Emma Sulkowicz's Alleged Attacker speaks again in new article

[mom2and]

Everyone should take the time to read the Slate article linked to by momrath regarding the challenges of assessing what really happened in a case of “drunk sex”. It starts out with the Occidental case discussed before, but goes on to bring up interesting, challenging points… From that article:

In a paper published in Trauma, Violence, & Abuse last year, University of Arizona professor Mary Koss argued that schools ought to consider adopting restorative justice measures—like mediation, monitoring of students, and community service—in order to better address the “40 distinct forms of sexual misconduct” outlawed by universities as well as the obvious “variation among students and their situations.”
Expulsion, meanwhile, can be saved for the punishment of true predators

To me, this makes sense. There are various levels of sexual assault and thus there should be levels of consequence. I also think more victims would come forward if the process were less onerous and the level of proof lower, because the consequences less severe. If it is a gray area and the main piece of evidence is her word alone, have a mediation process in which she explains why she was wronged and he perhaps learns from it. That is actually what the UVA dean, and many of her supporters, assault victims themselves, supported.

I doubt it would satisfy Emma or some others who seem to think the only possible answer is expulsion.

[momofthreeboys]

I agree with that Hunt, for the life of me I don’t know why they did not grant him this one accommodation given the situation with the mattress project. If they had any concern at all about his behavior and the safety of other students this would have been an easy thing to grant. So, to me, it sounds like they have zero concerns about him, as an individual, being a “threat” to the campus. On surface I suspect he just wants to get out of the US and Columbia specifically and frankly I don’t blame him.

[al2simon]

Hunt - I’m sure you’re right about the result. But what makes it puzzling to understand is that having Paul study abroad would have helped everyone out. Certainly Paul, certainly Emma because it gets him away from her, and certainly themselves because they can’t be happy about the publicity.

So I don’t think it’s because they don’t want to help Paul. Complete speculation, but universities can be persnickety about academic matters - “We do not give Columbia degrees for studying at cow college, GER, Mr. Nungesser.”

But seriously, their primary job is education and giving degrees; handling sexual assault cases is just an unfortunate byproduct. Upholding their academic requirements is their raison d’etre.

[Hunt]

So I don’t think it’s because they don’t want to help Paul. Complete speculation, but universities can be persnickety about academic matters - “We do not give Columbia degrees for studying at cow college, GER, Mr. Nungesser.”

This is why every institution needs to have a person in charge of bending rules for the overall benefit of the institution.

[al2simon]

To me, this makes sense. There are various levels of sexual assault and thus there should be levels of consequence. I also think more victims would come forward if the process were less onerous and the level of proof lower, because the consequences less severe. If it is a gray area and the main piece of evidence is her word alone, have a mediation process in which she explains why she was wronged and he perhaps learns from it.

@mom2and - Unfortunately, it seems like the OCR is pushing colleges to move in the opposite direction. momofthreeboys linked to a link to this article before. It’s written by a person on the front lines about the OCR’s changes -

https://www.insidehighered.com/views/2011/10/28/essay-ocr-guidelines-sexual-assault-hurt-colleges-and-students

Really worth reading. The people I’ve talked to on the front lines of this at another college say almost the exact same thing about handling drunken sex cases, which are the clear majority of the cases.
Shocking consistency of views.

Their perspective influences me a lot.

One historical note - colleges seem to go through periodic episodes of heightened focus on sexual misconduct issues. There was one in the 80s, one in the 90s. This one seems much more intense though.

[dstark]

To me, this makes sense. There are various levels of sexual assault and thus there should be levels of consequence. I also think more victims would come forward if the process were less onerous and the level of proof lower, because the consequences less severe. If it is a gray area and the main piece of evidence is her word alone, have a mediation process in which she explains why she was wronged and he perhaps learns from it. That is actually what the UVA dean, and many of her supporters, assault victims themselves, supported.

Mom2and, I think I agree with this.

Hunt, do you disagree with the idea who the judge is matters? My analogy…In a baseball game, the difference between a ball and a strike depends on the umpire behind the plate. We have rules…and then we have the interpretation of the rules. The way we stand, the way we see things affects our decision making.

Does a tribunal which is deciding a case know if there are multiple accusations against somebody accused of sexual assault?

[Hunt]

Hunt, do you disagree with the idea who the judge is matters? My analogy…In a baseball game, the difference between a ball and a strike depends on the umpire behind the plate. We have rules…and then we have the interpretation of the rules. The way we stand, the way we see things affects our decision making.

Of course it matters. Even if you are in a real court with real, professional judges, it matters. That’s one reason why I keep harping on the preponderance of the evidence standard–one reason for a stricter standard is to reduce the risk of bias. I’d also note that there will be a lot less variance between the decisions of two highly trained professional umpires than there will between one of those professionals and an amateur who’s filling in behind the plate.

Does a tribunal which is deciding a case know if there are multiple accusations against somebody accused of sexual assault?

It depends. Whether the tribunal should know about other accusations isn’t so easy to answer, especially if the accusations aren’t independent.

[dstark]

Ok…

So we agree. I like your explanations.

Hunt, you asked why some people are not looking more at the tribunal decision…

Those are a couple of reasons I am not necessarily persuaded by a tribunal’s decision. If there are multiple accusations, I am not necessarily persuaded by that either.

In Emma and Paul’s case, it looks like a he/said she case. A 50/50 case. I am not there of course. Neither side can prove her or his case. Neither side. Emma has to prove her case using a preponderance of evidence standard. If Paul had to prove his case using a preponderance of evidence standard, he couldn’t do it either. However, Emma has to meet the preponderance of evidence standard, not Paul, so Paul wins.

That is how I see the decision.

I am not arguing… These thoughts come to my mind…

The 50+% standard vs the 75% standard…do people really differentiate between these two standards in reality? Some do I am sure! But many? Most people have enough trouble balancing a checkbook.

Many people tend to think in binary ways. It is yes or no…there are no grays.

[marie1234]

How about it matters not what anyone believes, it matters what can be proven. I imagine that is the advice she got and is basically why she is doing what she is doing. And, it is reality.

[momofthreeboys]

I did like the Slate article very much. It raised many of the points all of us bring up. Ultimately I think it will work the way it should and some of us have lobbied for since the Dear Colleague letter came out. Colleges and universities will be responsible for awareness and assertiveness education, mediation, surveys and the like. Expulsion will continue to be the norm only for the most egregious of behavior befitting an honor code violation of that magnitude. Colleges and universities will work with the local police on criminal activities since only the very largest universities have the police staff to handle investigations and they will tighten up their procedures and processes to avoid litigation over civil rights violations. I hope that colleges at least attempt to manage the drinking culture because it is a root cause of many kinds of bad behavior on campuses.

[dstark]

I like the Slate article too.

[Hunt]

I will mention one factoid that somewhat biases me against Emma’s case–her statement that she didn’t pursue a criminal complaint because it would be “too draining.” I find this difficult to believe for two reasons: (1) she didn’t find it too draining to carry on a very public PR campaign and (2) it’s much more likely that she didn’t pursue the criminal complaint because she was told (accurately) that there wasn’t enough evidence for a criminal conviction, or probably even an indictment. To me, this posturing is damaging to her credibility.

[Cardinal_Fang]

Now, thanks to the Yale link, I understand why Yale is not expelling for some cases of sex they have determined to be nonconsensual:

Assistant Dean of Student Affairs Melanie Boyd ’90 said nonconsensual sex by Yale’s definition is broader than rape and includes any instance of sex — oral, vaginal or anal — that does not include positive, unambiguous, voluntary agreement at each point during the sexual encounter.

They’re saying that rape is a crime, and a student gets expelled for it. But there are cases of nonconsensual sex that discipline-worthy but not rape, and students would sometimes not be expelled in those cases, like the Sidney and Harper case where Sidney is ambiguous about consent.

I’ve previously been equating non-consensual sex with rape, but I now think I was wrong to do so. I like it that colleges say, we have stricter standards than the law, and if you violate our standards, even if you did not commit a crime, you will be subject to our discipline.

http://yaledailynews.com/blog/2013/09/10/sexual-misconduct-scenarios-released/

However, the behavior that Emma is accusing Paul of is rape, and would merit expulsion if it were proved to be true.

[bearpanther]

Thoughts on the Slate article:

Seems to me John Doe could have filed a complaint against Jane for the oral sex, which she remembers performing on him but he does not remember receiving as he was black out drunk. I would have been curious to see how that complaint would have been resolved—a case where she assaulted him, and then he assaulted her with the missionary sex? Would she have been kicked out too? Can you kick out a victim? Maybe he wouldn’t have been expelled if he was also a victim of her behavior?

The information about incapacitation not necessarily meaning a man can’t perform was interesting, as that has been mentioned here before in claiming a man couldn’t have been THAT drunk, after all, he completed the act.

From Sokolow’s newsletter linked in the article:

"Okay, so I’m all fired up again. In the last two weeks, I’ve worked on five cases all involving drunken

hook-­‐ups on college campuses. In each case, the male accused of sexual misconduct was found

responsible. In each case, I thought the college got it completely wrong. My friends, these are challenging

cases, no doubt. But, we have to get them right. We’ve written about this at length and talked about it

forever, but some boards and panels still can’t tell the difference between drunk sex and a policy

violation. Perhaps the problem stems from weak policy, insufficient training or the futility of the panel model.
Regardless, we need to fix it.

Finding each of the accused in violation of sexual misconduct is sex discrimination. We are making Title IX plaintiffs out of them. The customs and practices of the field of higher education have adopted, as a common policy formulation, that sexual actions with a person the respondent knows to be incapacitated, or should know to be incapacitated by alcohol, drugs, sleep, etc., is prohibited. This is the non-­‐discriminatory way to frame policy. But, in a recent case, the campus policy stated that intoxication creates an inability to consent. Thus, in any situation in which a male student and a female student have sex, and both are intoxicated, this college will commit an act of gender discrimination by only charging one of them. If both are intoxicated, they both did the same thing to each other. Why should only the male be charged if both students behave in ways defined as prohibited by the policy? I’m not suggesting we charge both. Surely, every drunken sexual hook-­‐up is not a punishable offense, especially if the parties know what they did and liked it."

https://www.atixa.org/wordpress/wp-content/uploads/2012/01/ATIXA-Tip-of-the-Week-04_24_141.pdf

He clarifies here:

http://www.buzzfeed.com/katiejmbaker/college-sexual-assault-guru-stands-up-for-accused-rapists#.jax62O36X

The campus policies he referred to in his newsletter were based on “intoxication” rather than “incapacitation” and thus flawed, he said. In some cases, the hearing panel was biased against the male student; in the other, the panel “jumped to the conclusion” that the complainant was incapacitated, a common issue, he said.

“I don’t think these women are making false accusations; they are making accusations of things they believe happened to them and they believe are violations of policy,” he said. “But just because someone thinks they’ve been victimized doesn’t make it so.”

[Cardinal_Fang]

I will mention one factoid that somewhat biases me against Emma’s case–her statement that she didn’t pursue a criminal complaint because it would be “too draining.” I find this difficult to believe for two reasons: (1) she didn’t find it too draining to carry on a very public PR campaign and (2) it’s much more likely that she didn’t pursue the criminal complaint because she was told (accurately) that there wasn’t enough evidence for a criminal conviction, or probably even an indictment. To me, this posturing is damaging to her credibility.

But the drainingness is connected with the futility. I can easily see that pursuing a futile criminal complaint would feel more draining than doing something else. I find it more draining to work on a futile task than to work on something more taxing but also more successful.

[awcntdb]

This is why every institution needs to have a person in charge of bending rules for the overall benefit of the institution.

This person already exists, but often is clueless about how to be an actual executive, i.e., the President of the University. You would think this is the one person who already has the big picture view of the university and what is best for it.

I have dealt with uni presidents in the past with donations and the like and I stopped dealing with them because it often was like pulling teeth to get things done, even simple things, extremely inefficient operations.

So, this may not be an issue of “a person,” but an issue of a culture where everyone is really just covering his or her desk, so to speak, and no one really leads.

That is one thing I found - no one really lead anything, and no one wanted full responsibility for anything. It was amazing how inept they were in taking decisions for which they could be held directly responsible. As stated upthread, it is interesting how consistent their viewpoints and philosophies are on issues - like reading a script.

It will also be interesting to see if they could find someone who wants to take such responsibility from within their ranks. Doubt it. Yet, an outsider would knows how to be real executive would be despised since that person would probably not share their viewpoints and philosophy.

[dstark]

Hunt, I think reason 2 is likely. I don’t see the comment pursuing a criminal case is too draining as excluding reason 2 as the reason.

It would be pretty draining to pursue a case you aren’t going to win. Sometimes it is draining to pursue a case you are going to win. I think going through the court system is draining. In my experience it is. I hated the experience. Hated! I want to avoid the court system.

This carrying the mattress activity may not be as draining as going through the courts or draining at all to Emma.

I will tell you one thing that bugs me. Somebody on the tribunal did not understand how anal rape could occur without a lubricant. I am assuming what we were told is true.

[Cardinal_Fang]

Seems to me John Doe could have filed a complaint against Jane for the oral sex, which she remembers performing on him but he does not remember receiving as he was black out drunk. I would have been curious to see how that complaint would have been resolved—a case where she assaulted him, and then he assaulted her with the missionary sex? Would she have been kicked out too? Can you kick out a victim? Maybe he wouldn’t have been expelled if he was also a victim of her behavior?

I would have no problem with both students being equally disciplined, including both being expelled, for behavior that equally violated the college standards. Each student is responsible for what they did. It is not a violation of college standards to be incapacitated by alcohol, but students, in whatever state of sobriety, are responsible for what they do. If both students voluntarily and actively had sex with someone who was incapacitated, then both students are liable for discipline if they are accused.

But the disciplinary board must decide the accusations that are before them. The Oxy John Doe/Jane Doe investigation did not decide whether John Doe was incapacitated, because that issue was not before them. They were deciding Jane Doe’s accusation.

Maybe in such cases the Title IX administrator should automatically make the opposite accusation (in this case that Jane Doe had nonconsensual sex with John Doe) and the disciplinary board should decide both cases at once.

Also, maybe Oxy should consider lesser punishments for infractions such as the one John Doe was accused of.

[JHS]

Expulsion will continue to be the norm only for the most egregious of behavior befitting an honor code violation of that magnitude.

In the meantime, we have the Yale policy quoted by Cardinal Fang in #689, which says quite clearly:

– If a couple is in the middle of consensual sexual intercourse, and one of them says “Stop,” it is an offense worthy of expulsion not to stop quickly enough. Unfortunately, the example isn’t clear where the line is drawn, but “several minutes” is too long. In this example, the first quoted, the parties go from absolutely nothing wrong to an offense worthy of expulsion in the blink of an eye, in circumstances where no prosecutor would ever prosecute, even if there were a signed confession to all of the facts. Sorry. I am generally on the side of taking rape seriously, but it is nuts to have nothing vs. expulsion turn on really ephemeral, inherently unprovable facts. If anything, that’s a clear invitation to everyone to lie.

– But if a couple is engaging in consensual sexual activity, and one expresses hesitation about going further but ultimately does not object to it beyond “mov[ing] a few inches back” and “l[ying] still,” that is not as clearly worthy of expulsion – the offender may get off with a multi-semester suspension. These facts clearly constitute rape, maybe even prosecutable rape (although rarely prosecuted), if the further conduct (which, very deliberately, is not specified) met the physical requirements for rape in terms of what went where.

– And in similar circumstances, but with oral sex specified, and in a situation that could be otherwise identical except that it is stated that the offender is reciprocating earlier parallel behavior, there may only be a reprimand. I don’t have a problem with that, but the line between conduct that draws a reprimand and conduct that draws at least a multi-semester suspension and maybe expulsion is almost impossible to discern. Unless, like Bill Clinton, you still believe that oral sex is not sex.

It is absolutely, positively nuts to have anyone – police, prosecutors, courts, administrators, parents, friends – get engaged in bedroom policing like this, with massively different consequences turning on gossamer-fine distinctions, and of course no heightened burden of proof standard.

[Hunt]

Going through the criminal process wasn’t going to be draining, because it was never going to happen. At most, she would have filed a complaint, answered some questions, and that would be it, because there would be no case. She must have been told that. To say that she dropped it because it would be “too draining” is like the politician who pulled out of the race so newer leaders could have a chance, even though (he said) he knows he could have gotten the nomination. It’s not the truth; it’s posture.