That can happen, and that sucks, but what woman in her right mind would think that such a situation would be improved by dishonestly turning it into a criminal assault case?
I can’t help wondering what the experience of being sexually active is like for most young women nowadays, if it’s really true or anywhere near true that a significant percentage of them would actually claim rape rather than let it be thought that they had consensual sex.
I’ve heard of “slut shaming”, and also of concerns that restricted access to abortion means that it can be difficult to terminate a pregnancy unless the woman claims it was the result of rape, but are such things really making consensual sex that bad a deal for women today? Are we back in the 1930s or something?
Why are young women today supposedly “regretting” consensual sex so much? I had plenty of consensual sex back in my yoof in the '80s and '90s, both drunk and sober, and the amount of regret I feel about most of it is and has always been totally nonexistent. Even the regrettable bits never inspired me to think “hey, what this situation needs to make it better is a hefty dose of false criminal charges”.
But of course, back then nobody was calling me a slut or a whore for having consensual sex, either. So there’s that.
Tend to agree with that this pretty much just codifies what the new general social standard has been evolving into. I dunno, I myself have *not *lived in fear of a “cry rape” scenario, maybe I’ve just had a charmed life.
Except ISTM that would get pushback from those who may wish for the institutions to be able to suspend or expel even in the absence of a formal criminal accusation (never mind conviction). So the question may become if the required college policies would expect from the institutional process the standards of proof and evidence that are imposed upon the police and courts.
What the law says is that colleges need to adopt an affirmative consent standard in sexual assault, violence and stalking cases. That standard means that if consent is at issue, it has to have been “affirmative, conscious, and voluntary” in order to count as consent. If the person complaining (call them A) denies that they consented, the person they’re complaining about (B) can’t argue that they believed there was consent if:
[ul]
[li]B believed that because they themselves were drunk;[/li][li]B didn’t make a reasonable effort to determine whether affirmative consent was being given; or[/li][li]B knew or should have known that A was incapable of consent because they were unconscious, asleep, or incapacitated by drugs or alcohol to such an extent that they could not understand the nature of the sexual activity.[/li][/ul]
That’s simplified, but note that there are important qualifiers here. If I say you assaulted me, and you say I consented and I say I didn’t, the law doesn’t say that if I was drinking that’s the end of the discussion; you’re guilty. The law says that you aren’t allowed to say that you thought I was affirmatively consenting under circumstances where I was incapacitated by alcohol to such an extent that I didn’t understand what I was doing. Which why would you be allowed to say that.
So, in practice, what this means is that the victim has to establish that s/he didn’t understand what was going on because s/he was that drunk, and in order to be free of this analysis altogether, the accused person has to establish that s/he received affirmative consent.
Waking up and having second thoughts has very little to do with any of this, obviously, except to the extent any of us are inclined to believe that a bunch of college women get a little bit drunk, clear-mindedly and enthusiastically participate in sex, go home, wake up, and then decide out of spite to file a complaint of sexual assault under circumstances which will unfortunately support their allegation that they were incapacitated.
Two thoughts. First, is it fair to state that this is a reversal of ‘innocent until proven guilty’ WRT date rape? The accused has the burden to establish proof of affirmative consent, rather than the accuser having the burden to establish that they did not want the sex that happened. If there is reasonable doubt regarding the affirmative consent, is that grounds for a rape conviction?
Second, absent BPC’s potentially creepy and illegal recording of sexual encounters, how IS an accused expected to provide this proof, unless there were multiple witnesses?
My gut agrees with you, but we as a people tend to fall on the side of protecting the innocent over making sure we incarcerate the guilty in other manners, so I think it should be the same here.
Anyway, it looks like this is not a distinction to be made based on the text of the law that was posted. So long as it is interpreted as I believe most people reading it would interpret it, anyone sober enough to say that they wanted to sex or to initiate it would be sober enough that they could, “understand the fact, nature, or extent of the sexual activity,” so long as they didn’t pass out at some point or vocally change their mind.
How about a combination of the above? Meaning B should have known that A was incapable of consent because they were unconscious, asleep, or incapacitated by drugs or alcohol etc., but the reason B didn’t appreciate this was because they were themselves incapacitated by drugs or alcohol to the point where they were incapable of accurately assessing A’s ability to meaningfully consent in a similar condition?
On a broader note: suppose A and B are equally incapacitated by drugs or alcohol and have sex. Is there anything about the law - or about rape law generally - which says the man has raped the woman, versus the woman raping the man? Or both raping each other? (Not sure what you would do in such a case.)
(Bolding mine)
The bolded part is starkingly different from the way I (and many others posters) understood the meaning of this law.
Anyway, I’m unclear about the role an university in the USA has wrt to a crime commited on campus. I’m not exactly sure why they should have any policy at all wrt to rape, or any other crime for that matter. In what way it is their job to be even involved at all in the issue? Could American dopers clarify this?
Asking questions about a law is fair game, but in discussions of these laws there’s always a lot of ‘awww, I don’t want to change my behavior.’ Not to mention a lot of people who imply they’re either regularly having a lot of sex with women who are nearly comatose or who think it’s highly likely their partner is going to wake up the next morning with a ton of regrets.
Yes. And depending on where you live, it could be illegal. So that’s fun.
I should stop looking at the OP, but-
This is a shocking thing to say from someone who has clearly not studied the issue at all and who reflexively attacks any woman who accuses football players of sexual assault. Or any other kind of assault, for that matter.
Why wouldn’t universities care about crimes on their campuses?
Many are their own legal jurisdictions with campus police who are actually law enforcement officers and not just private security. Maybe there aren’t courts on campuses but certainly crimes can and will be investigated by university personnel who are legally obligated to do so.
Beyond that, there’s the extension of the notion of colleges acting in loco parentis. This notion is weaker now than in the past, but it’s still there to some extent.
And beyond that, there’s basic fucking human compassion. If a crime occurs in a company, that company may let the police and courts handle the criminal aspects, but I damn well hope they’ve got the testicular fortitude to investigate for themselves and determine if there’s anything they can do for victims, review if their internal policies are sufficient for keeping their employees safe, and raise awareness among the staff.
And beyond even that, colleges are more or less public venues. The NFL has a huge crisis because of the bungling of their own investigations surrounding the criminal activities of its employees. It’s naive and just plain fucking stupid to question why they should have a policy regarding crimes.
How is it in the NFL or a college’s best interests to wash their hands of it and say “Not Our Problem”?
Per my understanding, it doesn’t have anything to do with the legal system, and is separate and distinct from any criminal prosecution that might be brought. It’s about being disciplined by the school.
Which is actually part of the problem, in that standards of proof are lower for these types of proceedings, and various protections that defendents get in criminal court don’t apply.
[I believe the above is correct - legal people can correct if necessary.]
If we’re going to use the mathematics argument, there is the axiom that “It is better for 10 guilty people to go free than for one innocent person to be condemned.”
I remember at least one high-profile case over here where the female had most definitely and in no uncertain terms asked the male to fuck her, similar to the cock-grabbing virgin story above but without the virginity (not that that matters) and she most definitely did regret it the following morning, and the key plank of her argument in court was that the male should have known perfectly well that when sober she considered him a hopeless nerd unworthy of the right time of day let alone anything physical, hence it was rape.
[QUOTE=clairobscur]
The bolded part is starkingly different from the way I (and many others posters) understood the meaning of this law.
[/QUOTE]
Yeah, I got that sense. The text is here if you’re so inclined. (a)(4)(B).
One important thing with regard to that very last bit: no, not a rape conviction – this is a state law that governs administrative proceedings at colleges. Technically, all this governs is whether or not schools are going to get state funds. If they want state funds, they have to have a policy regarding sexual assault. One element of that policy has to be an affirmative consent standard.
Within that context, though, you’re correct that this does not work like a reasonable doubt standard. It’s a preponderance standard. You tell your story, they tell theirs, decision-maker makes a decision which one tips the scales in their favor. The evidence does have to show that the accused “knew or reasonably should have known” about the inability to consent, though.
Yeah. You’re kind of grasping at sand, to some extent. Then again, only in the same way as in plenty of other legal or quasi-legal proceedings, and only in the same way as the complaining party. How do you prove what you intended in a contract, or what your basis was for firing an employee, or that the best interests of your child are for custody to lie with you? Just comes down to what the facts are.
However, even back in the 80s and 90s (my own misspent youth), there were a few places that would try to make sure that consent was gained (like Antioch’s much-joked-about consentpolicy). And I don’t think there was as much slut-shaming going on (mostly because the interwebs weren’t what they are today, I think). I only heard slut-shaming in little groups of whispering girls, and you get that everywhere.