. Then there is the humiliating (albeit necessary) medical exam — with lots of pictures. The reporting of these crimes often leave women feeling like victims twice-over. And, the sadder fact is that women are aware of this even before an attack has happened, so an even greater number of women never report a rape. So, these “Take Back the Night” rallies/feminist rhetoric really don’t bother me that much because it is an extreme reaction to an extreme problem.
What’s the proper extreme reaction to the OTHER extreme problem: false accusations of rape nonetheless exposing the male to publicity at very least, and sometimes getting him kicked out of school or sending him to prison at worst? It’s too bad we can’t just pick one or the other according to whose position we empathize with, but, you know, we can’t…
Once it becomes an extreme problem, then we can talk about it.
I think its fair to say its an extreme problem for the men who suffer its consequences.
You all are confusing a few concepts here. I agree that the innocent should never be punished — or even the guilty if there is an error re police misconduct, evidence gathering, etc. I am focused solely on empowering and educating women to not be ashamed when they are attacked. Because of this movement though, there will be some unintended consequences of women who have convinced themselves that they were raped or want some sort of publicity and make up a story. My point is that while those few instances are awful, it doesn’t outweigh the benefits of educating women and convincing them to come forward.
But educating women is not the same thing as changing benchmarks from “without a reasonable doubt” to “preponderance of the evidence”, or removing the defendants right to cross examine the accuser, or other parts of due process, which does include uncomfortable police scrutiny. If all you were advocating for was education, I’d be right beside you rah rahing. But you aren’t. And you’re using the education as a reverse straw man. It’s dishonest.
Actually, you’re wrong. See my comments above. I think colleges shouldn’t be addressing this at all. So I guess you support my views — yay!
You can’t consistently approve of the methods used by the schools while disapproving of their ability to do them. Because the legal system has to work within the frameworks of the law, law enforcement cannot and will not act with those standards.
I don’t care whether the education system encroaches on the judiciary if the education system comports itself with the same standards, professionalism and ethics as the system it’s supposed to mimic. Government is government. What I care about is the two tiered system created in this scenario, and the erosion of personal rights.
Well, I feel for those handful of men. It sucks and they don’t deserve to have their lives ruined. But I feel more for those thousands (tens of thousands?) of women who felt too ashamed to tell their stories OR did and were not believed OR did and were told that it was their fault OR did and went through the court system (with the accompanying publicity) just to see their attacker released.
Like Wanetta Gibson?
Our system is designed, rightfully so, to err on the side of allowing the actually guilty to go free in order to keep the actually innocent from being falsely convicted.
To compare the unwilling and unjust destruction of a falsely accused man (even if your “handful” number is accurate) to the so called “Tens of Thousands” of willing who, quite frankly, are WILLING to not come forward because of shame is apples and oranges. Allowing emotion to cloud judgment is why we have injustice. The women who are ACTUALLY raped, need to get past the shame to pursue justice. It’s as cold and simple as that.
Otherwise we have blithering advocates of injustice, like you, who would prefer we err on the side of emotion and destroy actually innocent people to reach out to those who you “feel sorry for”.
The problem is that we don’t convict people based on feelings. We require clear and convincing evidence. It’s tragic when someone is victimized and then sees their victimizer freed, but it’s more tragic when someone is convicted falsely.
Rape is hard to prove. It just is. When you kill someone, it’s always illegal, when you have sex, as millions of people do daily, it’s not illegal unless 1- One party doesn’t consent to it and 2- The other person realizes that. Because of the nature of the crime, it will by definition be hard to prove, and part of that questioning process is that there have been cases of false allegation, and there have been cases of people who consented at the time, and then decided they regretted it the next morning, or or or.
Quite simply, you don’t get to rewrite the standards of law because the law is hard to prove. Because those standards are there to keep innocent people out of jail, not to make it easier on the victim.
It is an extreme problem because it threatens the integrity of our criminal justice system, on which we rely to punish rapists.
To further support your argument that victim status confers social power, I contribute a paper thats been floating around the disruptive military thinking blog-o-sphere (which you or may not know, places a great deal of emphasis on the human domain of warfare in modern and future conflicts).
Basically, if you are able to portray yourself as a victim, you can leverage the sympathy that status generates, into wide scale support and justification for much worse crimes. It’s a significant reason why terrorist organizations can commit the crimes they do and retain popular support in their operating regions. Scaling this down to American political and social movements, it’s easy to see why grievance based power groups are now a thing.
The Utilization and Leveraging of Grievance as a Recruitment Tool and Justification for Terroristic Acts Committed by Islamic Extremists
Abstract: It has become commonplace to reference religious tomes as justification for extremist behaviors. The utilization of these texts as tools for recruitment and legitimacy, alongside perceived injustices, continues to burgeon, as does their use in qualifying behaviors many people define as terroristic. This article examines how grievances have become a tool of Islamic extremists intent on righting perceived wrongs as determined by their interpretations of Islam. Aspects of the Collier-Hoeffler model are utilized as a premise to examine independent variables of grievance and their effects on recruitment efforts by Islamic extremists and occurrence of terroristic acts by Islamic extremists.
It is true, of course, that private entities have more legal leeway to act than the government. Absent laws expressly forbidding them from doing so, a private college could expel male students, but not female students, on the basis of mere rumors of rape. A private college can expel rape victims on the basis that female students, but not male students, are required to remain virgins until marriage. Public colleges are restrained by the Constitution in acting in these manners. If a private college adopts either of the policies I mentioned, it would be an ethical issue (in the absence of anti-discrimination laws.)
What does implicate the Constitution is the federal government trying to compel private colleges to adopt certain policies regarding sexual assault, including having to investigate claims of sexual assault.
Interestingly enough, Shelby Steele has written about this “victim power” thing and how dangerous it is. He was writing more for the African-American community, but that was his argument overall: victims are innocent, therefore have the power and people who desire power will seek any avenue to do that.
Not all victims seek power for its own sake, but all people who seek power will pretend victimhood. Even Hitler’s (yes, I’m very much using Hitler) whole pseudo-Marxist spiel was that he and Germans were victims of…whoever (Jews, capitalists, the French, Russians, deviance, tobacco, alcohol, pollution, democratic/liberal society…).
“As far as George Will goes, I think a lot of people had a huge problem with his assertion that being a victim of sexual assault is a “coveted status.” That seemed a slap in the face to the lived reality of millions of women, to say the least.”
That’s an unfortunate wording. But the point he was making is legitimate. Victims of rape aren’t in it for the status, and I agree that taken literally, that is what the quote is saying. But in context, he was talking about feminism’s tendency to encompass more and more behavior as rape so as to perpetuate their theory of rape culture. Rape numbers have been in decline for years, both in per capita and raw numbers, even as the population increases. I think in the most generous light, there’s an amount of fear that if we look at the issue of rape as a problem in remission, people won’t take it as seriously (see AIDS as an example), and in the most cynical of lights, places offering services to women get an amazing amount of cash, and if the problem is on the decline, so might the cash. One way or the other, people pushing the agenda have a vested interest in labeling as many people as possible ”victims”.
The outrage is misdirected. The people responsible for the “victim culture” are the same ones who are responsible for the culture that makes real victims experience added anguish. If the term rape becomes synonymous with just one more pseudo victim calling wolf the real victim is unable to get justice and real rapists get lost in the crowd of the falsely accused.
Rape is one of the most underreported crimes, especially acquaintance rape. I know that it is very hard for many people to accept the sheer number of rapes, attempted rapes, and sexual assaults that are almost routine in this society, but it’s true. The vast majority would never see the light of day, because of the shame, stigma, and guilt surrounding the issue. That’s leaving aside the pressure from friends and family to not move forward with any accusations.
As soon as rape enters any kind of public discussion, so does the backlash. Often this backlash involves questioning how common sexual assault really is—invariably a setup, in a kind of confused calculus, for asking whether the bigger issue isn’t actually false rape accusations. The latest example is George Will’s argument in the Washington Post that, on campuses, victimhood has become “a coveted status.” Will scoffs at rape statistics and suggests that women are over-reporting “sexual assaults” (quotation marks his) to attain the “privileges” that come with being a victim.
Over the years, more than a dozen female friends have told me they were raped. Not one of us reported it. None of us went public. All that despite, apparently, the temptation of that “coveted status.”
Sop why redefine rape? You can not deny there are people who want to define all drunk sex as rape, even though that is alien to our jurisprudence.
I don’t think every instance of drinking and sex is rape. But in the above case, where the two people had just met for the first time that night, the author was falling down, urinated on herself, was in and out of consciousness, had to be put in the bed, yet the guy still had sex with her anyway would certainly qualify as rape. But many out there would not even see that as rape. There have to be reasonable standards.
From the blog post:
So all any potential rapist has to do is have a few drinks, and viola, get of rape free card? How lovely.
Do you really think that’s what Michael, or anyone, is saying? Here, I’ll translate it for you: if both parties are sloshed,drank what they drank voluntarily and neither is unconscious, they have sex and nobody says no, it ain’t rape. Regrets after the fact don’t retroactively make it non-consensual. It has ever been thus, though manners and ethics have also long dictated that no gentleman, drunk or not, would ever take advantage of a woman in such a state.
There are lots of non-“gentleman” out there. But if the law stated that if both people were drunk when an alleged rape occurred, then both were deemed to have raped each other, how would that not result in what I have outlined? It’s the logical conclusion from that rule. Any potential rapist merely has to down a few drinks, and he is free to rape. Good times.
That makes no sense, because the scenario involves mutual consent, or, if you prefer, non compos mentis consent from both parties. If it’s forceful and without a woman’s consent, being drunk is no defense for him at all. The point is that a woman whose inhibitions and judgment are impaired so that she consents to sex she otherwise might have rejected hasn’t been raped or sexually assaulted. She may have been mistreated, but no all mistreatment should have or does have legal consequences.
That makes no sense, because the scenario involves mutual consent, or, if you prefer, non compos mentis consent from both parties. If it’s forceful and without a woman’s consent, being drunk is no defense for him at all.
Can one be too drunk too consent, short of complete unconsciousness? I believe so. Much like the author of the article I linked to below, who was obviously disoriented, urinating on herself, throwing up, and was unable to put herself to bed, all conditions known by her rapists, she was obviously in no state to give any meaningful consent. Consent in that state is meaningless. And yes, I do believe that if you take advantage of someone in such a state, you should be charged with rape.
That’s a straw man, or staw-drunk woman. That is not the situation of these cases. I would call that sort of intoxication the equivalent of unconsciousness. Nonetheless, if both parties are that drunk, and they by some miracle have sexual relations, there is STILL no rape.
The reason rapes are under reported is that they are notoriously hard to prove. They are notoriously hard to prove because the only thing that separates rape from sex is the lack of consent of one of the parties, and the knowledge of that lack of consent from the other. Killing someone is always illegal. Is it tragic if a rape victim feels they won’t be given justice? Absolutely. But the fervor with which we are willing to do away with due process is chilling.
For example, a little talked about consequence of the ‘dear colleague’ letter was the removal of the protection of ‘reasonable doubt’ in rape cases, which was replaced by ‘preponderance of the evidence.’ They moved the goalposts from national criminal standards to 50% +1.
As I’ve noted above, I don’t think colleges are under any obligation, nor should they, have a beyond reasonable doubt standard, as in the criminal system. Our criminal justice system is based on the idea that it is better to let a guilty man go free than imprison an innocent man. Which I agree with. Colleges will have a different calculation, as they won’t be imprisoning anyone, they are merely withdrawing permission for a particular person to be a student there any longer (at the maximum of punishments that colleges can dole out). But as I’ve also noted above, I don’t see how colleges differ in this regard than any other business who do much the same things. I don’t think any of it is unethical. Civil actions are treated a lot differently than criminal ones. Which, well, duh.
Of course, neither should they have an obligation to have a preponderance of the evidence standard. And yet the Office is Civil Rights is demanding they have no standard than that.
Agreed that they don’t have an obligation to, but I have a really difficult time seeing how colleges would or could be set up to have the full-blown trial system like in our criminal justice system for instances of plagiarism, underage drinking in the dorms, vandalism, assault, etc…unless you are saying that rape should be singled out among all the other things that could get a student expelled?
I guess I’m not convinced that there should be an obligation for a full-on tribunal for a private organization who has its own standards for who can go there. Let them decide how they want to handle a breach of their own rules, which may or may not coincide with a breach of greater society’s rules. If there is overlap, let each decide according to the rules that each entity has already set forth. I think that has always been the case. *shrugs*
The problem was that preponderance wasn’t the only thing the dear colleague letter changed. It also suggested that the accused not be able to cross examine the accuser, and that the accusers name have protections the accused’s name does not.
On the Hillary thread, someone made the point that when looking at the situation through a dystopian lens, liberals might try to skirt the law by calling dissent ‘mental illness’ and deal with legal situations through channels without the protections and standards of the legal system.
Well… Welcome to the United States of Dystopia, Where the education system is picking up slack for a legal system that too often fails the victims of sexual assault on the basis of pesky things like facts and evidence. Fuck facts and evidence, these people are VICTIMS! Because they say so! Guilty until proven innocent! (And that’s how it should be by the way, we don’t need to put the accused behind bars, we actually don’t care for prisons much at all. We just need to Fuck. Them. Up. We’ll kick them out of school in such a way that’ll leave them financially crippled, unable to get admitted elsewhere, and otherwise ostracized.
Noting Duke’s finding that a rape occurs when a panel concludes based on 50.01 percent probability that a student had reached an incapacitating level of intoxication that rendered the student unable to give consent to sex, McLeod’s lawyer asked Wasiolek what happened if both students were drunk. In that case, presumably, “they have raped each other and are subject to expulsion.” Not so, stated Wasiolek: “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.” How this policy can be reconciled with Title IX must remain a mystery.
^^This. Basically, they have figured out this system quite well. If the law doesn’t work, then just blackmail and racket. Huh. Like the mafia, just less honest, I guess.
That is what the service academies do. while every violation of regulations could result in a court-martial, it is usually handled by the internal disciplinary process.
Rape is not handled in this way, any more than murder or treason.
Colleges should be free to determine their own rules on how to deal with students accused of sexual assault on campus. My preference would be that they help create an atmosphere where the accuser can go to the police and help the police in any reasonable way possible to help them obtain the information they need. But if a college independently says in their student handbook that students accused of a crime of sexual violence will be held under some review panel to determine if attendance at that school will be allowed then by all means they should do so and have it well published in their student handbook.
Colleges should NOT be told by government that they are required to punish students alleged of committing crimes of sexual violence, especially when the required standards for determining “guilt” is lower than what the government is required. In this title IX letter the government is basically circumventing the constitution and the rights of the accused to a fair trial.
What what is happening here is the latter. Government is requiring schools to set a lower burden of proof. That should scare everyone.
You shoul;d read the comments on George Will’s column. Here is one of the most disturbing.
At first I thought this was a parody, but then I read the other comments.
The worst thing is that this is a worldview that many women have. They get steeped in the idea that men are so evil and irredeemable that anything they say is automatically suspect and anything they do is automatically an attempt to silence and oppress. Other so called victim groups think this way as well.
It’s not unlike how radical Muslims view infidels.
It is like how radical islamists view them.
Heh funny you should mention…I referenced the same thing a little ways above
“The vast majority would never see the light of day, because of the shame, stigma, and guilt surrounding the issue.”
How do we know that? If they are unreported, how can you be so certain they occur? I’ve always wondered what formula is used when I read things like ‘60% of rapes go unreported”.
This actually goes back to the Kost study, or studies like them. The studies tend to define rape in such a way as we don’t understand it (There was one infamous example where ‘using logic in an argument’ was rape…. can’t make that up) and then they survey a group (that usually doesn’t have a large enough sample size to be legitimate) then they ask different questions of men and women, specifically designed to ‘root out’ rape victims.
Then lo and behold…. Even if she was in a monogamous relationship, and even if she wanted and enjoyed the sex, she was drunk, so she was raped. Or he was the breadwinner and she was financially dependant, so she was raped, or the sex is regular and expected, so it is rape. So we have this whole group of ‘rape’ victims that don’t even know they were raped! Of course they won’t report it. But that’s the point. It means the ‘unreported rape’ statistics fly through the roof.
Here is a link to the CDC sexual violence survey. They go into detail about their methodology and their quality checks, if you are interested.
Click to access nisvs_report2010-a.pdf
You know what that survey doesn’t mention? Unreported rapes. It DOES say that ‘made to penetrate’ is ‘other sexual violence’ and not ‘rape’ as I mentioned previously, and it does state that 1 in 5 women in their lifetime will be raped… But it doesn’t actually include the methodology on that number.
You really have to wonder, I suppose, at the veracity of a survey that says that there are 1.2 million rapes and attempted female rapes annually (page 18) while there aren’t any statistics for male rapes annually (page 19) and absolutely no mention of prison rapes (because their sample excluded prisons). So working off their numbers, there are 680,000 “completed” rapes per year. The DOJ website says that there were 90,000 reports of rape.
So to crella’s point: 90,000/680,000 is actually 13%. So either 87% of rapes go unreported, or someone’s math is wrong. I would LOVE to see the raw numbers on this survey.
Note that they defined “being made to penetrate” as not being rape. By the common understanding of the term, rape is any nonconsensual sex. Being the penetrator rather than being penetrated should not change that. About as many men are made to penetrate as women are forcibly penetrated. See table 2.1 and 2.2. But they are compelled to define away female on male rapes, because equivalent victimization rates don’t fit the narrative.
Since it doesn’t break it down further by the sex of the perpetrator, it’s possible that the victimization is roughly balanced but the perpetration is skewed by sex in the same way overall crime rates are.
Not to sound evil, but does anyone else think there will be a huge rise justifying the use of fake names and sticking to one-night stands for guys hooking up with college girls?
Or: a lot of guys will hear from a girl “Oh, I’m in college” and run away.
Plus: is anyone surprised that the feminists were really just puritans at heart? It was counterintuitive, but there’s always been an underlying “let’s regulate the bedroom” to some of the feminist philosophy.
PS – I’m not advocating the above…just saying it will happen…
I found an article that fairly well sums up how I feel about Will’s column. http://www.theatlantic.com/politics/archive/2014/06/rage-against-the-outrage-machine/373069/ Linking it here because it does a thorough job providing the context that the attacks on the column lack, much better than I possibly could in a comment.
I’d question whether colleges, as little enclaves of disreality, can even evaluate such a heinous crime as rape. Modern campuses, from the onset of their first “orientation”, virtually encourage irresponsible sexual conduct among their students. If young people start their studies with the concept that college is equally about scoring as frequently as possible, could anyone wonder why incidents of sexual criminality have exploded? To leftist activists on campus, it’s part of the “liberating” process. To the faculty, it’s an occasional embarrassment to be downplayed.
It’s bad enough when these events occur on the grounds of overhyped and overpriced private schools. But when they happen at state colleges- supported by tax funds, theoretically belonging to a state’s citizens and encouraged by policies that promote immorality- then it’s time for the voters and their representatives to take a hand. No coed should feel pressured into sexual activity by a prevalent, administratively approved culture of “free love”. And- certainly- none should know the trauma of being raped on a campus by some drunken degenerate (who should likely never have been admitted as a student in the first place) and seeing him get away with a slap on the wrist.
A bunch of points to be made here.
1) I am a self described feminist. I hate “the title IX letter”.
2) I do not approve of the Title IX requirements placed on college campuses to not only determine if someone likely committed an act of sexual violence against another but requires them to use a lower standard of proof than a criminal trial. More on my opinion of that letter at the following link: http://falselyaccused.lj4a.com/2011/04/14/the-presumption-of-innocence-and-title-ix/
3) I don’t think we should get too nitpicky here on using rape/sexual assault. A rape is a sexual assault. I don’t necessarily expect a victim to get the labeling right. Leave that to the prosecution if and when the case goes to trial. Now, as to what should get called rape or sexual assault, sure we can discuss that. Simply put it is sex (or sexual activities respectively) where consent was not given by a party to the act. Any attempts to make it more or less than that is wrong.
4) When you are a person deciding to have sex, in college or in any other situation, and the potential partner is not sober you should ask yourself this question. Would you sign a business contract with this person in the state that they are in. If the answer is no, then guess what… you already have doubts as to if the person has the capacity at the moment to consent to a contract which means the person also likely does not have the capacity to consent to sex either.
a better question would be,. if this person drove a car, would the person be guiklty of drunk driving.
Drunk driving requires mens rea, and it is theoretically possible for a person to be too drunk to be guilty of drunk driving, due to the lack of mens rea. A person who is too drunk to havwe sufficient mens rea to be guilty of drunk driving would lack sufficient mens rea to consent to sex.
Ok, but people don’t always carry a breathelizer on them to determine if a person could pass a field sobriety test (at least with a blow test, no puns from the gallery).
Of course you could make your potential partner walk in a straight line touching his/her hand to her nose. But if you are already at that level of doubt that you would have the person take a field sobriety test, it is likely best to keep your pants on.
You can get steering wheel locks that won’t turn off until you pass a breathelizer. Maybe we can make the same thing for underwear.
cute. I still stand by my point, if you would ask a potential partner to take a sobriety test then perhaps that doubt should be enough to not take off your own pants.
And I stand by the point that that’s a retarded standard that no one is willing to actually apply. Drunken sex happens millions of times nightly in America, and those sex acts aren’t rape. The only thing that makes those acts rape are if some person said no, or if she regrets it the next morning. Because we aren’t willing as a society to apply that law gender-neutrally. Her regret after the fact should not retroactively create a rape.
That shows your ignorance on the subject. It is not rape because you lacked a no. It is rape because you lacked a yes.
I agree, retroactive rape should not take place. Consent should not be considered to be revoked after the act is completed. But if consent was never obtained, you never got a yes.
Here is the general concept. Want to avoid a prison term for rape, only sleep with people you are certain want to sleep with you. If there is any doubt, then perhaps you should refrain… you know because respect for the body of another person is a simple sign that you are a decent human being.
A VERBAL yes? Come on. You can’t possibly believe that.
I didn’t say verbal yes. The person can obviously give consent via other actions, as long as that person is not too intoxicated to give consent.
But the idea that “as long as she doesn’t say no” means it is not rape is an idea that needs to go away. An person who is unconscious cannot say no. Sex with an unconscious person is rape. So a lack of no doesn’t imply consent. A lack of yes implies rape.
You’re demonstrating your blinders again. If yes doesn’t need to be verbal, and you expect us to understand that, then no doesn’t need to be verbal either, and I expect you to understand that.
And I need you to pick a side. I need you to decide on whether 1) Alcohol removes your responsibility. And 2) Consent can be removed retroactively. Because you SAY that Alcohol doesn’t remove your responsibility in a car crash, but it does remove her responsibility in the case of drunken sex that she wants at the time. Those positions are at odds. And you say that consent should not be removed retroactively, but then you say her consent just isn’t valid if she says it isn’t. (because, as I said earlier, there are millions of sex acts performed nightly over the course of every single night, and the only thing that differentiates those acts from ‘rape’ acts is regret the next morning, so inebriation doesn’t mean rape, inebriation and regret means rape)
HT: Yes doesn’t need to be verbal but it has to be given. If no yes is given, then the answer is no. It is that simple. Seriously, you are making this too hard.
And what is wrong with the reading comprehension here. I have NEVER said that alcohol removes responsibility nor have I said that consent can be removed retroactively.
Drinking alcohol does’t prevent you from being convicted on a drunk driving charge. But drinking alcohol does impair your ability to give legal consent. Those positions are absolutely NOT at odds. The right to not be violated exists while drunk or sober.
Consent IS NOT VALID if given while intoxicated.
Let’s work backwards here.
If someone is so intoxicated that he/she is passed out, is sex with that person rape? Yes or no?
If someone is black out drunk where he/she will not remember events from the night before, is sex with that person rape? Yes or no?
If someone is intoxicated that he/she is awake but cannot move by themselves, is sex with that person rape? Yes or no?
If someone is drunk and capable of walking but is speaking with very slurred speech and very strong alcohol breath, is sex with that person rape? Yes or no?
“Drinking alcohol does’t prevent you from being convicted on a drunk driving charge. But drinking alcohol does impair your ability to give legal consent. Those positions are absolutely NOT at odds. The right to not be violated exists while drunk or sober.”
They are at odds if you consider driving drunk a contract between you and the state, which is probably a better example of a contract than your average sex act. Your arguments only work if you dump logic out the window. Sex as a contract would probably be illegal so long as prostitution remains illegal. The average feminist would probably try to educate you if it heard you refer to sex as a contract.
“If someone is so intoxicated that he/she is passed out, is sex with that person rape? Yes or no?”
Yes, that is rape, the unconscious person was not able to give consent. Consent is an action, not an inaction.
“If someone is black out drunk where he/she will not remember events from the night before, is sex with that person rape? Yes or no?”
Not if they consent. This is where our positions diverge. You are of the opinion that someone becomes less liable for their actions (the action here being consenting) having drank alcohol. This is at odds with every other scenario involving alcohol and responsibility. I think you actually just don’t get what I’m saying here. I’m not talking about removing responsibility from the male role in your scenario, I’m talking about the female role having responsibility for her actions whether or not she is drunk. She was responsible for drinking as much as she did, she bears responsibility for her consent, which she can give. (And does, millions of times daily)
You keep talking about contracts. but I don’t think you understand how they work. Contracts exist in three states of being; Valid, Void, and Voidable. Valid contracts are agreements with consideration that do not overtly break any laws. Void contracts are agreements either without consideration, or contracts outside the law. Voidable contracts are contract that one party can back out of at any time, an example being contracts with minors, who can back out of any contract at any time (which is why parents are often asked to cosign). If drinking alcohol removed the ability to consent, then all sex contracts involving alcohol are void, and millions of rapes occur nightly, because we know that not to be true, sex contracts with intoxicated people are not void. Your argument, therefore, must be that they are either valid or voidable. I do not believe you think they are valid (I do.), therefore I assume you believe them to be voidable. If they are voidable, we assume that consent happened at the time, but we take away the responsibility of the contract holder to own their contract I feel that you are treating women like children, by removing their responsibility for actions they take of their own free will (both getting drunk, and consenting).
“If someone is intoxicated that he/she is awake but cannot move by themselves, is sex with that person rape? Yes or no?
Yes it is, they still need to receive consent. I’m going to give you props for being one of the feminists who believe that consent doesn’t need to be verbal (some don’t), but consent is still an action, not an inaction.
“If someone is drunk and capable of walking but is speaking with very slurred speech and very strong alcohol breath, is sex with that person rape? Yes or no?”
Not if they consent, see above.
You might not like my position, but it is consistent and logical, which is more than I can say for yours.
Sobriety is a valid test, if one knows the lack of sobriety is from alcohol. Raging hormones can cloud judgment just as effectively as booze. Anyone the next day, after hormones have cleared, much like drunkenness subsides, can have regrets over decisions made. Should they too be able to claim lack of consent?
Of course people should not be able to retroactively remove consent. I am just saying that if you have any doubts that the person you are with is legally able to consent you should keep your pants on. And to me, the “would you sign a contract with this person” test seems to be a pretty good one.
No doubt its a good quick razor. But those raging hormones work both ways and cloud both judgements.
If there were a situation in which one *should* ask, “would I sign a contract with this person”, wouldn’t it be just as often that the would-be asker of the self-aware question be just as judgment-clouded to even think to ask the question?
Perhaps, but having clouded judgement does not prevent one from being convicted of a crime. Otherwise we could never convict drunk drivers.
Nope, but if both parties are making hasty decisions with judgment clouded, and the nature of the commission of the crime can be so visibly the same as engagement in non-criminal behavior. How can we be tolerant of universities engaging in this extra judicial behavior?
Well I oppose the letter and the requirements placed in it. Universities should not be acting as an agent of government to punish people acused of rape.
1) then in the case of mutual drunkenness either both are convicted of rape, which I think is stupid, lest we create a new law… Some sort of extremely odd “drunken sex”, which wouldn’t fly; or both are released with a solid chewing out by the judge.
2) I think proving drunk driving is tons easier than proving rape. I don’t think that is an analogous protest.
“I think proving drunk driving is tons easier than proving rape. I don’t think that is an analogous protest.”
Sure it is easier. But ease was not my point. My point was that being drunk doesn’t shield you from legal culpability. If being drunk shielded you from crime then it would be impossible to convict people of drunk driving.
It depends on the level of drunkenness.
“Perhaps, but having clouded judgement does not prevent one from being convicted of a crime. Otherwise we could never convict drunk drivers.”
I love it. You accept that being drunk is not an excuse to be held accountable for your actions. Unless you’re a woman, then if you’re drunk, and have sex, you aren’t accountable. If you regret it, all you need to do is change your mind, and you’re a rape victim.
1. I’m sorry, they probably have pills or counselling for that.
3. A rape is a sexual assault, but a sexual assault is not necessarily rape. Is it semantics? Perhaps. But the difference in treatment of the law is material, so I wouldn’t classify it as nitpicky. However, I would love for you, as a self-described feminist to tell all your feminist friends that’s the definition of rape, I’ll have gauze on hand.
4. The problem with that is, that there needs to be a certain amount of responsibility. We don’t allow “I was too drunk to realize that driving intoxicated was a bad idea” we just charge them with drunk driving.
Charging the partner with rape after a night of drunken sex is like blaming the car for drunk driving.
The only way in my mind that this could be considered rape is if the drunk person said no. But my thoughts on this don’t matter. If we consider ‘too drunk’ to preclude consent, then the issue is mutual intoxication. If one person is too drunk to give consent, and the other isn’t, we say the drunk person is raped? Ok. What if they’re both drunk? Right now, policy seems to make it the man’s problem. How do you feel about that? What if the drunk person was physically larger than the sober person, and decided to force the second person into sex? One person is too drunk to consent, and the other person does not consent, so have they raped each other?
I have asked the “what happens if both people are drunk” question before. and it brings up interesting legal questions.
What if an underage student has sex with a drunken teacher?
They are hard questions. And we should have a logical and sane discussion about it without bashing people for their beliefs that men and women should be treated equally under the law (i.e. feminism).
Where I have come to it is this. Being drunk yourself is not an excuse for violating the law. If you drunkenly kill someone, drive, or commit any other crime you are still held to be legally responsible. Rape shouldn’t be any different, should it?
Each individual case should be discussed on their merits. In some cases it will mean that if both are drunk that person A is the rapist. In some cases it will mean that if both are drunk that person B is the rapist. And in some cases you won’t have enough proof to convict either person of rape.
Bullshit. And FOUL.
“They are hard questions. And we should have a logical and sane discussion about it without bashing people for their beliefs that men and women should be treated equally under the law (i.e. feminism). “
This goes back to my earlier comment on feminism and Islam not having a centralized leadership structure, and individuals having the mandate to say anything with the same legitimacy of any other individual in the belief structure.
I`m going to interchange Christianity and Islam to make my point, because I have a much broader frame of reference with it. When you ask a Christian, `What does Christianity mean to you?` You can get answers ranging from not eating certain foods to stoning homosexuals to love and tolerance. But the fundamentals of Christianity that you really can`t get away from is that there was a dude named Jesus, he was the son of God, and he died for your sins on a cross. If you ask a feminist `what does feminism mean to you?` You can get answers ranging from `real gender equality` to sex-negative feminism, to kill-all-men feminism. But the fundamentals of feminism include patriarchy theory and sex-culture theory.
Feminism is NOT about equal treatment of men and women under the law. That might be what it means to you. And people like you, Dan, give what is otherwise a hateful, sexist, terrorist movement a legitimacy that it would otherwise lack. Your movement`s crazies say things that you don`t agree with and drone you out, because you are either part of a minority, or a quiet majority, which is really hard to differentiate between. Other people, famously Madonna, refuse the label of feminist, both because of the negative aspects of the movement and because you really can`t bias your label and say you truly want equality while remaining intellectually honest, have instead labelled themselves `humanists`.
“They are hard questions. And we should have a logical and sane discussion about it without resorting to labels and titles that prescibe baggage that distracts from the conversation (ie. feminism). “
” And people like you, Dan, give what is otherwise a hateful, sexist, terrorist movement a legitimacy that it would otherwise lack.”
Feminism is hardly a hateful, sexist, terrorist movement. You sound like a “MRA”.
The inability of you and people like you to hold your compatriot’s feet to the fire is the reason I have to treat your comments like the bullshit they are. Feminism is a hateful, sexist, terrorist movement, and I can and am willing to give examples if you need them. Look at Velerie Solanas as my first example, a paranoid schizophrenic who shot Andy Warhol because the man she wanted to shoot was unavailable, her original target deserving death on the auspices of she wasn’t as famous as she wanted to be, and it was all his, and other men’s fault. Her manifesto was disjointed, hateful, full of feminist rhetoric, and otherwise insane. Do feminists distance themselves? Some of them. Maybe by people like you. But generally, no, she’s treated as a folk hero. I just don’t see how you could have done any amount of research and come up with the idea that feminism is actually inclusive.
And I had to Google what an MRA is. And I don’t count myself among them. It hits me as the equally unacceptable gender-titled mirror of feminism, although as a relatively new movement, they don’t seem to have accumulated the baggage feminism has. A rejection of feminism doesn’t make me an MRA, it just makes me intelligent. I regard your comment as an ad hominem attack, you didn’t defend feminism on its merits, you attacked me to discredit my ideas. So eat a little bit of shit, sir.
“Where I have come to it is this. Being drunk yourself is not an excuse for violating the law. If you drunkenly kill someone, drive, or commit any other crime you are still held to be legally responsible. Rape shouldn’t be any different, should it?“
But the person committing the `rape` here isn`t the driver, they`re the car. If you, the `rape victim`, go out and get drunk, then have sex that you say you want at the time, then decide the next day that you regret that, I think you should still be legally responsible. Removing that responsibility is like blaming the car for having a drunk driver. The driver still consents to drive at the time, that the driver regrets driving the next day in the drunk tank is irrelevant, we still hold them responsible.
Removing the agency inherent in responsibility is something that feminism needs to answer to. It`s objectifying women. In essence, the girls aren`t acting by having sex while drunk, they are being acted upon.
No I am saying someone cannot excuse themselves from being convicted of rape because they were drunk. Let’s say a situation where a man feeds alcohol to a woman in order to get her drunk enough to have sex with. The woman is stumbling drunk and has no control. If that man is drunk, should he be guilty of rape? I would say yes. You seem to say no. You seem to say that his being drunk should shield him of any legal responsibility. Because “they both got drunk”. I say that being drunk shouldn’t excuse rape.
Do drunk people have sufficient mens rea to consent to sex?
Drunk people cannot consent to sex .
Because they lack the legal capacity to consent. Now, one might argue that if the sex was agreed on earlier or it was known by both parties that sex could take place in a state of drunkenness then I wouldn’t call that rape by any way, shape or form. But if you are having sex with a stranger or someone who you hadn’t yet had a sexual relationship with and knew that the sex was wanted prior to the intoxication then it would be very hard for me to agree that consent was obtained.
They lack the legal capacity to consent? That’s news to me. Perhaps it’s different in America. (I mostly deal with Canadian law). Can you quote the case law?
The capacity to consent requires more than simply the “baseline physical functions”.
Drunkeness is not the same as incapacity. Poor decision making, memory loss, or loss of inhibition or self-control due to alcohol does not negate consent. An intoxicated complainant may still have the ability to consent.
Where alcohol may have vitiated consent, it may be best established by way of expert evidence.But it is not necessary as a matter of law.
Consent may be vitiated by abusing a position of trust, power or authority. 
However, any threats or abuse that occurs after the event cannot go towards vitiation of consent.
So no, intoxication does NOT remove the legal capacity to consent, at least in Canada. And because this would be legislated on a state by state basis, and I don’t know all the laws in all fifty states, I cannot for certain say it doesn’t in every state. But the burden of proof would be on you to find those laws.
I found a wonderful PDF of American rape law by state:
And I was wrong.
In Oklahoma, Pennsylvania, and South Dakota, being intoxicated is enough to remove consent for legal purposes, although it doesn’t necessarily, and those crimes are not always rape, or even the most serious in the category. (In Penn, the crime is actually “Involuntary Sexual Deviancy, although it is still a felony)
But in Every. Single. Other State in America, the law requires that for the intoxication to legally remove consent, the intoxicant had to be administered without consent. Bazinga.
Seems as if you are incorrect. Louisiana defines “Simple Rape” and includes in it “When the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim’s incapacity.” http://www.legis.state.la.us/lss/lss.asp?doc=78531&showback=
Bazinga…. (good show by the way)
Incapable of resisting or understanding is a much more strict standard than simply being drunk. But even accepting your argument…. Four. Four out of fifty. 8%. Congratulations.
HT: I am sure I could find more states with that wording. I just provided that one link to prove yours wrong.
Then they do not have sufficient mens rea to be guilty of drunk driving if they do drive.
As a matter of fact, they would lack sufficient mens rea to even consent to the sobriety test used to prove that they are drunk in the first place.
Your position that drunkenness, no matter how slight, negates mens rea would have far reaching legal consequences.
WHAT ARE YOU TALKING ABOUT? I am not stating that drunkenness negates mens rea. I am SPECIFICALLY STATING THAT IT DOES NOT.
I think we’re just going to disagree on this ultimately. I love debating feminists, because feminism requires hypocrisy, and it’s so very easty to tear apart with logic (by the way, there is a branch of feminism that says that using logic against her is rape). I don’t debate you to change your mind, you’ve drank the Koolaid, I’m not going to reach you. I debate you publicly, to demonstrate those hypocrisies to people watching, so they might make better decisions than you.
Michael is right, either you have mens rea after consuming alcohol or you don’t. If you have the responsibility for your actions after drinking, that includes consenting to sex. You just can’t see it because that’s the soup you swim in. If someone is responsible for getting in the car, or shooting someone, or injuring themselves, or making videos of their junks and distributing it, they are responsible for their consent to sex. Drinking does not remove the ability to give meaningful consent. Respect women’s ability to make their own decisions, and leave them the responsibility of those decisions, you misogynist ass.
Look at the words you used there. “man feeds her alcohol” because she had no choice but to drink it, right? Is that man then responsible if instead of having sex with her, she drives? No. She is still responsible for her own alcohol intake. If a man buys a woman a drink, she isn’t obligated to drink it. If he puts a date rape drug in her drink, he is poisoning her, which is it’s own branch of law.
I have enough respect for women to treat them like people capable of making intelligent decisions, and able not to. You treat them like objects that are acted upon by men.
If at the end of the day, both parties are drunk, and one party has purchased all the drinks, and the other party allowed the first party to buy all the drinks, regardless of gender, I just don’t see how you can hold one party more accountable. One party could have not bought the drinks, the other could not have drank them. In this case, both parties were drunk, bot parties consented, so I do not believe rape has occurred.
I’m not saying being drunk should be a defense, I’m saying being drunk should not on it’s own remove the ability to consent. In any other situation, where someone gets drunk and makes stupid decisions, we hold that individual liable. Drunk and driving, that’s on you. Drunk and shot someone, that’s on you. Drunk and fell down a staircase, that’s on you, Drunk and barfed on your boss, that’s on you. Drunk and had sex: if a woman, on him, if a man, on you.
So what I’m saying is that if someone is drunk, and they became drunk of their own free will, which include accepting gratuities, and they decide, even if that decision is impaired, that they are responsible for their actions, which could include consensual sex.
Anything else by definition requires a different treatment under the law for men and women, and therefore is sexist,
Gah horrible grammar.
But here’s a different way of looking at it. You gendered the scenario, because that’s the soup you swim in, you skip by the scenario where the genders are reversed. Let’s say there’s an especially unappealing bridge troll of a woman, and she finds a guy that in no circumstances would sleep with her sober, and she coerces him into her bedroom. Was there a rape?
Absolutely it was rape.
And here is another case that helps to show why title IX gets it wrong. http://falselyaccused.lj4a.com/2011/04/27/wait-for-more-of-these-cases-with-the-new-title-ix-regs/
There can only be two solutions going forward that will protect both women and men equally.
Solution 1) Don’t have sex, or all sexual encounters(including married couples) must be video taped, so that there is clear evidence of the sexual encounter, that can never be refuted.
Solution 2) Separate the sex’s again. Schools for women (no men allowed on campus), run by women and schools for men (no women allowed on campus) run by men.
The future sounds fun.
(Bring on the Junior Anti-Sex League)