In instances where both parties are drunk, I think it might be useful for colleges to abandon “prosecution” and go for something like the restorative justice of Truth and Reconciliation committees. This would not apply if only one of the participants was drunk.
Injustices hurt everyone. I have no difficulty understanding the anger and frustration of anyone who has been sanctioned unfairly. Also, given the number of people who have been exonerated through various innocence projects, when the burden of “proof beyond a reasonable doubt” was judged–inaccurately–to have been met in their cases, I have no trouble at all believing that men on college campuses are sometimes found guilty, when that is inaccurate.
I have posted a view of what should happen when a case is brought and both partners were drunk. It’s different from what currently prevails on many campuses.
But I would like to ask that in the discussion, sight not be lost of the fact that some women are raped by sober men when they also are sober, sometimes the rape is violent, the act can be very painful for the woman, and the aftermath tends to be very painful for everyone involved. Obviously, I do not think that this needs to be acknowledged in all the posts by people who don’t think as I do. But acknowledging it once per thread without extra qualifiers or retractions probably would not detract too much from the points being made. Also, it would make it easier for me and others to consider counter-arguments.
In asking what is sufficient for a woman to convey non-consent, I am trying to locate the “safe” ground, where a woman with a reasonable man is not forced against her will, and a woman with an unreasonable man at least has some hope of subsequent justice from the university or the law.
I understand that a refusal could be withdrawn non-verbally, but withdrawing a refusal just 10 seconds after refusing strains my credulity. I am sorry if this is merely the effect of inexperience.
In a case where a woman has stated a refusal, I think that a man would be well-advised to make sure that what he is interpreting as later consent is actually being offered. The scenario that Hanna proposed is convincing. But there are surely a lot of cases where a man believes that he has been given non-verbal assent when nothing of the kind has happened. I am approaching all of this from the standpoint that I want to identify how the woman can limit harm to herself.
I acknowledge that there are male-on-male cases. As mentioned, I am a woman in a department that is predominantly male. I have never had a conversation with a man who has been assaulted (in decades at the university). I would be an unlikely adviser in that case, to begin with. Male-on-male cases may be less frequent on my campus than elsewhere. (I don’t know.) Also, it may be that men are even less comfortable mentioning that they have been assaulted than women are.
I don’t have wide-ranging experience, that is true. But I have had direct conversations with women who are crying uncontrollably. With all good will, that’s not the same as reading about it. it is possible that Hanna’s conversations with abuse victims run similarly to those conversations, however.
On the Neal case:
https://www.courthousenews.com/wp-content/uploads/2017/02/Neal-recommendation.pdf
https://www.courthousenews.com/wp-content/uploads/2017/07/Neal-CSU-COMPLAINT.pdf
Your front door lock was broken and your desk was removed. You report a burglary to the police. Then you find that DD came home from college, really needed an Ikea desk, broke in and took in. Can you decide there was no burglary?
^ in that case, there probably wasn’t a burglary.
My daughter has a key. Not to mention that I have IKEA furniture, and she does not. 
An uninformed opinion after reading part of the first document on the Neal case linked by roethlisburger:
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Neal has the right to procedural due process.
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It appears on the face of it that due process was not provided (from the document). I don’t have insight into this outside of the document.
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Neal should have a fair hearing. If CSU-Pueblo cannot now provide this, there should be an alternative venue for the case to be heard. (There probably isn’t, but I think schools might consider this.)
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For me, the central issue in this case comes from the following set of statements: From p. 6 and continuing to p. 7 of the first document linked by roethlisburger:
“Plaintiff informed DeLuna in this meeting that while Wilson’s report mischaracterized Ms. Doe as not intending to have sex at all the evening of
Case 1:16-cv-00873-RM-CBS Document 87 Filed 02/16/17 USDC Colorado Page 7 of 58
October 25, Jane Doe clearly stated that she advised Plaintiff that she did not want to have unprotected sex because she was not on birth control; she never stated that she did not want to have sex at all.”
Then subsequently:
"On December 8, 2015, Plaintiff had ‘a follow up meeting to clarify the information provided by Plaintiff on December 4, 2015. Plaintiff reiterated that he did not penetrate Jane Doe prior to putting on a condom’ "
This is apparently contrary to what Ms. Doe told the investigator, as reported in the newspaper article that started this whole discussion. She said that he penetrated her, then withdrew and put on a condom. This would be totally “he said/she said” and undecidable, except for the fact that Ms. Doe did not want Neal to be suspended, and she appeared to be trying to shield him from sanctions of that type. People may believe differently about the facts of this case.
In my view: No penetration without a condom, no rape. Penetration (however slight) without a condom would be rape in this particular case, under the Department of Justice definition. Also, a person who has not been convicted in court cannot be called a rapist, regardless of anything else.
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Ms. Doe may indeed have been trying to protect herself from being dismissed from the athletic training program, with initial statements to the other athletic trainer, who made the initial report. However, she gains nothing in terms of her employment or the degree program from her statement that she consented to intercourse with a condom, but not without. So for me, that statement is not tainted by that specific form of self-interest.
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Also from the first document linked by roethlisburger: "The Decision ‘repeatedly refers to Jane Doe as the complainant, when in fact, the complainant was an uninvolved third-party.’ ” This may just be Plaintiff’s misunderstanding of how the university defines these terms. By my university’s definition, the other athletic trainer was a reporter. At my university, the “complainant” is always the person against whom the alleged action was taken. The “complainant” need not be the person who reported/complained.
“Hanna, do you want to improve the system or to abolish it? Do you think it does or can serve any purpose?”
I think it should be improved. There must be a way for institutions to rid themselves of odious people, even if the evidence will fall short of the criminal standard of proof.
But more than anything, I want to see rigorous, well-funded, politically unrestrained public health investigation into what prevention techniques actually work. This is a public health problem, like drug abuse. Just like our drug problem, we can’t enforce and punish our way out of the problem.
^yes yes yes yes yes
thank you
Indeed, it is. And I’ve never understood why the DoE doesn’t ask the best and brightest from the public health schools at Hopkins, Harvard, Michigan, Cal, North Carolina, etc. to go to work on it. (Well, actually, I do know, and its nearly all political.)
Like any PH issue, the first question is understanding the magnitude of the issue, and epidemiology is really good at that.
“Here is another apparently false rape accusation thrown out, although the male student is still at risk of expulsion.”
He may not be guilty of rape but for sure bad judgement. California law is clear that you cannot give legal consent if you’re drunk or under 18, so he should consider himself lucky that the judge did not think she was drunk and was sober enough to initiate and give consent.
Shouldn’t the woman be expelled instead for making a false rape charge? And why isn’t her name being released at this point?
“Shouldn’t the woman be expelled instead for making a false rape charge?”
We don’t know that it was false. We know that there was insufficient evidence to prove that it was accurate. I don’t want to see any student anywhere expelled without a lot of certainty about what they did. Also note that a rape charge can be wrong without being dishonest, Incorrect charges made in good faith should not be punished.
Thanks for the comment in #233, Hanna. It is true that a rape charge could be wrong, but not dishonest. I think good statistical data would bear out the statement that more commonly, a rape charge can be true, but not provable. It may not even be provable at the preponderance level.
If rape is treated as a public health problem, what would that entail?
It would be great if an anti-rape campaign could be as effective as the anti-smoking campaign was in the 1960’s–though that has lost a little ground recently. The emergence of an opioid epidemic seems to me to indicate that the drug problem is hydra-like, in the sense that if one type of use is reduced, another may spring up.
Also, I think it is easier to use a public health campaign to persuade people not to hurt themselves, as opposed to using it to persuade them not to hurt another person. I think it is really, really important to recognize that a woman who has been raped has been hurt by the person who raped her, often with lasting consequences. So I am not actually in favor of complete elimination of university sanctions or criminal prosecution (where appropriate and possible).
If some type of public health campaign can reduce the incidence of rape, great! In my observation, “No means no” sessions lead to Yale frat boys walking around the freshman quad chanting, "No means yes, . . . "
Perhaps “rape is cowardly,” or “real men don’t rape,” or something much better that someone else can come up with?
Also, have you looked at the video, hebegebe, as well as the still photos? The woman looks pretty unsteady on her feet to me. When she is outdoors with the man and a friend, she seems to be bumping into the man. When she is getting into the car, she looks unsteady. The photo of her signing the man into the dorm is a still photo. It would be useful if there were video footage of her walking into the dorm. It would also be useful to compare her signature in the dorm book with something signed when she was sober.
The video makes a reasonably good case to me that the woman initiated the activity. I think a man should be careful in this sort of circumstance, if he is sober.
But overall, I think that “drunk sex” might be handled by something like a Truth and Reconciliation Committee, with amnesty for both of the partners, as needed. This would not be applicable if one party has caused the other to become drunk while remaining sober himself/herself, or if one of the people clearly indicated non-consent, even though intoxicated (again, could be difficult to prove).
In terms of public health campaigns: The local school sent 6th or 7th graders home with an information sheet about roofies, to fill out for their health class. On the one hand, it’s good that this is being provided, because I cannot deny that it is needed. On the other hand, it actually makes me heartsick that it is needed.
I had not looked at the video, and you are right, she does look a bit unsteady.
But then again, so does he at times. Was he sober enough to have noticed, or for that matter, also give consent?
There have been huge cultural shifts since my own college days, when acquaintance rape didn’t exist and fraternity boys and football players were incapable of rape. I choose to believe we can educate ourselves out of this problem. Otherwise I probably couldn’t get out of bed in the morning.
Well perhaps we will find out if equal really means equal. Perhaps today’s young women prefer alittle more protection though I doubt it. I will watch and see.