Sex While Intoxicated

[AndyZ]

http://www.slate.com/articles/double_x/doublex/2015/02/drunk_sex_on_campus_universities_are_struggling_to_determine_when_intoxicated.html

So, I'm reading through this article, which talks about the various ways that colleges deal with sex while intoxicated.  I can attempt to summarize, but I figured that just posting it would help.  It's far from unique, but it goes into a lot of the issues.

The way I'm thinking right now, it seems like that as long as someone is conscious, we shouldn't let intoxication dissuade the ability to give legal consent if that intoxication was knowingly accepted.

I doubt anyone present would agree that we should expel the man and excuse the woman when both people have been drinking, but if we're either going to expel both or excuse both, the latter seems like a better solution.

Certainly you can make a case for expelling both.  We don't allow driving while intoxicated, and any crimes performed while intoxicated still count against you.

I've been told that legally, you lose the ability to give consent only when you're no longer really conscious.  This might just be something that's changed with the idea of actually saying yes now instead of not saying no.

Am I on the right track with this or am I missing something?

[kylie]

      It may be true that it's much simpler to go after cases where the victim was unconscious, and it is true that courts often assume women who drank brought everything on themselves.  But that does not mean there are no legal grounds to ask "Wait a second, was this one set up for an attack and was she too intoxicated to give or express consent?"  So I dunno quite where you are getting this.

I've been told that legally, you lose the ability to give consent only when you're no longer really conscious.  This might just be something that's changed with the idea of actually saying yes now instead of not saying no.

Am I on the right track with this or am I missing something?

I really suspect you are missing a lot. And I hope so, because as written, it comes off as a lovely waiver for all sorts of use of alcohol as a weapon or aide in crimes.

     Anyway, suggest for a start you look through the diagnostics for how much is 'too intoxicated' depending on the situation, in the Pdf "Prosecuting Alcohol- Facilitated Sexual Assault" by the National District Attorneys Association (NDAA). The author is Scalzo, the release I see is 2007 and check out pp. 5-10 in particular.  Sorry cannot get a full url as my phone just opens a pdf reader.

[consortium11]

I've been told that legally, you lose the ability to give consent only when you're no longer really conscious.  This might just be something that's changed with the idea of actually saying yes now instead of not saying no.

It depends slightly on jurisdiction but on the whole it's more nuanced then that. Obviously someone who is unconscious can't consent but we also tend to accept situations where someone is conscious but is so clearly out of it due to alcohol that they still can't consent.

Onto the topic as a whole:

The key for me here is the difference between two positions:

I couldn't consent because I was too drunk

I only consented because I was too drunk.

The first is prima facie sexual assault/rape for fairly obvious reasons; there is no consent. The obvious example is the one mentioned above; if someone is unconscious because they've drunk too much if you then engage in sexual relations with them then they clearly haven't consented and, outside of rare circumstances, you have no reason to suspect they have. Thus sexual assault, thus rape. As also mentioned above however it's generally not just limited to situations where someone is passed out. If someone is right on the edge of consciousness... still just about aware of what's going on around them but only barely... I'd be tempted to say it's also still sexual assault/rape even if they mumble a semi-coherant "yes" when you ask about having sex with them. While people may balk at the comparison, one can be drawn with people who suffer from mental disabilities and whether they're allowed to have sex; just as their mental impairment means that they can't comprehend the nature of the act they're engaging in, the alcohol can do the same temporarily.

But for me the second isn't sexual assault. And it's why I hate the quote from the "victim" mentioned in the linked article (emphasis mine).

“I would never have done that if I had been sober. … I don’t know what was going through my head."

For me just as drunken intent is still intent (if you intend to do something when drunk you can't use your drunkenness as a defence... a well established legal principle) drunken consent is still consent. If you normally wouldn't consent but because you're (voluntarily) drunk and inhibitions have been lowered you do consent then you still consented. These aren't cases where you weren't able to consent, it's cases where you did consent. And I hate the fact that people are now trying to classify that as sexual assault.

The case mentioned in the story is pretty much the absolute worst example of that, with a young man's life disrupted... if not outright ruined... through a combination of pseudo-science and misguided good intentions. It even falls squarely into the "if I regret in the morning it's rape" school of thought with the "victim" making clear during the investigation that she'd hoped her first time was more special. It also leads to the bizarre situation where if the John Doe in this case was vindictive he could have likewise had the girl in question expelled; he was just as drunk as her and from the eye-witness testimony she was the one who initiated sexual contact. But he didn't and as a result she gets to continue on her life while his gets ruined. The fact that her sexual aggression and him being just as drunk as her don't constitute a defence is a ludicrous.

Let's also look at one list from Kylie's link when it comes to determining whether someone was too drunk to consent (ignore the fact it views all victims as female):

How drunk was the victim?

The more intoxicated the victim was, the less likely it is that she was capable of consenting.The following factors can aid in this determination:

● Was she conscious or unconscious? Did she regain consciousness during the rape? Did she pass out during the rape? If so, what did the accused do?

● Did she black out?

● Did she vomit?

● Could she speak? Was she slurring? Was she able to communicate coherently?

● Was she able to walk or did someone (in particular, thedefendant) have to carry her? Did she have to lean on someone?

● Was she able to dress/undress herself?

● Were her clothes disheveled?

● Was she responsive or in a non-responsive state?

● Was she able to perform physical tasks or was her coordination impacted? For example, did she light the wrong end of a cigarette or spill things?

● Did she urinate or defecate on herself?

● What was her level of mental alertness?

● Did she do anything else to indicate whether she was capable of cognitive functioning? For example, did she use her credit card? Did she use her cell phone or e-mail?

Applied to this case pretty much every single item on that list would be answered in the way that indicated she wasn't too intoxicated to consent. Yet the equally drunk man gets expelled.

Worst, if there was a chillingly clever predator out there it actually gives them a built in way to escape all punishment. Make sure to mention that you're drunk to a few friends, make clear to stagger around a bit. Find a clearly intoxicated victim. Have sex with them. Immediately run to the authorities and claim it was you that was raped. Bang. You can get away largely scott free as now its your victim who faces punishment.

It's the farcical result of the farcical misuse of statistics to present farcical points because they agree with someone's political views and let the truth or any concept of fairness be damned. It's the result of the President repeating the massively discredited "1 in 5 women are raped at college" stat that pretends US colleges are places where a woman is more likely to be raped then in the war-torn Congo. It's the results of sex negative feminists and those who wish to shame all sexual or kinky behavior being allowed to peddle their nonsense while well-meaning useful idiots talk about being a "rape apologist" whenever anyone points out how awful these things are.

I'd hoped that the Rolling Stone farce... where they invented a gang rape because their reporter wanted to write a story about a gang rape and fraternities... would prove a watershed. And perhaps it has... at least this story is being told now. But it's still sickening that it happened in the first place.

[Pumpkin Seeds]

You are missing a lot.  A person who is legally drunk for instance does not have the ability to make medical decisions for themselves.  They are considered incompetent to make decisions.  They do not need to be unconscious.  By that idea there can be no consent if intoxicated, whether the inhibition is lowered or not.  There is simply no consent possible.

[AndyZ]

     I really suspect you are missing a lot. And I hope so, because as written, it comes off as a lovely waiver for all sorts of use of alcohol as a weapon or aide in crimes.

There's quite a lot being reported.

I'd hoped that the Rolling Stone farce... where they invented a gang rape because their reporter wanted to write a story about a gang rape and fraternities... would prove a watershed. And perhaps it has... at least this story is being told now. But it's still sickening that it happened in the first place.

The same author commented on the Rolling Stone thing, so maybe so.

You are missing a lot.  A person who is legally drunk for instance does not have the ability to make medical decisions for themselves.  They are considered incompetent to make decisions.  They do not need to be unconscious.

Then how can they be charged with crimes?

[Pumpkin Seeds]

Because other people do not suffer for your poor decision making while under the influence.  A person that is intoxicated made the choice to drink and then under the influence went out to commit a crime.  The individual made that choice to take on a substance and then endanger another’s life or property.

[AndyZ]

Okay, so you would say that both of them should have been expelled?

[Pumpkin Seeds]

Did she force herself on him?

[AndyZ]

They were both too drunk to give consent, and she came to his room.

[Pumpkin Seeds]

Not sure.  He did send a pretty coherent text message to her stating, "When you're away from them come back."  That seems rational enough to recognize a danger, her friends, and initiate a plan to get what he wanted which was sex.  He also had the where with all to use a condom during the exchange.  He did invite her to his room which means he initiated the second interaction.  He knew she was drunk by this point, the interaction had been stopped, but he engaged her again for sex.

[AndyZ]

But he was drunk, so he couldn't give consent.

Edit: Also, she was the one to bring up the condom.  Minor point, but if you're going to bring it up...

[Pumpkin Seeds]

Actually, no he had the condom.  She asked if he had one and he said yes.

He did not need to give consent because he was the one inviting her to have sex.  The person initiating the action does not need to give their consent because they are already doing the action.

[AndyZ]

Okay, so your argument is that whoever initiates while drunk is at fault and the other person is blameless?

[consortium11]

Actually, no he had the condom.  She asked if he had one and he said yes.

He did not need to give consent because he was the one inviting her to have sex.  The person initiating the action does not need to give their consent because they are already doing the action.

1) Consent has to be ongoing; it doesn't matter if someone initiated the action or not.

2) The point here isn't that either party didn't consent, it's that they supposedly couldn't consent because they were so drunk. If that is the case then it doesn't matter what they're actions are... none constitute consent.

[Deamonbane]

Things are getting to the point where people have to sign a legal agreement to have sex, with lawyers present.

[Oniya]

Things are getting to the point where people have to sign a legal agreement to have sex, with lawyers present.

Does that count as group sex, or just voyeurism?

[consortium11]

Things are getting to the point where people have to sign a legal agreement to have sex, with lawyers present.

In this case it wouldn't matter; it wasn't that she didn't give consent, it was that whatever consent she gave wasn't important.

[Silk]

Now this is a situation that has a horrible habit of rubbing me the wrong way so I'll only make this short

Both male and female are sober, then the male is the perpetrator and the female the victim because patriatchy and reasons!
Male drunk female sober, male is the perpetrator and the female is the victim because the males inhibitions and ability to reason are hampered.
Male is sober and female is drunk the male is the perpetrator and the female is the victim because her ability to give consent is hampered.
male and female are both drunk, the male is the perpetrator and the female is the victim because patriarchy and reasons!

No matter what happens, you can spin the situation to make the male the perpetrator and the female the victim, lets take that story in the reverse shall we?

She did send a pretty coherent text message to him stating, "When you're away from them come back."  That seems rational enough to recognize a danger, his friends, and initiate a plan to get what she wanted which was sex.  She also had the where with all to use a condom during the exchange.  She did invite him to her room which means She initiated the second interaction.  She knew he was drunk by this point, the interaction had been stopped, but she engaged him again for sex.

In a real life scenario, would this of been seen as her raping him?

[Sho]

See, I have a major problem with this whole any-alcohol-and-consent-doesn't-count thing. While I do think that there are a number of women who have been horribly victimized because they were drinking and unable to give consent, I think that it is ridiculous to expel a male student and keep the female student in school when both fairly clearly had consensual (if drunk) sex.

I think that this sets up a dangerous precedent where it seems like women (in the majority of these cases it seems to be women making the reports) are easily able to claim rape when they wake up and regret a decision they made. Under the current rules, they aren't wrong; it is rape. I just happen to disagree that two drunk students having consensual sex is rape - or rather, that the man is raping the woman and the woman doesn't have the agency to take responsibility for having made that particular decision.

I think that the rules need to change; I think women need to be protected from being raped while drinking, but these rules seem to set up male students for failure. I'm not sure what the right answer is, but I don't think that this is it, and given that multiple people saw them and said that they seemed to be enjoying themselves, I don't think that he should have been thrown out of school.

Frankly, if we're going to use this drunk-consent-is-not-consent rule, I think that both students should have been thrown out of the school because neither of them would have been considered capable of consenting.

Anyways, just my two cents.

[Pumpkin Seeds]

Honestly I have no sympathy for men that wind up in hot water due to these decisions.  The possibility isn’t exactly hidden and there is already a school policy against having sex while drunk.  He took a chance that the woman he was having sex with wouldn’t press charges and he was wrong.  There is no reason he could not have waited until morning to sober up, call her and talk to her.  Instead he texted her to come over after the initial activity was over because he knew that he could get laid because she was so drunk.  He was thinking with his “little head” and made a poor decision.  The dangerous precedent people are discussing here is that a woman has to live with his poor decision, while he receives the pleasure and can continue to do so again.  I find this disturbing that men become so frightened when alcohol makes a woman unable to consent. 

Picking up random people in a bar is dangerous.  Women have had to worry about the dangers for decades.  So, I am sorry to say that the men now have to be a little more discerning and careful when drinking and picking out sexual partners. 

As for the reverse situation, many rape cases were dropped because a woman brought a man back to her apartment.  Hell, many rape cases are dropped because of what she was wearing.  So maybe we need to pull back a moment to place the amount of rape cases that are thrown out, dropped or not considered due to things like who invited who over and such.

I did not say she is blameless Andy.  She made a poor decision, but the school is not going to expel a rape victim.  Also he never filed a complaint against her for sexual misconduct.  So he can hardly expect her to be expelled for reporting him. 

[AndyZ]

Okay then.  So you're comfortable with inviting someone to your place being accepted as consent for initiating sex?

Edited with strikeouts and color.

[Silk]

Honestly I have no sympathy for men that wind up in hot water due to these decisions.  The possibility isn’t exactly hidden and there is already a school policy against having sex while drunk.  He took a chance that the woman he was having sex with wouldn’t press charges and he was wrong.  There is no reason he could not have waited until morning to sober up, call her and talk to her.  Instead he texted her to come over after the initial activity was over because he knew that he could get laid because she was so drunk.  He was thinking with his “little head” and made a poor decision.  The dangerous precedent people are discussing here is that a woman has to live with his poor decision, while he receives the pleasure and can continue to do so again.  I find this disturbing that men become so frightened when alcohol makes a woman unable to consent. 

Picking up random people in a bar is dangerous.  Women have had to worry about the dangers for decades.  So, I am sorry to say that the men now have to be a little more discerning and careful when drinking and picking out sexual partners. 

As for the reverse situation, many rape cases were dropped because a woman brought a man back to her apartment.  Hell, many rape cases are dropped because of what she was wearing.  So maybe we need to pull back a moment to place the amount of rape cases that are thrown out, dropped or not considered due to things like who invited who over and such.

I did not say she is blameless Andy.  She made a poor decision, but the school is not going to expel a rape victim.  Also he never filed a complaint against her for sexual misconduct.  So he can hardly expect her to be expelled for reporting him.

I know it's invoking godwins law, but meh,

Hey the Jews in Israel are rounding up and gassing Innocent Germans, but it's ok because the Nazi's did it. They should've known that Jew's whould harbor resentment and should've been aware of the danger while being in a Jewish majority country!

[Nachtmahr]

I know it's invoking godwins law, but meh,

Hey the Jews in Israel are rounding up and gassing Innocent Germans, but it's ok because the Nazi's did it. They should've known that Jew's whould harbor resentment and should've been aware of the danger while being in a Jewish majority country!

This seems extremely inappropriate.

I'm sorry to butt in, but I've been following this discussion, and this right here seems not only borderline offensive but also completely out of context.

[Silk]

This seems extremely inappropriate.

I'm sorry to butt in, but I've been following this discussion, and this right here seems not only borderline offensive but also completely out of context.

Why because pointing out that because women had to worry that there is dangers when going out, that men shouldn't complain that they have their own things to worry about? Why is it ok for both to suffer when it makes far more sense to work towards making it so neither have to suffer? of course the only REAL difference is women very rarely have to suffer in silence compared to men in this regard? Sure the case might be dropped, but at least they get the chance to have the case in the first place. Men don't get that luxury 90% of the time.

[AndyZ]

Appreciated, Silk, but ultimately unhelpful.  Part of the reason for Godwin's Law is that the issue can quickly devolve into emotional responses instead of reasoned logic.  While the comparison might be obvious, it can be handled better calmly and checking for consistency.

As an aside, the only person I've ever seen who self-identified as "Nazi" actually preferred the term "National Socialist," since the abbreviated word has kind of devolved into a slur.  (Not sure whether or not it should be, but I haven't fully felt comfortable drawing lines involving what people call themselves.)

[Valthazar]

I think the real issue is why binge drinking is so popular on college campuses - it's a recipe for disaster (for both men and women).  Getting this drunk is essentially a form of drug abuse; and is illegal for people their age.

So my opinion is that the man should have known better, and the woman should have known better.  All students need to realize that nothing positive comes out of binge drinking.

If we advocate responsible drinking, sexual assault can be drastically reduced on college campuses.

[Nachtmahr]

My actual contribution to the ongoing discussion: I sense that there is some amount of gender bias going on in several posts I've read here, but rather than go into specifics I'll try and give my own views on it. As it has already been pointed out that men tend to be in an unfavorable position when it comes to the consent debate, there's no reason to go much further than to simply state that they are. For whatever reason it appears that this men are expected to carry a certain moral responsibility for their actions while drunk that women often don't have to share. It seems to go back to the whole 'Men just want/expect sex, while women are the ones who have to give consent'-thing, which has been proven false time and time gain. Male rape is an actual that happens, and it probably happens a lot more than we expect that a no from a man is not accepted for what it is, and he he is goaded into having sex with dubious consent, if not outright sexually assaulted.

If both parties are drunk and there is evidence that they have been flirting that would point towards both parties consenting, it's just plain wrong to put the female in a favorable moral position based only the fact that she is female and could therefore not be exploiting a mans desire to have sex, because status quo is that men want sex at any time and any place.

They're both to blame for being drunk and dumb, and whatever punishment is deemed right they should have to share it - Sending only one of them away but excusing the other is unfair.

Why because pointing out that because women had to worry that there is dangers when going out, that men shouldn't complain that they have their own things to worry about? Why is it ok for both to suffer when it makes far more sense to work towards making it so neither have to suffer? of course the only REAL difference is women very rarely have to suffer in silence compared to men in this regard? Sure the case might be dropped, but at least they get the chance to have the case in the first place. Men don't get that luxury 90% of the time.

As for this, no. My point is that nazi analogies don't work in a serious debate, and for the most part they're actually fairly offensive. Most often they tend to derail an ongoing discussion, and it doesn't seem right to just slap one in here and leave it hanging without at least some reasoning behind why you'd resort to that instead of just explaining what you meant in a way that suits the context of the discussion.

But I'll leave it be now, because I don't want to derail the discussion either.

[Pumpkin Seeds]

Honestly, the whole Nazi thing is completely malicious.  I will simply say that right off the bat.  To compare this discussion to genocide is seriously a crude statement and gesture.  To clarify though, I did not say it’s ok for men to be afraid of going out because women were.  I said picking up anyone, and I was careful to say anyone and not women or men, from an environment like that is dangerous.  Women bore the brunt of that fear for many decades.  Men want the danger removed to where they can have sex with drunk women, they want this returned to where things were and women had more of the danger.  Personally I would love for everyone to be able to go out and have a good time, but that is an ideal world. 

As for men being required to have the moral high ground, I disagree.  Women are the ones told to cross their ankles to avoid pregnancy, to not go to these environments and to not wear enticing clothing.  Men were told to go out, have fun and enjoy life.  Girls Gone Wild did not prey on drunk men, it preyed on drunk women.  Men were given the go ahead, while women were told to be careful.  So now that women are being given freedom, men are finding they have to take care with their actions.

In this regard I do think Valthazar is correct that more responsible drinking needs to be encouraged in our culture.

[AndyZ]

Being a virgin, it doesn't actually affect me.  I'm just interested in seeing equality.

So Pumpkin, you're comfortable with the idea of inviting someone to your place being an act of initiating sex?

[consortium11]

The possibility isn’t exactly hidden and there is already a school policy against having sex while drunk.

No there isn't.

He took a chance that the woman he was having sex with wouldn’t press charges and he was wrong.

As she likewise did, although she was right. He didn't have anyone pressuring him to call consensual sexual activity rape and so he didn't. Neither did she until she was pressured into it.

There is no reason he could not have waited until morning to sober up, call her and talk to her.

There was no reason she could not have waited until the morning to sober up, call him and talk to him. Instead she went to his room. Everything that applies to him equally applies to her. If he sexually assaulted her then she sexually assaulted him.

Instead he texted her to come over after the initial activity was over because he knew that he could get laid because she was so drunk.

I assume you have a source for this last part? Nowhere in any of the documents I've seen, including the official complaints and investigations, is it ever alleged that he targeted (for lack of a better word) her because she was drunk.

He was thinking with his “little head” and made a poor decision.

Indeed, he thought when a woman said yes, having shown the ability to send text messages (including to one of her friends saying how she was about to have sex), sneak out of her own room (something she was proud of), make it to his room and then engage in sexual intercourse that "yes" actually meant "yes". As it turned out, that was a terrible decision. Apparently "yes" actually means "yes until I regret it in the morning and get pressured into claiming I was sexually assaulted."

He probably also thought that seeing as he was as drunk as her the conclusion would be... as the police found... that it was drunken consensual sex between adults. Not that she would be pressured into calling it rape and he would be targeted because he "fitted the profile" of a rapist, that profile being... and I kid you not... that he had a high GPA, was part of a sports team, a valedictorian and came from "a good family".

The dangerous precedent people are discussing here is that a woman has to live with his poor decision, while he receives the pleasure and can continue to do so again.

So because she regretted it the morning after it becomes rape and sexual assault?

I find this disturbing that men become so frightened when alcohol makes a woman unable to consent.

And I find it utterly disturbing that we can ignore a woman's consent or pretend she doesn't mean what she says on the basis that she's had a bit to drink. Reread the evidence and then reread the list Kylie linked to and I quoted on guidelines that someone is too drunk to consent. She touches on maybe two of them at most.

Picking up random people in a bar is dangerous.

He didn't pick up a random person at a bar. If anything she picked him up.

Women have had to worry about the dangers for decades.  So, I am sorry to say that the men now have to be a little more discerning and careful when drinking and picking out sexual partners.

He didn't pick her out. She picked out him. He then asked her to return and she did. She went to the room of a clearly intoxicated man (who fits just as many as the "too drunk to consent" guidelines as she does) who she'd already "picked up" (to use colloquial terms) and engaged in sexual activity with for the purposes of having sex and had sex with him. If I knew a girl was drunk... apparently too drunk to consent... waited for his friends to leave (as she did), went to her room and then had sex with her, wouldn't I be liable for sexual assault? Why the double standard?

As for the reverse situation, many rape cases were dropped because a woman brought a man back to her apartment.  Hell, many rape cases are dropped because of what she was wearing.  So maybe we need to pull back a moment to place the amount of rape cases that are thrown out, dropped or not considered due to things like who invited who over and such.

I'm not sure I see the point here. Is it that because something bad happens we should make sure more bad things happen to "even it out"?

I did not say she is blameless Andy.  She made a poor decision, but the school is not going to expel a rape victim.  Also he never filed a complaint against her for sexual misconduct.  So he can hardly expect her to be expelled for reporting him.

1) According to the college she didn't make a decision. That's the point.

2) The only reason she's a rape victim and not a rapist is because she complained first. Everything that condemns him also condemns her.

So he can hardly expect her to be expelled for reporting him.

So the college is made aware of the actions of a sexual predator on the campus and doesn't investigate but instead expels the victim?

If he sexually assaulted her then she sexually assaulted him. If one is to be expelled the only fair result is to expel them both. Hiding behind a "well, one complained and one didn't" not only gives a perverse incentive to report every bout of sexual activity where alcohol has been consumed as a sexual assault (to cover your own ass) but it also allows the college to bury its head in the sand when it does come to sexual assault. By its own standards the college is allowing a sexual predator to remain at the college, free to strike again. And as the college staff member who pressured the Jane Doe into making the complaint makes clear, the college's view is that sexual predators are normally repeat offenders. From what information we have she came from a good family, she had a high level of academic achievement and she was sporty... all of which also indicate she's a rapist according to the college.

[AndyZ]

Depends on the school, consortium11.  At Duke University, the gender discrimination is clear.

When a male student who had been expelled by Duke University for violating its sexual misconduct policy sued the university last year, Duke dean Sue Wasiolek testified that in cases where both parties are drunk, “assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”

As well as others.

On other campuses, the double standard goes unstated. Last year, BuzzFeed’s Katie J.M. Baker spoke with a male student who was found responsible for sexual misconduct at an Ivy League school after—according to multiple witness accounts—he drunkenly made out with a female student, who was also drunk. When the female student woke up the next day with no recollection of what had happened the night before, she contacted school officials and local police and submitted to a forensic examination to determine if she had been raped; the rape kit showed no signs of assault, but the male student was suspended for a year. The student didn’t blame the woman for initiating an investigation against him—“That doesn’t strike me as an easy accusation to make,” he told Baker—but he does fault the school for finding him responsible. “They couldn’t prove that I wasn’t just as drunk,” he said. “So why was the burden of consent immediately assigned to me instead of her?” And after a male student at the College of Holy Cross was accused of sexual misconduct for having sex with an incapacitated woman in 2011, he sued the school, contending that she was merely intoxicated and that the school had overstated her level of drunkenness due to her gender.

As far as this one:

Quote from: Pumpkin Seeds on Today at 04:08:34 PM
As for the reverse situation, many rape cases were dropped because a woman brought a man back to her apartment.  Hell, many rape cases are dropped because of what she was wearing.  So maybe we need to pull back a moment to place the amount of rape cases that are thrown out, dropped or not considered due to things like who invited who over and such.

I'm not sure I see the point here. Is it that because something bad happens we should make sure more bad things happen to "even it out"?

I believe what she's saying is that things like inviting someone to your apartment and owning a condom constitute initiating sex.  Those are the things that the guy does which she lists as what he did to initiate.  I'm trying to confirm that one, though, because it seems off to me.

[AndyZ]

We have a lot of people all jumping on Pumpkin.  We may not agree with her, but it can be difficult to handle something when a bunch of people all pop in at once, so I'd like to attempt to divert things a bit.

Other than Pumpkin, we all seem to agree that either both should be expelled or neither should be.

Now, to those who agree with that, should both be expelled or should neither be expelled, and what reasons would you give for that?

[Sethala]

So before I post this, I do want to make a few caveats.  First, all of this assumes that everyone involves knows exactly what they're drinking - slipping alcohol into someone's non-alcoholic drink so they get drunk without consenting to getting drunk is just plain not cool, and if it's done so they consent to sex, should definitely count as rape.  I'm also going to assume that both parties are at relatively equal levels of drunkenness - going to a bar sober with the intent of finding a drunk person to have sex with is definitely skeevy, though I don't think it should necessarily be illegal.

On to the main point, then...

There's been a discussion here about people being responsible for what they do while drunk, and they shouldn't be allowed to use their drunkenness as a shield against punishment.  That, I agree with; everyone needs to learn to drink responsibly.  However, when comparing this to something like going out and killing someone while drunk, having sex is quite a bit different because the act of having sex itself isn't a crime.  It's only one when the other party doesn't consent.  Because what determines if something is "rape" or "assault" is consent, not simply the act, different aspects need to be considered.  Specifically, if you agree that being drunk enough to impair your judgment doesn't absolve you of any crimes you committed while drunk, it should also not absolve you of other regrettable decisions made while drunk, including the decision to consent.

For this case in particular, I honestly don't know enough about college life to know whether drunk parties are enough concern to get someone expelled.  So I can't really say if this should end with someone getting expelled from the college.  However, if it's reasonable to think that both parties were equally drunk and both were equally consenting, the consequences should be the same for both, no matter who complained about sexual assault or rape.  Neither person should be able to get away without punishment while the other gets expelled.

[Silk]

Neither, because if we was to expel all sex while intoxicated, we'd have around 1/4 of all college students being kicked out, it's just not a feasible number and a college shouldn't be treated like a monastery or a pre-consenting age school. Otherwise you might as well make having sex after drinking illegal.

[Sethala]

Now, to those who agree with that, should both be expelled or should neither be expelled, and what reasons would you give for that?

I think I need more time to think on this (and I'm open to change my initial opinion based on the arguments), but I don't think the fact that they had sex should factor into this.  There should simply be a rule about drunken parties, and as long as nothing illegal/dangerous/etc happens during them, there shouldn't be any changes to the consequences based on what happens.  This can change if it's clear one person was sober and waiting for the other to get drunk so they'd consent to sex, but if it's clear both parties were drinking heavily, I don't agree with harsher penalties than the party itself would have to face.

[Valthazar]

Now, to those who agree with that, should both be expelled or should neither be expelled, and what reasons would you give for that?

Both students should be equally disciplined.  Binge drinking is literally the critical issue on college campuses, and for whatever reason, it's viewed as "college students being college students."  Not only is this illegal for students of this age, but it simply feeds into the narrative of "rape culture" pushed by some feminists.

Perhaps cracking down on this will dissuade students from participating in this high risk activity - both men and women.

[Nachtmahr]

Now, to those who agree with that, should both be expelled or should neither be expelled, and what reasons would you give for that?

They should both be allowed to stay, and the campus staff should immediately enforce a ban on alcohol at the site. I live in a country where this sort of behavior wouldn't be acceptable at all in the first place, so of course I'm biased, but there are piles of evidence to show that these youths cannot handle alcohol and they will do incredibly stupid things.

Honestly, the fact that alcohol and binge-drinking is considered a legitimately mandatory part of college/youth-culture is far more alarming to me than the thought of drunken youths doing questionable things while under the influence.

That's why I believe they should both be allowed to stay. If you have loaded guns lying around, and keep imprisoning anyone who shoots another person, you're never going to fix the actual problem: The guns.

Eliminate the alcohol from the equation and you've got a bunch of youths who all have exactly the same amount of personal responsibility for their actions. There is no reason why any institution should not consider alcohol as much of a drug as cocaine or cannabis. Had alcohol been invented today, it would likely be just as illegal, seeing how it's generally far more dangerous than most actually illegal drugs. Hell, you're probably going to have a better chance at reasoning with someone who's high than someone who's drunk.

[Cycle]

Just so folks are not debating without the facts, the investigator's report is attached as Exhibit 4 to the civil complaint.  It can be found here, starting on page 71. 

Here are the texts exchanged between John and Jane before they had sex (after her friends had walked her back to her dorm room).



Here is a summary of Jane Doe's recollection of having sex.




Here are the university's rules concerning consent and alcohol.

[AndyZ]

Just so folks are not debating without the facts, the investigator's report is attached as Exhibit 4 to the civil complaint.  It can be found here, starting on page 71. 

Here are the texts exchanged between John and Jane before they had sex (after her friends had walked her back to her dorm room).



Here is a summary of Jane Doe's recollection of having sex.




Here are the university's rules concerning consent and alcohol.

I can't find John's account.  Where is it?

[Cycle]

It doesn't look like John agreed to be interviewed (see here, page 73).  He was given a chance to do so, but he didn't show up.  I suspect his lawyer probably told him not to, given a possible criminal investigation.  But here is his statement (page 115):



And part of the Adjudicator's decision (same link as above, starts on page 100):

[AndyZ]

Thanks for the double-check.  I was hoping you were going to add in that things had been exaggerated somewhere down the line.

It may well be that drinking or having sex when you have a penis is turning into something that is just unwise to do, same as giving someone CPR if you're not a medical professional or giving sperm to lesbians.

Come to think of it, why is it that someone with a vagina can abort a fetus or give a baby up for adoption without issue, but someone with a penis can be forced into paying child support?

[Cycle]

Come to think of it, why is it that someone with a vagina can abort a fetus or give a baby up for adoption without issue, but someone with a penis can be forced into paying child support?

Well, someone with a penis can abort a fetus or give up a baby for adoption "without issue" too.  (I use quotes because depending on the State, there may be issues even if you have a vagina.)

And someone with a vagina can be forced to pay child support as well.

[AndyZ]

"Well, if someone with a penis can abort a fetus or give up a baby for adoption "without issue" too."

Am I misreading or is this an incomplete sentence?

Apologies for not sending in PM but my PMs don't seem to go through to you.

[Nachtmahr]

It may well be that drinking or having sex when you have a penis is turning into something that is just unwise to do- ... -or giving sperm to lesbians.

To be fair that right there is a rare case, but it's been known to happen not exclusively with lesbians, but various women impregnated by sperm donors - As well as sperm donors demanding parental rights years down the line. If find the generalizing terminology you use to be exaggerating something that is, to the general public, a minor issue, and making it sound like the blame lies with a large group when it's really just a few rotten apples. I don't thinking donating sperm to lesbians is generally as bad as drinking. The comparison isn't really there in my opinion.

As for your question about child support and who has the right to demand it.. I think you're deviating from the point of your own debate by going down that route. Perhaps you should consider starting another thread for that topic rather than discussing it under a, by now, misleading title.

[AndyZ]

You're right.  I was getting off topic.  Thank you ^_^

I will clarify that I don't think the lesbians did anything wrong in that example, other than that the state decided not to accept their agreement.

[Cycle]

Am I misreading or is this an incomplete sentence?

It's a typo.  Delete the "if."

[AndyZ]

Okay.  I'm moving that section over to here: https://elliquiy.com/forums/index.php?topic=224205.0

So back to whether we should expel both or neither.

I do feel like, if we go with neither, and one is sober but the other is intoxicated, we shouldn't go with "just expel the sober one."  I shudder to imagine how things will end up if being intoxicated becomes a defense.

[Oniya]

One other thing that I'd point out is that legal drinking age in the US is 21.  Assuming that students are coming directly from a normal course of K-12 education, most of the undergrad students are below US drinking age.  (18 as a freshman, 19 as a sophomore, 20 as a junior, and 21 as a senior.)

[Sethala]

One other thing that I'd point out is that legal drinking age in the US is 21.  Assuming that students are coming directly from a normal course of K-12 education, most of the undergrad students are below US drinking age.  (18 as a freshman, 19 as a sophomore, 20 as a junior, and 21 as a senior.)

I'm perfectly fine with having different punishments in a case like this if one party is under the legal drinking age and the other isn't.  I'm also in support of a college saying that anyone drinking while underage can get expelled for it if caught (although such a policy should be clearly noted ahead of time and shouldn't be retroactive).  Although it might be worth noting that just what part of "underage drinking" is illegal varies from state to state; more than half allow drinking by a minor under parental supervision on private property, several allow it for religious or medical purposes, some allow for educational purposes (culinary school), and a few allow it on alcohol-selling premises with parental presence and consent.

[Nachtmahr]

One other thing that I'd point out is that legal drinking age in the US is 21.  Assuming that students are coming directly from a normal course of K-12 education, most of the undergrad students are below US drinking age.  (18 as a freshman, 19 as a sophomore, 20 as a junior, and 21 as a senior.)

Thank you, I don't know the exact numbers by heart, not being an American. :P

But that basically support what I said earlier: Ban the alcohol. That's the real problem here. I'm not saying that sexual assault of someone under the influence of any stimulant/depressant isn't an issue elsewhere, but this particular question is based around a typical college scenario. I genuinely find it alarming that while she was apparently under the age of 18, no one is batting an eye at the fact that she was this drunk. How is breaking the law not considered an offense? Why does the law not apply to college?

Again, I'm not American, but in the country where I live you would have been thrown if you had been caught drinking like at an educational institution. Especially if you were also under the legal age-limit.

(I hope I worded all of that correctly. Feeling a little dizzy today.)

[Strident]

My 2 cents worth :

Three relevant legal principles :
a) innocent until proven guilty
b) guilt must be proved beyond reasonable doubt
c)  intent (i.e. If you act in good faith, reasonably believing your actions to be within the law you are innocent.)

Taking these three things into account.. If two moderately drunk individuals engage in what appears to be consensual sexual activity, there is no physical evidence of actual assault, and they have differing accounts of what happened the following morning, there are simply no circumstances I can see securing a safe conviction on the three criteria above.

Short of the  undesirable option of CCTV recording every moment of our private lives (which even then wouldn't allow us to read people's thoughts) we have to accept there is a point where the legal protection ends and personal ethics of trust begins.

There are many things which are deeply immoral but not illegal. Adultery for example. Or deliberately marrying someone you have no feelings for, with the pre-meditated intention of divorcing them to take half their wealth.

I'm of the view that the man in the story was not acting like a gentleman and his behaviour was immoral. But not illegal.

If someone is debilitated by alcohol (or by anything else) such that it is obvious to any reasonable person that they cannot consent (unconscious or semi conscious) then there may be a case to answer.

However,  that's far from the case in the example given. The woman even asked if he had a condom. I'd say that sounds like someone in a mental state to consider their actions and consequences.


It's quite possible this woman would not have consented to sex if she had been sober,  but it seems quite reasonable to believe that she did while drunk.

The idea that the guy should have to consider hypotheticals of whether she would have consented while sober is absurd, because, on that view, why stop at alcohol? Maybe she only consented because she broke up with her BF last week and was on the rebound....or a dozen other reasons.

It's neither possible, nor desirable for the legal system to try and pick over the details of such a situation.

I say again... That doesn't mean what he did wasn't immoral or that it was OK. Just my view... Others may differ.

[AndyZ]

Thank you, I don't know the exact numbers by heart, not being an American. :P

But that basically support what I said earlier: Ban the alcohol. That's the real problem here. I'm not saying that sexual assault of someone under the influence of any stimulant/depressant isn't an issue elsewhere, but this particular question is based around a typical college scenario. I genuinely find it alarming that while she was apparently under the age of 18, no one is batting an eye at the fact that she was this drunk. How is breaking the law not considered an offense? Why does the law not apply to college?

Again, I'm not American, but in the country where I live you would have been thrown if you had been caught drinking like at an educational institution. Especially if you were also under the legal age-limit.

(I hope I worded all of that correctly. Feeling a little dizzy today.)

The trouble with banning things is that it doesn't really work in America.  We tried banning alcohol 100 years ago, and not only did alcohol use increase, but crime lords made inordinate amounts of money off of it.  Similarly, banning guns in an area actually causes murders to increase (because the criminals know that the law-abiding citizens can't defend themselves) and illegal drug use is all over the place.  One of the common arguments for decriminalizing various illegal drugs is because they're getting around anyway and at least the government can then regulate it.

We even have some groups that consider it a point of pride to be arrested for something that is considered to be an unjust law.

As a result, law enforcement often gets rather selective on where they want to crack down.  There have been recent cases where someone gets prosecuted for something that the vast majority of people do, and the critics are quick to point out how it's only the person in power's political enemies who get punished.

In my opinion, we already have too many laws and not enough ability to enforce them all.

I say again... That doesn't mean what he did wasn't immoral or that it was OK. Just my view... Others may differ.

Not much I can debate or argue except the point I'm leaving in.

I don't think we really want to get into the moral and ethical issues and should just stick to what we have legally for this one.  We can argue all day on whether drinking or premarital sex or wrong to begin with, and it's just going to vary based on religions and social mores.

So I agree to stick to legal for this one, and not attempting to pass moral judgments ^_^

[Nachtmahr]

The trouble with banning things is that it doesn't really work in America.  We tried banning alcohol 100 years ago, and not only did alcohol use increase, but crime lords made inordinate amounts of money off of it.  Similarly, banning guns in an area actually causes murders to increase (because the criminals know that the law-abiding citizens can't defend themselves) and illegal drug use is all over the place.  One of the common arguments for decriminalizing various illegal drugs is because they're getting around anyway and at least the government can then regulate it.

We even have some groups that consider it a point of pride to be arrested for something that is considered to be an unjust law.

As a result, law enforcement often gets rather selective on where they want to crack down.  There have been recent cases where someone gets prosecuted for something that the vast majority of people do, and the critics are quick to point out how it's only the person in power's political enemies who get punished.

In my opinion, we already have too many laws and not enough ability to enforce them all.

No, you misunderstood me. I'm not talking about a total ban on alcohol - I'm talking about colleges banning alcohol. It's not a matter of making new laws, it's a matter of the institutions officials turning a blind eye to the fact that a girl under the age of 18 (according to the statements shown before) drinking an obscene amount of alcohol. That on it's own is not only illegal, but completely indefensible from an ethical standpoint, considering that these institutions should be taking it upon themselves to prevent these youths from drinking on the premise. It's against the law, so how is it not against college rules? Why is it not a concern that this 16-17 year old girl had access to large amount of alcohol with no supervision whatsoever?

I'm not talking about banning alcohol throughout all of America, I'm talking about the colleges enforcing a no-drinking policy, if not across the board then at least for those not of legal age to consume alcohol. Being in the jaded position of living in a country where this sort of thing is cracked down on pretty hard I can't help but feel like the staff are simply just being irresponsible by not monitoring the students, but instead allowing rampant alcohol-abuse (I use the word abuse because let's face it: Drinking can be fun, but binge-drinking is dangerous) and shifting the blame of the outcome on the students instead of considering it their personal responsibility to stop situations like this from happening.

I'm almost certain they wouldn't turn a blind eye to someone using cocaine or cannabis those being some of the most common and 'fairly' non-dangerous recreational drugs around. (There is no real argument to be made for those to be considerably more dangerous than alcohol after all. Especially not cannabis.) Hell, I'm going to assume they probably have a ban on tobacco-smoking!

I just cannot fathom how anyone would think it's fine to have rampant, unregulated alcohol-abuse going on, but what for all intents and purposes appears to be consensual sex is going to get someone kicked out. How do the college officials not have any responsibility in this?

[Cycle]

If you want to stick to only legal, then the result is the right one.

1.  John didn't file a complaint, so Jane cannot be expelled.  End of that discussion.

2.  Jane filed a complaint.  So we begin the analysis. 

• Did he initiate the sexual contact?  Yes, since he told her go "get the fuck back here" after her friends walked her back to her room. 
  
  
• Next, did she consent?  It appears she did, yes. 
  
  
• Next, was that consent valid?  She was intoxicated to the point of vomiting just before sex occurred, so her consent is not valid--i.e., impairment by alcohol. 
  
  
• John's defense:  it was the most drunk I have ever been.  This is not a recognized defense under the university's rules. 
  
  
• Conclusion:  he committed sexual assault under the university's rules and the expulsion was proper.

[Nachtmahr]

Asking her to come back cannot possibly be considered 'initiating sexual contact'. If that was all it took, you could accuse someone of sexual assault if they merely ask you whether you would like to come back to their place, or any other location for that matter. She had every opportunity to refuse, there was no force involved and apart from a no doubt horrible hangover she sustained no physical or psychological trauma. As a matter of fact, she can barely recall the event, and from what she can remember she at no point states that she was being forced to do anything she did not want to do.

Was the consent valid? Well, if intoxication means that her consent is invalid it's unreasonable to claim that John should have been able to tell considering how drunk he was himself. For all intents and purposes his own consent was not valid either, he did not file a complaint however because he was aware the following day that he had consented, despite impaired judgment.

In other words, the only reason that John is now in an unfavorable position is because the rules make it so that anyone who was drunk and had sex can file a complaint against their partner, claiming to have been impaired, and the institution will effectively have no choice but to kick out the one whom the complaint was filed against. And we can't just ignore the fact that Jane was underage and not legally allowed to drink, and as such her actions should be the institutions responsibility since they apparently do not have the necessary resources to stop blatant alcohol abuse.

But most of all I'd like to stick to my first point: 'Get the fuck back here' can not under any circumstances be considered 'initiating sexual contact'.

[kylie]

     I haven't read the article. Just from the texts Cycle posted, if I were on a jury, I'd have to at least wonder if she wasn't positively interested in doing him at the time.  But my, the guy sure did land himself in a fix.

    Does it follow that laws should be structured so that no one can be deemed culpable (or even violated perhaps) if the alleged victim, or both parties, are somewhat intoxicated but not' passing out?  Hardly.  I think prosecutors should do what they often do, and look at the details of the case to decide if they think there was an attack.

     And I can't help noticing, Andy foremost at least, repeatedly suggesting that men are so oppressed and cornered without any sort of serious comparative context that even really considers how women are often treated and silenced if not outright ridiculed in rape/assault cases. Nor even some research sources to positively support all the sweeping claims with some thorough modeling or ethnography, such as you will find in women's studies often I expect if you look.  I really think you are coming at this with a foregone conclusion about things much more shotgun than what the thread claimed to cover. Basically trying to build a mountain of systemic injustice, supposedly privileging women who lots of work argues are actually suffering often enough, from a relative molehill of a case.

So, I can grant you some doubt about the decision of this particular case while generally holding your recommendations and generalizations quite suspect.

[Nachtmahr]

     I haven't read the article. Just from the texts Cycle posted, if I were on a jury, I'd have to at least wonder if she wasn't positively interested in doing him at the time.  But my, the guy sure did land himself in a fix.

    Does it follow that laws should be structured so that no one can be deemed culpable (or even violated perhaps) if the alleged victim, or both parties, are somewhat intoxicated but not' passing out?  Hardly.  I think prosecutors should do what they often do, and look at the details of the case to decide if they think there was an attack.

     And I can't help noticing, Andy foremost at least, repeatedly suggesting that men are so oppressed and cornered without any sort of serious comparative context that even really considers how women are often treated and silenced if not outright ridiculed in rape/assault cases. Nor even some research sources to positively support all the sweeping claims with some thorough modeling or ethnography, such as you will find in women's studies often I expect if you look.  I really think you are coming at this with a foregone conclusion about things much more shotgun than what the thread claimed to cover. Basically trying to build a mountain of systemic injustice, supposedly privileging women who lots of work argues are actually suffering often enough, from a relative molehill of a case.

So, I can grant you some doubt about the decision of this particular case while generally holding your recommendations and generalizations quite suspect.

While there are issues in which the outcome is often predetermined in favor of a female over a male, as shown in some of the scandalous false-rape cases we've seen blossoming these past few years, I persona''y have to agree with Kylie on this. There seems to be a certain amount of unsubstantiated bias behind a lot of the arguments you've posed, Andy, and before I have the same amount of proof there is for female or LGBT oppression, I can't get behind the idea of cis-male 'oppression'. Oppression is of course a very strong word to use here, but there are a lot fallacies, half-truths and unsubstantiated arguments being thrown out at the moment, you repeatedly challenging Pumpking Seeds on whether or not she thinks it's a sexual invitation to be invited to be invited to someones home, when that question is clearly loaded, and isn't at all a 'yes/no'-thing.

[Valthazar]

I genuinely find it alarming that while she was apparently under the age of 18, no one is batting an eye at the fact that she was this drunk. How is breaking the law not considered an offense? Why does the law not apply to college?

This was what I was saying earlier.  If the law was actually followed, this idea of campus rape culture wouldn't exist.  Even the hook up culture likely wouldn't be as prominent since hooking up is heavily associated with intoxication.  But no one dares challenge this culture in a meaningful way beyond some silly AlcoholEdu courses.

[Cycle]

But most of all I'd like to stick to my first point: 'Get the fuck back here' can not under any circumstances be considered 'initiating sexual contact'.

Obviously the university's adjudicator disagrees with you. 

And so do I.

[AndyZ]

Cycle, what I mean by legal instead of moral is whether we should legally prosecute something, not whether the current laws match up with it.  I can list quite a few laws on the books of various countries which I think shouldn't be there.  Apologies for not making that clear.

The way it's currently written seems to imply that a drunk woman can invite me to her place and therefore doesn't have to worry about giving consent just because she initiated by inviting me to her place, and if I took off all her clothes and had sex with her while she was unresponsive, no consent on her part is required because she let he through the threshold.

I don't know whether or not you'd find this acceptable, or if that would change if I was drunk instead of sober.

     I haven't read the article. Just from the texts Cycle posted, if I were on a jury, I'd have to at least wonder if she wasn't positively interested in doing him at the time.  But my, the guy sure did land himself in a fix.

    Does it follow that laws should be structured so that no one can be deemed culpable (or even violated perhaps) if the alleged victim, or both parties, are somewhat intoxicated but not' passing out?  Hardly.  I think prosecutors should do what they often do, and look at the details of the case to decide if they think there was an attack.

     And I can't help noticing, Andy foremost at least, repeatedly suggesting that men are so oppressed and cornered without any sort of serious comparative context that even really considers how women are often treated and silenced if not outright ridiculed in rape/assault cases. Nor even some research sources to positively support all the sweeping claims with some thorough modeling or ethnography, such as you will find in women's studies often I expect if you look.  I really think you are coming at this with a foregone conclusion about things much more shotgun than what the thread claimed to cover. Basically trying to build a mountain of systemic injustice, supposedly privileging women who lots of work argues are actually suffering often enough, from a relative molehill of a case.

So, I can grant you some doubt about the decision of this particular case while generally holding your recommendations and generalizations quite suspect.

I want to apologize if I've given you the impression that I believe that, on a whole, men are more oppressed than women.  We live in an age saturated by various inequalities, and the best thing we can do is find all of them and work on stamping them out.

I've personally never liked the idea that we try to figure out which one has it worse and then only focus on that one.  It's always seemed to fly directly in the face of justice and equality for me.

Asking her to come back cannot possibly be considered 'initiating sexual contact'. If that was all it took, you could accuse someone of sexual assault if they merely ask you whether you would like to come back to their place, or any other location for that matter. She had every opportunity to refuse, there was no force involved and apart from a no doubt horrible hangover she sustained no physical or psychological trauma. As a matter of fact, she can barely recall the event, and from what she can remember she at no point states that she was being forced to do anything she did not want to do.

(snip)

But most of all I'd like to stick to my first point: 'Get the fuck back here' can not under any circumstances be considered 'initiating sexual contact'.

you repeatedly challenging Pumpking Seeds on whether or not she thinks it's a sexual invitation to be invited to be invited to someones home, when that question is clearly loaded, and isn't at all a 'yes/no'-thing.

You seem to contradict yourself here.  Could I ask you to clarify?

[Cycle]

The way it's currently written seems to imply that a drunk woman can invite me to her place and therefore doesn't have to worry about giving consent just because she initiated by inviting me to her place, and if I took off all her clothes and had sex with her while she was unresponsive, no consent on her part is required because she let he through the threshold.

Sorry, which law are you referring to?

[Nachtmahr]

This was what I was saying earlier.  If the law was actually followed, this idea of campus rape culture wouldn't exist.  Even the hook up culture likely wouldn't be as prominent since hooking up is heavily associated with intoxication.  But no one dares challenge this culture in a meaningful way beyond some silly AlcoholEdu courses.

Well, that's what I find so disturbing about all of this. I mean, from my perspective this just seems ludicrous and extremely irresponsible. Form an outside perspective I can say that yes: A lot of people, myself included, think of parties, sex and alcohol when someone talks about college. As a European I can say that this youth culture is very much feeding the negative American stereotypes. Dorm-room porn and binge-drinking are the first things I associate with college, not education.

[Oniya]

Out of curiosity, I went off looking for my own alma mater's policy on alcohol consumption and the penalties for violating that policy:


From the current Student Handbook:

The College will take such actions as are necessary to maintain order in College housing and throughout the campus and reserves the right to exclude those who are interfering with the College’s educational mission.  The Student Life Office reserves the right to discipline a student who is disrupting the community by dismissing the student from College housing, sanctioning the student appropriately, referring the matter to the Honor or Judicial Systems as they are defined in the College’s Student Handbook or referring the matter to the College administration.

Prohibited conduct for which a student is subject to disciplinary action under this Policy includes by way of illustration, but is not limited to:

    Violation of the laws of the Commonwealth of Virginia regarding the possession and consumption of alcohol.
        No person under the age of 21 may purchase or possess any alcoholic beverage.
        Consuming or carrying alcoholic beverages in any type of open container in the hallways or other public areas.

(formatting mine) So, yes, a student could get kicked out of campus housing (as one possible sanction) if simply caught drinking under-age.

[AndyZ]

Sorry, which law are you referring to?

Okay, let me break it down and make sure I understand.

If you want to stick to only legal, then the result is the right one.

1.  John didn't file a complaint, so Jane cannot be expelled.  End of that discussion.

2.  Jane filed a complaint.  So we begin the analysis. 

• Did he initiate the sexual contact?  Yes, since he told her go "get the fuck back here" after her friends walked her back to her room. 
  
  
• Next, did she consent?  It appears she did, yes. 
  
  
• Next, was that consent valid?  She was intoxicated to the point of vomiting just before sex occurred, so her consent is not valid--i.e., impairment by alcohol. 
  
  
• John's defense:  it was the most drunk I have ever been.  This is not a recognized defense under the university's rules. 
  
  
• Conclusion:  he committed sexual assault under the university's rules and the expulsion was proper.

Only the one who initiated the sexual contact can be blamed, and inviting someone to your place counts as initiating sexual contact, right?

[Nachtmahr]

The way it's currently written seems to imply that a drunk woman can invite me to her place and therefore doesn't have to worry about giving consent just because she initiated by inviting me to her place, and if I took off all her clothes and had sex with her while she was unresponsive, no consent on her part is required because she let he through the threshold.

I'm sorry, but I don't understand what you're getting at here. A drunk woman can invite you to her home, so that she doesn't need to give consent, because she initiated sex by inviting you to her home - And if you then went on to rape her (Having sex while she is unresponsive, presumably passed out) that would be fine because she let you in?

I'm going to have to ask the same question: What law is this?

I've personally never liked the idea that we try to figure out which one has it worse and then only focus on that one.  It's always seemed to fly directly in the face of justice and equality for me.

I'm sorry, but here I'll have to disagree with you once more. Nothing would ever be done if it all had to happen simultaneously. The only way to achieve any results is to reach for the ones in most dire need of help, and pull them up towards to top. Some matters are more important than others when it comes to equality.

You seem to contradict yourself here.  Could I ask you to clarify?

I'm not sure how I'm contradicting myself. I find it uncomfortable and inappropriate that you repeatedly directly challenged Pumpkin Seeds with a (seemingly) loaded question, asking for a blanket-answer to what is a very situational and nuanced question.

[AndyZ]

If we go by the concept that only one person is to blame and that whoever initiates sexual contact is at fault, we must determine who initiated sexual contact.

Cycle has already stated that it's whoever invites whom to their place.  I think Pumpkin has, but I can't be certain. 

Asking her to come back cannot possibly be considered 'initiating sexual contact'. If that was all it took, you could accuse someone of sexual assault if they merely ask you whether you would like to come back to their place, or any other location for that matter.

Unless I'm very wrong, you likewise do not agree, with more or less the exact same example I gave.  I just put more detail into mine.  It may seem like a loaded question, but you were able very easily to give a blanket negation, not once but twice in your post.

But most of all I'd like to stick to my first point: 'Get the fuck back here' can not under any circumstances be considered 'initiating sexual contact'.

So if we don't consider that the point of initiating sexual contact, then when?

If we use penetration and who took the initiative therein, then the man is at fault with missionary style because he got on her and the woman is at fault with cowgirl style because she got on him.  This doesn't seem any better to me than the other example, but much more of an arbitrary way of deciding blame.  Similarly, two gay men could theoretically be decided based on which one first entered the other's butt, or which lesbian first initiated cunnilingus or a number of other ways, but I don't like the ideas.

Personally, I'm not really convinced that we can decide that a single person is wholly responsible for initiating sexual contact, unless one of them is completely insensate.  If they're animate enough to do stupid things, it seems best to either punish both or neither.

[Cycle]

Only the one who initiated the sexual contact can be blamed, and inviting someone to your place counts as initiating sexual contact, right?

Which law are we talking about?  I feel like this conversation drifts all over...

And you misinterpreted what I said.  But answer my question please.  Which law?

[AndyZ]

The one where John was found guilty and expelled.

I very well did misinterpret, which is why I try to clarify things with questions, not because I'm trying to force people into leading issues.  But I think you already know that.

[Cycle]

You mean Occidental's policies on sexual misconduct?

[Cycle]

So here is the "law" AndyZ is referring to:



As I read it, it applies under the facts set forth in the investigator's report:  i.e. John had sexual intercourse with Jane without effective consent.

As for the initiating issue, that appears to not even be an element.  So the analysis is even simpler.

[AndyZ]

That'd be why I couldn't find it.  Sorry.

Okay, if initiating isn't an issue, it throws out a lot of the other concerns I had.

Isn't she also confessing to being guilty as well, though, since she performed oral sex on him and he wasn't able to give consent?

[Nachtmahr]

I'm sorry, but I'm going to declare myself out. Andy, I can't help but feel like you're only reading what others are posting with one eye open, and you're taking a lot of statements out of context, generalizing and deflecting valid questions pertaining to your own views. It's feels more like you're actively trying to defend your views on this rather than discuss it.

That will be my last involvement in this thread.

[Remiel]

If you want to stick to only legal, then the result is the right one.

1.  John didn't file a complaint, so Jane cannot be expelled.  End of that discussion.

2.  Jane filed a complaint.  So we begin the analysis. 

• Did he initiate the sexual contact?  Yes, since he told her go "get the fuck back here" after her friends walked her back to her room. 
  
  
• Next, did she consent?  It appears she did, yes. 
  
  
• Next, was that consent valid?  She was intoxicated to the point of vomiting just before sex occurred, so her consent is not valid--i.e., impairment by alcohol. 
  
  
• John's defense:  it was the most drunk I have ever been.  This is not a recognized defense under the university's rules. 
  
  
• Conclusion:  he committed sexual assault under the university's rules and the expulsion was proper.

It's very difficult to argue with that logic.  Except...

1.  John didn't file a complaint, so Jane cannot be expelled.  End of that discussion.

I believe this is where the fallacy occurs.    A student can still be expelled for violating a university's rules governing conduct and behavior, even if no one files a complaint.  A sexual assault can still occur, even if the victim is not traumatized or chooses not to press charges.

In this case, it seems incongruous to assert one set of standards on the male and another on the female.  I think it's safe to make the claim that both students in this case were at roughly similar levels of inebriation.  Thus, it follows that either both parties were capable of consent, or neither were.    If both were capable of consent, then this was an act of consensual sex and no sexual assault occurred--and thus neither should have been expelled.  If neither were capable of consent, then both parties essentially committed sexual assault against the other--and, logically, both should have been expelled.

My personal opinion is that both were capable of consent.  I do not believe that one's personality changes fundamentally when one is intoxicated.   Yes, alcohol does impair judgment, and can impede decision-making abilities.   But, as others have pointed out, "Jane" had enough mental acuity to ask "John" if he had a condom (indicating awareness of potential consequences), and she returned to his dorm room voluntarily.  She was not drugged; she was not dragged into his bedroom against her will.   There is no evidence indicating any form of coercion other than the text John sent saying "get the fuck back here". 

There is a reason that there is a minimum drinking age (21 or 18, depending on your country).  Alcohol makes people stupid.  They should have known this before they started drinking.

[Sethala]

It's very difficult to argue with that logic.  Except...

I believe this is where the fallacy occurs.    A student can still be expelled for violating a university's rules governing conduct and behavior, even if no one files a complaint.  A sexual assault can still occur, even if the victim is not traumatized or chooses not to press charges.

In this case, it seems incongruous to assert one set of standards on the male and another on the female.  I think it's safe to make the claim that both students in this case were at roughly similar levels of inebriation.  Thus, it follows that either both parties were capable of consent, or neither were.    If both were capable of consent, then this was an act of consensual sex and no sexual assault occurred--and thus neither should have been expelled.  If neither were capable of consent, then both parties essentially committed sexual assault against the other--and, logically, both should have been expelled.

My personal opinion is that both were capable of consent.  I do not believe that one's personality changes fundamentally when one is intoxicated.   Yes, alcohol does impair judgment, and can impede decision-making abilities.   But, as others have pointed out, "Jane" had enough mental acuity to ask "John" if he had a condom (indicating awareness of potential consequences), and she returned to his dorm room voluntarily.  She was not drugged; she was not dragged into his bedroom against her will.   There is no evidence indicating any form of coercion other than the text John sent saying "get the fuck back here". 

There is a reason that there is a minimum drinking age (21 or 18, depending on your country).  Alcohol makes people stupid.  They should have known this before they started drinking.

I think I agree with this completely, but I want to expand on it a bit.  In arguments like this, what we often run into problems with is actually having multiple different arguments, and people swapping between those arguments as they read and post.  So, I'd like to break it down into what I think are the two major component arguments to this issue:

First, does it matter if one person made a complaint and the other didn't if both were equally guilty?  Specifically, say that both John and Jane independantly decided that what the other did was sexual assault, and complained.  Would it be fair to discipline them both equally?

Second, when determining sexual assault, does giving consent while drunk count as giving consent, and does it matter if the person you're consenting to is also drunk?

[Cycle]

I believe this is where the fallacy occurs.    A student can still be expelled for violating a university's rules governing conduct and behavior, even if no one files a complaint.  A sexual assault can still occur, even if the victim is not traumatized or chooses not to press charges.

Good point, Remiel.  Indeed, I think that is the basis of John's civil action against Occidental:  i.e., why was he expelled and not Jane, when both violated the same rule.

If I gave this more thought, I think I would probably end up voting for expelling both.  But I think I've put enough thought into this already...

Back to smexy RPs.  ;)

[Strident]

Speaking as someone from the UK what staggers me is the loco-parentis attitude of the university rules.

In the UK, you go to university at 18 and are a full adult at 18. The age of legal drinking is 18.

Broadly speaking, if you are in good standing with the law, I doubt you would be kicked out of a UK university for something as obviously within the realms of legal action  as sexual assault.

Perhaps things are different in the states because you're not really fully an adult until 21 in some regards (i.e. Alcohol)

I'm a little Confused whether we are talking about the law of the land or the law of the university in some of these posts.

My view is that if the law of the land has not found someone guilty of sexual assault, but the college says they are, and acts on the basis that they are (i.e. Expulsion from the college)  then the accused has reasonable grounds to sue the college for defamation of character or libel.

[consortium11]

Speaking as someone from the UK what staggers me is the loco-parentis attitude of the university rules.

In the UK, you go to university at 18 and are a full adult at 18. The age of legal drinking is 18.

Broadly speaking, if you are in good standing with the law, I doubt you would be kicked out of a UK university for something as obviously within the realms of legal action  as sexual assault.

Happens quite frequently; legal action or discipline by the university isn't an either/or process. To give one recent example a St Andrews PHD student was expelled from the uni prior to his conviction for two sexual assaults.

Think of it as no different to the work environment. If I punch a co-worker in the office I may well be charged and convicted of some form of assault. I may well also be fired. One happening doesn't cancel out the other.

Where it gets somewhat tricky is due to the different levels required to prove guilt, generally no reasonable doubt in criminal law but only preponderance of evidence for a university. So one can be found not guilty by the courts but be held to be at fault by the university and thus punished (for a pure legal example think OJ Simpson being found not guilty at his criminal trial but liable at his civil trial). It becomes especially awkward where the police do a full investigation and conclude that it was consensual sex but the university go the other way.

[consortium11]

Now, to those who agree with that, should both be expelled or should neither be expelled, and what reasons would you give for that?

Neither should have been expelled.

It was drunken consensual sex. Sex they (both) regretted in the morning but regretting sex the morning after doesn't mean you've been sexually assaulted. Nor does alcohol lowering your inhibitions enough that you consent to something you wouldn't do when sober mean that you didn't consent... you still consented.

But that basically support what I said earlier: Ban the alcohol.

I'm almost certain they wouldn't turn a blind eye to someone using cocaine or cannabis those being some of the most common and 'fairly' non-dangerous recreational drugs around. (There is no real argument to be made for those to be considerably more dangerous than alcohol after all. Especially not cannabis.)

Alcohol is already banned for underage drinkers at the college in question. (the drug policy is on the same page):

Under Age Students: Students under the age of 21 may not possess or consume alcohol. A state of intoxication implies consumption.

Likewise it's not exactly a particular challenge to get or consume cocaine or cannabis while at college despite those substances not only being banned but also being illegal. Banning alcohol would make little difference... people would still drink and still drink to excess.

1.  John didn't file a complaint, so Jane cannot be expelled.  End of that discussion.

The college has, under their own rules, a sexual predator come to them and tell them that they had sexually assaulted somebody. They investigated it and discovered that the person in question had committed a sexual assault. We know that college views sexual predators as repeat offenders and we also know that the sexual predator in this case fits many of the profile points they have for a rapist.

But because the victim didn't complain they should just ignore it?

There is nowhere in the college's policies that say that something isn't a sexually assault just because no-one makes an official complaint about it. By the college's own viewpoint the Jane Doe sexually assaulted the John Doe. Their reasons for not expelling her are a mystery to everyone.

[Oniya]

Alcohol is already banned for underage drinkers at the college in question. (the drug policy is on the same page):

Likewise it's not exactly a particular challenge to get or consume cocaine or cannabis while at college despite those substances not only being banned but also being illegal. Banning alcohol would make little difference... people would still drink and still drink to excess.

The problem is the enforcement (or lack of enforcement) of these policies.  As I noted anecdotally above, these policies aren't rare, but obviously the students don't give a damn.  Apparently, either the risk of getting caught isn't seen as very high, or the consequences when caught aren't seen as prohibitive. 

[consortium11]

The problem is the enforcement (or lack of enforcement) of these policies.  As I noted anecdotally above, these policies aren't rare, but obviously the students don't give a damn.  Apparently, either the risk of getting caught isn't seen as very high, or the consequences when caught aren't seen as prohibitive.

That's one of the reasons I specifically bring up drug policies as well. Drug policies tend to be pretty damn punitive within colleges (even if we ignore the legal consequences) and yet does anyone think it's exactly difficult to either purchase or indulge in drugs within a standard college? Why do we think an alcohol policy would be any more effective then the drug policies?

[Sho]

What I find most troubling about all of this is that these laws, in an attempt to make women safe (because they are most often applied with the woman being the victim and the man being the perpetrator, as discussed earlier) have taken away a huge degree of their power. While men are still held responsible for their actions (at least in practice, if you look at the number of cases of men versus women being expelled), women are effectively being told that when they drink, they are incapable of making rational decisions. It doesn't feel all too different to me from saying that when women are on their period they are irrational and thus shouldn't be trusted.

This standard *should* be applied to men as well if it is applied at all, but in practice it does not seem to be (at least in the majority of cases). As a woman who does occasionally enjoy a drink or two, I loathe the idea that I am somehow considered incapable of making decisions for myself. I chose to drink, ergo, as when I drive if I am drunk, I am responsible for actions that I engage in consensually...even if those actions are something I am embarrassed about having committed when I wake up.

I think that we all agree that if a woman is blacked out or cannot write/speak, she is not capable of giving consent. I think that is a fairly clear line. I also think it is fairly clear that a sober man preying on a drunk woman is predatory behavior. I do think, however, that two drunk students engaging in sex where they texted back and forth to effectively agree that they were going to do so shouldn't be considered sexual assault; rather, it should be considered a sloppy mistake that they quietly try to forget about.

This is solely my opinion, but I think the girl should be ashamed of herself; she made a mistake that I believe she consented to and then regretted, and I do not think the boy raped her or forced her (and if she was not capable of giving consent, neither was he). I personally believe that she has done serious damage to this boy's life in an attempt to salvage a scrap of her reputation and that in filing this as assault, she is devaluing the claims of women who are genuinely assaulted on campus. Obviously the last part of that statement may seem somewhat inflammatory, so I'd like to try to explain: in my personal experience, and from what I have read, the more women who file consensual-but-regrettable sex as sexual assault makes students/administrators/onlookers less likely to believe women when they say that they were raped when they were genuinely incapable of giving consent.

[Beguile's Mistress]

I believe that if you are having second thoughts about doing something because it might be immoral or illegal you are just plain irresponsible to do it along with being criminal.  Splitting hairs to try and make something seem okay is wrong.

[Cycle]

The college has, under their own rules, a sexual predator come to them and tell them that they had sexually assaulted somebody. They investigated it and discovered that the person in question had committed a sexual assault. We know that college views sexual predators as repeat offenders and we also know that the sexual predator in this case fits many of the profile points they have for a rapist.

But because the victim didn't complain they should just ignore it?

There is nowhere in the college's policies that say that something isn't a sexually assault just because no-one makes an official complaint about it. By the college's own viewpoint the Jane Doe sexually assaulted the John Doe. Their reasons for not expelling her are a mystery to everyone.

The college's rules also spell out how a sexual assault complaint is initiated.  So if we want to apply the rules, then we need to apply the rules.  Someone needs to file a complaint against Jane.  Period.



That having been said, and because I was idle, I looked around some more.  My initial conclusion that John hadn't filed a complaint appears to be in error.  John claims--in his complaint against Occidental--that he also filed a sexual assault complaint against Jane.



So, taking this statement at face value, I would vote in favor of expelling both.

[Pumpkin Seeds]

Yes but the original complaint was filed in September.  To be honest there would be few that did not believe he is filing a complaint to have retaliation and satisfy advice for a law suit.

[Sethala]

Are we really sure we want to say assault is only assault if there's a complaint filed?  That seems like a dangerous precedent considering how many statistics are quoted about women not filing complaints against an actual rapist for various reasons...

[kylie]

I want to apologize if I've given you the impression that I believe that, on a whole, men are more oppressed than women.  We live in an age saturated by various inequalities, and the best thing we can do is find all of them and work on stamping them out.

I've personally never liked the idea that we try to figure out which one has it worse and then only focus on that one.  It's always seemed to fly directly in the face of justice and equality for me.

I think there are actually many ways or dimensions where all sorts of people are oppressed (some might prefer manipulated), men included.  And I do think they are generally worth discussing thoughtfully.

    However, when you boil it all down to suggesting that men are being scrutinized too much or asked to behave too much and oh it's so traumatizing, but instead no one should be (or you say without having apparently checked much, even no one is ever!) legally culpable for any crime utilizing alcohol short of knockout doses... And a host of mostly unexplained conclusions you presume 'everyone here must agree' which I vehemently disagree with...  When you say all this in the face of a culture, particularly around college campuses, that often glamorizes getting women drunk expressly to circumvent questions of consent and often to impair functioning along the way and the wider society still often blames it on the woman anyway?

   Then, I don't think you are talking about pursuing general equality, I think you are imagining a single zero-sum axis where many of the current responses to sexual assault get read first as favoring women 'over' men. And I do not believe that oppression is all that simple, or that your generalizations here from this particular case were well thought.

     But hopefully meanwhile, more interesting parts have moved on?  Maybe.

[Pumpkin Seeds]

A complaint still has to be filed at some point.  Only in cases where the victim cannot file a complaint on their own behalf, such as the deceased or children, does a body of legal oversight issue its own complaint.  The numbers that show women who have not filed complaints of rape are not there to demonstrate that people should file on their behalf, but instead to show how many women are afraid the system will not protect them or help them with their problem.

[Cycle]

Are we really sure we want to say assault is only assault if there's a complaint filed? 

No, that's not what I am saying.  What I am saying is, if you want to apply a law (or rule), then you need to apply all of it. 

AndyZ said he wanted to stick to "legal" for this discussion.

I don't think we really want to get into the moral and ethical issues and should just stick to what we have legally for this one.  ...

There are substantive and there are procedural laws (and rules).  A substantive law would be:  X is assault.  A procedural law would be:  to prosecute someone for assault, you must start with Y action. 

Occidental's rules contain procedural and substantive components.  Both have to be followed, if we want to follow the rules.  So, sticking to legal, we need a complaint to expel Jane.

[AndyZ]

Speaking as someone from the UK what staggers me is the loco-parentis attitude of the university rules.

In the UK, you go to university at 18 and are a full adult at 18. The age of legal drinking is 18.

Broadly speaking, if you are in good standing with the law, I doubt you would be kicked out of a UK university for something as obviously within the realms of legal action  as sexual assault.

Perhaps things are different in the states because you're not really fully an adult until 21 in some regards (i.e. Alcohol)

I'm a little Confused whether we are talking about the law of the land or the law of the university in some of these posts.

My view is that if the law of the land has not found someone guilty of sexual assault, but the college says they are, and acts on the basis that they are (i.e. Expulsion from the college)  then the accused has reasonable grounds to sue the college for defamation of character or libel.

This goes into it a bit: http://www.huffingtonpost.com/uloop/underage-drinking-laws-on_b_3396974.html

What I find most troubling about all of this is that these laws, in an attempt to make women safe (because they are most often applied with the woman being the victim and the man being the perpetrator, as discussed earlier) have taken away a huge degree of their power. While men are still held responsible for their actions (at least in practice, if you look at the number of cases of men versus women being expelled), women are effectively being told that when they drink, they are incapable of making rational decisions. It doesn't feel all too different to me from saying that when women are on their period they are irrational and thus shouldn't be trusted.

This standard *should* be applied to men as well if it is applied at all, but in practice it does not seem to be (at least in the majority of cases). As a woman who does occasionally enjoy a drink or two, I loathe the idea that I am somehow considered incapable of making decisions for myself. I chose to drink, ergo, as when I drive if I am drunk, I am responsible for actions that I engage in consensually...even if those actions are something I am embarrassed about having committed when I wake up.

I think that we all agree that if a woman is blacked out or cannot write/speak, she is not capable of giving consent. I think that is a fairly clear line. I also think it is fairly clear that a sober man preying on a drunk woman is predatory behavior. I do think, however, that two drunk students engaging in sex where they texted back and forth to effectively agree that they were going to do so shouldn't be considered sexual assault; rather, it should be considered a sloppy mistake that they quietly try to forget about.

This is solely my opinion, but I think the girl should be ashamed of herself; she made a mistake that I believe she consented to and then regretted, and I do not think the boy raped her or forced her (and if she was not capable of giving consent, neither was he). I personally believe that she has done serious damage to this boy's life in an attempt to salvage a scrap of her reputation and that in filing this as assault, she is devaluing the claims of women who are genuinely assaulted on campus. Obviously the last part of that statement may seem somewhat inflammatory, so I'd like to try to explain: in my personal experience, and from what I have read, the more women who file consensual-but-regrettable sex as sexual assault makes students/administrators/onlookers less likely to believe women when they say that they were raped when they were genuinely incapable of giving consent.

The only issue that I have with anything here is that you can have a blackout and still remain conscious.

http://en.wikipedia.org/wiki/Blackout_%28drug-related_amnesia%29

When you say blacked out, do you mean unconscious or do you just mean when you've had so much to drink that you're still moving around but won't remember anything the next day?  If the latter, I'd consider it exceptionally difficult for someone to judge that particular transitional period.

Since I have you here as someone who enjoys alcohol, I was curious: how would you feel about some sort of legal waiver signed while sober that says that you can still give consent while intoxicated, or something like that?  It's an idea I've been playing with while reading over this stuff, although I don't know how feasible it would be.

     I think there are actually many ways or dimensions where all sorts of people are oppressed (some might prefer manipulated), men included.  And I do think they are generally worth discussing thoughtfully.

    However, when you boil it all down to suggesting that men are being scrutinized too much or asked to behave too much and oh it's so traumatizing, but instead no one should be (or you say without having apparently checked much, even no one is ever!) legally culpable for any crime utilizing alcohol short of knockout doses... And a host of mostly unexplained conclusions you presume 'everyone here must agree' which I vehemently disagree with...  When you say all this in the face of a culture, particularly around college campuses, that often glamorizes getting women drunk expressly to circumvent questions of consent and often to impair functioning along the way and the wider society still often blames it on the woman anyway?

   Then, I don't think you are talking about pursuing general equality, I think you are imagining a single zero-sum axis where many of the current responses to sexual assault get read first as favoring women 'over' men. And I do not believe that oppression is all that simple, or that your generalizations here from this particular case were well thought.

     But hopefully meanwhile, more interesting parts have moved on?  Maybe.

Let me clarify that I absolutely don't believe that the rules should be different between people of any gender.

If people say that men should be more responsible about their drinking and that it's rape if he sleeps with someone who's drunk, it should be the same for women.

If people say that women should be able to go out, party, drink and have sex without consequences, it should be the same for men.

I apologize that I didn't expressly state it before.  To be honest, I considered it so obvious as to not require expression.

As far as that everyone must agree, hardly.  Right now I see three camps of thought: those who say punish both, those who say punish neither, and those who say punish the initiator.

I vehemently disagree with the idea of punishing the initiator if we say that whoever invites someone to their place is the initiator.  I disagree wholly with the idea that a person inviting someone to their place is an absolute and tacit invitation for sex, and I listed an earlier example as to why such an idea is inherently problematic.  People are free to disagree, and Cycle has said as much (though he's reconsidering as last I saw).

The other idea for initiating that I've seen tossed out, not here but on other websites, is whoever gets on top.  With missionary position, the man gets on top of the woman, and with cowgirl position, the woman gets on top of the man.  I'm not comfortable with this one either, but others are free to disagree.

If I see something that seems wrong to me, I usually try to bring up an example where it doesn't work, and sometimes people have a very good reason why it works even in that example that I hadn't even considered.  Lately, though, I've been confusing people's points, so I was trying to ask specific questions to make sure I understood their points.

This is apparently a common thing in debates.  People would state the points of their opponents and allow the opponent to agree or disagree, because it gets rid of the "you're just saying" X" straw man type deal that has become common of late.  This seems to be upsetting more people than it helps, though, so I'll just try to go back to directly posting and letting them correct me if I misunderstood.

Just because I want to debate a point doesn't mean others are forced to agree with me by any stretch.  I am perfectly aware that other people have more experiences or knowledge with various things than I do and that I can learn from them.

No, that's not what I am saying.  What I am saying is, if you want to apply a law (or rule), then you need to apply all of it. 

AndyZ said he wanted to stick to "legal" for this discussion.

There are substantive and there are procedural laws (and rules).  A substantive law would be:  X is assault.  A procedural law would be:  to prosecute someone for assault, you must start with Y action. 

Occidental's rules contain procedural and substantive components.  Both have to be followed, if we want to follow the rules.  So, sticking to legal, we need a complaint to expel Jane.

I don't think I was entirely clear here (maybe I was, maybe not) so I figured I'd go into detail.

I do consider an individual's organizational rules and procedures to be more "legal" than "moral."  However, I'm also good with the concept that we can argue whether or not there can be such laws.

Someone can certainly believe that cases involving sexual assault should not require a complaint in order to be prosecuted, in the same way that some people believe that we should punish both, neither or based on initiation.

By contrast, when I say "moral" in the comparison between moral and legal, that's when we talk about character values and things like that.  If someone wants to say that they're bad people for having sex out of wedlock, for example, or anything where the word "fornicator" or the phrase "going to Hell" would come up.

As an egregious example, there's a law in Russia banning transpeople from driving.  We can have the people of various religions go on and on about how they believe certain things, but it becomes pointless.  Ultimately, it's an idiotic law and should be abolished.

Whether or not we believe that John and Jane should have been fooling around is very different from whether they committed a crime and/or been expelled, in the same way that we can argue whether adultery is wrong and whether swingers and/or people who cheat on their spouses without the spouses' consent should be sent to jail.

In short, questioning how we apply laws, rules and the like is okay.  Questioning whether people who have sex while drunk are doing the right thing is far more nebulous.

After all, Occidental is only one college out there, so better to set a standard of what we believe should be followed instead of checking each and every one for how well it works against itself.

[Cycle]

I disagree wholly with the idea that a person inviting someone to their place is an absolute and tacit invitation for sex, and I listed an earlier example as to why such an idea is inherently problematic.  People are free to disagree, and Cycle has said as much (though he's reconsidering as last I saw).

Wrong.

Will you please stop trying to misconstrue my position.  This is the second time you've done it in this thread alone.

I was trying to explain to you what I think the result should be under the Occidental rules.  Remiel and consortium pointed out that they don't think a complaint is necessary to expel Jane under the rules.  I went back and looked at the rules and it does require a complaint.  But further investigation reveals that John did file a complaint.  So under the rules, they are both subject to expulsion.

I'm sorry, but I'm going to declare myself out. Andy, I can't help but feel like you're only reading what others are posting with one eyes open, and you're taking a lot of statements out of context, generalizing and deflecting valid questions pertaining to your own views. It's feels more like you're actively trying to defend your views on this rather than discuss it.

That will be my last involvement in this thread.

I agree with Nachtmahr.  I'm out too.

[AndyZ]

Quote from: Nachtmahr on Yesterday at 11:40:33 AM
But most of all I'd like to stick to my first point: 'Get the fuck back here' can not under any circumstances be considered 'initiating sexual contact'.



Obviously the university's adjudicator disagrees with you. 

And so do I.

Due to the way Elliquiy works, I had to copy Nach's quote straight back into the quote, but it's listed in the original.

[consortium11]

The college's rules also spell out how a sexual assault complaint is initiated.  So if we want to apply the rules, then we need to apply the rules.  Someone needs to file a complaint against Jane.  Period.

They don't need to file a complaint, someone needs to make a report (hence why the term "report" is used throughout).

What is the definition of making a report?

Making a report means telling someone in authority what happened -- in person, by telephone, in writing or by email.

The Jane Doe told someone in authority what happened. Hence she made a report. The fact that she was reporting her own behavior as a sexual predator in addition to someone else's is irrelevant; the only amnesty clauses relate to not being punished for consuming drugs or alcohol.

[Frozen Flame]

My brother is 22, about 10 years younger than me. I told him a few things that have helped me avoid this particular moral minefield and I'm glad they've helped him as well.

1) It's usually not a good idea to be drunk.
2) If you do get drunk, make sure you have at least one sober friend whom you trust to keep you in check no matter what. Someone you can trust to drive you home, punch you in the face if necessary, if you start acting like a jerk.
3) Do not get drunk without said friend if you are in the company of women

#3 probably seems a bit heavy-handed. But there's a reason. The usual scenario of a wolfish, entirely sober guy preying upon a vulnerable woman with compromised judgment, while a favorite of Lifetime specials and made-for-TV-movies, doesn't constitute the majority of such incidents. Yes, they make for good TV because they're so ethically clear-cut. But life, as usual is more complex and often it's a drunk guy with compromised judgment colliding with a drunk woman with compromised judgment.

Sure, a good upbringing and being a respectful guy can usually keep you from doing terrible things, even while drunk. But it's just not worth the risk.

[SweetSerenade]

Spoiler: Click to Show/Hide

Here is a summary of Jane Doe's recollection of having sex.

Is it just me, of has everyone completely overlooked the fact that she was under the age of 18 when engaging in a sexual relationship? Depending on the age difference (I am not sure what John's age is), Jane is still under the age of 18 and thus a minor. Even though he did not know this at the time, which by the way - male or female, you should ALWAYS check the age of their sexual partners. There are a few factors here that really change my views on the case. I do not believe minors are truly capable of understanding the ramifications of their actions, and thus are not truly capable of consenting to sex. Even if she/he/minor in this instance is going "Give it to me now" - I do not believe that is a viable asset of consent and that the person in question, in instances where they know that someone is under age, that has sex with a minor is knowingly committing rape. Now, he didn't know her age, and that's his own fault because he just assumed she was legal because she was drinking (Big mistake), but they still participated in an act together. THOUGH she did give consent, given her status as a minor - legally that consent doesn't really account for anything in her alcohol induced state, and her present age. So as a result, he is likely going to be fully punished - but I believe she should be expelled as well because she was drinking underage. Oh and anyone that gave her liquor should be charged with 'contributing to the deliquency of a minor' as well as 'giving a minor illegal substances'.

Overall this entire case is full of he said, she said, and they both need to grow up.

Male or female, we all should be conscious of our decisions in sexual or alcoholic situations. No mattter how innebriated we are - if we reach a state where we don't even bother to check in with our intended partner and make sure that everything is still ok and make sure that they are of consentable age and state of mind... then it's our own damn fault and we should accept the responsibility of our actions.

((Edited for Spelling issues))

[Valthazar]

California just happens to be one of 12 states where 18 is the age of consent, with the majority of states having 16 as the age of consent.  So yes, it's true that because of California's "tough on crime" laws, John can be charged with a misdemeanor.  But most psychologists would probably agree that 17 year olds have reached sexual maturity, and are in control of their bodies.

[SweetSerenade]

California just happens to be one of 12 states where 18 is the age of consent, with the majority of states having 16 as the age of consent.  So yes, it's true that because of California's "tough on crime" laws, John can be charged with a misdemeanor.  But most psychologists would probably agree that 17 year olds have reached sexual maturity, and are in control of their bodies.

I'm not discounting what you are saying but I don't believe that to be the case. It's sort of touch and go at that age, based usually on personal profiling of the individual themselves. That is why some minors can be charged as an adult, when some cannot. It's a matter of that individuals mental maturity in comparison to their age/validity of the situation. Sorry if what I said came off harsh, I just find it silly that people don't check ages more often.

[Oniya]

I saw this article, and it pretty much explains everything.


http://www.theloop.ca/this-woman-just-explained-consent-with-the-most-perfect-metaphor/

If they are unconscious, don’t make them tea. Unconscious people don’t want tea and can’t answer the question, “Do you want tea?” because they are unconscious.

Okay, maybe they were conscious when you asked them if they wanted tea, and they said yes, but in the time it took you to boil that kettle, brew the tea and add the milk they are now unconscious. You should just put the tea down, make sure the unconscious person is safe, and — this is the important bit — don’t make them drink the tea.

If someone said yes to tea, started drinking it and then passed out before they’d finished it, don’t keep on pouring it down their throat. Take the tea away and make sure they are safe.  Because unconscious people don’t want tea. Trust me on this.

[SweetSerenade]

I saw this article, and it pretty much explains everything.


http://www.theloop.ca/this-woman-just-explained-consent-with-the-most-perfect-metaphor/

I saw that same article Oniya! I was actually looking for it, but couldn't find it!

[consortium11]

I saw this article, and it pretty much explains everything.


http://www.theloop.ca/this-woman-just-explained-consent-with-the-most-perfect-metaphor/

In this case it wouldn't be much help.

Attempting to apply the analogy to it; this is where one party offers the other a cup of tea, the other accepts and they have a lovely time. A little bit later the other party asks the first one if they'd like another cup of slightly stronger tea, they agree and come down to your room of their own accord. There they have a cup of tea and both spill a bit. Later the party who went to the room then goes off and finds someone else and asks them to make her a cup of tea, but her friends come along and stop her doing so.

The next day both remember they had a cup of tea even if they don't recall all the details and both regret it happening, wishing they'd had a cup of tea with someone more special. Neither think too much of it other than a bad decision they both made to have a cup of tea until the party who went to the room decides the other party isn't sufficiently upset about it and a third party in a position of power repeatedly tells her that she hadn't actually agreed to have a cup of tea despite doing so, telling others she was going to do so and managing to sneak our of her room and through the building to reach the other parties' room.

[SweetSerenade]

In this case it wouldn't be much help.

Attempting to apply the analogy to it; this is where one party offers the other a cup of tea, the other accepts and they have a lovely time. A little bit later the other party asks the first one if they'd like another cup of slightly stronger tea, they agree and come down to your room of their own accord. There they have a cup of tea and both spill a bit. Later the party who went to the room then goes off and finds someone else and asks them to make her a cup of tea, but her friends come along and stop her doing so.

The next day both remember they had a cup of tea even if they don't recall all the details and both regret it happening, wishing they'd had a cup of tea with someone more special. Neither think too much of it other than a bad decision they both made to have a cup of tea until the party who went to the room decides the other party isn't sufficiently upset about it and a third party in a position of power repeatedly tells her that she hadn't actually agreed to have a cup of tea despite doing so, telling others she was going to do so and managing to sneak our of her room and through the building to reach the other parties' room.

Yes, but in this instance neither party should of had a cup of tea because they were both too intoxicated to know WTF they were doing. Besides, was is Jasmine or Licorice?

[Aethereal]

I do not believe minors are truly capable of understanding the ramifications of their actions, and thus are not truly capable of consenting to sex.

I disagree, strongly. There is no abrupt physical difference between 17 and 18 year old, and the US consent laws are, frankly, utterly ridiculous in some places. A 17-year-old is fully and completely capable of making clear and conscious decision on whether or not to engage in a sexual act. Whether their SO is 17 or 19 doesn't make much difference. A 14-year-old can be held criminally responsible in my country. I've lived on my own since I was 16.
    By what you said, I supposedly was incapable of deciding whether or not to have sex for a full two years after obtaining my own room hundreds of miles from my parents, managing my own finances, and driving a two-ton metal monstrosity capable of killing pedestrians if either I was not paying attention or they just decided to suddenly sprint over the road from behind some object.
    If anything, we are giving children the rights to decide for their life too late, and often somehow expecting them to just magically suddenly know what they've never experienced when they hit 18... (And believe me, I still think that even my 14-year-old self was better at deciding what to do with my life than my mother. My father was, luckily, more reasonable and didn't get all kinds of ... ideas.) Rather than ban children (or "children", since calling a 17-year-old a child can be a bit of a stretch) from doing things, we should teach them about consent and deciding as early as possible.
    And, for the sake of it, I definitely have met some people in the 50+ range whom I'd not trust with a plastic butter knife, let alone a car, a computer, or sex...

    As for the subject at hand ... tough call. For one, I certainly think that the male is not always the one to blame (nor are males always the rapists - I could bring you real examples of both females raping females and females raping males, including at least one where the female literally hit the male unconscious with a heavy object before proceeding to climb atop of him - he later ended up hospitalized with a significant head trauma). And scenarios of "I consented, but now I'm regretting it" and "I said yes, but never really was certain whether I wanted it" should be ruled with the other party(es) clear - no one can read minds or predict future.
    It can also be hard to - in retrospect - tell how drunk exactly someone was. Drunk people often feel that they are just "slightly tipsy" (so said a guy who proceeded to mumble something about a bear carpet and his nationality, and then went on to make even less sense ... I've actually had several drunk to all hell people very determinedly explain me that they are not really drunk at all) and definitely fully capable of making rational decisions. If both were conscious enough to give what appeared to be clear consent at that time, then I'd generally count the case unsolvable and punish neither. In this kind of word-against-word scenario, there is no way to make a ruling.
   Everything would, of course, be much easier if people simply did not drink that much...

[Tairis]

Yes, but in this instance neither party should of had a cup of tea because they were both too intoxicated to know WTF they were doing. Besides, was is Jasmine or Licorice?

That's kind of the point of the problem: if you're both too drunk to consent how is it the guy always the one responsible for taking advantage?

[SweetSerenade]

That's kind of the point of the problem: if you're both too drunk to consent how is it the guy always the one responsible for taking advantage?

Because in this instance he was the adult, and she was a minor?

[Tairis]

Because in this instance he was the adult, and she was a minor?

So because she was under an arbitrary age this somehow effects the physiological fact that they were both incapable of making a rational decision? Regardless of the idiocy of US laws and age of consent, it makes zero sense to me that that should be the basis of the argument if alcohol is being blamed as the reason she couldn't consent. Her age is a completely separate subject.

[SweetSerenade]

So because she was under an arbitrary age this somehow effects the physiological fact that they were both incapable of making a rational decision? Regardless of the idiocy of US laws and age of consent, it makes zero sense to me that that should be the basis of the argument if alcohol is being blamed as the reason she couldn't consent. Her age is a completely separate subject.

She was a minor, she should have never been drinking with anyone -much less drunk in his room. It is actually illegal to provide alcohol to minors. The fact of the matter is he is getting the brunt of things because she can't remember consenting, and she is a minor. If she had been an adult, they would probably be looking at this differently.

I apologize if this seems harsh, but it's just the way things are here. The fact of the matter is most rape cases never make it this far, and that's because the women are almost always forced to face extreme social fallout for stepping forward and talking about what happened. I know this personally, I lost all of my friends of the time - and I even was suspended from school for trying to tell them that a teacher was assaulting me.

[Tairis]

If he was intentionally supplying her with alcohol that's one thing, if they both got drunk at a party or other function it's another. This is the part that drives me crazy (and isn't specific to this one case), how it always comes back to 'well he should have'... Why is it always 'Well HE should have... verified how old she was/stopped her from drinking/etc'. But if you even start a sentence with the phrase 'Well SHE should have...' it's victim blaming.

The issues that come from reporting a crime need to be addressed both as a society and from a government standpoint. But I also think that if people really want equality of the sexes we have to stop giving one gender a blank pass to make whatever bad decisions they want, while telling the other that THEY are completely responsible for anything that happens no matter what.

[consortium11]

She was a minor, she should have never been drinking with anyone -much less drunk in his room. It is actually illegal to provide alcohol to minors. The fact of the matter is he is getting the brunt of things because she can't remember consenting, and she is a minor. If she had been an adult, they would probably be looking at this differently.

That's not really what happened in this case.

1) She could remember consenting (by deed if not strictly by word); while parts of her memory were fuzzy she could remember most of the encounter. This wasn't a case where she was passed out or blackout drunk. The issue was whether she was held to have the capacity to consent at the time, regardless of whether she did or didn't.

2) The investigation looked into the fact she was a minor and completely discarded it as being a relevant point. If you're saying the investigation would have looked at it differently is she wasn't a minor then you're saying that they lied when they reported their findings.

[AbboTristain]

According to US law as I understand it, you cannot give sign a legally binding contract or give legally valid consent while intoxicated. This is to protect people from others who use their impaired state to take advantage of them. I don't think it's difficult to see why this is necessary, but please correct me if I'm wrong.

According to US law as I understand it, if you commit a crime while intoxicated, you cannot use your intoxicated state as a defense. This is to protect the rest of us from people who would use their intoxicated state as an excuse. I don't think it's difficult to see why this is necessary, but please correct me if I'm wrong.

It is possible for someone who is not legally capable of giving consent (whether because of age or intoxication) to commit rape. The best way I can say this is that it's because your ability to give legally binding consent to something is not tied to your ability to be held responsible for committing an act of violence against another person.

Deciding if a given instance was rape can be tricky, to say the least, when you're talking about legal evidence and not just hypotheticals. I won't deny that in cases like the one described, there's a bias to assume the male is the one at fault if anyone was, and male rape victims certainly have a horrible time trying to get anyone to take their account seriously.

But I really don't buy that there's some epidemic of women who are pretending to be rape victims as a way to attack men, or as a way to dodge responsibility for a night they regret. The former is paranoid, the latter ridiculous in the extreme. (I'm not saying it never happens, but I don't think there's ever been cause for a "Yes Means Yes" campaign.)

Just my two cents.

[Oniya]

(I'm not saying it never happens, but I don't think there's ever been cause for a "Yes Means Yes" campaign.)

Just my two cents.

Ah - you are aware that there is a 'Yes means yes' campaign, right?  The idea being that if your date hasn't said 'yes, I want to have sex with you', you shouldn't proceed with sexual activities.

[consortium11]

According to US law as I understand it, you cannot give sign a legally binding contract or give legally valid consent while intoxicated. This is to protect people from others who use their impaired state to take advantage of them. I don't think it's difficult to see why this is necessary, but please correct me if I'm wrong.

Intoxication only invalidates consent (or the ability to agree to a contract) if the intoxication is severe enough that the person in effect didn't consent; they had no idea what was going on and were mentally incapable of understanding it. Simply having a drink... or even being drunk... isn't enough. Nor is it enough to argue that you only consented/signed the contract because you were drunk (i.e. that your decision making was altered due to intoxication and you'd never have done it if sober), which is why in this case the activist who convinced the Jane Doe in question to make a rape accusation spent a long time changing her story from "I wouldn't have done it if I was sober" (paraphrased slightly, her original position).

If having a drink, being tipsy or even being drunk was enough to completely invalidate consent then not only would the vast majority of sexual escapades begun at bars result in sexual assault or rape charges against both parties but the bars themselves would shut down within about as week as anyone who spent money there went back saying they were intoxicated and thus the contract to buy further drinks were invalid.

According to US law as I understand it, if you commit a crime while intoxicated, you cannot use your intoxicated state as a defense. This is to protect the rest of us from people who would use their intoxicated state as an excuse. I don't think it's difficult to see why this is necessary, but please correct me if I'm wrong.

Depends on the jurisdiction, the crime, the state of intoxication and whether it was voluntary or not (so did you willingly consume an intoxicating beverage or were you in essence spiked).

As a starting point, most crimes can be split into two camps; ones that only require someone being reckless and those which require someone to intentionally do something. These are general rfered to as "basic" (only recklessness) and "specific" (intention required) intent crimes. As a general rule most jurisdictions hold drunken intent to still be intent. So much like the above, if you intentionally do something it's no defence to say you only did it because you were drunk.  However the courts do hold that someone can be so intoxicated that they are unable to form intent (much like one can be so intoxicated that they can't consent or agree to a contract). While one can still be found guilty of basic offences (with the logic being that becoming drunk enough to do an act constitutes recklessness itself even if there is no intent) if one cannot form intent then they cannot be found guilty of a specific offence. A similar basic one? Certainly and that's why in practice it rarely makes much difference. But a specific one requiring intent? If intent can't be formed due to intoxication then there can be no intent and thus no crimes which require intent can have been committed.

It is possible for someone who is not legally capable of giving consent (whether because of age or intoxication) to commit rape. The best way I can say this is that it's because your ability to give legally binding consent to something is not tied to your ability to be held responsible for committing an act of violence against another person.

It's not that clear cut. Depending on jurisdiction rape can be an offence requiring specific intent, although it's not entirely clear (the UK has a very confused position on it for example). If it is a crime of specific intent then someone who is so intoxicated they cannot consent may well also be so intoxicated they cannot form intent and, in that regard, thus cannot be held to have committed a rape. California (where this case took placer) is as messy as the UK when it comes to deciding whether rape is a specific offence or not but case law suggests that it may be.

Furthermore rape generally requires the perpetrator to be aware (or should have been aware) that the other party wasn't consenting and/or includes a defence of reasonably (but mistakenly) believing that the other party had consented. Tests of whether something is "reasonable" or not tend to go back to the "reasonable person" test; would a hypothetical reasonable person in the same circumstances have believed/done (depending on the test) the same thing. Most jurisdictions take into account the person's characteristics and the circumstances when doing so; instead of a completely generic reasonable person they'd use say, a reasonable person of colour or a reasonable person who had just been attacked or a reasonable *insert characteristic or circumstance here*. Level of intoxication may be included in this... jurisdictions differ. If it is then if someone is held as being too drunk to consent then using the first part of the requirement/defence above they may claim that they were also too drunk to note the lack of consent. If a reasonable person who was as intoxicated would not have realised the lack of consent then they may well have a defence there.

I should note of course that few of these apply to this example. The police investigated the case and believed that the Jane Doe drunkenly consented and thus there was no sexual offence. It was the college that decided a sexual assault had happened and when the girl said yes she didn't actually say anything at all and colleges aren't bound by criminal law and procedure in the way the courts and law enforcement are. They can, and do, pretty much make up the rules as they go along and only occasionally get slapped on the wrist.

But I really don't buy that there's some epidemic of women who are pretending to be rape victims as a way to attack men, or as a way to dodge responsibility for a night they regret. The former is paranoid, the latter ridiculous in the extreme. (I'm not saying it never happens, but I don't think there's ever been cause for a "Yes Means Yes" campaign.)

1) I think it's unfortunate wording on your part, but there is a "Yes Means Yes" campaign, although from the context you're using it here I think you're referring to a different thing. The mainstream "Yes Means Yes" campaign relates to changing the standard of consent so it's no longer about not saying no, it's about actively saying yes. That had a whole load of issues that come with it but not really related to this situation. I'm assuming when you talk about s "Yes Means Yes" campaign you're talking about a hypothetical one by people disgruntled that their partners said yes the night before but now claim they didn't because they regretted the experience.

Unfortunately such a campaign may be needed if cases like this keep happening.

Let's run over the context of it again. The girl in question thought she had consented. In fact, to quote her again "I would never have done that if I had been sober. … I don’t know what was going through my head." She was, to use the above terminology, talking about drunken intent. She may have only done it because she was drunk but she still decided to do it. Textbook case of drunken intercourse that people may regret but is not rape or sexual assault. Then, under constant pressure from an activist, her story suddenly changes to no longer be "I only consented because I was drunk" to "I was so drunk I couldn't consent and the guy should have known that". Yes no longer meant yes. The college agreed. It held that when a woman says yes she may not actually mean yes and good luck trying to work it out. Remember, this is a girl who, drunk or not, was able to send coherent text messages (both to the man in question and to a third party where she bragged about going to have sex), sneak out of her dorm room past her friends (and actually sneak; they wanted to keep her there. She bragged about that as well), navigate down to the man in question's floor, find his room and get in it. After they had sex she then left and went off to find another guy who see was sitting on the lap of and flirting when her friends found her.

If a woman can do all that and still not mean "yes" when she says "yes" then when exactly does yes ever really mean yes? And how is someone meant to know that when a woman capable of doing that says "yes" she's actually saying "I'm too incapable to say yes"?

2) While it may not constitute an epidemic there are quite a few cases. To use an example I've mentioned previously one of the largest college insurers did an audit of all the cases where colleges had been forced to pay out on matters relating to sexual offences. With the massive publicity about this supposed wave of campus rapes (which some dodgy statistics still waved around claiming that a woman is more likely to be raped in a US college then they would in the Congo during the civil war when mass rape was a widely used tactic) and the fact that colleges have been reportedly awful at dealing with rape claims then you'd assume that the majority of payments went to women who had been sexually assaulted and the college failed them. They weren't the majority. Instead 72% of all payouts went to male students who had been accused of rape by the college and subsequently sued the college, generally for rights violations.

[Aethereal]

Remember, this is a girl who, drunk or not, was able to send coherent text messages (both to the man in question and to a third party where she bragged about going to have sex), sneak out of her dorm room past her friends (and actually sneak; they wanted to keep her there. She bragged about that as well), navigate down to the man in question's floor, find his room and get in it. After they had sex she then left and went off to find another guy who see was sitting on the lap of and flirting when her friends found her.

If a woman can do all that and still not mean "yes" when she says "yes" then when exactly does yes ever really mean yes? And how is someone meant to know that when a woman capable of doing that says "yes" she's actually saying "I'm too incapable to say yes"?

This is why I am on the guy's side here. If a person is conscious and seems mostly coherent when they say yes, and it still does not necessarily apply, from which criteria should you even begin to tell anything?* Carry an alcometer with clock and signature pad attached and tell people to blow into it and take their signatures declaring consent before and after sex (provided the amount of alcohol in their breath was under certain percentage before said sex), and even then only have sex in a room with multiple cameras?

*Excluding the cases where a person deliberately got other drunk to "soften them up". In that case, the blame would shift again. 

[consortium11]

Frankly it's getting to the stage where as someone with a legal background I'd be telling people... primarily men... to not have sex while in college and, if you do, make sure it's with someone who's not in college. Despite how relatively remote the chances are that someone will later claim that it was a sexual assault, if they do there is almost nothing one can do to defend themselves.

Take this case for example.

(Main source for the story here; it contains links to much of the documentation but is from a clearly activist website).

So, to run through the undisputed facts of the case:

Student gets blackout drunk... clearly intoxicated but not necessarily obviously beyond the ability to consent.

Is kissed by another student

Is taken back to the other students room.

Other student performs a sex act upon them.

In light of the story in this thread and the discussion within I'd assume that we'd all think it was the student who targeted the drunk student who found themselves in hot water. After all Amherst, the college in question, not only has a policy relating to intoxicated consent which makes clear that intoxication can invalidate consent and it is the responsibility of the other student to be aware of their partners level of intoxication (and thus consent) but also has a "yes means yes" policy. If anything it's a more clear cut case then the one discussed in this thread as here one student was only tipsy while the other was blackout drunk compared to both being blackout drunk in the other.

No, it's the other way around.

Two years after the claimed sexual assault the less drunk student claimed the drunk student raped her and he was subsequently expelled.

The Jane Doe claims that the sex act started out consensually but part way through she wanted to stop and pushed against him, at which point he didn't immediately stop. The John Doe has no recollection of this due to being blackout drunk. Due to the low "preponderance of evidence" requirement if that was everything there was I could perhaps see why the decision was made; she says he raped her, because of his intoxication level he can't say he didn't, thus on the balance of evidence it is more likely he did, thus found liable, thus expelled.

But surely we must look into things with more detail then that?

First, the John Doe in this case is clearly not a particularly great person. The Jane Doe in question was the roommate of his then girlfriend and she claims that he bragged about having got with both of them. Drunk or not and despite his relationship being fairly casual cheating on your girlfriend with her roommate is a pretty awful thing to do. But being a bad person doesn't mean one commits sexual assault.

Secondly, I'm aware of the trap inherent to going "well, she didn't act like a sexual assault victim would". People handle trauma differently, they don't always make what appear to be smart choices with hindsightetc etc.

But take a look at this.

The first part is the statement from the John Doe's then girlfriend. She remained friends with the Jane Doe following the incident, broke up with the Jon Doe before briefly getting back together again. At no point over that period did the Jane Doe tell her that she had been raped or warn her that the John Doe was a rapist. The second part is a series of text messages between the Jane Doe and the residential counselor from later that night. They make no clear the encounter was at least partially consensual, make no mention of ever becoming non-consensual, make clear again that the John Doe was extremely drunk, present the Jane Doe's biggest worry being how to cover up the sexual encounter so that people don't criticise her for it and then go into detail about how she had sex with a third party later that night (who she invited to her room and later complained that he was there for hours before he finally had sex with her). The text messages between her and the third party (as well as his statement) can be seen here; he saw no indication that she was upset or confused.

So, what to take from this?

1) I noted here before how sexual predators could use the current set up as a way to shield themselves from the consequences of assaults. Here we have another example where one could easily paint that as being the case. Because the Jane Doe made the accusation it appears that any angle where she may be liable for having performed a sex act upon someone too drunk to consent has been ignored. If anything it's a "how to" guide for getting away with sexual assault; find someone who is so drunk they are unlikely to remember, have sex with them and then later claim they sexually assaulted you. Because you complained the college will not investigate your own assault and because the other partner can't remember (or remember clearly) they won't be able to mount an effective defence.

2) Even with the note above about the danger of expecting a certain type of behaviour from someone who has been sexually assaulted, shouldn't the tone and nature of those text messages and Jane Doe's conduct afterwards still make some difference to the case? When mere hours after the claimed sexual assault the apparent victim is texting her residential counselor complaining that the third party hasn't slept with her yet:

Ok why is he just talking to me??

In your room?

Like, a hot girl in a slutty dress. Make. Your. Move.

YEAH

Just make out with him already

Ohmygod action did not happen til 5 in the fucking morning

I can't help but think despite myself that... going by the preponderance of evidence... it doesn't paint a picture of someone who just suffered a traumatic sexual assault. Neither do the rest of the text messages to either the RC or the third party.

3) Much like the complaint which referred to earlier in this thread, this one came years after the alleged incident took place and... and I think importantly... once the alleged victim had become friends and come under pressure from activists with a clear interest in cases of this type. That worries me.

4) The complaint (which can be read in full here) makes the allegation in section 77 that the college targets men of colour in cases like this; it claims that only men of colour have been punished under the updated policy (the college denies this but does not go into further details). The complaint references the Special Oversight Committee on Sexual Misconduct's January 2013 report which notes that the college had a "a prior reputation for taking "a more punitive attitude toward non-white perpetrators, especially if the victim is white." In this case the John Doe is a person of colour.

5) Let's say for a moment that the alleged victim was lying. How would the John Doe defend himself against that claim? Being too drunk to remember, what evidence could he present that would mean the college didn't class him as a rapist and expel him?

[LisztesFerenc]

I can't help but think despite myself that... going by the preponderance of evidence... it doesn't paint a picture of someone who just suffered a traumatic sexual assault. Neither do the rest of the text messages to either the RC or the third party.

  So what would paint a picture of a traumatic sexual assault? I ask because I have read several accounts and some hypothesis that many people are biologically incapable of playing the victim role of society and the media has constructed them.

[Tairis]

Id think 'not going back to your room and then having sex with someone else in the same night' might qualify for a check box on the 'assault' list.

[Sethala]

  So what would paint a picture of a traumatic sexual assault? I ask because I have read several accounts and some hypothesis that many people are biologically incapable of playing the victim role of society and the media has constructed them.

I think that ties into a greater problem with rape as a crime that nearly every other crime doesn't have to deal with: it's a crime about permission.

It's relatively easy, for instance, to figure out if a murder happened.  Is there a dead person that didn't die to natural causes or suicide?  If the answer is yes, then it's probably murder.  With rape, there's no physical test.  You can tell if sex happened, but determining if it's consensual sex or rape relies solely on whether the victim was willing or not, or was capable of determining whether they were willing or not.  There's no set checklist that could be made for making that determination; instead a good deal of reasoning and deduction has to go into it.  In this case, we have a woman who had sex that may or may not have been rape, who then went on to have sex again, tell people she was having sex, and express that her primary concern wasn't "I was raped" but "I just convinced my roommate's boyfriend to cheat on her with me".  Is it possible someone who was legitimately raped would have that reaction?  Entirely possible, yes.  Is it possible that someone who just had consensual sex would have that reaction?  Again, it's possible.  What's important isn't figuring out if it's possible, however; what's important is figuring out what's more likely to be possible, keeping in mind that you're using that person's reactions to determine whether someone else should be punished.