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
(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.
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?