I do not equate people who reported the incident to the Title IX office with “witnesses” that the investigator interviewed.
And are we now saying that the woman actually made a report to the Title IX office that she was assaulted? That changes everything.
@roethlisburger – you told me in your earlier posts that the evidence in this case amounted to nothing more than “circular reporting” and “hearsay.” And now you are telling me that the woman reported the incident herself directly to the Title IX office???
We are not off to a good start here.
After looking at the complaint again, I don’t think there were four separate complaints to the Title IX office. In the 90 page Neal complaint and the Judge’s opinion, the only times it says someone reported the incident to the Title IX office involved either Dr. Clark or his wife. I think the four individuals named on page 6 are clearly the four witnesses on page 5, as no other adverse witnesses were identified by Wilson. I think in the Judge’s statement, on page 5, the four witnesses refer back to the four individuals mentioned by Wilson in the preceding sentence. My interpretation is Wilson or whoever was quoting or possibly misquoting Wilson didn’t make a clear distinction between reporters and witnesses.
I didn’t say the evidence was nothing more than circular evidence and hearsay. I did claim the Title IX office allowed as evidence hearsay and circular reporting, which is an example of colleges not having good rules of evidence for their proceedings.
Well if you aren’t a witnesses but just reporting something someone said it seems to me that is awful close to the definition of hearsay.
Well, if Ms. Doe was the victim/non-victim, and if she was a witness, as post #150 by roethlisburger stated, then it seems to me that there was no need for hearsay testimony.
I think it is important to distinguish between the definition of rape by the Department of Justice and nature of the college adjudication proceedings. The latter is generally “guided” by the Dear Colleague letter about Title IX, which as I understand it, emanates from the Department of Education. The definition by the Department of Justice is used in federal crime statistics, and presumably also for college crime statistics.
Again, I could use some help from the lawyers. I have looked at the statues of states in several parts of the country. While several of them state that rape is sexual intercourse without consent, they go on to enumerate conditions that show lack of consent. An oral statement “I do not consent” is not among them. Neither, actually, is a written, notarized statement “I do not consent.” Many of them involve force, threat of injury, other forms of duress, or incapacitation.
The Department of Justice definition of rape required force (or something similar) until 2012 or 2103, when it changed to the current definition. Probably state laws have simply lagged this in some states, and modification of the state laws to conform to the Department of Justice definition has been opposed in others.
As a matter of logic, I would say that the statement “I do not consent” should be sufficient to indicate a lack of consent, even though it is not a specifically enumerated condition. But perhaps this is wrong from the legal standpoint.
Advocates for women’s agency, what is your view about this?
So then, also as a question for the lawyers, I would like to know what constitutes force? In a case where the man is on top of the woman, he is stronger than she is, and she protests, but she decides against injuring him for fear of being injured worse herself, is that “force”? If she also struggles, is that sufficient to make it “force”? If she does inflict injury on him, but it’s not sufficient to stop him, how does the situation stand?
In Missoula: Rape and Justice in a College Town, Krakauer writes about the court cases of two Missoula football players accused of rape.
Jordan Johnson, one of the accused, was acquitted in March, 2013. The trial, including the acquittal, is in the book, which was published in April 2015. Johnson received a settlement from the state of Montana in Feb 2016.
Krakauer also writes about the 2013 trial of Beau Donaldson, who pleaded guilty and received a prison sentence. He was paroled in June 2016.
Too much navel gazing. If a person says they weren’t assaulted how presumptuous of a uni administration to reshape the situation to suit their desired outcome. To me that Is the bottom line in these situations and picking and picking trying to justify their actions is ridiculous. More often than not if it looks like a zebra it is a zebra…not a horse. Seems like colleges expend a lot of energy looking for horses. Look at the energy spent here on defining if soneone says they weren’t raped how they might “really” have been raped (and didn’t know it). Horses. I would be livid absolutely livid if someone patronized and demeaned me to put a check mark in their “yup we kicked another football player off campus.” Not to mention telling her she and her boyfriend could not have contact. Total BS. I would tell them to shove it in the strongest legal way I could. I get why she is mad. I totally get why they both have secured lawyers.
I have also read Missoula. I think that a lot of what Krakauer was talking about there was the overwhelming power of the football culture there. I don’t see the case in which the kid got money as indicative of any false reporting on Krakauer’s part. OJ was acquitted, that doesn’t make a writer who wrote about the case from the POV that he was guilty a liar, as long as the reporting was sound and thorough.
The details of some of the other cases he discussed are vague in my mind, since it has been a while since I read it, but I seem to recall that several other rapists were ejected from the school without the clamor attending the football star’s case.
The definition of rape is not mine, it comes from the Department of Justice. It seems possible to me that the woman in the CSU Pueblo case did not think that she had been raped, and later learned that the statement that she had made about the facts constituted rape under the Department of Justice definition. People often do not understand the technicalities. I have asked for the lawyers on this thread to say whether saying or writing “I do not consent” is sufficient to indicate lack of consent, in states where the state laws do not specifically cover an oral or written statement “I do not consent.” I have also asked what “force” means exactly.
I think you are reading a lot into the situation, momofthreeboys, including ill will on the part of the CSU staff members involved.
@QuantMech in post #159 @roethlisberger stated he believes Ms. Doe who is the woman who actually had the encounters with Neal Grant reported the incident herself to the Title IX office. So that is obviously not hearsay and changes the whole narrative of this thread.
@roethlisberger – the complaint is quite clear on page 28 paragraph 132 that there were 4 individuals who reported the incident to the Title IX office. I see no ambiguity there. I don’t have time today to plow through the 90 page amended complaint to see if there is any further clarification but will take a look tonight if I have a chance.
What we appear to have here is a story that has changed. I don’t think the fact that she may have later retracted her story means that an investigator automatically voids previous statements in evaluating the case. Based on her most recent statements to news sources in Colorado she is now back to stating she was “wronged” and “taken advantage of” that evening in the apartment but didn’t want him suspended.
Consolation: I can’t remember the details either. There was an accused foreign student who left the country. You are absolutely correct it describes an intense football culture. The book also concentrates on giving a voice to rape survivors, which was a pretty new idea at the time it was published. Or at least a pretty new idea in a mainstream, best seller written by a male. Sometimes it is gratifying to me to look back and see we do make some progress. I remember reading as many reviews as I could find, both positive and negative. My recollection is that the negative reviews might disagree with his interpretation of events, but I don’t think anyone accused him of mistatement of facts. I am happy to be corrected on that point if I’m mistaken. He gave a lot of official sources his readers could verify and interpret themselves.
The book was proceeded by the Jezebel article which called Missoula a Rape Capital. Many locals objected to that characterization because the rate of reported rapes in Missoula, though alarming, wasn’t really out of the norm. Some claimed it was less than the norm. They would have preferred both the Jezebel writer and Krakauer focus on another community.
Maybe this would be interesting to you since you read the book:
jezebel article:
http://jezebel.com/5908472/my-weekend-in-americas-so-called-rape-capital
@alh - “Just generally, we are recommending bystander reporting and intervention.”
Exactly - no school wants to go through what happened at Penn State, where bystanders didn’t do enough, if anything. They will err on the side of caution. The view of women in football is not good, to say the least. A lot of things happen and get brushed under the rug, at a lot of the big time college football universities, coach is judge and jury. Just search escort college recruiting to see the use/abuse of women at colleges.
“But don’t forget that prior to the DCL the vast majority of these schools were already using the preponderance standard”
I disagree with the Krakauer op-ed, the Department of Education, and everyone else who’s focused primarily on the preponderance standard. In my view, the issue is the unprofessionalism and lack of due process in these tribunals, NOT the standard of proof. Under any standard of proof, you can have a process that’s expert, impartial, and well designed to get at the truth. You can likewise have a process that’s amateurish, biased, and clumsy. THAT is the problem.
I’d like to see a lot more conversation about issues like each party’s right to see and challenge all the evidence.
“As a matter of logic, I would say that the statement “I do not consent” should be sufficient to indicate a lack of consent”
Sure, but a person can change their mind and indicate that change non-verbally. I’m using a neutral pronoun intentionally.
Hanna, are you saying that in states where the criminal statue lists circumstances that indicate a lack of consent, and the statement “I do not consent” is not among them, the statement is still sufficient to indicate lack of consent at that point in time, under the law?
In practice how long would “I do not consent” be considered to apply (absent spoken retraction)? Could it be argued to apply for less than 10 seconds?
There is an interesting invention out of MIT: http://aplus.com/a/-mit-scientist-manisha-mohan-intrepid-sticker-detects-forcible-touch-prevent-sexual-assault
Would activating this be sufficient to indicate lack of consent in states that don’t list oral or written statements as circumstances showing lack of consent?
And could you also clarify the definition of force, under the law? Thanks for your help with this.
If colleges are to deal with things…and I’m still firmly on the side if it’s sexual assault police reporting should be mandatory at least for a college to proceed with anything that remotely could result in expulsion…then yes, they need to stop being amateurish, biased and honor due process rights. They should not be able pick and choose what “facts” they are going to use and “pick and choose” which questions the accusers and accused want to ask. Both parties should have the right to an attorney to advise and the tribunal should include a university lawyer or a hired lawyer. If it doesn’t rise to the criminal letter of the law then I’m all for trained mediators, especially legally trained mediators instead of these tribunals. much like you find in family courts.
I believe Ms. Doe was a witness, but don’t believe she initiated a complaint with the Title IX office. If she did initiate the complaint, it’s beyond bizarre that wasn’t mentioned anywhere in the judge’s 58 page opinion or Grant’s 90 page complaint. However, not being a debate society, I’ll bow out of this thread.
“In practice how long would “I do not consent” be considered to apply (absent spoken retraction)?”
No idea. All your questions are over my head legally. You need someone who writes about or practices criminal law.
Maybe someone on this forum?
Why I am here on this particular thread so much:
I am trying to deal with the deep sadness that I experience, due to the number of young women at my college who have confided in me that they have been raped. I am a woman in a male-dominated field, at a large university. Many students take classes in my department and we have a large graduate program. That means that there are a lot of women who are likely to turn to me, as a faculty member. It is very hard to deal with their pain–I have a rather high level of empathy; and as I have posted elsewhere, my dearest lifelong friend was raped by an armed stranger, when she was a high school student, which makes hearing the stories harder. At the same time, as a scientist, I take some comfort in trying to objectify the situation, and trying to make everything about facts and questions. If I doing this (here) suppresses my own sadness (overall), then when young women reach out to me, I may be able to help them better–and not drown them in objectivity that they don’t need at that time.
My university advises the faculty not to tell young women to report a rape to the police, if they report it to us. This is contrary to a lot of the advice here, but it’s what I have to do. In the event that a young woman brings up a police report herself, I believe that it would help me in the conversation, if I understood some of the nuances of the law on sexual assault. I don’t. I’m not trying to get legal advice for free here. I could talk with the university lawyers about this issue. However, I know several of them socially (yet not as true friends), and this makes it awkward for me to talk with them about this topic. (You might not feel this way, but I do.)
I am heartened by the responses of some of the people on this thread, not only from those who largely agree with me (like alh), but also from those who have provided information that is useful to me. Ohiodad51 is in this second group.
Some of the time, I come back to the thread because I am troubled by posts by other people. I view Hanna as objective and good-hearted, but quite a few of her posts on this topic seem to fall into the “Yes, but . . .” category. For example, based on a past post of hers, it seems that saying “I do not consent” counts as lack of consent, but Hanna qualified this opinion by immediately noting that consent could be offered nonverbally afterwards. Hanna could not even tell me that the flat statement was good to indicate lack of consent for 10 seconds. At least, that is how I read Hanna’s recent post. I understand that part of this is professional carry-over from Hanna’s work.
As a scientist, when I am trying to solve a problem, I often “worry” the problem to death. This may not be your problem-solving style. But I keep hoping that if I think all around the borders of this problem, it will cause me to come up with something that could keep women safe from attack. (Not drinking, not going to frat parties, not going to bars . . . the standard advice might reduce the odds, but those are not sufficient to keep a woman safe. Twenty-four hour bodyguards are impractical. And “quis custodiet ipsos custodies?”)
So, for me, it is not “navel-gazing” nor “a debate society.” I am approaching this with the deepest seriousness. I also want to challenge (politely, I hope) the viewpoints of those who disagree with me, in the hopes (perhaps) of causing them to question or limit their disagreement. This is why I have been asking questions trying to find the borderlines, where people might say, “Enough! The prosecutor can bring charges against the will of the victim.” And why I have been asking similar questions. (Apologies for the length of this post, but it is actually all important to me.)
“Hanna could not even tell me that the flat statement was good to indicate lack of consent for 10 seconds.”
As Title IX is currently enforced, consent can be withdrawn at any time. If you’re in the middle of a consensual encounter and the other person says “stop,” you’re supposed to stop all activity instantly; in a millisecond, you are transformed from lover to rapist. I have students who’ve been expelled for (allegedly) taking 10 seconds.
So why would “no” have some legally mandated period of time attached to it, when “yes” doesn’t?
“quite a few of her posts on this topic seem to fall into the “Yes, but . . .””
A). That’s what lawyers do. If a lawyer states a global rule that has zero exceptions, then either they’re a bad lawyer or they’re talking about a REALLY easy problem. (Like, you can’t consent to someone shooting you, ever.) Sexual assault problems are not easy problems.
B). Title IX cases concern human communication, sex, heartbreak, memory, young people, and intoxication. These are not areas that lend themselves to black-and-white models. If you want to find a bright line between good and evil, look in comic books, not in real life.