“I wonder if Hannah has ever worked with a woman who was raped, not believed, and rather than go to school with her rapist, feels compelled to search for a new school.”
Such a person would not need Hannah’s services which involve getting students into schools that are very reluctant to take them given former disciplinary action. Those students can just transfer pretty easily.
Well I think the suggestion is to use visible impairment to determine ability to consent. The impairment might be caused by alcohol or something else, but if someone is sufficiently impaired, whether by alcohol or something else like a blow on the head, then they can’t consent.
In the discussions I have had on this subject here over the years, I’ve come to believe that when we’re discussing alcohol that the person intentionally drank, the standard for being unable to consent is high. Alcohol impairs judgment, but bad judgment, in my view, is not enough to negate consent. To be unable to consent, the person has to not realize what they’re doing. So, for example, if in Hanna’s case above, the woman had been calling the guy by her old boyfriend’s name before the sex act, then I’d say the guy should have concluded she didn’t know what she was doing and couldn’t consent.
If the person is impaired by something they didn’t choose, like a drug they unwittingly consumed or a blow to the head, then the standard would be different.
Problem is visible impairment and mental impairment are two different things. Consent has to to with the mental ability to say yes or no. Alcohol progressively deteriorates that mental ability. But like you say bad judgement – “hold my beer” – doesn’t negate consent. But how many beers does? And how do we tell? And in many situations are both parties headed down the bad judgement to no judgement road as each drink is consumed?
Sometimes, determining voluntary versus involuntary impairment gets murky.
For example, consider a naive new freshwoman arriving at a residential college and going to her first fraternity party. Now, her first ever experience with alcohol is drinking the punch of unknown (high) alcohol content. Would that be voluntary or involuntary impairment?
““I wonder if Hannah has ever worked with a woman who was raped, not believed, and rather than go to school with her rapist, feels compelled to search for a new school.””
I have worked with survivors on transfers, yes. They frequently want to transfer even if the student they accused is gone, so this isn’t limited to students who “weren’t believed.” Very often they have a tough time transferring because their GPAs have gone to hell during the Title IX process. This is often true of my students who are exonerated, too. They mostly want to leave.
It’s true that survivors in this position have a way easier time transferring than a student found responsible, but it’s not necessarily a walk in the park. (I do have some general practice students anyway, so that’s no barrier to working with me.)
One of the worst things I can say about the present Title IX process is that both parties usually feel ripped off EVEN IF THEY WIN. No one feels heard; everyone feels the decision makers were biased or incompetent; everyone feels treated unfairly. This is a really bad sign for any system of dispute resolution. In an OK system, at least the winners would be happy. In a good system, even losers would feel heard and walk away without condemning the whole enterprise.
Hanna, you just summed up my son’s experience in one post, much more concisely than I ever could, thank you. In a nut shell my son was accused Labor Day Freshman year, investigation completed and exonerated the week before Thanksgiving but by that time the stress, 2 dorm room moves, new roommates, etc. had taken its toll and any shot at a decent GPA to start his college experience were gone. His second semester was much improved but not enough to stay in good standing.
In the end there were no winners, even though he was exonerated he still, over a year later feels like he lost. He loves the school and stayed in the town at a community college to get his GPA up in order to transfer back however there is pain and shame that comes with that and he feels it every day, and he was exonerated. The accuser felt she wasn’t heard, lost friends over it (as did my son), and has transferred schools (no idea if the title IX investigation was why but my guess is yes). Truly no winners.
This does not happen just in sex cases. I know a student that was accused of imitating a federal officer and unlawful imprisonment by a woman in his dorm. His dorm door was broken down, he was handcuffed and walked out through campus and was all over the news. He didn’t do it, she made the whole thing up and to this day no one knows why as he didn’t even know her. Charges were dropped and a there was a small retraction in the paper but the damage was done. He had to transfer as everywhere he went on campus people pointed and whispered. She went to jail. Again no winners.
This is what I suspected, contrary to what several members have posted. It also falls right in line with the experiences of the child of a friend. The young woman was so traumatized by the rape itself, then the re-victimization by the system, that her grades tanked. And that was really the least of her problems.
Thank you.
We can look at that from the point of view of the man who is trying to have sex with her, or the fact-finder afterwards. In my opinion, the guy should realize that the woman might not realize how her judgment is affected, and forgo the sex because he is a person of honor and character.
The fact-finder, on the other hand, would need to be convinced by clear and persuasive evidence that the woman didn’t realize how strong the alcoholic drink was and therefore didn’t intend to become as impaired as she eventually became, and that the guy knew it. That’s a high bar to clear.
What would be a system that a woman who was in fact assaulted would feel good about? Even the best system is going to re-traumatize her. I suppose she might want her assaulter to be expelled at once just on her say-so, but we can’t have a system like that.
Re: #64 and #68
Seems like a lot of disciplinary and conflict resolution systems (including criminal and civil courts) often leave all parties feeling “cheated”, regardless of who “wins”, even in cases that have nothing to do with sexual misconduct.
Of course, if the guy is a naive new freshman with little familiarity with the effects of alcohol, and possibly more severely impaired than intended after drinking the same punch, he may not realize the magnitude of the naive new freshwoman’s impairment, even if he is otherwise generally a person of honor and character.
Note that @Hanna did write earlier that frosh are overrepresented as both accusers and accused.
Yes I agree that the naive new freshman might not realize the magnitude of the freshwoman’s impairment, and do something he would not have done if he were more sophisticated. People make mistakes. And that’s why the factfinder must have clear and convincing evidence that the accused person knew that the accuser was severely impaired.
I’m of two minds about colleges that have clear rules saying it is a violation to have sex with a drunk person, even if they are not severely impaired, but this is why they do it: because of those two naive freshmen. Colleges probably get tired of adjudicating those cases.
Hanna, I just watched the entire interview and you were AMAZING! I’m grateful that there are people out there for these kids who go off-track and your attitude was illuminating.
But the problem is that it is unrealistic to expect that college students will refrain from drinking, or refrain from having sex after drinking. Human beings drink, have sex, and very often have sex after drinking.
The reason that specific blood alcohol measurements were adopted by states for enforcement of DUI laws was to establish a clear bright line for law enforcement officers and courts to follow. But the laws also require that the blood alcohol be measured by an objective test at the time of arrest or soon after – so there will be clear evidence.
That doesn’t exist in the college sex cases, because there is no way to ascertain BAC at or near the time of the sexual activity.
Here is another outstanding interview with Hanna which presents additional points of view.
https://www.wnycstudios.org/story/no-part-2
If they are in college, that would be the logical consequence of existing Title IX rules, depending on the definition of consent used at their university. Even better video tape the breathalyzer reading, with a date and time stamp, in case they ever need to prove in a future Title IX hearing her BAC was in fact below the acceptable limit at their particular college.
That seems absurd but if one party can claim they had too much to drink to knowingly give physical or verbal consent even if they get naked and climb in bed with someone then it is not a leap in my mind that the other party who may have had as much or not more to drink would not be in a position to assess what the other person is signaling. We are just emotionaling crippling a bunch of young adults these days either by branding them as heinous criminals or as infants incapable of making decisions by “trying” them in the uni tribunals. It is very sad.
"@roethisburger bets that at many or most colleges it’s impossible for a college student to have a BAC over 0.08 and still be capable of meeting their college’s definition of consent. I’m willing to take that bet; I’m confident that very few colleges would classify a student with the impairment that would result from a BAC of around 0.08 as unable to consent.
A 140-pound woman would get a BAC of 0.08 from about three and a half drinks. In the cases I’ve heard about, the students consumed a lot more than that."
I’d frame this differently: could an inexperienced drinker of that weight who drank more than half of a bottle of wine and then had a sexual encounter successfully complain that it was a sexual assault? Yes. But that means that I’ve seen it happen, not that it would happen every time at every school.
@"Cardinal Fang has mentioned, several times, whether the accused could reasonably tell that the accuser was too drunk. I virtually never see that type of analysis in my cases. If the accuser was too drunk, then it’s assault to have sexual contact with them. It doesn’t matter how sober they were acting. I agree with CF that it OUGHT to matter, but in practice, it doesn’t.
By the way, less than half my cases involve what we used to call “going all the way.” Most involve less intimate acts.
That is interesting and disturbing at the same time. Sounds like lives are being ruined for minimally invasive acts with suspect evidence of non-consent adjudicated by a kangaroo court.
My son’s Title IX violations were not even close to “going all the way” the two allegations both were fully clothed and did not even involve physical contact.
One violation was termed stalking as he had asked his RA for her phone number a couple of times. His request was based on a safety/how to contact in an emergency concern but the school did not require the RA to provide her number to her residents and based on him being male she interpreted the multiple requests as something more ominous.
The other violation was unwanted sexual contact which was based around twerking in front of a female neighbor (close proximity but no contact) during a group social session in a dorm room.
Ultimately neither action was found to be a Title IX violation and he was exonerated but the investigation process took the better part of a semester, involved 2 different dorm moves (buildings not just rooms) and left him devastated and distrustful.
The good news is the investigator was wonderful and based on my son granting permission stayed in touch with me through the process. He knew within the first week of the process that there was no violation but ultimately it had to go through the entire process which took time.
I have done a lot of research into these types of investigations and my son’s school handled it better than most but it was still a devastating event in his life.