At many colleges, it is. I don’t know about most.
Because, you see, kicking somebody out is a punishment. And this is America, supposedly.
Well…When I was involved in a civil case, I looked at it as a punishment. 
I didn’t think a case like this could happen in America.
The focus and liability and pay out, as happens so often, is all about the school. It is just so much easier to sue and win over the college’s inevitable procedural and administrative issues. Getting a judgment against the school does not depend on whether an assault happened or can be proved.
FSU had much less to do with this than Winston and the local police.
Yes. I found it interesting that her lawyers rehashed the entire rape accusation in their suit but really that is not the issue. The issue is who knew what in the among the university staff and did the university follow their written procedures. The judgement will have nothing to do with the validity of her criminal complaint.
But the police have legal immunity for their incompetence and the university doesn’t.
The information that Winston refused to answer any questions is evidently inaccurate. He answered three questions during his Title IX hearing with Judge Harding, and for better or worse here they are:
http://nypost.com/2014/12/23/jameis-winston-testimony-moaning-was-consent/
I don’t know that I’d say that this testimony puts Winston on 50/50 footing with Kinsman but then we don’t have access to all the evidence that Harding examined. That Harding’s hearing wasn’t mentioned in the lawsuit indicates that Kinsman’s lawyers felt Harding’s decision was defensible.
I’d say that Kinsman has a good case against the University on both points – that the university’s Title IX mechanism failed to kick in immediately after a senior faculty member learned of the rape allegations and that the University failed to protect Kinsman from threats and bullying. In proving this case I think that the Tallahassee Police will be implicated as well, at best for incompetence and at worse for conspiracy with the Athletic Department, even although they’re not named in the case.
I’m curious though to learn more about what @cardinalfang found out about the police department’s immunity. Does that mean police always have immunity or is it something special to this case?
I’d like to get a better understanding of the ramifications of choosing not to testify. In court if you exercise your right to remain silent “jurors are permitted to draw adverse inferences from a defendant’s refusal to testify.” Am I correct that that means that the jury can infer that the defendant is guilty if he takes the Fifth?
How this applies to Title IX procedures is not as clear cut. If you Google Title IX + the right to remain silent, self-incrimination, refusal to testify, you’ll find many examples of college “bylaws (that) stipulate that 'failure of the student to make a statement or to answer any or all questions shall not be considered in the determinate on guilt or innocence.” (That’s from Auburn’s bylaws, for example, but there are many others with similar instructions.)
But even though the respondent may have the “right to remain silent,” in actual practice if he does just that, the preponderance of evidence may tilt toward the accuser who does choose to tell her side of the story.
This site provides an interesting chart comparing the criminal justice system with school disciplinary process under the OCR.
I have written about a few things that bug me about this case.
This bugs me.
http://srr.fsu.edu/Student-Conduct-Code/General-Provisions-and-Hearing-Procedures
Where does moaning fit in? Is moaning verbal consent? I have doubts…especially if the moaning is not happy sounds. Didn’t Winston admit he didn’t get clear verbal consent?
Consent is clear verbal consent.
I have edited the link to highlight the important sections.
Momrath, in my opinion whether to agree to testify might vary case by case. In the FSU case there was quite abit of interviews and notes because there had been a police investigation. In the absence of all that (for example if the conduct adjudication would have been prior to the criminal investigation) Winston’s lawyer may have advised him differently so that the judge would have on record that side of the case and that team would have a record should it proceed to civil court. In this case it was all there and there was no benefit to having Winston say anymore. The retired judge had plenty to read from both sides prior to the FSU adjudication. Even Winston’s statement at the end, if I recall, was captured in the documentation.
Not in a criminal case. Only in a civil case. The challenge is how to handle this specific point in a college disciplinary pleading.
Moaning could be consent this way:
“Consent is defined as the willing and clear participation in the sexual act.”
Or this way (initial consent which was then not later clearly communicated that it was withdrawn) :
“Consent can be withdrawn at any time, as long as the withdrawal is clearly communicated by the person withdrawing consent through words or actions.”
Consent is always going to be a fact/proof issue. Behavior can always be evidence of consent.
Even if a school required written and signed hook up agreements, you still wouldn’t have the ground covered. How are you going to document the fact that initial consent was not later withdrawn. Require the kids to video the hook ups in order to provide proof of continuing consent from start to finish?
I’ve heard that high volume players (think touring rock stars) actually do this. They get the groupies on tape before proceeding.
Northwesty, I read consent like this…
And
There has to be a clear verbal consent.
The withdrawal of consent does not have to be verbal.
Each side filed a brief after the hearing. Erica’s lawyer argued the above. Erica’s lawyer also argued that Winston’s silence could be used against him. There were other court case citations used.
I would love to read Winston’s lawyer Cornwell’s brief. Supposedly ESPN has a copy. I can’t find it.
In Cornwell’s brief, the argument is Erica changed her story. That is all I found out.
I posted the link which includes the brief for Erica’s side.
I agree northwesty, short of videotaping, consent, alone, probably is not substantive enough in the absence of other extenuating circumstances or evidence because most of the time there are not witnesses. The rules of engagement can discuss consent, but an accusation may not be able to turn on consent alone. I absolutely think the judge’s decision was made on the totality of what was presented, not solely on the accused claim that she did not consent at the moment and everything that occurred before and everything that occurred after have bearing because they are all things that are tangible.
A problem in this case is Winston said what the consent was in this case.
And what Winston said is very weak.
I have been thinking about this. It has been bugging me. Then momrath posted what Winston said.
And I read what momrath posted. I read what Winston said again.
Winston was clearly asked about consent by the judge.
And what Winston said is not clear verbal consent.
Clear verbal consent is necessary.
dstark, I know I’m picking on you, but aren’t you the person who repeatedly emphasized that crying was a clear sign that there was no consent?
Hunt, do I have to pick on you?
Wth?
I am not contradicting myself.
Read what you just wrote.
You don’t need to verbally withdraw consent.
You need a verbal yes at FSU to consent. You need a verbal yes in California and many other places now.
And without clear verbal consent, the case is over. Winston screwed himself over with his answers and he got away with it. 
Who the judge is is so important in these cases. Football is sooo big st FSU.
That’s a common misconception. In California, everyone is required to get consent, which is defined as “positive cooperation in act or attitude.” In California case law, people who so drunk as to be incapable of making an informed decision to have sex can be deemed unable to consent. In addition, college students are required to get affirmative consent, which is defined as follows:
Nowhere in the California code is verbal consent required. College sex education workshops typically recommend that students get verbal consent, in an abundance of caution-- drunk students can easily misinterpret nonverbal signals, but it’s harder to misinterpret a Yes or a No.
Ok… Well… Clear verbal consent is required ar FSU.
Now… When did this policy first take place?
Reading what Erica’s lawyer argued,
The policy was in place at the time of the assault.
“There has to be a clear verbal consent. The withdrawal of consent does not have to be verbal.”
Thanks for clearing that up for me. It is so simple I don’t know why I was having trouble.
So you consent if you make a sound using your mouth and vocal cords that constitutes a word. But not if you make a sound that is not a word. So “mmmmmmmm…” is not consent because, as we all learned in grade school, a word has to contain a vowel!!
Although the policy also says that consent is “willing participation.” So I read it that FSU does not actually require consent to be exclusively in the form of vowel containing utterances.
Perhaps FSU has their RAs made available to make on the spot rulings since their written policy is somewhat vague on the verbal point. My parse is that verbal is not required. Verbal goes to “freely giving consent”, not to the definition of the exclusive means of giving consent.
Also, note that verbal is not the same thing as oral. So a text message should work, provided the text contains a vowel. A text saying “mmmmmmmm…” doesn’t ring the bell though.
“Consent can be withdrawn at any time, as long as the withdrawal is clearly communicated by the person withdrawing consent through words or actions.”
As I read it, once you’ve got the initial go ahead (exclusively via the use of a sound or electronic communication containing a vowel in your reading) you are good to go unless the other person speaks up or acts up. If the other person just lays there (conscious and silent) it is all green lights!!! Until they put up a red light. But the red light does not have to be verbal. So no vowels required there!
If would shoot myself if it were my job to write ludicrous policies such as this, much less enforce them.
Sounds aren’t words. The definition of verbal is using words.