But what does this mean? How do you determine if a person lacks the capacity to legally consent? Unless you’re going to get a BAC (obviously not happening in this kind of case), you are going to have to base it on some pretty subjective criteria, unless the person is unconscious. In this very discussion, there seem to be people who believe that staggering and vomiting (or smelling like vomit) is enough to demonstrate that a person is unable to consent, while there are others who believe that going to another student’s room on your own, removing your own clothes, and getting into bed with him is sufficient to demonstrate that you are not too impaired to consent. Who’s right? And what is my basis for deciding which of you is right about this?
In court, the jury decides. In college cases, the adjudicator(s) decide.
Some cases are hard. No matter what the rules, some cases are going to be hard. There is no getting away from the difficulty of some cases being hard. If you change the rules, some cases that were hard are now easy, but some cases that were easy are now hard. It’s a fool’s errand to make rules that are always easy to interpret.
Not to press you too much, Cardinal Fang, but I don’t think it’s enough to say that some cases are hard. Perhaps some are so hard that the decision shouldn’t be left to a jury or a college adjudicator. It seems to me that this would be the result if you thought that biases in the decisionmaker’s mind would be likely to have too much influence on a really subjective decision. You might say, for example, that since there really is no consistent and fair way to judge just how impaired a person was, we are going to presume that actions that would indicate consent to a reasonable person will be deemed to constitute consent, even if the complainant claims that she wouldn’t have taken those actions if not impaired. Would that be more, or less fair?
Fang – as every law student hears on the first day of law school, “it’s a line drawing problem.”
The other thing you hear the first day is “hard cases make bad law.”
When you draw the line, it matters where you draw it and how clear the line is. You draw it so it can be adminstered efficiently and fairly. Not so it can handle every possible case.
A 0.80 BAC is a great example. Plenty of folks are fairly functional drivers at that level; other folks are pretty wasted and bad drivers at that level. But in order to avoid getting bogged down in one-off subjective fact finding missions, we draw a clear and administrable line at 0.08. Arbitrary but makes a lot of sense.
The solution here is not to improve and increase adjudicatory capacity (although some amount of college adjudicating is unavoidable). You could triple the size of OCR and the on-campus gender-based misconduct offices. It is a waste of time and effort. You cannot adjudicate these problems away. That’s why the OCR’s efforts have produced little except paydays for plaintiff lawyers.
Adjudication and investigation should be funnelled primary to law enforcement. Colleges should focus on helping victims, mediating disputes so kids can continue their studies, and risk minimization. Since this fundamentally isn’t a legal problem at the college level, OCR’s litigation focused policy is an airball.
I don’t see how that solves the problem. Now, instead of determining whether the person was too impaired, we have to determine whether what they did would indicate consent to a reasonable person. That’s no easier. We’ve moved the line, but it’s still blurry. We’ve done nothing to solve the problem of some cases being hard.
We’ve had huge arguments here on CC about whether action X or Y would evince consent to reasonable person. That’s far from an easy decision. Moving the line to “did the person show consent” doesn’t help: we’ve just exchanged one hard problem for another hard problem. In fact, we’ve exchanged one hard problem for a problem that is arguably harder. At least for determining impairment, we can ask outside witnesses, but determining what happened in private between two people makes it harder to determine the facts of the encounter. That would not bother me if I thought that the line properly belonged there, but I don’t.
Well, if the decision is too hard, then perhaps serious consequences shouldn’t flow from which way the decision goes. Perhaps there should be some other way of dealing with the really hard cases than either to expel the accused perpetrator or exonerate him. I think that’s what some of us are trying to say.
I also think that we tend to be too distracted by these gray area cases. If there are too many of them, they also may make us question the fairness of the outcome in cases that aren’t all that gray.
Here are two places we could draw the line (using a female pronoun for ease of writing, but understand that I’m using the inclusive “she” to refer to accusers of both genders 
):
(1) Did she, in private, evince consent?
(2) Was she too drunk to consent?
Which of these is easier to administer? I contend that drawing a line at drunkenness is much, much easier to administer. Most likely, we can get evidence from other people about her inebriation, but we’re not going to be able to get evidence about what she did when they were alone. Unless by “easier to administer” you mean “throw out every single he-said she-said case”, I’m not seeing how (1) is easier to administer in the case of very drunk people.
But this is not really the standard–the standard is whether the accused knew, or should have known, that she was too drunk to consent. And, it seems to me, that is just as subjective as whether she acted in a way that evinced consent.
Just as subjective, but easier to get evidence about. That is, in the case of drunkenness we have to decide how drunk is too drunk, but in the case of consent we have to decide not only what constitutes consent, but what she actually did. In both cases we can dispute the standard, but in the consent case, we are more likely to be disputing the facts as well.
Wondering: Do folks on this thread believe that drunkenness is a mitigating factor? That is, if Person A is too drunk to recognize whether Person B is too drunk to give consent (pretending, for the sake of discussion, that we’re dealing with a case that would have been clear to a sober person), does that mean that Person A should be excused at least partially from culpability?
(I ask in part because I recall back in the day when the state I grew up in removed drunkenness from its list of mitigating factors a jury was supposed to take into consideration, after someone got off with a lighter conviction for killing someone in a drunk driving accident—and the defenders of that being on the list argued, among other things, that someone who’s drunk couldn’t be expected to be completely aware of right and wrong, so holding drunk people to the same standard as sober people was unfair.)
But CF, it seems to me that there is often evidence that suggests consent, like where the person went and how she got there, what texts she sent, etc. Really, the most murky cases are those in which, without alcohol, most people would agree that there was consent, but the accuser says there wasn’t because of impairment. I think all those Yale examples work OK if you are talking about a couple of sober people.
Nope, nope, nope. Not unless the drunk person was drugged somehow without their consent.
I disagree. Those are the most CONTENTIOUS cases. But the most murky cases are those where most people would agree that we have no idea whether there was consent. That is, we’d agree that if it happened the way she said, then it was sexual assault, and if it happened the way he said, it wasn’t, but we are unable to determine the facts of the encounter.
DFB – as a legal matter, drunkeness isn’t an excuse. That has to be the rule and it is everywhere.
But as a policy matter, drunkeness is a huge causal factor. That Vandy football player was (correctly) a convicted rapist at a BAC of 0.25 (or more). But we all know that that kid is not going to be a rapist at a BAC of say .10 or less. We also know he’s not going to be a rapist if the victim is not unconscious due (surprise!!) to her very high BAC.
Think about how we handled drunk driving. Drunkeness is not an excuse there – never has been. But we had way too many drunk driver car crashes. We didn’t just rely upon (as the OCR is) ramping up adjudications and watering down due process. Instead we relied on risk minimzation – 21 drinking age, lots of PSAs from MADD, driver education, etc. Tougher legal enforcement was part of the policy, but not the primary/only thing and (importantly) that was left to real law enforcement.
The folks at OCR are, by experience and training, civil rights litigators. For them, that’s the hammer they wield. So the campus rape problem is a nail that will be solved by increasing the amount of civil rights litigation.
That’s just dumb policy. Civil rights litigation is way way way down the list of things that will move the needle on this. But that’s all anyone focuses on – investigating, adjudicating and punishing perps, made easier by watering down due process protections. That’s a very narrow, legalistic, naive and ineffective policy. But a policy that makes a lot of sense to a career civil rights litigator. I’m sure that OCR folks are sure they are doing a GREAT job on this…
This is not a problem that will be solved by litigation, despite what OCR’s litigators think.
See, I don’t think those cases are murky in the same way. Those are strictly a matter of credibility. Now, there are also good reasons not to decide such cases on a preponderance of the evidence standard–unstated biases can have a lot of impact on how credible somebody seems to us. But in a case like that, the jury doesn’t really have to make subjective determinations–it just has to decide who to believe.
@CardinalFang I’m talking about Jane Doe only.
@Consolation, I have no trouble saying that they should both have been disciplined, and that the discipline should have been suspension. I think it’s defensible for Occidental to just discipline him, because he didn’t accuse her, but I also think it would have been defensible for Occidental to enter an accusation on his behalf.
I also think Occidental will prevail in court because the adjudicator applied the Occidental rules to the facts as agreed to by both sides. The adjudicator saw the investigator’s report; she knew about the texts.
Actually if you read the actual complaint it runs over 170 pages and there are a dozen pages where it points out just where Occidental violated its own processes and procedures - which isn’t unusual in this cases that should have never been. The kids in the Occidental case would have been well served by some counseling, especially the girl. It’s pretty tragic to read her texts, before and after and the next day, the accounts of how her roommates brought her to her room and she left again to return for more, her notes. This was a woman on a mission. She got what she wanted and ruined another person’s life in the process. Neither should have been expelled and both should have been required to go to counseling. At least this one’s mother wasn’t driving the train, like the UofM case, a very similar case, but the mother of the woman plays heavily into the case. Both cases are pending now, so time will tell what the courts say to the colleges, but it won’t reverse time or make anything “better” except for the next college pair who get drunk and have sex.
The court is not going to find that any process violation made any difference. People who object to the Occidental case, like you, momofthreeboys, are not objecting to the process. You object to the rule: you think that someone who is very drunk but not unconscious, like Jane Doe, is able to consent to sex. But that’s irrelevant. The issue is not whether you like the rule, but whether Occidental is entitled to have the rule even though you don’t like it, and whether they applied it correctly.
I say they’re entitled to have the rule, and they did an exhaustive investigation to discover that John Doe broke it.
I say that colleges can have rules that we don’t like. Just because we don’t like a rule doesn’t mean that colleges can’t have it. Some colleges have the rule that students can’t marry. Other colleges have the rule that students can’t be openly gay. I don’t like either of those rules, but I don’t dispute that colleges are allowed to have the rule. I don’t see any basis that Occidental can’t have the rule that anyone who has sex with a person who is very drunk has committed sexual misconduct.
Nor am I sympathetic to the claim that other cases of sexual misconduct, cases that were not brought to the attention of the authorities, went unpunished. If a plagiarist claimed that other students had also plagiarized but their plagiarism was unknown, as a justification for letting her own plagiarism to go unpunished, I would not treat her claim seriously. I’m sure there are other unknown plagiarists but that will not convince me to go easy on the plagiarists I have before me. Similarly, the existence of others who commit sexual misconduct will not convince me to go easy on the offender before me.
There is an opinion piece, very slanted , by a writer who said she called 4 liberal arts schools in Oregon and the schools all say they would never ban somebody based on looks. If you google Professor Halley, you can read her piece. The title is BS except the words are spelled out.
Coach K may have some problems. May not. Two girls said they were assaulted by a basketball player. They didn’t report to the school… But the school found out…