Page 2 of the brief at the bottom of the link.
You need clear verbal consent.
Winston had almost two years to get his story straight.
Winston should have given clear verbal answers to Judge Harding’s questions. 
Then again…Winston won.
The policy says this:
- "Consent is defined as the willing and clear participation in the sexual act."
And also says this:
- "Consent is not freely given if no clear verbal consent is given; if the individual is not able to give consent or if consent is achieved through force, threat of force, or coercion."
The second doesn’t over-ride the first.
The first says consent is willing and clear participation. So long as it is willing and clear, no words are necessary.
The first doesn’t mention anything about “freely given” consent. Only the second one does. If participation is “willing and clear” under #1 then there’s no question about whether the consent was valid or free. So no words needed. Almost identical to the California code section cited above. Which requires consent but does not require words.
2 covers a different situation. Which is the situation where a person's behavior could indicate willing participation (such as not physically resisting) but is not actually willing due another factor (drugs, alcohol, threat).
My lawyer eyes say “willing and clear participation” is completely valid consent without words. Or at least the policy is ambiguous on whether words are required. So FSU would get sued by Winston (and lose) if they hung their decision on your idea that the policy had been violated because there were only moans and not words.
Nevermind. Lawyers disagree.
http://m.espn.go.com/ncf/story?storyId=12067672&src=desktop
It is FSU’s rule. How does FSU interpret the rule?
You really can’t make an argument that words are always required. If it was, #1 could not/would not be written the way it is.
Either (i) words are not always required or (ii) it is ambiguous.
This is the whole sentence.
You are telling me there is consent if it was achieved through force? Coercion?
I know you don’t believe that.
This sentence explains when consent is not given.
- "Consent is defined as the willing and clear participation in the sexual act."
This sentence defines consent. There is no requirement (as you suggested) to speak words in order to give consent. Willing participation without words is consent.
“Ok… Well… Clear verbal consent is required ar FSU.”
FSU requires consent. It does not require verbal consent.
And some of you still want universities doing the investigating??
Northwesty, I agree consent is defined as the willing and clear participation in the sexual act.
But after that sentence are exclusions and exceptions. No?
I may tell my kid you can take the car.
If…
I know you kind of said this but I am just making sure…
You are saying the physical act itself can be confirmation enough and no verbal comments are necessary. So if there is no willing and clear participation then there must be clear and verbal consent?
If I take the verbal section out of the rule…
So if somebody is unable to give consent, it is ok because consent is defined as the willing and clear participation in the sexual act?
So, if somebody wants to be forced or coerced, it is ok because consent is defined as the willing and clear participation in the sexual act?
The California law is written differently.
We don’t know if there was ever physical consent in the Winston case.
Laboratories being at fault != investigating bodies being at fault.
This also happens to law enforcement agencies occasionally. By your logic, law enforcement shouldn’t be investigating crimes, either.
The case momofthreeboys highlighted is another mess. The father of the accused is very important to Brown.
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dfb, I prefer that people whose career it is to investigate to well…investigate. i expect college employees to run the business of the college and those whose career it is to teach to well…teach. i do not expect colleges and universities to investigate and adjudicate felony crimes. There are people whose careers are dedicated to that pursuit. Do people make mistakes at their job…sure they do. Do i expect people who are hired to be in the finance department to walk over and start doing an engineer’s job…no i don’t.
Two recent lawsuits brought by students who claim they were wrongly accused and penalized by their college’s Title IX committees.
Boston College
http://www.bostonglobe.com/metro/2015/03/13/graduate-files-lawsuit-over-handling-sexual-assault-case/pIFlcySXmLGc42gRcUDg5K/story.html
http://www.avoiceformalestudents.com/wp-content/uploads/2015/03/boston-college-john-doe-mary-doe-james-doe-due-process-sexual-assault-2015-3-11.pdf
Cornell
http://www.wsj.com/articles/former-cornell-student-sues-school-alleging-he-was-falsely-accused-for-sexual-assault-1426799783
http://www.avoiceformalestudents.com/wp-content/uploads/2015/03/john-doe-cornell-university-due-process-withold-diploma-filed-2015-3-19.pdf
The BC case is interesting because the plaintiffs include not only the accused student but also his parents. The parents are active BC Alumni/ae. 20 family members attended BC! They are suing BC for $3Million. Basically the complaint makes a convincing case of mistaken identity which was compounded by the college’s unwillingness to consider police evidence exonerating John Doe.
The Cornell case is a classic he said / she said case, pending on whether the accuser was too incapacitated to consent. What’s striking to me is that after finding John Doe responsible for the charges the committee chose not to expel him, but to withhold his diploma for not less than two years, leaving him in career and life limbo. It seems they didn’t really think he was guilty enough to be expelled but wanted to punish him (or something).
You gotta give Jane Doe credit for attributing her decision to invite John Doe to sleep naked with her in her bed to “sailboat community ideals.” Life outdoes satire.
Ugh. Neither one of these cases makes any sense. The BC one because you have video, DNA/blood evidence, another suspect who all but admitted doing it, and a polygraph (a lesser reason perhaps) that exonerate the accused, but the school rejects the evidence. The DA did not dismiss because there was a weak case, she dismissed because there was no case. They had the wrong guy, but the school knows better I guess.
The Cornell one is messed up because you have multiple witnesses testifying that John and Jane both had been drinking but were not incapacitated. You have an investigator who picked through testimony stringing together pieces of quotes and changing the essence of the testimony. You have an accuser who claims to have ingested
“approximately fifteen drinks throughout the evening, consisting of three glasses of wine, half a bottle of Malibu Rum, another third a bottle of rum, two more glasses of wine, a bottle of wine, two shots of unknown hard alcohol and
one beer.”
Her self-reported BAC based on an estimate of her weight was calculated to be somewhere between .33 and .43 which the report indicates is somewhere between “a level resulting in effects similar to “surgical anesthesia”… (to) “nearly fatal.””
Yet she remembers every specific thing she drank that night? And none of her friends who were with her all night testify to the claim that she was that drunk? Surely she would have been slurring, stumbling, vomiting, or even passing out at those levels? (It does say in the complaint that she apparently can hold her liquor quite well, having once done a shot of beer a minute for 100 minutes without becoming sick.)
Withholding the diploma for 2 years seems wrong. They let him finish his studies, both students were leaving campus anyway in 2 months due to graduation. Is the school’s purpose to protect the accuser, to get the guy off campus so she can feel safer? Or is it solely to act as a punisher? Because by the time the investigation was complete in June both students were days away from never having to see each other again.
“As both John Doe and Jane Doe were last semester seniors at the time the investigation concluded, there was little to be gained in meting out the severe sanction of expulsion or withholding John Doe’s degree for two years. Further, the Sanction was disproportionately severe in that John Doe was a student in good standing, excelled academically, had no prior disciplinary record, and Cornell had no reported precedents for a student found responsible for similar charges.”
This part is also weird:
“Yet, the Report of Reviewers disregarded these key aspects of the sexual encounter, in finding that a preponderance of the evidence supported Jane Doe’s factual allegations that she did not consent to “sexual intercourse” (even though it was undisputed that the parties did not have sexual intercourse).”
So she did not consent to something that everyone agrees did not happen? And that’s why the guy was punished?
Sorry for being long and rambling, hard to get my thoughts together!
MODERATOR’S NOTE: This thread has more than run its course and gone far astray from the topic.