...insist, instead, that the absence of “yes” always indicates assault.
January 23, 2015 2:05 PM   Subscribe

Rape on the Campus by Zoë Heller [New York Review of Books]
"Few would disagree that the systems for preventing and prosecuting sexual assault on US campuses are in need of change. But the efficacy and fairness of recent reforms that focus on making college grievance procedures more favorable to complainants and on codifying strict new definitions of sexual consent remain highly questionable."
posted by Fizz (92 comments total) 15 users marked this as a favorite
 
"The Department of Education currently has eighty-four US schools under investigation for mishandling cases of sexual assault."

Ugh...fuck.
posted by Fizz at 2:18 PM on January 23, 2015 [1 favorite]


Can someone who is against these sorts of regulations explain to me a situation where asking for consent is somehow a bad thing?

In most of my adult life my sexual encounters with women who I was not already in a relationship with, being aware of these issues, were usually prefaced with a quick "you want to continue?" and a clear yes/nod as a signal to continue. No awkwardness or anything. It's easy and straightforward.

I've similarly had one encounter where we made out and every signal pointed to her "wanting to" and I asked her and she paused, thought about it, and said "you know what, I'd like to stop." And we stopped, and that was that.

The concept of having sex with someone who hasn't consented is nothing short of horrifying to me.
posted by Karaage at 2:19 PM on January 23, 2015 [25 favorites]


The usual argument that I get is that it would "criminalize sex". It's one of those things that I cannot figure out for the life of me.
posted by NoxAeternum at 2:22 PM on January 23, 2015


The article quotes Ezra Klein:

To work, “Yes Means Yes” needs to create a world where men are afraid…. It’s those cases—particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons—that will convince men that they better Be Pretty Damn Sure.

I've never thought of it this way before, but I think it's exactly right. After reading so many #Yesallwomen comments about how much fear is involved in women's relationships with men, the field ought to be evened out.

I don't think that putting colleges' feet to the fire means we should or have to give up on improving the criminal justice system as well. But students have a lot of potential leverage over colleges, and hardly any over the police and prosecutors.
posted by rikschell at 2:24 PM on January 23, 2015 [6 favorites]


And I agree - I am also horrified by the idea of lack of consent with my partner as well. Why would you want to have a partner who was unwilling?
posted by NoxAeternum at 2:24 PM on January 23, 2015 [1 favorite]


The author does a pretty good job of summarizing the objections to "Yes means Yes" laws:
To acknowledge that the absence of “no” does not necessarily mean “yes” responds to something observably true about the way in which humans conduct themselves in stressful or threatening circumstances. It adds nuance to the law. To insist, instead, that the absence of “yes” always indicates assault makes the law a considerably blunter instrument. It ignores the fact that many—perhaps most—consensual sexual encounters take place without unambiguous permission being granted, and in doing so it dangerously broadens the category of sexual behavior that may be deemed assault.
It's an interesting article.
posted by Zonker at 2:25 PM on January 23, 2015 [5 favorites]


sexual encounters with women who I was not already in a relationship with

To quote from the California statute:

"The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent."

Your qualification indicates that you have potentially broken these particular regulations yourself.
posted by howfar at 2:29 PM on January 23, 2015 [7 favorites]


Karaage, you're lucky to have been raised in a healthy environment. I grew up in Ohio in the 80s, and we all heard about Antioch College instituting this "crazy" policy where every step had to include verbal consent. In a "guess culture" environment where sex is not talked about, it seemed like an insane burden. Nowadays, as an adult in a more open setting, it doesn't seem onerous at all.
posted by rikschell at 2:31 PM on January 23, 2015 [1 favorite]


The problem with that argument, Zonker, is that permission denied unless explicitly granted is pretty much the default state of much of our society. Which is why I find the argument against applying that principle to sex to be especially weak.
posted by NoxAeternum at 2:31 PM on January 23, 2015 [9 favorites]


Serious question: do the women also obtain unambiguous consent from the men? What presumptions about how sex happens are present here?
posted by themanwho at 2:32 PM on January 23, 2015 [3 favorites]


Can someone who is against these sorts of regulations explain to me a situation where asking for consent is somehow a bad thing?

I don't know what I think about these regulations, so I'm not entirely the sort of person you're looking for. However, the suggested rebuttal for these sorts of regulations is actually exactly why I'm ambivalent:
We’re all adults here, and it’s not difficult to tell when someone is too drunk to make a decision. A half muttered and barely coherent “yes” by a half-passed out person? No.
I have had drunken sex that I am 100% utterly not ashamed about, and am quite happy happened. There is a wide swath of territory between 100% incapacitated and 100% coherent that exists, and I don't want a world where 100% coherence is required for sex.

I don't want to be faced with the possible condition of simultaneously having been raped (because I did not clearly consent yes with complete coherence) and being the one raping my sex partner. I realize I'll never be prosecuted for these sorts of events - especially because I happen to know the other party was 100% utterly not ashamed about the encounter as well! However, I don't like to be party to something that is conceivably a crime - even if it'll never result in prosecution.
posted by sockmypuppet at 2:32 PM on January 23, 2015 [7 favorites]


I hear you, Nox, I'm just passing on what Heller said here.

The conclusion brings up a different argument:
Laws that offer special protections to women based on their difference from men have a habit of redounding to women’s disadvantage. In the case of affirmative consent, the payback is readily apparent: women are deemed to have limited agency in their sexual relations with men, so men are designated as their sexual guardians—tenderly coaxing from them what it is they want or don’t want and occasionally overruling their stated wishes when they’ve had too much to drink. What a pity it will be if a campaign against sexual violence ends by undermining the very idea of female sexual autonomy that it seeks to defend.
I'm not sure if these concerns are overstated or not, and I continue to feel that something really needs to be done to fix the current system, which is clearly not working.
posted by Zonker at 2:33 PM on January 23, 2015 [1 favorite]


Yes Means Yes is a good personal guideline for how you should handle yourself. I'm not sure there is too much point to it as law though. In a situation where it comes down to the word of each person involved it's just as easy to lie and claim the victim said "Yes" as it is to lie and say "They didn't say no." Or am I missing something here? Open to that possibility.
posted by Drinky Die at 2:36 PM on January 23, 2015 [4 favorites]


I've had sex where I didn't say yes, and wouldn't have said yes if asked, and didn't particularly enjoy myself, but I still wouldn't call it a sexual assault. There's a lot of gray area here.

and don't get me started on the assumption than an erection equals consent
posted by idiopath at 2:38 PM on January 23, 2015 [9 favorites]


Oh for the love of...if that's Heller's conclusion, then she really doesn't get the principle of affirmative consent. There is nothing about affirmative consent that is about "special protection" whatsoever - women are just as obliged as men to confirm that yes, my partner wants to continue.

Seriously, the principle can be summed up in a single statement - no yes, no go.
posted by NoxAeternum at 2:39 PM on January 23, 2015


Can someone who is against these sorts of regulations explain to me a situation where asking for consent is somehow a bad thing?

That's kind of what the whole article is about.
posted by kanewai at 2:39 PM on January 23, 2015 [1 favorite]


This article was so nuanced and even-handed, I'm not even sure what the author's stance is. I'm still not sure if that's a good thing or not.

There are some valuable arguments on the "for" side in this article (as well as some good ones on the other side). I'm pretty on the fence, although a lot of people here seem pretty comfortably in favor of affirmative consent. So that leads to me to ask anyone who wants to answer: when was the last time you got explicit consent before sex? Is this something you're currently doing, and if not, are you planning to? Presumably, this would apply to married couples as well, right? My main objection is that this isn't something I actually see myself doing with my wife. I don't want to be breaking the law by having sex with my wife without getting a clear "yes."

Also, will this actually clarify legal proceedings? As the article rightly points out, part of the problem with rape accusations is that it's almost always one person's word against another. If someone committed rape, what's to stop him from lying about affirmative consent?
posted by Edgewise at 2:40 PM on January 23, 2015 [2 favorites]


I've had sex where I didn't say yes, and wouldn't have said yes if asked, and didn't particularly enjoy myself, but I still wouldn't call it a sexual assault.

I'm asking in all seriousness - why not?
posted by NoxAeternum at 2:41 PM on January 23, 2015 [1 favorite]


Because I wasn't being assaulted, I was uninterested and not enjoying myself, but it wasn't traumatic. It was just blah.
posted by idiopath at 2:42 PM on January 23, 2015 [6 favorites]


Since affirmative consent law is officially gender neutral, it seems possible—in fact, likely—that at some point a man will use it to bring a sexual assault charge against a female student. He will attest that he was drunk when the woman made sexual advances toward him, that he felt too intimidated or confused to demur, that he never actually said “yes.” This will strike many people as a ludicrous misappropriation of a law that was designed to protect women.

The law was designed to protect women?
posted by rtha at 2:42 PM on January 23, 2015 [1 favorite]


I'm asking in all seriousness - why not?

Maybe because he knows he could have said no and had it respected, and deliberately chose not to. Been there myself. Admittedly easier for a guy.
posted by Edgewise at 2:44 PM on January 23, 2015 [1 favorite]


Since affirmative consent law is officially gender neutral, it seems possible—in fact, likely—that at some point a man will use it to bring a sexual assault charge against a female student. He will attest that he was drunk when the woman made sexual advances toward him, that he felt too intimidated or confused to demur, that he never actually said “yes.” This will strike many people as a ludicrous misappropriation of a law that was designed to protect women.

Yes, and those people would be very silly for thinking so, for a number of reasons.
posted by NoxAeternum at 2:45 PM on January 23, 2015 [1 favorite]


Can someone who is against these sorts of regulations explain to me a situation where asking for consent is somehow a bad thing?

I tend to avoid these threads at all costs so I answer this at all with some real trepidation, but, for me, I would have found 'Do you want to continue' a serious buzzkill, like being asked if I really want to eat that pizza, back in my days of happy sexual hijinks.

Not that my sexual hijinks aren't happy anymore but now I'm old and married and have a mortgage and the idea of asking for permission would be ludicrous.
posted by A Terrible Llama at 2:47 PM on January 23, 2015 [3 favorites]


Can someone who is against these sorts of regulations explain to me a situation where asking for consent is somehow a bad thing?

I don't think anyone thinks "asking for consent" is a bad thing. I don't think anyone is arguing that people ought to have sex with unwilling partners (certainly Zoe Heller in this very smart and thoughtful piece is not). The question is whether or not promulgating a standard in which "sex without explicit, verbal acknowledgement of consent is rape" is ultimately helpful.

One of the points that Heller makes, which I think is a good one, is that part off the problem with the policy is that it is resting on some rather unexamined and non-progressive assumptions about gender. Men are presumed to always want sex; women are presumed to "allow" sex under certain circumstances. I will bet that in any given year on most US college campuses there are a very high percentage of sexual encounters in which the male's willingness has been tacitly assumed while the female's has been explicitly granted. Does that make all those women rapists? Does anyone want to start enforcing this policy as if it did? If the policy is not enforced (should one of these men, either maliciously or in good faith, lay a complaint) then you're strongly reinforcing the "infantilization" of women Heller speaks of: men are presumed to fully own their own sexual desires, women are not.

Another problem is simply whether such a policy usefully fits real life in any meaningful way. I think a lot of people who are saying "why, I've never engaged in sexual intercourse without obtaining consent" might want to think back and ask themselves what was actually literally said between you and your partner on the occasion. There are an awful lot of couples who will know perfectly well what a certain kind of snuggling up in bed "means" and whose partners will know perfectly well that a certain kind of reciprocated snuggling means "yes, let the sexy times commence" and a certain other kind of response means "yes, I love you too, but tonight's not the night." Couples don't, in fact, tend to engage in all that much explicit "so, are you willing at this point in time to engage in X activity" discussion--they tend to develop shorthands, implicit communications etc. So the policy might be reasonably good when it comes to describing what "ought" to happen on a first-time encounter between two otherwise not-all-that-well acquainted people (though even there out in the real world there have no doubt been plenty of entirely mutually satisfactory and mutually explicit entries-into-agreement-to-have-sex which were also entirely nonverbal), but it's really not very helpful as a way of thinking about most other occasions.

One thing Heller doesn't bring up which also strikes me as a profound problem with this as policy (as opposed to someone's personal practice in real life) is simply that it's essentially unenforceable. Other than the case where person A has sex with person B who is incapable of expressing consent (and that's clearly rape in any case), the practical effect of the policy in almost all cases is null: the accused will claim that consent was given and the accuser will claim that it wasn't. Unless there are witnesses or a videotape of the event, it ends up being basically irrelevant. It's generally a bad idea to pass unenforceable laws (or regulations).

All that said, I think the real heart of her argument has to do with the question of whether or not college disciplinary panels are the appropriate forum to try rape cases and, if they do try them, whether a standard of "the preponderance of the evidence" is a reasonable standard to apply for such a serious charge. I think her take on those very serious issues is extremely persuasive.
posted by yoink at 2:47 PM on January 23, 2015 [27 favorites]


I think an affirmative consent law would be looking for a legal solution to a societal problem which isn't conducive to legal solutions. Since as others have pointed out, anyone who is going to lie about raping someone is going to lie about getting affirmative consent.

It's a great personal code but not a very good law.
posted by Justinian at 2:47 PM on January 23, 2015 [4 favorites]


I've had sex where I didn't say yes, and wouldn't have said yes if asked, and didn't particularly enjoy myself, but I still wouldn't call it a sexual assault.
Ive had this experience too. I also had an experience where my friend took me to the movies and we watched Saw. I found it extremely upsetting and was upset for a really long time about it. I wouldn't call that assault either as it was in my power to have stopped it at any point, I just didn't. I'm not speaking about anyone else's experiences. Humans are a land of contrast.

We are now allowing for more and different kinds of interactions to take place out in the open and our institutions have to catch up. We also have to learn how to be more perceptive of each other's feelings because we can't rely on the old societal rules to guide us.
posted by bleep at 2:49 PM on January 23, 2015 [3 favorites]


Your qualification indicates that you have potentially broken these particular regulations yourself.

My qualification was meant to indicate that with women I was not in a relationship with, I would make it a point to ask if they wanted to continue because we had not already established norms as to what it means to give consent. It was not meant to indicate that I am suddenly able to bypass consent with someone I am in a relationship with.

Bear in mind, affirmative consent isn't necessarily only obtained in this way, since there are lots of other ways that may be more subtle that occur during the course of a relationship.

That being said, if making sure to ask "you wanna continue" with a SO is what it takes and I was not otherwise instructed by SO to stop asking for consent in that way, then I'm happy to do it.
posted by Karaage at 2:50 PM on January 23, 2015 [2 favorites]


There is definitely a lot to unpack with this. As a sexual assault researcher who studies, in part, sexual assault on campuses, this is something that I've thought about a lot.

"...the troubling phrase “victim-centered”..."

This is where she lost me. Victim-centered does not mean biased in favor of the survivor. It means practices that support survivor well-being. In fact, victim-centered approaches are gaining traction as best practice for police officers, who care A LOT about being unbiased. Guess what- if you treat a survivor like a human being who's coming to you for a reason, rather than a liar with suspicious motives, she's more likely to cooperate in your investigation.

"It is a moral and strategic error for feminism—or any movement that purports to care about social justice—to argue for undermining or suspending legitimate rights, even in the interests of combating egregious crimes."

What rights does she mean? Attending a particular college is a privilege, not a right, that can be terminated by the college on the terms that they have outlined in their honor code. You can get kicked out of college for all kinds of things that aren't crimes in the real world. Also, perhaps bearwife or someone else with more in-depth criminal justice experience can clarify this, but my understanding is that the right to due process applies to criminal courts, not independent university disciplinary proceedings. I could be wrong about that.

"If the aim is to address sexual assault with the seriousness it deserves, why leave it to panels made up of minimally trained professors, administrators, and in some instances students to deal with such cases? Why treat rape as a Title IX issue, rather than as a felony?"

A 12-person jury is going to be no better trained and no less imbued with the rape myths and sexism that contribute to the dismally low prosecution rates for sexual assault. Also, conducting disciplinary proceedings does not preclude moving forward with the criminal justice process; indeed, the two often happen at the same time. If only the disciplinary proceedings happen, isn't that better than nothing? Survivors are often more comfortable with the student discipline procedures because they are concerned about bad things (like incarceration) happening to the person who raped them but also don't want to have to see them daily.

"The result is a preposterous situation wherein rape is characterized—and punished—by college authorities principally as an infringement of a student’s right to equal educational opportunity."

Certainly the astoundingly high prevalence of sexual assault on campus disproportionately infringes on (disproportionately) women's rights to equal access to education? I think of survivors who have struggled in classes after their rape, and of teenage girls who are scared to go to college because they think that they will be raped there. The systemic institutional silencing of survivors has also disproportionally impacted women. If that's not gender discrimination, what is?

My critiques of the title IX mandates/clarifications actually involve them not being survivor centered ENOUGH. When a university staff member learns about a sexual assault that has occurred on campus, they are mandated to report to the campus title IX office, thus breaking presumed confidentiality and taking control away from the survivor. Best practices in responding to sexual assault involve restoring control, not taking it away. Students don't typically know that this will happen when they disclose an assault to an instructor, an RA, or even sometimes counseling center staff. For example, in my role conducting PTSD assessments, we were instructed that we have to report any student who says that they experienced sexual assault. We ask all students whether they've experienced sexual assault as part of making a PTSD diagnosis but, at least to date, nothing in the informed consent process at the center I worked at states that we will have to make such a disclosure, and surely there's no informed consent form signed by students before disclosing to their teacher. This is a major ethical violation, in my eyes. In addition, the disclosure to the title IX office adds a third investigative process, on top of the police and the student discipline office, that survivors have to navigate. Such proceedings are notoriously stressful for survivors and contribute to negative psychosocial outcomes. From my discussions with campus police, learning that the report will be made to the title IX office leads survivors to decide not to follow through with any justice proceedings at all.

Really, as with any community response to sexual assault, there's a major tension between survivor well-being and offender accountability/community safety. I don't think that they have to be at odds, but these procedures position them so that they are. We can do better than this.
posted by quiet coyote at 2:53 PM on January 23, 2015 [17 favorites]


I think a lot of people who are saying "why, I've never engaged in sexual intercourse without obtaining consent" might want to think back and ask themselves what was actually literally said between you and your partner on the occasion. There are an awful lot of couples who will know perfectly well what a certain kind of snuggling up in bed "means" and whose partners will know perfectly well that a certain kind of reciprocated snuggling means "yes, let the sexy times commence" and a certain other kind of response means "yes, I love you too, but tonight's not the night." Couples don't, in fact, tend to engage in all that much explicit "so, are you willing at this point in time to engage in X activity" discussion--they tend to develop shorthands, implicit communications etc.

Verbal consent is not the only form of consent. So there's nothing incongruous with the examples you gave and the idea of affirmative consent.
posted by NoxAeternum at 2:54 PM on January 23, 2015 [7 favorites]


To be branded as a rapist and expelled from university would seem to be a very terrible outcome for an innocent student, and not really terrible enough for a guilty one. - Zoë Heller

Interesting
posted by rustcrumb at 2:57 PM on January 23, 2015 [4 favorites]


The discussion in this thread has been incredible and thought-provoking, but I'm here because I stumbled sharply over a sentance in the post - "Few would disagree that the systems for preventing and prosecuting sexual assault on US campuses are in need of change."

As someone outside the US, this was almost incomprehensible to me. Colleges - institutions with the purpose of providing education and conducting research - are responsible for prosecuting sexual assault crimes? Why? That seems like a pretty good place to focus reforms, even before you get to issues of culture and consent. Why are grown adults, with free agency, under the jurisdiction of an educational institution in relation to violent and sexual crimes, and not the damn police and criminal justice systems?

You should get expelled from college for plagiarism. But you should be jailed by the courts for rape. What am I missing?

To be branded as a rapist and expelled from university would seem to be a very terrible outcome for an innocent student, and not really terrible enough for a guilty one. - Zoë Heller

Yes, this.
posted by Jimbob at 3:01 PM on January 23, 2015 [11 favorites]


Colleges - institutions with the purpose of providing education and conducting research - are responsible for prosecuting sexual assault crimes? Why? That seems like a pretty good place to focus reforms, even before you get to issues of culture and consent. Why are grown adults, with free agency, under the jurisdiction of an educational institution in relation to violent and sexual crimes, and not the damn police and criminal justice systems?

They're not responsible for prosecuting- they're responsible for disciplining. The student discipline process is separate from the criminal justice process (AND from the civil rights violation investigation process) and they can occur alongside each other. This is because colleges may want to take action against people for doing things that are not crimes in the "real world" OR when people commit crimes that are not punished (for a variety of reasons) by the criminal justice system.
posted by quiet coyote at 3:05 PM on January 23, 2015 [2 favorites]


Verbal consent is not the only form of consent. So there's nothing incongruous with the examples you gave and the idea of affirmative consent.

That's not what is under discussion. What is under discussion is requiring explicit verbal consent.
posted by Justinian at 3:09 PM on January 23, 2015 [6 favorites]


They're not responsible for prosecuting- they're responsible for disciplining.

So, you have your internal discipline process if someone cheats in an exam, but if there's an allegation of sexual assault, surely you call in the police? In fact, if you're a student who has been assaulted, why would you not go to the police directly yourself - why is the university the first port of call in that process?
posted by Jimbob at 3:09 PM on January 23, 2015


Bill 967, passed in California this year, requires all colleges that receive state funding to use an “affirmative consent” standard in arbitrating cases of sexual misconduct. According to the statute, commonly referred to as the “Yes Means Yes” law, sex is deemed to be consensual only when both partners have provided, verbally or nonverbally, an “affirmative, conscious, and voluntary agreement to engage in sexual activity.”
posted by Drinky Die at 3:14 PM on January 23, 2015 [4 favorites]


That's not what is under discussion. What is under discussion is requiring explicit verbal consent.

I thought that was what affirmative consent meant, but:
According to the [California] statute, commonly referred to as the “Yes Means Yes” law, sex is deemed to be consensual only when both partners have provided, verbally or nonverbally, an “affirmative, conscious, and voluntary agreement to engage in sexual activity."
posted by daveliepmann at 3:14 PM on January 23, 2015 [2 favorites]


So, you have your internal discipline process if someone cheats in an exam, but if there's an allegation of sexual assault, surely you call in the police? In fact, if you're a student who has been assaulted, why would you not go to the police directly yourself - why is the university the first port of call in that process?

Survivors call the police too, sometimes. I believe student discipline at my university tells the police about sexual assaults but I'm not totally sure about that- they may leave it up to the survivor. But the police are infamously unfriendly to survivors of sexual assault, so much so that the criminal justice process is known as the "second rape" or "secondary victimization" in the anti violence community, so many survivors don't want to talk to them. And survivors often feel very concerned about "ruining the life" of their rapist by taking actions that will lead to his incarceration. They sometimes just want to not have to see him every day on campus. But sometimes they are so worried about hurting their rapist that they won't even tell the campus.
posted by quiet coyote at 3:15 PM on January 23, 2015 [1 favorite]


Well, huh, that's a completely meaningless law then. You can receive nonverbal affirmative consent? Yeah, that'll make a difference.
posted by Justinian at 3:16 PM on January 23, 2015 [3 favorites]


> You should get expelled from college for plagiarism. But you should be jailed by the courts for rape. What am I missing?

That you should also be expelled by the college if they find you have violated their policies on sexual assault, which they are required by Federal law to have.

Being expelled for rape and being jailed for aren't mutually exclusive, anyway.
posted by rtha at 3:20 PM on January 23, 2015 [5 favorites]


Do you people just leap upon your partners from behind the sofa? Because there is usually some version of "Hey, wanna mess around?" involved for us. That seems like a pretty clear consent situation. And both of us have, at various times, said "Well, no, I'm sorry, not feeling it." And that was pretty clear too.

(Even if you do leap on them, you can take a brief pause and say "this ok with you, babe?" and then she or he can tell you.)

I think people are really overthinking what Possible Bad Things could happen. Most of the ones I can think of involve assholes trying to "game" things that are assault by finding ways to make them not assault, or exaggerating a fear of being accused of rape...which....is rare. I mean, accusing someone of rape is not a fun time. Girls don't go around giggling and plotting to do it after pedicures.

Of course, there is no guarantee that no one will ever be falsely accused of rape, but is that really a reason not to make affirmative consent the standard? Because I remain unconvinced that this rash of people behind bars for not getting their Yes Forms signed is going to happen.
posted by emjaybee at 3:20 PM on January 23, 2015 [8 favorites]


They're not responsible for prosecuting- they're responsible for disciplining.

The problem, though, is that a more or less explicit part of the Title IX stick that is being used to shape college's response to the issue of campus sexual assault is that students find dealing with the cops and the courts too distressing, so the campus becomes the sole forum in which the facts of the case are adjudicated and punishment is dispensed. That does in practice put the college in the role of "prosecutor" even if it is done under the guise of "discipline."

If you look at the cases that have galvanized policy action around this issue they're not, typically, cases where a student was found guilty of rape in a court of law and the college failed subsequently to discipline him. It's not hard for a university to respond to that particular situation. For the most part they're cases where the only fact-finding body to which the student appealed was the university itself.

That is, to me, an extremely troubling situation. As Heller says, the charge is extremely grave. If the student who is found "guilty" is innocent then the punishment is far too severe; if they're guilty then it's far too light. Keeping all incidents of sexual violence "in house" seems to me to guarantee either inadequate or unjust outcomes in almost all cases.
posted by yoink at 3:21 PM on January 23, 2015 [1 favorite]


> In fact, if you're a student who has been assaulted, why would you not go to the police directly yourself - why is the university the first port of call in that process?

Why would someone who's been sexually assaulted not report it to the cops? I can't imagine.
posted by rtha at 3:22 PM on January 23, 2015 [3 favorites]


Survivors call the police too, sometimes.

All fair points, all true, but I'm just trying to understand why colleges in the US (institutions attended by adults who can vote, be prosecuted for their crimes, the whole deal) appear to be allowed to operate as enclaves with their own baby versions of the law.

If I pay to stay at a hotel, and I'm assaulted by someone at a hotel, I don't go to the hotel management and ask that the guest who assaulted me be subject to their internal investigation and discipline process, in the hope that that guest might have their reservation cancelled. I want to see that person prosecuted for the actual crime they committed in the actual adult, real-life justice system, I don't give a shit whose property the crime happened to have occurred on. Why is it different at a university? I understand theres nothing stopping those who have experienced abuse from contacting the police. But the mere existence of an internal non-police system to deal with these actions as matters of "discipline" in an adult institution infantilizes the people involved. I mean, are these serious crimes or not? The fact that you use the term "survivor" suggests you believe we are talking about serious crimes here - actions with the potential to wreck lives.

Also - the infamously unfriendly behaviour of the real police doesn't suddenly end once you've been handed your degree.
posted by Jimbob at 3:24 PM on January 23, 2015


I think an affirmative consent law would be looking for a legal solution to a societal problem which isn't conducive to legal solutions. Since as others have pointed out, anyone who is going to lie about raping someone is going to lie about getting affirmative consent.

You'll pardon me if I find this argument especially unconvincing. The point is to reframe how we view such incidents. And I think that is a very important social step. Yes, the person accused can lie about consent, but there's a lot of actions that are now framed as "not no" that would be hard to see as yes.
posted by NoxAeternum at 3:25 PM on January 23, 2015 [3 favorites]


Why would someone who's been sexually assaulted not report it to the cops?

Why would someone report it to their college? I can't imagine.
posted by Jimbob at 3:29 PM on January 23, 2015


Why would someone who's been sexually assaulted not report it to the cops? I can't imagine.

The linked article doesn't play down how shitty the judicial process can be for women who bring complaints. I would still argue that it would be better to put our efforts into improving that situation that throwing our hands up and saying "we'll let this incredibly serious crime be handled in the way we handle people who plagiarize their essays, or play an overaggressive prank on a school-sports rival."
posted by yoink at 3:29 PM on January 23, 2015 [3 favorites]


> Why would someone report it to their college?

Well, sure. But you keep asking why colleges even deal with the issue at all, and it's outlined in the article that they are required to by Federal law. That is why.
posted by rtha at 3:31 PM on January 23, 2015 [2 favorites]


"If I pay to stay at a hotel, and I'm assaulted by someone at a hotel, I don't go to the hotel management and ask that the guest who assaulted me be subject to their internal investigation and discipline process, in the hope that that guest might have their reservation cancelled."

OK, but the hotel might investigate anyway and bar the person from staying there again, even if the court doesn't find them guilty.

I want to see that person prosecuted for the actual crime they committed in the actual adult, real-life justice system, I don't give a shit whose property the crime happened to have occurred on.

Again, OK, but this is just you. Not everyone feels this way, and for good reasons. And given that a dismally low percentage of sexual assault allegations result in prosecution, let alone prison time, the alternative process may be your only real recourse. This means that we have to get better in our criminal justice system at prosecuting rapists and not treating survivors like shit, so more people want to report. Doesn't mean we need to ditch the campus process (for this reason, anyway).
posted by quiet coyote at 3:31 PM on January 23, 2015 [3 favorites]


But you keep asking why colleges even deal with the issue at all, and it's outlined in the article that they are required to by Federal law.

And I called for reform eg. critiquing that law so the issue can be deal with as a serious adult crime.
posted by Jimbob at 3:33 PM on January 23, 2015 [1 favorite]


When examining these laws, one should balance the worst possible outcome against the best possible outcome.

The worst possible outcome would be a case where someone thought they were engaging in consensual sex, didn't seek verbal consent and found out later that the sex was, in fact, not consensual and are punished as a result.

It seems to me that there would have to be a very specific set of circumstance for this unlikely scenario to occur - the victim was scared/incapacitated/in a vulnerable position - but the implicit suggestion is that vindictive women will use this law to prosecute men they "regret" having sex with.

To me this concern is both offensive and grossly overstated. Women are overwhelmingly honest when it comes to sexual assault and this is borne out statisctically.

The best possible outcome is that we end up with another tool in our arsenal to punish sexual predators, who carefully and deliberately exploit situations where a woman is less likely to be in a position to explicitly say "no".
posted by smithsmith at 3:35 PM on January 23, 2015 [3 favorites]


smithsmith: for worst case outcomes, if we are speculating about vindictive and petty exploitation of the law, I would offer a dude using it to get revenge on a woman who technically didn't ask for consent, or better yet a closeted gay man using it as a way to save face at the expense of a casual lover.
posted by idiopath at 3:38 PM on January 23, 2015 [3 favorites]


another way to think about this is to ask: how many women, on campus, *consent* to sex which is exploitative, demeaning or otherwise has qualities of an assault?

the obsession with "consent," I think is pretty revealing about the boundaries of acceptable feminism in the US. if sexual assault is fundamentally about power imbalances: between "greeks" and non-greeks between football players and non-players, or between men and women in general: what does it mean to reduce the problem to a question of personal choice? and, what does it mean to frame solutions in terms of legal or quasi-legal judicial proceedings?
posted by ennui.bz at 3:42 PM on January 23, 2015 [2 favorites]


the implicit suggestion is that vindictive women will use this law to prosecute men they "regret" having sex with.

I think many people are also just concerned that affirmative consent, as distinct from consent (which is already distinct from explicit rejection) is pretty unclear and unenforceable. I don't think that this standard of consent would be vindictively abused, I just think that it would be totally unworkable in the courts and we would end up back where we started. Maybe it's a good symbol, but I don't think it's good law. Instinctively I distrust symbolic lawmaking, but this may be an exception. I'm undecided.
posted by howfar at 3:43 PM on January 23, 2015


howfar - The current legal standard when assessing lack of consent (amongst other things) is asking the victim "Why didn't you say no?". Is that better/more workable than asking the accused "Why didn't she/he say yes?"
posted by smithsmith at 3:50 PM on January 23, 2015 [4 favorites]


The current legal standard when assessing lack of consent is asking the victim "Why didn't you say no?".

Where?
posted by howfar at 3:51 PM on January 23, 2015


Um, everywhere? When police investigators, juries and the judiciary deal with rape cases they assume "correct" victim behaviour. A victim that cries and bites and struggles and screams "No!", just like in the movies.

Sometimes lack of consent is not so black and white and I think this law recognizes that reality and puts the onus back on the accused.
posted by smithsmith at 4:00 PM on January 23, 2015 [8 favorites]


The result is a preposterous situation wherein rape is characterized—and punished—by college authorities principally as an infringement of a student’s right to equal educational opportunity.

It's sort of like prosecuting Al Capone for tax evasion: a very good idea.
posted by justsomebodythatyouusedtoknow at 4:00 PM on January 23, 2015 [2 favorites]


To put it more plainly, definitions of rape vary so widely between jurisdictions that it's pretty meaningless to talk of a "current legal standard when assessing lack of consent". I am, I think, happy, for example, with the definition of rape in English law: "penile penetration in the absence of consent and the absence of a reasonable belief in consent". Do you object to that?
posted by howfar at 4:01 PM on January 23, 2015


To me this concern is both offensive and grossly overstated. Women are overwhelmingly honest when it comes to sexual assault and this is borne out statisctically.

If that's true, what's the point of having due process at all in rape cases? If a woman accuses someone of rape, why go through the charade of a trial?

In fact, victim-centered approaches are gaining traction as best practice for police officers, who care A LOT about being unbiased. Guess what- if you treat a survivor like a human being who's coming to you for a reason, rather than a liar with suspicious motives, she's more likely to cooperate in your investigation.

One of the bizarre aspects of this is that people who would otherwise picket the police under "black lives matter" banners, turn around and think the cops are somehow going to be unbiased wrt women. Black men are prosecuted for rape almost 7 times the rate of white men. You'd be foolish to think that this bias doesn't exist in the quasi-judicial proceedings on campus and the real behavior of cops responding to rape belies any notion that they act in the interests of women in sexual assault cases.

Yet, the way forward is to give more power to the cops and prosecutors in these cases?
posted by ennui.bz at 4:03 PM on January 23, 2015 [3 favorites]


Um, everywhere?

See my point above. It's simply not the case. Which is not to say that there aren't huge problems with the investigation and prosecution of rape. Simply to say that I'm not yet convinced that definitions of consent are always the problem.
posted by howfar at 4:04 PM on January 23, 2015


This isn't about What Punishment The Student Gets For Committing Rape. It's What Action A College Ought To Take When It Has Reason To Believe It Might Have a Rapist As A Student.

The fact that keeping your other students reasonably sure they will not be sexually assaulted happens to be punitive to the guy who, in the college's view, is credibly accused of sexual assault, is almost incidental.

If a student punches a professor in the face, they should get expelled, whether or not the professor presses charges. If a student comes to class and shouts LA LA LA LA LA nonstop during the class so nobody else can learn, they should be disciplined and possibly expelled, even though arguably that is no crime whatsoever. Except perhaps trespassing after they're told to leave.

The fact that rape is also a crime is almost orthogonal to this issue. If somebody does things which are destructive to the purpose of the institution, they can and should be removed from the institution. That's what discipline policies are about.

Regulating this stuff is an attempt to keep that process going in the right direction, to keep institutions from defining "accusing people of rape" as the behavior destructive to the purpose of the institution, which is the way things have often gone historically.
posted by edheil at 4:22 PM on January 23, 2015 [14 favorites]


...sex is deemed to be consensual only when both partners have provided, verbally or nonverbally

Wait, nonverbal consent is valid? This law seems completely toothless if there's such room for interpretation. As stated, it's an excellent standard for behavior, but doesn't seem to contribute to any legal clarity.

...OR when people commit crimes that are not punished (for a variety of reasons) by the criminal justice system.

Why do you think that institutions of higher learning will provide more accurate judgments than the legal system? I do not share your faith. Even though these aren't actual courts and thus are not legally required to presume innocence, I think that presumption is given for good reason. I don't see anything special about rape that calls for exempting the accused from such. I'm not even slightly optimistic about college tribunals "correcting" the courts' miscarriages of justice.
posted by Edgewise at 4:35 PM on January 23, 2015


If that's true, what's the point of having due process at all in rape cases? If a woman accuses someone of rape, why go through the charade of a trial?

Oh, puh-lease. If you're going to be completely disingenuous at least try to do a slightly better job than this.

"...the absence of a reasonable belief in consent". Do you object to that?

Do you concede that the general standard (societal, legal, judicial), for "a reasonable belief in consent" is largely dependent on whether or not a person said "no" or physically resisted the act? Look at the recent Cosby case where a news anchor actually asked one of his victims why she didn't bite Cosby's penis when she was forced to perform oral sex on him.

Do you also understand that there are a huge number of reasons a woman might not meet this standard while not actually wanting to have sex - she is incapacitated by drugs or alcohol, she is in a vulnerable position where she fears for her subsequent safety, she is with someone where the power dynamic is totally imbalanced (boss/employee for example).

To me, it's a completely "reasonable belief" that affirmative consent should be sought and granted in scenarios such as these.
posted by smithsmith at 4:38 PM on January 23, 2015 [1 favorite]


The situation at Dalhousie University in Canada is appropriate for this conversation.
"According to the CBC, members of the Class of DDS Gentlemen page on Facebook voted on which woman they’d like to have “hate” sex with and joked about using chloroform on women.

In another post, a woman is shown in a bikini with a caption that says, “Bang until stress is relieved or unconscious (girl).”

In the statement, the university said the comments “expressed on the Facebook postings were deeply offensive, and completely unacceptable to all of us at Dalhousie University.”
It is an evolving story.

I realize it is not specifically about an actual rape that has occurred but it is related in the way that universities handle these types of charges.
posted by Fizz at 4:51 PM on January 23, 2015


> I am, I think, happy, for example, with the definition of rape in English law: "penile penetration in the absence of consent and the absence of a reasonable belief in consent". Do you object to that?

If there's penetration by something other than a penis, is it not (legally) rape?
posted by rtha at 4:54 PM on January 23, 2015 [1 favorite]


Do you concede that the general standard (societal, legal, judicial), for "a reasonable belief in consent" is largely dependent on whether or not a person said "no" or physically resisted the act?

Not really, no. To quote from the CPS guidance:

"Section 74 [Sexual Offences Act 2003] defines consent as 'if he agrees by choice, and has the freedom and capacity to make that choice'. Prosecutors should consider this in two stages. They are:

Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
Whether he or she was in a position to make that choice freely, and was not constrained in any way. Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice."

If there's penetration by something other than a penis, is it not (legally) rape?

It's classified as 'assault by penetration'. The penalty is the same - up to life.
posted by howfar at 5:06 PM on January 23, 2015


This isn't about What Punishment The Student Gets For Committing Rape. It's What Action A College Ought To Take When It Has Reason To Believe It Might Have a Rapist As A Student.

Why isn't it about both? By encouraging colleges to act as if they are in quasi-judicial institutions then we do, in fact, have an effect on "what punishment the student gets for committing rape." College students are being encouraged to think of rape as basically a matter of internal college disclipline and not a matter of criminal law. That has the effect of reducing the hypothetical punishment a college student imagines facing from jail to expulsion.

But the second option you propose contains its own problem. Because "reason to believe" in the case of a profoundly serious crime is a very fraught issue. There's a reason that we give the benefit of the doubt to the accused in the criminal justice system, and that is because the stigma of being adjudicated responsible for such serious acts is so great that we, collectively, as a society have deemed that it is better that a guilty person goes free than that an innocent person be wrongly convicted.

Now, suddenly, we're taking this one terribly serious crime and saying "you know what, to hell with the burden of proof, to hell with pretty much any of the rights we would normally accord to the accused: better that the innocent get punished than a single guilty person goes free." And we justify this A) on the grounds that the punishment they face isn't all that severe (and, as we've seen, that's inherently problematic) and B) on the claim that women are so inherently moral that they never make false accusations, so we can be sure that almost no innocent people will be judged guilty.

Leaving aside the troubling question of how many innocent people found guilty counts as "too few to worry about," the arguments around "false accusations" tend to be pretty unconvincing. Getting data on how many false accusations are made is, in itself, inherently difficult, so specific claims that X percent of rape accusations are false are more faith-based than anything else.

But there's a greater problem with those claims, which is precisely the fact that rape accusations have previously taken place under a very different institutional context. You can't base a prediction of how people will behave in the future on how they behaved under radically different circumstances in the past.

Under a system in which complaints of rape are primarily handled by the courts it is inevitably the case that A) the process will be at the very least unpleasant and upsetting for the accuser (because of the adversarial nature of the court system) and B) relatively unlikely to result in conviction in the case of false accusation (because of the presumption of innocence and the "beyond a reasonable doubt" standard) and C) the potential false accuser runs the risk of criminal prosecution his/her self if the falsity of the accusation becomes apparent. In such a situation false accusations of rape are an extremely high-risk, low-reward way of punishing someone who did not, in fact, commit rape.

But under the "preponderance of the evidence" standard, in a non-adversarial system in which everyone is bending over backwards not to upset the accuser? A system in which there is no serious "perjury" penalty to face? In that context if some unscrupulous person wants to inflict harm on someone a false rape accusation becomes a pretty low-risk, high-reward gambit. It's meaningless to extrapolate from one system to how people will behave under this other quite different system.
posted by yoink at 5:08 PM on January 23, 2015 [7 favorites]


The point about appealing an "innocent" verdict is what stuck out to me as potentially problematic. Is that not the definition of double jeapordy?
posted by grumpybear69 at 6:12 PM on January 23, 2015


The point about appealing an "innocent" verdict is what stuck out to me as potentially problematic. Is that not the definition of double jeapordy?

A person found not-guilty in a criminal trial is not guaranteed to avoid collateral consequences. Getting expelled is not double-jeopardy, even if the sanction is formalized through a quasi-judicial process.
posted by skewed at 6:20 PM on January 23, 2015


What I meant was an appeal of the ruling of the college tribunal in the event that the accused is found not culpable. Not the verdict of a criminal proceeding.
posted by grumpybear69 at 6:29 PM on January 23, 2015


I feel the law lacks clarity. Not enough to make it a bad law, but enough that it could clearly be better.

It doesn't define sexual activity, and given that it requires that affirmative consent be taught to students, it damn well should tell students exactly what it is. It doesn't state whether sexual activity is a specific sexual act, or a period of sexual activity that may contain several acts of a sexual nature, though it does seem like you can have come to an agreement to engage in sexual activity without specifying the exact nature, and if that agreement is affirmative, conscious and voluntary then it stands until revoked. I am not a lawyer though.

Telling people what it is sexual activity though, helps prevent sexual assault, as well as makes people more likely to ask for permission when necessary.

The lack of a definition is problematic because it leaves the standard unclear. Is touching your own breasts in the presence of another person because it feels good, sexual activity? It is in one place of the california code. Is kissing their mouth with tongue? Penetrating the vagina, mouth or anus with any body part or object with the purpose to arouse any person is a sexual act according to part of federal law. And I don't have access to relevant case law, I am certain some college kid won't, but I presume there are legal precedents that are important but which aren't going to be taught.
posted by gryftir at 6:46 PM on January 23, 2015


The bill doesn't say "verbal or nonverbal," it says

“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

The core of it seems to be to rule out several specific, well-known, dubious fallback defenses, which I think is actually a pretty smart way to approach this. While I think it is good that they leave room for cases to be understood individually the lack of any guidelines for what might constitute affirmative consent is probably not ideal, though. I do wish that more than a handful of people arguing about this bill would actually read it.
posted by atoxyl at 7:07 PM on January 23, 2015


Or I mean I should say if the idea behind the ambiguity is to avoid trampling on the complexity of how consent really works for individual contexts beyond saying "that old excuse doesn't go anymore," I approve of that. But not saying who gets to define consent at any given institution or whether there will be a written definition and so on is potentially kind of a mess.
posted by atoxyl at 7:21 PM on January 23, 2015


I feel as if I ought to have multiple problems with this.

One problem is that knowledge that even without a need for some epidemic of false accusations, and even when set up deliberately to favor the accused, the US justice system appears to have a terrible track record of ensuring that conviction = guilt. I recall some time ago seeing a study from a group that tracks race- and class-based problems in that system, estimating that some 15% of convicted rape defendants can be proven innocent by available evidence (often DNA which went untested, and the convicted defendants, of course, are often dark-skinned and poor).

And, of course, when I see media coverage of uni rape cases, very very often they seem to involve dark-skinned American football players, and unbidden echoes rise in my mind of stories I've heard from the old days of the American south, and how sexual misconduct was a popular charge used to justify lynchings and other horribleness.

Which does give me pause. Much of my own view of law is rooted in asking "who is this most likely to be used against", and I simply cannot, for this case, answer it with "why, the very same wealthy entrenched white-skinned people who will be charged with its enforcement". That does not seem at all probable to me. More likely is that it becomes yet another convenient charge with which to browbeat poor and/or black defendants, and will result in only token enforcement against the group which appears to be its intended target.

Another problem is that well-intentioned reactionary laws, in general, almost never work to any good purpose, or even to the reactionary purpose they were meant to have. Terror laws have become tools for investigation of drug and immigration offences, little-used for their original purpose, and I would be totally unsurprised to find an anti-rape law actually being used instead for those purposes.

And all of that is before even arriving at critiques of the law's specifics, which have been well-expounded above. It seems as if the law assumes that all people either are, or shall soon become, good-faith-acting perfect communicators, which fails as a description of essentially every committed relationship I'm familiar with, and as a description of young unattached people (of all sexes) out for a quick lay, and in so doing presumes that the world will be such as to render the law moot.
posted by hrwj at 8:54 PM on January 23, 2015 [3 favorites]


This is a spectacularly bad article that kept making me want to throw things as I read it. The necessary context is that it represents the latest in a string of ongoing anti-anti-campus rape activism that is based on spreading FUD about "going too far".

First it makes the error of claiming that a "preponderance of the evidence" standard, 50.1% likely, replaces the presumption of innocence with a presumption of victimhood. That's absurd. Also, victimhood and innocence aren't necessarily mutually exclusive: if some jerk backs into my car I'll go on considering myself victimized even if the insurance company finds them "not liable". If two students of mine had a violent history it would be better all around to schedule them in separate classes even if one of them had been found not guilty of those assault charges.

It favorably quotes the recent Boston Globe opinion letter—one that literally says “political correctness run amok” with no apparent irony.

It misrepresents the Title IX/Criminal Law question as an either/or rather than the both/and that supporters want: we want victims to report to as many people in as many ways as they feel comfortable with. Ideally colleges can't get away with covering things up to keep their stats clean, and victims aren't left completely in the lurch if the local police are unable or unwilling to prosecute.
“This is rather like having a group of train conductors prosecute the rape of a female commuter, on the basis that the crime violates her equal right to use public transport.”
No, it's like having the train conductor throw someone off the train if they've been accused of violence and the conductor believes the complainant. Apparently this is something that routinely happens.
“It ignores the fact that many—perhaps most—consensual sexual encounters take place without unambiguous permission being granted”
[Citation needed]

But the absolute worst part of this entire article is the last three paragraphs where, after slyly bouncing back and forth between gender-neutral and gender-based representations of what's going on, Heller manages to acknowledge outright that the law “is officially gender neutral” while also accusing it of “[offering] special protections to women based on their difference from men” and “infantilizing women”. The primary difference between women and men in this situation is the rate of being sexually assaulted in college, a terribly disturbing rate mentioned at the start of the article then forgotten. Any special protection would come solely from who was relying on this law more, and if that's women, then they need it, and the question to ask is why wasn't that protection there before?

By the end of the article Heller has taken an affirmative consent law that requires both parties to provide an “affirmative, conscious, and voluntary agreement to engage in sexual activity” and reinterpreted it as “to exempt women from the responsibility of stating their own sexual wishes”. In Heller's world up is down, black is white, and she knew what she wanted this article to say facts be damned.
posted by traveler_ at 10:11 PM on January 23, 2015 [14 favorites]


The bill itself.
posted by I-baLL at 8:44 AM on January 24, 2015


Hmm, so if I'm reading the bill right, it doesn't define what "affirmative consent" actually includes because it leaves it up to "the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions" to come up with a policy that defines "an affirmative consent standard in the determination of whether consent was given by both parties to sexual activity."
posted by I-baLL at 8:55 AM on January 24, 2015


A lot of the concern about affirmative consent policies seems to revolve around the "drunk sex" issue. From the article:

But according to Oberlin College’s current sexual offense policy, consent is not consent when given by a person whose “judgment is substantially impaired by drugs or alcohol.”6 Even though the man in this case was equally drunk (and could conceivably have regretted the incident himself), only the impaired judgment of his accuser would be considered relevant in establishing whether an assault took place.

This is misleading in so many ways, but the biggest problem IMO is that it suggest these policies are stricter than they actually are. Here's how Oberlin explains the relationship between alcohol and consent:

Participants in sexual activity should be aware of their responsibilities to communicate about consent when using alcohol or other drugs. The use of alcohol or other drugs does not, in and of itself, negate a person’s ability to give consent, but a level of intoxication can be reached, short of losing consciousness, in which a student’s judgment is so impaired that they are not capable of giving consent. This is called incapacitation. A person who is incapacitated cannot consent to sexual activity.

Because the use of alcohol and other drugs over time can have a cumulative effect, a person who may not have been incapacitated at the beginning of a sexual activity may become incapacitated and therefore unable to give effective consent as the sexual activity continues. Physically incapacitated persons are considered incapable of giving effective consent when they lack the ability to appreciate the fact that the situation is sexual, and/or cannot effectively appreciate the nature, extent, and implications of that situation.


So: don't have sex with someone who is so drunk they don't know they're having sex with you. This is not a high bar. (And the California bill is the same: it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity [because] . . . [t]he complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.)

As for whose impaired judgment matters, that's so logical it's baffling that anyone would object to it; as Oberlin puts it, It is the responsibility of both parties who engage in sexual activity to ensure that effective consent is obtained for each sexual act and over the entire course of a sexual encounter. Where one party is the clear initiator, the burden is on that individual to ensure that consent has been freely sought and given.

So: don't get drunk and initiate sex with someone so drunk they don't know you're having sex with them. Again, not a high bar.
posted by heisenberg at 10:36 AM on January 24, 2015 [1 favorite]


US colleges have not, historically, been good at regulating social relations, or disciplining people for breaches of the same. I share JimBob's view:
Why are grown adults, with free agency, under the jurisdiction of an educational institution in relation to violent and sexual crimes, and not the damn police and criminal justice systems?
We know what happened with complaints of child sexual abuse when colleges diverted them to their own system: it silenced the victims while protecting the guilty. Why would we think that colleges will do any better with adults? It's not enough to say that these complainants may also complain to the police. Civil complaint processes inevitably draw reports away from the criminal system, where they belong. If colleges have the resources to set up an investigatory process they have the resources to do exactly the same thing in conjunction with the police. That wouldn't prevent a civil remedy (i.e., suspension or expulsion); it would just ensure that crimes are reported; that college employees don't compromise the criminal investigation; and that the possibility of a criminal prosecution is thereby kept alive.
posted by Joe in Australia at 4:01 PM on January 24, 2015 [1 favorite]


No, it's like having the train conductor throw someone off the train if they've been accused of violence and the conductor believes the complainant.

Being thrown off a train will, in most cases, amount to little more than a minor inconvenience. Being expelled from college and branded a rapist is a rather more serious matter. It's o.k. to empower conductors to "keep the peace" by making snap judgments without benefit of trial. For the same reasons we allow police to temporarily deprive people of their liberty based solely on their own best judgment about a situation without according people the right to a trial or the "presumption of innocence" or any of that stuff. (And we all know, of course, that this entails some pretty unfortunate outcomes in terms of racial bias etc.)

We don't, however, accord to train conductors the right to ban someone for life from the public transport system. We don't accord to police the right to imprison someone for extended periods of time or the right to impose fines.

Your analogy pretty perfectly captures the problem that Heller outlines in the piece. It's simultaneously treating a very serious crime far too cavalierly ("why, rape's just like getting a bit shouty in a train carriage!") AND imposing punishments that are far too severe given the lack of safeguards for the accused (if the "conductor believes the complainant," you're screwed--evidence and burden of proof be damned).
posted by yoink at 4:21 PM on January 24, 2015 [1 favorite]


Why shouldn't colleges expel someone whom they believe to be a rapist? After reporting them to the police, of course.
posted by Joe in Australia at 4:38 PM on January 24, 2015


Joe in Australia: Why would we think that colleges will do any better with adults?

Because another part of Title XI is that colleges are required to report all incidents publicly within two days (with exceptions for things under police investigation that need confidentiality). Universities coordinating these things with the police is a goal here; that victims can fall back to just one or the other if that coordination breaks down is a feature not a bug.

yoink: Your analogy pretty perfectly captures the problem that Heller outlines in the piece.

It's not my analogy, it was Heller's. And I was pointing out that a hypothetical situation she made up to be absurd is actually real and common. (Also, I said “violence” not “a bit shouty”.)

Universities can ban people for life for things like cheating based on their internal investigations and using their own safeguards for the accused. People who would take that power away just in cases of sexual assault are the ones treating it cavalierly.
posted by traveler_ at 4:54 PM on January 24, 2015 [2 favorites]


As for this:

imposing punishments that are far too severe given the lack of safeguards for the accused (if the "conductor believes the complainant," you're screwed--evidence and burden of proof be damned).

That's consistent with Heller's apparent misunderstanding of these administrative policies, but not the policies themselves. The burden of proof lies with the universities, not the accused, which means that evidence is in fact required. There's an implication in this comment and in the piece that the "preponderance of the evidence" standard is too low given the stakes, but just for reference, that's the same burden of proof that applies in a wrongful death lawsuit (and a slew of other types of civil cases with serious monetary and reputational consequences).
posted by heisenberg at 5:13 PM on January 24, 2015


> We know what happened with complaints of child sexual abuse when colleges diverted them to their own system:

They (I assume we're talking about Penn State here) diverted them in violation of university policies and state law, which requires certain people to report any instances of child abuse they come into knowledge of. They didn't bring the allegations inside because of university or Title IX requirements.
posted by rtha at 5:20 PM on January 24, 2015 [1 favorite]


Rtha, I don't see that it makes a difference. The fact that Penn State wanted to deal with the matter internally demonstrates why colleges must not be allowed to do so. College administrators have a fundamental conflict between their duty to the institution and their duty towards staff and students. We know that their desire to avoid scandal led to further crimes; it's no answer to say that they weren't forced to deal with matters internally.

Traveler_ says that Title XI requires them to report allegations publicly; that goes quite some way to addressing my concerns. I still think it's bad policy, though: colleges have an incentive to push the complainant away from a criminal prosecution, and they have a good deal of leverage in persuading victims to deal with the matter internally.
posted by Joe in Australia at 5:40 PM on January 24, 2015


It's not an either/or proposition though. An administrative proceeding within the university does nothing to prevent a criminal prosecution from going forward. And to the extent that universities have an incentive to pressure victims not to use the criminal justice system, that's going to be true regardless of what internal procedures are (or are not) available within the university.
posted by heisenberg at 5:53 PM on January 24, 2015 [1 favorite]


Penn State was not "allowed" by anyone to deal with it entirely internally. It's very much not beside the point in that instance that they explicitly violated university rules and criminal law.

Colleges and universities are required by law to have policies on how they will handle sexual harassment and assault. I know you're not suggesting they just have no policy at all, are you?
posted by rtha at 6:25 PM on January 24, 2015 [1 favorite]


Certainly not. I'm suggesting that the school should treat sexual violence as a criminal act. I presume college administrators would report a murder or kidnapping (or even a serious non-sexual assault) to police; why should sexual assault be any different?
posted by Joe in Australia at 6:51 PM on January 24, 2015


Because the cops aren't going to treat the university as the victim, they're going to treat the alleged victim as the victim, and you can't force people to report crimes if they don't want to. If a student loses his temper in class registration line and punches someone, I don't think the university should have to *not* throw him out or suspend him even if the cops aren't involved.
posted by rtha at 7:41 PM on January 24, 2015


At least in Australia, police do investigate crimes even when the (alleged) victim is uncooperative. I agree that it might be difficult for colleges to provide an internal response at the same time as a police investigation, but this is what happens already; the fact that someone has made an internal report does not prevent them from making a criminal complaint. I simply propose that the college always report (alleged) rapes to the police, just as I presume they always report other serious felonies.
posted by Joe in Australia at 7:55 PM on January 24, 2015


The thing is, having an administrative response to sexual assault (that operates independently of any response by the criminal justice system) IS treating that crime the way that colleges and universities treat other crimes. Here's an example: When I was in law school, a fellow student punched another student's boyfriend during a school event. The puncher didn't end up doing any jail time (someone in the criminal justice system made that call), but the school decided not to let him come back to classes that year. I don't know whether that was mostly to punish the puncher or to protect the other student (whose boyfriend was punched) from having to be in classes with him, but either way it was a good decision - and it was important for the school to have the authority to make it, just as it would have been important if the crime had been sexual assault instead of battery.
posted by heisenberg at 7:55 PM on January 24, 2015 [2 favorites]


This account was much more sympathetic than I expected:
Rethinking gender and sexual assault policy: My story
In October 2013, I was sexually assaulted by a female student on campus. [...]
posted by Joe in Australia at 3:41 AM on January 28, 2015


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