College Sex-Assault Trials Belong in Court, Not Campus (2014) | Hacker News Reader

College Sex-Assault Trials Belong in Court, Not Campus (2014)

chronicle.com

221 pointsjseliger213 comments

"The legal verdict on whether sex is non consensual still often rests on the perspective of the alleged perpetrator rather than the experience of the victim."

I'm not sure I entirely understand this quote to its fullest. It is being argued that it is the experience of the victim that matters if sex is consensual. Isn't this quote logically wrong? Consensual by definitions means both parties agreed. But is the author arguing that it is the victim's opinion that makes it consensual only?

How would that work in a situation where both parties start having sex, then it stops being consensual half way (from the victim changing their mind). The victim changes their minds but says nothing, and continues as before during the act. From the authors opinion, the victim experienced rape, hence the perpetrator should be convicted. But from the perpetrator's perspective they have no knowledge the partner's consent was revoked.

As far as I understand, an accusation should examine a perpetrator's perspective more, since that person is being charged with a crime. Why is the author arguing that the victim's experience is what the trial should hinge upon? If the victim raised an accusation, that is enough! It is the perpetrator that is being tried and attempted to be found guilty, hence the trial focuses on the perpetrator's actions and perspective.

Can someone better weigh in? This seems like one of those thoughts that sounds profound, but does not stand up to scrutiny.

Those situations are more edge cases and they are quite difficult because knowing what we know about the mind, it can play tricks. For example, we may feel very happy at one moment, but something could transpire to change the feeling and that may cause us to retroactively view the initial consent (maybe they thought the person was initially someone else) in a different light --but at the same time, most people give the benefit of the doubt internally (that is, even if they are truly aggrieved, they are likely to interpret the violation as their own fault, rather than blame the perp) It can become murky.

To make the point less gender political, view this as something which happens to a same-sex couple, so that the dynamics are less obvious about sexual politics and more about either force, misinterpretation, misrepresentation or confusion or a mixture of all the above.

> To make the point less gender political, view this as something which happens to a same-sex couple, so that the dynamics are less obvious about sexual politics and more about either force, misinterpretation, or confusion or a mixture of all the above.

I like your suggestion about viewing this as same-sex couple situation. I wrote my post specifically gender-neutral so as to prepare for the inevitable accusation of sexism, and then reveal that in my example the female was the perpetrator. But I think your opinion is much better

Though it's much rarer, it is possible for a woman to rape a man.

It is not that rare when using the current standard of consent. If you include any man who has sex while drunk (and is hence incapable of giving consent) then rape of men by women is very common.

Can you define drunk as you intend it in this sentence?

People seem to be very loose with this phrase recently and it's impossible to tell if they're doing so intentionally for political reasons, or if they're just not very good at communicating what they mean.

Drunk can mean someone has had 1 beer (e.g. drunk driving in many locations). It can also mean aggressively or flamboyantly out-of-character after several drinks, or it can mean basically incapacitated and in danger of choking on their own vomit.

Which part of this range were you ambigously referring to?

Thaumasiotes has already explained the situation on campus in regards what is considered drunk and consent, but even in the wider world you can only give consent when not intoxicated. The level of intoxication is not clear cut, but at least in Australia it needs to be “substantial” [1]. What exactly is substantial is up to the jury.

The US case law is much more murky as this article explains [2].

1. https://www.alrc.gov.au/publications/25.%20Sexual%20Offences...

2. http://edition.cnn.com/2015/07/08/opinions/cevallos-sex-cons...

As made explicit in the sexual assault policies of various US universities, a female is unable to consent if she's had any alcohol (the "1 beer" model of being drunk). It is not a defense, or grounds for a counterclaim, that the male might have been equally or more drunk. (I say made explicit; the "any alcohol" threshold is what's made explicit. The wording of formal policies is generally scrupulously gender-neutral, but their application isn't.)

In an actual US criminal court, I believe drunken consent is no different from any other consent.

As much as I'd love to take your word on this, for me this still falls into the "they banned Christmas because of the Muslims" category of made up propaganda intended to enrage the more credulous (see the other reply for a demonstration of this).

I asked for evidence on this once before on HN, and they came up with two links. Both referred to the exact same case. And that case involved two people so drunk that neither could actually recall what happened.

That person at least provided links (admittedly they actually undermined his claims, but still). You've provided nothing but a bold assertion.

My suggestion to you and the original poster: if what you claim is true, is actually true, then a) stop using the word "drunk" as it is ambiguous, use the phrase "after one alcoholic drink", as this massively bolsters your case that the policy is ill-thought out b) have a link from a reputable source that actually backs up the reality of what you claim since on the face of it you'd expect a bigger fuss to have been made about this if it was true (much like I'd have heard about it via standard channels, not forwarded emails from racist uncles, if someone had actually banned Christmas because of the Muslims).

Edit: here's the first policy my Googling returned, it all seems very reasonable to me:

https://share.cornell.edu/education-engagement/sex-alcohol-a...

Key phrases: "drinking heavily", "highly intoxicated" and so on.

I can only offer myself up as an anecdote, but:

I was at grad school at Boston University in the very, very recent past and was lectured on the fact(?) that even a single alcoholic beverage precludes consent during their mandatory Title 9 intro. I can't find any thing regarding their sexual assault policies (other than "we do not allow or condone sexual assault") on their website, though.

> their mandatory Title 9 intro

I remember the announcement of a "mandatory meeting" for everyone in the dorm shortly after I moved in freshman year. I was intrigued by this concept and asked what would happen if I didn't go. The answer was, "nothing, but we'd like you to be there".

"Mandatory" appears to be experiencing some semantic slippage.

If a single alcoholic beverage precludes consent, then what if both parties have had at least one drink? How can that possibly be rape? If it is, then that's sexism, because it's a double standard: they're claiming the woman isn't responsible for her decisions while intoxicated, while the man is.

Under law, if neither party can give consent then each of them is guilty of rape of the other. The age of consent in New York State is 17, but the age of culpability for statutory rape is 16; if two 16-year-olds have sex, they raped each other under New York law.

But the way human social dynamics works is that in most cases, the male initiates sexual activity to which the female has right of refusal. So in cases of heterosexual liaisons where neither party is capable of consenting, the female -- who 90% of the time is the only one put in a position of consenting or refusing -- will not be prosecuted or disciplined, while the male will be.

>So in cases of heterosexual liaisons where neither party is capable of consenting, the female -- who 90% of the time is the only one put in a position of consenting or refusing -- will not be prosecuted or disciplined, while the male will be.

Right, and I'm pointing out that this is blatantly sexist and discriminatory.

You were advised badly then. Imagine, if you will, that the other party drank a Tourtell beer. That's hardly going to do anything, the beer has 0.4% ABV!

Here, as mainstream as media channels get: http://www.slate.com/articles/double_x/doublex/2014/12/colle...

Relevant points include: (1) some schools' policies are worded so as to "lead to a young man being found responsible for a sexual offense simply if the complainant establishes that she had any degree of intoxication"; and (2) even where the policy would appear to be stricter than that, administrators frequently use the "she had 1 beer" standard when judging male students. An example in the article involves a college switching the basis for its adjudged punishment from nonconsent to presence-of-alcohol when the poor boy involved sought help from a lawyer to force the school to consider his abundant evidence of consent. (The punishment stood; only the official basis for it changed.)

I'll provide some other quotes from the article in a series of comments (since the unified comment was rejected for being too long):

> The Los Angeles Times summed up the events: “The college’s investigative report, performed by an outside firm, said both parties agreed on the following facts: Both had been drinking, she went to his room, took off her shirt while dancing, made out with him and returned to his room later for sex, asking if he had a condom. When friends stopped by the room to ask if she was OK, she told them yes.” Prior to their encounter, the two exchanged texts about their planned assignation, and Jane texted another friend to announce she was going to have sex. Later, when Jane came to see the incident as rape, she reported it to the Los Angeles Police Department. A female LAPD officer investigated, and a female deputy district attorney declined to pursue the case. She wrote, “Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment.” Her report further found that Jane was capable of resisting and that John had reasonably concluded that her communications and actions conveyed consent.

> Jane lost her virginity that night, and when she sobered up and realized what happened, in distress she went to a faculty adviser who referred her to Dirks. An 82-page investigative report prepared for the school by the firm Public Interest Investigations shows it was Dirks, in her first phone conversation with Jane, who introduced Jane to the idea that she had been raped. Jane told the professor, “Oh, I am not calling it rape yet.” Over many hours of conversation, Dirks helped move Jane from what the professor described as Jane’s “strong state of denial” about what happened.

> Occidental hired an outside attorney to review the investigative report and make a recommendation about John. Here’s the conclusion of the attorney, as reported by the Los Angeles Times: “The attorney, Marilou F. Mirkovich, found that the young man did not know that his classmate was too drunk to consent because he, too, was inebriated. But, citing the college's policy that does not allow alcohol or drug consumption to excuse sexual misconduct, Mirkovich found that he should have known and was responsible for the assault.” After only a few months as a college student, John was expelled.

Here's FIRE's pithy description of the same incident ( https://www.thefire.org/sexual-assault-injustice-at-occident... ):

> Occidental pursued its own investigation by hiring the firm of Public Interest Investigations, which produced an 82-page report about the incident. Among other evidence, the report examined text messages between Doe and his accuser leading up to the sexual encounter. In the messages, the accuser asked Doe, “do you have a condom,” texted another friend “I’mgoingtohave sex now” [sic], and, in an exchange spanning 24 minutes, coordinated with Doe to sneak out of her dorm and proceed to Doe’s dorm to have sex with him.

This, despite the wording of the attorney finding above, is not someone who's incapable of consenting to sex.

More from Slate:

> While women’s consumption is often considered a mitigating factor at campus tribunals, men’s consumption generally is not. This disparity is sex discrimination, says Brett Sokolow, president of the National Center for Higher Education Risk Management. Sokolow has long fought for harsh penalties for accused men on campus. But in an open letter titled “Sex and Booze,” he writes: “If both are intoxicated they both did the same thing to each other. Why should only the male be charged if both students behave in ways defined as prohibited by the policy?” He has been called in to consult on cases in which schools have suspended or expelled the young man when both students were equally intoxicated. Schools that are doing so, he says, are creating male “Title IX plaintiffs.”

> Sokolow also says schools err when they adhere to an unrealistic standard that consumption of alcohol renders consent moot. Criminal statutes generally require that for sex to be nonconsensual due to alcohol or drugs, the accuser be not just intoxicated, but incapacitated. Having had a few drinks does not mean people, even young people, lack the capacity to make decisions about their actions, however poor those decisions may look in retrospect. Sokolow notes, however, that at some colleges “boards and panels can’t tell the difference between drunk sex and a policy violation.”

> KC Johnson, of the Manhattan Institute’s Minding the Campus blog, has compiled a list of top-ranked institutions, including Columbia, Duke, and Stanford, whose policies could lead to a young man being found responsible for a sexual offense simply if the complainant establishes that she had any degree of intoxication. Johnson notes that at Brown if two people were drinking and later an accusation is made, the disparate treatment is stark. The policy states: “A charged student’s use of any drug, including alcohol, judged to be related to an offense will be considered an exacerbating rather than a mitigating circumstance.”

Here are some highlights from that article of KC Johnson's (from http://www.mindingthecampus.com/2014/06/if-she-had-drinks-yo... -- your call as to how mainstream Minding the Campus is):

> Broadening what constitutes sexual assault by redefining consent has been a principal goal of “activists”—who have worked with sympathetic faculty and (increasingly) the OCR. The McLeod case at Duke is a particular obvious example of how the new standards might function: two students were drinking and had sex, after which the university concluded that the male student, Lewis McLeod, had committed sexual assault because the accuser could not give consent. Why? Dean Sue Wasiolek explained: Even when both students consumed alcohol, “assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”

As that standard is actually illegal, it's rare to see it admitted to so openly.

> Minding the Campus staff examined the alcohol-related policies of U.S. News & World Report’s 55 top-ranked universities. The schools fall into three categories: those that bypass the issue entirely; those that link sexual assault to the incapacitation of the victim; and those, troublingly, that have such a vague definition of consent to almost certainly be arbitrary.

> The majority of the top schools—32 of the 55—employ an incapacitation standard. [...] A few of these policies, such as Berkeley’s, Rochester’s, Yeshiva’s, and Penn State’s, have some vagueness, but reasonable people would construe them as not suggesting that having a drink in and of itself can prevent consent. Yale’s language—“consent cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other condition”—typifies this group. This standard is similar to that in criminal sexual assault cases.

> That leaves 18 of the U.S. News top 55—roughly one-third of the total—that avoid this standard. Instead, at these schools, at least in some instances, a student can be branded a rapist if a college disciplinary panel, by a preponderance-of-evidence (50.01 percent) threshold, determines that the accuser was intoxicated.

I feel comfortable having characterized about 1/3 of schools as "various schools".

> Six of the schools have internally contradictory policies, referencing the incapacitation standard regarding alcohol consumption, but then modifying it elsewhere in the university’s own policies.

> Dartmouth also claims to punish only according to an incapacitation standard, but then suggests that the “use of alcohol or other drugs can cloud people’s understanding of whether consent has been given (or even sought). A ‘yes’ from an individual who is under the influence of alcohol or other drugs may not necessarily mean ‘consent.’” Obviously an incapacitated accuser could not (by definition of the word) say “yes.”

> At William and Mary, consent “can only be given by someone in an unimpaired state of mind who is able to understand what is happening; consent is not valid if the party from whom consent is sought is impaired by the use of alcohol or drugs

> Wisconsin is unique among the 55 schools, in that it explicitly recognizes claiming sexual assault as a way for a student to avoid facing campus charges for alcohol offenses

(Not directly relevant, but pretty amazing, no? Might this lead to any less-than-clear-cut charges of rape?)

> Readers who follow the issue doubtless will notice that many schools in this third category of broadening the way in which alcohol can be used to establish a student’s guilt (Brown, Stanford, Duke, Dartmouth, Columbia) all have checkered records regarding general due process in campus sexual assault cases.

> Two final thoughts. First, even at the third group of schools, obviously every time two intoxicated students have sex, the male student isn’t brought up on campus charges. But at many of these institutions, the role of alcohol in establishing consent is so vague as to at least, on paper, deem as rape acts that few outside of campus would consider sexual assault.

> Second: given the efforts of “activists” to broaden the definition of consent, it’s likely that three or four years from now, there will be many more schools in the third category, making it more likely that more innocent students will be brought up on charges.

I think we both know that's neither a mainstream, nor a neutral source, and it's not presenting it's argument fairly.

It puts scare quotes around "activitists" for goodness sake. That doesn't even make sense.

I don't see anything particularly shocking in your quotes, yet it's all written as if I should. For example, a "yes" from a sufficiently drunk person, may not count as consent, even if they're not literally unconcious. That doesn't sound particuarly extreme to me. In fact I'm more worried about the schools that apparently require incapacitated to mean unconscious since I've seen plenty of people unaware of what was going on due to alcohol, without being literally passed out.

So we've arrived at a solid definition of "drunk" at least, as this article makes clear that if you've not literally passed out, then they consider you capable of giving consent to sex. That's not the line I'd choose, but if you continue to argue for this, please just state that up front so overyone knows where they stand.

I'll provide the text original to me from my other comment here as well:

When you can be found to have committed sexual assault over the top of your "victim"'s vociferous assurance that nothing of the kind happened, you need to read the sexual assault policy as if it will only ever be used to justify finding you responsible for sexual assault, because that is the case. Where there is ambiguity in the policy, it is fair to read it as if any formal proceeding will interpret it as far as is possible in favor of the accuser (or farther). And in the Minding the Campus report, 18 of 55 schools were found to have policies involving no stated threshold at all, while using language that is deliberately weaker than the legal standard for rape. At those schools, you are vulnerable to a claim of rape if the girl has had any amount of alcohol, just as you're vulnerable to a claim of rape by campus administration if the girl had nothing to drink, maintains an ongoing relationship with you, and makes the formal statement that you never raped her at any point.

If you want to appeal to the idea that vague policies are benign as long as they're applied reasonably in practice, then (a) this is a deeply misguided approach to a justice system, specifically designed to allow persecution on flimsy grounds of anyone disfavored, and (b) the facts are clear that, as applied, college sexual assault policies are being used to convict boys who have done nothing wrong. As cited in Emily Yoffe's article, one higher education insurer found that of the sexual-assault-related claims it paid from 2006 to 2010, 72% went to men suing their school for railroading them.

When the school's formal policy is deliberately vague, and their orientation materials explicitly state that one drink precludes consent (see https://news.ycombinator.com/item?id=11570978 ; https://www.thefire.org/university-training-programs-can-mis... ), what conclusion do you think is justified about their policy?

I asked you to back up your 1 drink = drunk = rape claim, something you said was an explicit policy of many institutions, and you keep linking to stuff that clearly does not say that, and instead plays lawyer with the semantics of "intoxication" and "incapacitated" and interprets everything in the worst possible way. (Despite what your sources try to claim, "incapacitated" does not necessarily imply unconscious, either in standard speech or many of the legal definitions they quote. Why they are so keen for that to be the case geniunely worries me.)

The best evidence we have so far to support your case is an HN comment! From something someone said in an induction seminar, but of which there is no official public trace.

Maybe the person running that seminar googled for some info on the topic and found the BS that you and your sources keep repeating and didn't realise that it was political propaganda (and really, why would anyone assume that people would go around falsely claiming things about rape policies?).

If you wanted to have an honest conversation about how vague policies are a problem, then start with something like "phrases like intoxication should be clearly defined in campus policies" (though of course in the real world, there is no bright-line test for exactly when people move from sober to tipsy to drunk to intoxicated to incapacitated, but perhaps extra explanations may help those that are confused). I believe that the government's Title IX guidance actually says this is good practice, so you're in good company. Then you won't have to run around trying to justify your exaggerations. Claiming that policies explictly say 1 drink is the limit, is the opposite of vague, it's very precise, albiet fictional because none of the policies say that.

That's impressive. Twice on HN I've asked someone to back up the drunk sex = rape claim and in both occasions they've came back with the exact same incident.

It truly must be an epidemic.

As I pointed out the last time, and indeed in this very thread when I asked for some kind of proof this wasn't all just bunk, both these people were very, very drunk. Vomiting repeatedly drunk. No recollection of having sex drunk. If anyone sober had had sex with these people, they'd be considered by most people to have been taken advantage of. The only reason this is a gray area is that both people got themselves into such a state that they themselves have no idea whether they broke the law that night. Which isn't a great defence in any legal situation.

This incident is being given to you because it has facts which are overwhelmingly, lopsidedly in favor of the boy, and he was expelled anyway (also, it features a formal legal opinion from a DA). It shouldn't be surprising that with those features, it comes up more than other cases do when you ask for an example. Two other cases are discussed just in the links I've given you -- and mentioned in my comments. I just posted a series of four comments to evade HN's length restriction on comments; I don't think it's particularly weird that I only included a quoted description of one case in that series.

But hey, here's another case from the Slate article:

> A group of students had been hanging out in the dorm on a Friday evening—there was drinking, but no one was incapacitated—when CB told Sterrett that her roommate had family members staying in their room and she needed a place to spend the night. Sterrett loaned her a shirt to sleep in and assumed she’d crash on the mat he and his roommate kept for visitors. Instead, CB came and lay down next to him on his bed. The two had made out in the past but had no serious romantic interest in each other.

> They talked quietly, started kissing, and then things escalated, as they often do when two teenagers are in bed together. When it became clear they were going to have intercourse, CB asked Sterrett about a condom, and he retrieved one from a drawer. Their sex became so loud and went on for so long that Sterrett’s roommate, unable to sleep in the upper bunk, sent Sterrett a Facebook message around 3 a.m.: “Dude, you and [CB] are being abnoxtiously [sic] loud and inconsiderate, so expect to pay back in full tomorrow …”

> The events that prompted the university to take these actions against Sterrett are detailed in an affidavit sworn on Sterrett’s behalf by LC, a friend of CB’s and her sophomore year roommate. LC stated that in July she received a call from an “emotionally upset” CB who explained that her mother had found her diary. LC recalled that CB explained that the diary “contained descriptions of romantic and sexual experiences, drug use, and drinking.”

> At the beginning of his sophomore year, Drew Sterrett was in limbo. He did not know whether he would face further disciplinary action as a result of the accusation against him, and indeed no formal written charge was ever issued. The single, cryptic Skype interrogation—the one that blindsided Sterrett over his summer vacation—was to be his sole hearing with campus administrators. He never met them in person.

> On Nov. 9, 2012, Sterrett was given a one-page document titled “Summary of Witness Testimony and Review of Other Evidence.” It consisted primarily of summaries of statements from anonymous witnesses. For example, it stated: “Two witnesses stated the Complainant reported to them that she tried to push the Respondent off her.” (CB didn’t know who these two witnesses were. She confirmed in her deposition that in her original statement to Cowan, she never said that she had tried to push Sterrett off her.) It also stated: “[A] witness reported that the Respondent told them that he engaged in penetration with the Complainant and ‘she was saying ‘no,’ and that it was just—it was ‘just like a second,’ and then he stopped, and then the Complainant left.’ ” (In her deposition, CB acknowledged this was not how their sexual encounter transpired, although she maintained that at some point she said “no.”)

> The document made clear to Sterrett that CB was claiming that she had said “no” during their encounter. He put together a lengthy rebuttal. Of CB’s claim, he wrote, “I cannot state it more clearly that this is untrue. I asked her if she wanted to have sex; she said ‘yes.’ ” (CB’s assertion was also challenged later by an affidavit sworn on Sterrett’s behalf by his freshman year roommate, the one in the upper bunk. The roommate said that he saw CB get into Sterrett’s bed of her own volition and that his bed and Sterrett’s were so close that he would have heard if she had exclaimed, “no” or “stop.” He stated that he was annoyed that their sex was keeping him awake and that as a friend of both he would have intervened if he felt something untoward was happening.)

> CB’s roommate, LC, in an affidavit sworn on behalf of Sterrett, said that over the summer CB’s mother had called her repeatedly warning her not to talk to Sterrett and to take CB’s side in all proceedings. LC stated that she never saw any change in CB’s behavior from the time of the alleged assault until the end of freshman year. But, she said, CB’s personality changed dramatically after her mother found her diary and the fall semester began. In her affidavit, LC said it pained her to speak against her friend, but she stated: “It is my belief, based on my personal observations and conversations with CB, that it is possible CB manufactured a story about a sexual assault in response to the conflict CB described occurring between her and her mother in the summer of 2012.”

> n Nov. 30, Sterrett received Cowan’s final “Sexual Misconduct Investigation Report.” His lawsuit states that the final report failed to take note of anything he had written in his rebuttal. The final report was longer than Cowan’s previous one, and included further allegations that either CB herself did not corroborate or appeared unsupported by the available evidence. For example, it stated: “The Complainant framed the events in question as a sexual assault to witnesses the day following the event.” In her deposition, CB acknowledged that she didn’t do that, that in fact she’d never used the words “sexual assault” to describe what happened. The report said that Sterrett’s roommate was asleep during the entire sexual encounter. This was contradicted by the time-stamped Facebook message complaining that he was being kept awake.

> With the help of a lawyer, Sterrett filed an appeal to the Office of Student Conflict Resolution. He included affidavits from classmates who said their words had been misconstrued and even falsified, and included the statement by Sterrett’s roommate that CB was a willing participant and that the roommate would have heard and intervened if CB had said no. The university’s response was to stand by its finding that Sterrett was responsible for sexual misconduct but to change the reason. Now Cowan issued an addendum stating that Sterrett had committed sexual misconduct because CB was too drunk to consent.

You want to argue that a university policy which prohibits sex while one party is "intoxicated" without specifying any method for assessing whether that standard is met, isn't a problem and can't be triggered by a minimal level of alcohol consumption. But this is not the case. If you'll permit a digression into some cases where alcohol did not figure in the judgment:

Here ( http://reason.com/blog/2016/04/07/student-suspended-for-rape... ) is reason covering a case in which USC found a boy responsible for sexual assault and was then overruled by the courts.

> The University of Southern California found a male student, "John Doe," responsible for sexual assault and suspended him for two years. But his alleged victim, a female student, "Jane," maintained that the sex between them was consensual.

> Doe was ultimately punished, not because he hurt Jane, but because he did nothing to prevent two other males from having rough sex with her—from slapping her on the buttocks—during an orgy.

> After dancing together, Jane, Doe, and Student 1 went off to a bedroom together to have sex. All agree that this encounter was consensual

> Later that evening, Jane and Doe returned to the bedroom to have sex again. Jane maintains that their sexual activity remained consensual, but other men—likely including Students 1 and 2—entered the room and also began performing sexual acts on Jane. These activities became rough, and culminated in one or two of the men—not Doe—slapping her butt.

> Jane later texted Doe that she had a good time with him, but "your friends suck though." She approached him again at a party some weeks later, but he declined to dance with her.

> Months later, in August of 2014—after discussing her "confidence issues" with a counsellor—Jane decided that the incident constituted sexual assault and filed a complaint. Still, she maintained that she had consented to sex with Doe: it was the other men who had violated her.

> USC disagreed, and accused Doe of violating 11 different sections of the student code of conduct, including "endangering the health of others," "engaging in obscene behavior at a university-sponsored event," and "engaging in non-consensual sexual touching."

> Consider that for a moment. Jane said her sexual activity with Doe was consensual. The university then made the paternalistic and indefensible decision to override her opinion on the matter and described their sex as rape anyway.

Here ( https://reason.com/blog/2016/04/06/this-university-cleared-a... ) is Reason on a case where alcohol might have been involved. Who can say?

> Doe and his accuser, "Jane Roe," met during an impromptu gathering at a mutual friend's dorm on August 22, 2014. They first had sex that very night. They exchanged friendly text messages the next day, which were later provided as evidence in Doe's favor at his hearing, according to the judge's decision. They eventually had sex a second time.

> They had sex two more times after that—Roe was the initiator both times, according to the mutually agreed upon facts of the case.

> But on November 6, 2014, the university informed Doe that someone had accused him of sexual misconduct. He did not immediately learn that his accuser was Roe, though he was barred from having any further contact with her. The university also moved him to another dorm against his will.

> Roe's residential advisor and Title IX coordinator had submitted reports agreeing with her contention that their very first sexual encounter wasn't consensual. This logic seems to rest on the disputed fact that Roe was drunk at the time.

> At the actual hearing—which was attended by both Doe and Roe—Roe's roommate testified that she did not believe "Roe was drunk or otherwise incapacitated when she saw her shortly after her sexual encounter."

> A three-person panel sided with Doe and cleared him of sexual misconduct. But Roe appealed.

> At this point, the proceedings veered into Franz Kafka territory. Doe was barely able to review the new evidence against him, and was not allowed to even appear at the second hearing. The new evidence undermined Roe’s roommate’s testimony, but at no point was the roommate called upon to defend her original statements about Roe’s lack of incapacitation. JMU went to great lengths to accommodate Roe—even granting her several extensions on submitting new evidence—while making it all but impossible for Doe to defend himself. As a result, he was found responsible for sexual misconduct and suspended from the university for five and a half years.

> Given that this case appears to rest on whether or not Roe was drunk during the encounter, the accusation seems extremely dubious. Even if Roe had been drinking, mere intoxication does not render a person incapable of consenting to sex. It certainly looks like the university conflated intoxication with incapacitation, and that Roe ultimately failed to prove either state.

When you can be found to have committed sexual assault over the top of your "victim"'s vociferous assurance that nothing of the kind happened (oh wait, here's another case:

> Colorado State University-Pueblo suspended a male athlete for years after he was found responsible for sexually assaulting a female trainer. But the trainer never accused him of wrongdoing, and said repeatedly that their relationship was consensual. She even stated, unambiguously, "I'm fine and I wasn't raped."

> When confronted, Doe confessed to the Complainant that she and Dean had engaged in sex. According to the lawsuit, the Complainant "presumed" this sex was nonconsensual, and reported it to the director of the athletic training program.

> Later, when Doe found out, she gave Neal the bad news, and texted him the following messages:

>> "One of the other Athletic Training students screwed me over!...She went behind my back and told my AT advisor stuff that wasn’t true!!! I’m trying so hard to fix it all."

> Neal and Doe met in person to discuss the situation. Without Doe's knowledge, Neal recorded their conversation. This audio recording further establishes that their sex was consensual. While in Neal's presence, Doe fielded a phone call from a coordinator of the athletic training program and stated "I'm fine and I wasn't raped." She then called her mother and told her the same thing.

> Both Doe and her mother pressed the administrators of the athletic training program—a husband and wife team—to drop the matter, but it was too late: they had already informed the Title IX office.

> Doe told another administrator, "Our stories are the same and he’s a good guy. He’s not a rapist, he’s not a criminal, it’s not even worth any of this hoopla!"

> The predetermined outcome for Neal was a guilty verdict: he was suspended for the remainder of Doe's time at the university.

( https://reason.com/blog/2016/04/19/female-student-said-im-fi... )), you need to read the sexual assault policy as if it will only ever be used to justify finding you responsible for sexual assault, because that is the case. Where there is ambiguity in the policy, it is fair to read it as if any formal proceeding will interpret it as far as is possible in favor of the accuser (or farther). And in the Minding the Campus report, 18 of 55 schools were found to have policies involving no stated threshold at all, while using language that is deliberately weaker than the legal standard for rape. At those schools, you are vulnerable to a claim of rape if the girl has had any amount of alcohol, just as you're vulnerable to a claim of rape by campus administration if the girl had nothing to drink, maintains an ongoing relationship with you, and makes the formal statement that you never raped her at any point.

Here is Stanford's policy [1]. There is nothing about drinking heavily or being highly intoxicated. The policy just says "if intoxicated by drugs and/or alcohol".

1. http://www.thefire.org/pdfs/b6c0fa0511ba6bd299a0c17b60d41a56...

Before I even click, I notice that's not a Stanford link. But instead something hosted by a political organisation that takes a stand on this very issue. Should I be worried by this oddity?

And now I've read it, and we've gone from confusion about what "drunk" means to confusion about what "intoxication" means. Do you have anything that actually defines this term in this context? Does a memo from 2009 have some kind of special legal force, that allows the widest possible interpretation of this term? If they meant after the first alcoholic drink, why didn't they clearly state that? Instead they used "intoxicated" which generally, but ambigously, means "really drunk" (thesaurus suggestion: "helplessly inebriated"). That's also what I would assume, but then I'm interpreting this memo in good faith.

I am not sure you should be worried unless you beieve the document has been doctored.

I think the basic problem we are facing is that the definitions are rather open to interpretation. I think we can agree that someone who is unconscious is incapable of giving consent and that someone who is 100% sober is able to (assuming they are of a legal age and not mentally impaired) - the issue becomes where to draw the line. This gets gray very quickly.

The real argument here is this interpretation is being done by ad hoc and inexperienced "courts" using a balance of probability. The risk of making a mistake is very high no matter how well intentioned everyone involved is.

I'm not particularly worried about it being doctored, just cherry-picked and misrepresented.

Most people would agree that in common language "intoxicated" is a stronger term than "drunk", yet the best evidence people can find when challenged on repeating the "drunk sex = rape" meme (some going so far as to claim that many institutions have official policies that explicitly say that even 1 drink = drunk = rape) doesn't support what they initially said. Even when it's a cherry picked 8 year old document hosted externally by a third party as evidence for poltical purposes.

This suggests to me, that it's basically BS, as I said earlier. Clearly, from your latest comment, you understand that it's a complex area, with lots of gray. So why charge in and repeat BS you heard on the internet?

I actually said drunk, not slightly intoxicated. Drunk does have a legal meaning (it is illegal to be drunk in public in many jurisdictions), but even if we limit the discussion to "substantially" intoxicated then many, many men have had sex while substantially intoxicated. Consent here is very gray.

I once saw a poster that said something like "Bob is drunk. Allison is drunk. Allison can't consent."

While a poster is not a statement of policy, it nevertheless is intended to communicate the standard that should be applied: that sex with a woman who is "drunk" (not "incapacitated" or even "significantly intoxicated") is rape, but this standard does not apply to a drunk man.

If you are drunk that's your fault, not any defense. I mean: drunk sex is like drunk driving, being drunk should be held against drunk person, not used in his/her favor.

If you are accused of raping a girl on the sole grounds that she was drunk when you had sex, then the fact that you were also drunk should be grounds for a counterclaim of rape against her.

Obviously, that would be ridiculous. But so far as I have read, only Brown's policy explicitly takes the position you advocate, that while the female being drunk casts blame on the male, the male being drunk casts even more blame on the male. ("A charged student’s use of any drug, including alcohol, judged to be related to an offense will be considered an exacerbating rather than a mitigating circumstance.")

What the actual fuck. Are those people out of their goddamn minds?

So any girl can basically claim she had one shot if she feels like ruining someone's life and make an innocent man into a "rapist"?

What if it's two lesbians that shared a beer? Do the universe collapse or something?

The arbitraryness and possibilities of malicious abuse just blow my goddamn brain.

Well, this is why it goes before a court. There needs to be proof or lack of reasonable doubt that the victim was intoxicated.

Except the article itself says "Seizing this logic, advocates for gender equality have persuaded the federal government, under civil-rights authority, to force higher-education institutions to investigate and punish crimes of sexual violence. Dozens of colleges are under investigation for failing to comply.

Although not explicit in the rationale for this approach, the lower standard of proof required to bring campus disciplinary action—including expulsion—is surely attractive to antirape activists, as it is for other civil-rights advocates who pursue civil remedies."

lower standard of proof disciplinary action including expulsion

This is outright despicable. There already witch hunts going on in some unis (with NO actual filed complaints or charges)

Isn't the point of the article that it doesn't go to a proper court, but should?

Which is sort of the point I was trying to make, but evidently quite badly. Yes, I agree with the author - these cases should be dealt with through the court system.

What if both parties are incapable of giving consent?

Then each party is criminally liable for the rape of the other, under law. But, in practice, for heterosexual liaisons the male partner will be charged and prosecuted while the female goes free.

Disclaimer: ianal

I could be wrong about how rare it is, I don't know the statistics and I don't have any way of knowing how many men don't report the crime.

My point was that it can and does happen. I probably shouldn't have said anything about how often it occurs as I don't know.

It actually occurs at a much higher rate than most think, but the strategy used by female perpetrators more often takes the form of emotional violence and coercion as opposed to physical violence.

http://link.springer.com/article/10.1007/BF01541620

I have personal experience with this with a former partner and the threats and coercive tactics can get really ugly, dark and traumatic.

Technically, under English law, I believe it isn't. The definition involves penetrative sex. It's normally something like sexual assault instead (arguably adding somewhat to gender politics).

It's still not entirely impossible for a person without a male reproductive organ to engage in active penetrative sex with the aid of well, sexual devices which mimic the shape or even cruder devices. That's to say, I don't believe, but could be wrong, they stipulate being naturally born or some such uneasy language.

Under English law rape requires a penis.

A person could be found guilty of sexual assualt by penetration, which is equally severe. It's just not called rape.

This is in the Sexual Offences Act.

I believe it actually requires a penis too. Quick Google suggests this is still true.

Not true. The FBI's definition is:

"The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." [1]

1. https://www.justice.gov/opa/blog/updated-definition-rape

So the FBI does not consider female and male perpetrators who engage in non-consensual sex with a male victim only using the victims natural external genitalia?

This seems pretty stupid.

Can anyone corroborate this claim? As in do they not or actively refuse to prosecute these incidents? Or are they "sexual assault" but not "rape"?

Wouldn't the fact that this is a direct quote from someone high up in the FBI, and is being hosted on the website for the U.S. Department of Justice be enough corroboration?

I think you're reading it wrong.

The penetration [..] of the vagina or anus [..] without the consent of the victim.

Nowhere does it say that the body part must belong to the victim.

FBI's definition does not apply in England.

True, I missed the "English law" bit.

This means the definition of rape depends on the country you are in. For the UK I think it's really arguing semantics though, because it is defined as "assault by penetration" and has the same penalties as rape. [1]

1. http://www.legislation.gov.uk/ukpga/2003/42/part/1/crosshead...

> Though it's much rarer, it is possible for a woman to rape a man.

Given that it is in response to a poster who clearly knew that (as indicated by the intention of revealing the female to be the perpetrator), in a thread in which (as far as I can see) no doubt about the possibility had been expressed, is this remark adding anything?

I hope those who are disagreeing with me are doing so because I wasn't precise enough about where this can occur.

As has been pointed out, in England a woman cannot take a man, but can commit an act of penetration.

In the U.S. there is no such distinction.

> n. I wrote my post specifically gender-neutral so as to prepare for the inevitable accusation of sexism, and then reveal that in my example the female was the perpetrator.

Not really interested in engaging with someone who merely wants to set traps for people.

I have to agree. Don't do that.

Have you never used something surprising as a method to make someone think? Laying traps is implying malice that may be entirely absent.

I don't need to. I just state my position and hopefully then they consider it, which normally requires some level of thought.

No, sorry. You cannot retroactively retract consent. If you said a genuine yes at the time of the intercourse and at no point you signalled you were not okay with it, you cannot just say it's rape all of a sudden. It is not. Otherwise, any person (usually female, even if you want it 'less gender political', which I personally find insincere since it plays a big role in the discussion) can screw over the person they had sex with (usually male). This is just another form of authoritarian feminism, designed to shift control even more into the hands of women. False rape allegations are not the exception, they are common, and the punishment for such false allegations is either nonexistent or very minor despite the the fact that they can destroy the accused person's life.

Where are we headed? Do men need to have the women sign a contract before sex to avoid the lies? Because that's what it's looking like to me. Kinda unromantic ;)

In the UK, there have been several examples of a woman getting drunk, having apparently consensual sex and then deciding the next day that she was raped. The male now has to prove that sex was consensual. The woman gets lifetime anonymity and the male has to undergo a public trial, almost always with commensurate loss of reputation and employment, even if later proven to be innocent.

There is a very recent example where a female barrister (senior lawyer) was involved in a public sex act with a male. She accepted a police caution for public lewdness the next day. She then discovered that the press were about to publish the story and very cynically, to stop her name from becoming public, she reported that in fact she had been raped. She was immediately given lifelong anonymity and the male was exposed to public trial.

Don't have sex with someone who is under the influence of drugs or alcohol?

Edit: I think you are referring to this:

http://www.thesun.co.uk/sol/homepage/news/6958799/City-lawye...

If no rape is found to have occurred, which seems likely given there were police witnesses, then that lady is going to be in a world of bother. Firstly, it will have meant that she has appealed against a sentence, which means if it didn't occur she has perjured herself. Secondly, it's pretty clear that a false accusation like this is slanderous and the offended party would be well within their rights to sue. And thirdly, if a criminal conviction for perjury is recorded against the barrister, then I'd say it's likely she won't he able to practice law again.

Pretty much.

But damn, if I were a young male today, I would probably require proof of consent from prospective partners. Maybe a signed affidavit, blood sample and affidavits of competent witnesses. Or maybe just forget the whole premarital sex thing. Too dangerous anymore, in so many ways.

It's a great pity that some people falsely accuse others of rape, because all those who have been raped are automatically disbelieved by a significant portion of the population.

While I agree that it's shame that people falsely accuse other of rape, and that it makes the situation worse, I don't think that's the root cause of people disbelieving claims of rape.

I would be that most instances of disbelief stem from knowing the accused and thinking they'd never do it, or having some personal interest in the person not being found guilty of it. For others who aren't acquainted with the accused, I've seen a lot of it come from misogyny in general, and a general belief that men are superior, so the man must be the one telling the truth.

Obviously, that's a bunch of crap. But personal beliefs and feelings don't really require logic, so they continue.

On the other hand, I personally know someone who believes that no woman will ever falsely claim rape because it's such a horrifying thing (and causes such strong feelings in women who were raped), and so she believes every woman who claims it to the extreme, despite any evidence I've ever seen presented to her, and any court findings to the contrary. She appears to be completely able to understand that some people will lie about anything if it gets them what they want at that moment.

You think marriage makes any legal difference?

OK, forget that too.

Maybe stick to VR, I guess.

In practice, there are basically no repercussions for falsely reporting rape. The "victim" isn't charged with anything and retains their anonymity while the (innocent) "perpetrator" has their life ruined.

What do you think should be occurring though? Many women won't report being raped due to being shamed, mocked and threatened and their livelihoods ruined.

Perhaps those being convicted should also be given the same anonymity until after they are found guilty?

I think women who falsely reported rape should be charged with slander and pay substantial damages, at least.

> Perhaps those being convicted should also be given the same anonymity until after they are found guilty?

Yes, this would be a huge step forward (especially if both sides respected it). A big problem with rape cases is that both sides have social and professional repercussions regardless of the outcome. If rape cases were entirely sealed for both parties, that would be very helpful.

That would only occur in cases where it can be positively proven that rape did not occur. To avoid conviction the accused must demonstrate that there is reasonable doubt they raped the other party. That means that it is still possible it occurred, but in order to reduce the risk of convicting an innocent person they get to go free. I guess that's the lesser of two evils.

In terms of identifying the accused, Australia has sub judice rules that generally prohibit identifying the accused. I'm surprised that the UK doesn't either, given how closely our systems of law are related!

Essentially yes. Rape is not a "strict liability" crime, which means that intent is an element of the crime. By definition, "the perspective of the alleged perpetrator" is a key element of the crime, just as it is with murder, assault, robbery, and a host of other crimes. You can't just say "Alice killed Bob, Alice is a murderer!", you have to stop and ask what Alice was thinking or intending. It might not even be a crime, it might be negligence, manslaughter, etc.

(Well, sort of. Technically it's the perspective of "reasonable person" in the alleged perpetrator's position, which is a well-defined legal fiction. As Wikipedia notes correctly but unhelpfully, "the 'reasonable person' is not an average person or a typical person".)

The author is correct: Rape cases, by their nature, do tend to revolve around discussions of what the accused reasonably believed about the other parties consent. The mistake is in suggesting that there's anything we could (or should) do to change it.

>As far as I understand, an accusation should examine a perpetrator's perspective more, since that person is being charged with a crime.

It depends on the way the law is written. You can certainly be guilty of criminal offenses absent any understanding or intent.

In the case of sex, it is an action that is legal(or not) depending on consent.

In the example I gave earlier, the female has obtained consent from her partner. The male changes his mind half-way through but does not stop or act in any different way.

In cases such as these, my understanding(and gut feeling really) is that since knowledge of consent is what makes an action legal, the person had no knowledge consent was revoked, and cannot be charged for something that is impossible to avoid being guilty of?

In that case, consent was mutually given and if the other party then changes their mind and asks the other to stop, then consent ceases, right?

If the other party is not signalled that consent was withdrawn, then it is, in my mind, a bit tricky. It means that consent was no longer there, but the other party didn't have any way of knowing. I think it's fair to say that no assault occurred, but it's still damaging to the one no longer wanting to have sex. In that case it's really unfortunate for both parties :-(

How is this in any way tricky? Consent is something the giving of which involves clear communication, not just something that exists in the mind of one of the parties. Likewise, consent can't just 'cease', it has to be withdrawn, which involves communicating the withdrawal to all parties concerned.

It's like signing up for a phone contract, then deciding you don't want it any more and stopping using the phone. If you don't tell the provider then they're completely within their rights to keep billing you.

Fair point.

But it's also worth mentioning that consent does have to be renewed between each act. Just because he consented last night doesn't mean she can assume consent tonight without a fresh affirmative indication of consent. (Which doesn't have to be verbal, necessarily, but should be enthusiastic participation rather than simply submission to a partner's overtures.)

No other comments have directly addressed the quote you referenced. My interpretation is it is saying that rape cases are prosecuted about the intent of the perpetrator. Aka, they are convicted if it can be shown that they intended to commit rape, or knowingly committed rape, and acquited otherwise.

This puts the standard of conviction much higher than other crimes, because lots of crimes can be committed unknowingly (theft, embezzlement, even homicide), the intent of the criminal having no bearing on their guilt or not. In these cases the experience of the victim bears strongly on the case: the person who's car was stolen, the company who's funds were embezzled or the (deceased) victim of negligent homicide. The speaker is saying that courts do not weight victims' experiences appropriately, if at all, in rape cases.

You can't "unknowingly" commit theft (intent to dishonestly permanently deprive), emezzlement (intent to deceive) or murder (intent to unlawfully kill someone).

As a clear counterexample: you can certainly commit negligent homicide without intending to.

Negligent homicide is not murder.

The language my top comment used was "homocide" and "negligent homocide" while the responder changed it to "murder". The point is that in the view of the justice system, sometimes it doesn't matter if you meant to kill someone or not--you still killed someone.

It does matter. The charges are different, the sentencing is different.

Yes, only one of your three examples was correct.

Homicide is so broad it's meaningless.

Even with negligent homicide the perpetrator's mindset is still taken into account. It is only negligent homicide if they should reasonably have known that their actions could cause the death.

The guilty mind (mens rea) does have bearing on sentencing and the types of charge. For instance if you intend to kill someone it's a different charge than if you accidentally killed someone, and if it couldn't have been foreseen that the actions would kill someone then there is generally no crime at all.

This is very true. Many activists actually want to open up less-harsh sentencing or charge options in sexual assault cases to give prosecutors and juries more ways to treat the specifics of each case.

It's perfectly possible for someone to be raped without their partner being the rapist.

For example, imagine two people enjoy rape roleplay, but don't decide on a safe-word. In the middle of the act, the receiving partner changes their mind and starts screaming "no" and "stop". The giving partner interprets this as part of the roleplay, which makes perfect sense, and continues.

Who's guilty/victim here? (Hint: it's a trick question - both are guilty of stupidity for not choosing a safe word.)

Nope, it's still the "giving partner's" (i.e. rapists) fault. If you're applying coercive force to someone, it's your responsibility to make sure that your actions are consensual. In this case, it's the dominant's responsibility to check in regularly.

I think the discrepancy comes from advocacy thought vs. legal thought [1]. When advocating for rape victims, who are severely disadvantaged in these situations, you might make a statement like "we need to listen to the woman's perspective". As has been pointed out, that statement is a heuristic on several levels: the woman is often, but not always, the victim; and from a legal standpoint, there are of course other things to consider. It's still a useful and generally true statement.

When you're listening to "megaphone speech", you have to understand the context to understand the message. That can be difficult, because in most cases if you already understood the context, you wouldn't need to listen to the message. Try.

The flip side is also true, when activists win, and are given real institutional power, they must stop relying on context and start being precise ("gavel speech") with their intentions.

1: http://harvardlawreview.org/2015/02/trading-the-megaphone-fo...

> "When advocating for rape victims, who are severely disadvantaged in these situations"

Curious if you have a way to back up the claim the accusers are severely disadvantaged? Based on how it is at Stanford and many universities in the US, the system is certainly stacked in the accuser's favor. See, for example: https://www.thefire.org/stanford-trains-student-jurors-that-.... This leads to terrible mistakes, Joe Lonsdale comes to mind (it was since reversed, but the damage is likely done by then).

Edit: to downvoters, care to explain why..?

The accusers (victims) are disadvantaged in court (i.e. where facts matter and where there is a very high standard of proof), whereas the accused are disadvantaged outside of courts (and in college "kangaroo" courts), where the standards of proof are much lower and and perceptions matter more than facts.

"Rape culture" advocates claim that courts should become more like kangaroo courts.

There are several well regarded sources that show that the crime -> conviction rate for rape is shockingly low, the main bottlenecks being: reporting (because the victims are heavily disincentivized from reporting for a variety of reasons), decision to bring charges or not by prosecutors, and conviction rates once in trial. I don't have them handy but I'll try to come back to this tomorrow.

Because no one should have to explain to you that universities and incredibly famous cases like this are the exception. I shouldn't have to back up climate change every time I down vote someone "just asking" about clean coal or some shit every time that conversation happens either.

These are horror stories - they hit home IMO because so many men would never dream of assaulting anyone so it's scary to feel lumped into that group, because of the shame that comes with the crime and because the idea of being stuck in a criminal system you don't belong in is infuriating. But much like terrorism, home invasion murders, car jackings and shark attacks the likelihood of being accused of a sexual crime you didn't commit is basically zero.

It's okay guys, we can admit there is a problem without having to get grouped in as a rapist. It's not like any of this changes the fact that 90.5% of the murders in the US are apparently committed by men[0] (which also does not make us all murderers)

[0] Google it yourself.

We are talking about universities here, presumably, since the title is "college sex-assault trials belong in court". So, dismissing them as an "exception" is neither helpful nor relevant.

I have no idea about how fair the system is out of college. My point was about how unfair it is _in_ college.

Could you elaborate how 'we need to understand context' means reducing issues to 'you need to listen to one side' is acceptable? Saying we need to 'try and understand' seems like you're saying that unless we consider things from one side we don't have any empathy at all.

I don't think they literally mean experience as in "they secretly felt non-consensual after a while and kept it to themselves", but rather the emphasis that the system is unfair and weighs the perpetrator's opinion more heavily than the victim's

The justice system is unfair in that it requires "proof beyond reasonable doubt" or similar. Two wrongs don't make a right - if rape has occurred then it cannot be undone, but the potential miscarriage of justice has yet to occur so it is right that the system protects against that.

In the UK I've been on a jury for two sexual offence trials. The awesome (in the biblical sense) sense of responsibility we had was keenly felt and plenty of deliberation was had to double and triple check that we were, in the judge's words "sure" in finding a guilty verdict.

For its faults, and it has many, the Scottish system of three verdicts with "not proven" as another option makes some sense in these cases. In many instances there just isn't enough evidence and a plausible witness on each side of the case.

That's not the argument, I'm not sure how you got that from the article. In fact, all it is doing is criticising verdicts that clear perpetrators of rape if they think or say that they thought the other party was consenting.

In this regard, though the article doesn't actually say this, I think it's fairly logical that if the one making the claim they were raped wasn't consenting. Thus in all claims of rape there was one party who wasn't consenting to have sex, ergo there is no "two consenting adults"!

Let me put it this way: your own statement is that "Consensual by definitions (sic) means both parties agreed". If you agree this is the correct definition, then if the victim did not agree, even though the other party claims they did, then that isn't consensus.

Your idea is not about consensual sex - your idea is that consensus was percieved by one party, when in fact it wasn't. And again, that's not consensus because actual consensus to have sex needs to made by both parties in the act.

We live under laws on sexual assault that, in large part, were not written with women’s interests in mind. [...] The legal verdict on whether sex is nonconsensual still often rests on the perspective of the alleged perpetrator rather than the experience of the victim.

It would be contrary to the principles of fundamental justice to imprison someone who has done nothing wrong. If the alleged perpetrator of an offence has taken all reasonable steps to ascertain consent (and believes that consent exists) then any lack of consent is a tragic mistake, not a criminal offence.

As far as I can see, this was written with everybody's interests in mind.

An example of a law written with the (gender neutral) victim's interest in mind is that of statutory rape - you can contain all the consent you like but if the person is not viewed as being able to give it then an offence is committed.

Attempts to move looking for consent towards it being "engaged and enthusiastic" rather than posing a Yes/No question have potential - though it really needs to become a societal thing before a legal expectation. We don't live in the 50s where a woman was expected to lie back and think of England - it shouldn't be for a single partner to take "reasonable steps to ascertain consent", it should be something you are certain of or you stop and make sure. Not just because it's the right thing to do, but also because you're likely to have much better sex...

Almost. If they were not able to consent (due to age, inebriation, mental illness, etc.) then there was no consent. But if you had a well-founded belief in their ability to consent, then you are not culpable.

In Canada it has been held to be unconstitutional for a criminal offence "where it is not open to the accused to exculpate himself by showing that he was free of fault" to have incarceration as a possible punishment; such absolute liability is valid for such things as parking tickets, however. Offences such as statutory rape are instead "strict liability" offences: The prosecution is not required to show intent, but an accused can raise the defence of due diligence.

The situation is a bit murkier in the USA, but courts have accepted (see e.g., Kantor) a "good faith" defence even where the legislature has explicitly rejected the mens rea requirement.

Isn't taking all reasonable steps to ascertain consent what the affirmative consent thing is all about?

It's one of those sensible things, like recycling, renewable energy, belief in evolution, or decent medical coverage, that somehow becomes a very bitter political issue for no logical reason.

Deleted comment

It doesn't have to be verbal! I'd consider a big grin while pulling your partner into position to be a perfectly lovely form of affirmative consent, just for instance. (That's why it's not called "verbal consent", eh?)

"Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression." -- http://system.suny.edu/sexual-violence-prevention-workgroup/...

The real problem isn't consent it is that there are no witnesses. It becomes "he said, she said" in the heterosexual case. In a crime with no witnesses and no physical evidence there is nothing the law can do justly.

Right now the societal balance is moving toward always believing the woman. As verified cases of false accusation accumulate that balance may swing backward.

There are no easy answers and it makes it obvious why societal norms in the pre-modern era had tighter restrictions on sexuality outside marriage.

>The real problem isn't consent it is that there are no witnesses. It becomes "he said, she said"

one can see how, like condoms had, cell phone recording may become a part of the safety ritual...

Is requiring consent at every sexual escalation practical? Do affirmative consent campaigners encourage women having sex with men to obtain affirmative consent when the woman escalates?

Without question, yes! That's the whole point.

So from talking to flirting? Flirting to lightly touching arm? Lightly touching arm to sitting closely? Sitting closely to staring into eyes? Staring to kissing? Kissing to hands on body? Each escalation of foreplay?

I understand what you're saying, but I don't see the granularity as being clear at all. Nor have I ever seen anyone else pressure women into obtaining explicit consent at each escalation.

You mention in another thread consent could be given non verbally. Non verbal cues are easily misunderstood - and we're taking about using this as a basis for determining guilt for a serious crime here.

If the person remains totally passive at each of these stages, or repeatedly says or does something not affirmative, like "I really need to go" or turning away from you, what do you think you should do next? Is this really that hard?

The only way what you're saying isn't really creepy and odd, is if you have a version of affirmitive consent in mind, that doesn't correpsond to reality.

edited to add: It's worth bearing in mind the history of this, were a person doing the above would be told that it didn't count, that they were expected to "fight off" their rapist, because that's what good victims would have done, and clearly they weren't a good enough victim because they just remained frozen in fear, or were nearly unconcious through drink or drugs. Both the potential victims and the potentially accussed are better of with this extra clarity, that silent, passive, borderline unconcious acceptance of what you are doing is not enough to avoid later accusations.

That's an excellent example. If a man is initially unsure about sex - he says he needs to go, but still stays - and a woman changes his mind and they have sex, do you consider her a rapist?

Did he want to have sex with her? Then she's in the clear. If not, then that's one more bit of evidence that could come up if he accuses her.

Just like if I initially didn't want to lend you my car, and then you 'changed my mind' and I end up accusing you of theft for taking it. It makes it look bad for you if there's any evidence that I turned you down initially, so you really should be certain you actually have changed my mind before taking my car.

Did he want to have sex with her? Then she's in the clear

And how are you going to prove that in court without a written (and preferably notarized) consent form? Should the form also enumerate the agreed-to acts and positions, for when one party only intends to go to third base? Should condom use be explicitly mentioned?

if there's any evidence that I turned you down initially

I'm not comfortable with that, because "playing hard to get" is a widely-used dating strategy.

You've built the answer to your question into its premise: "a woman changes his mind", you said. So sure: she changed his mind, and thus the sex was consensual. No rape involved, and I don't think I've ever met anyone who would say otherwise.

But some people seeing what you wrote might be imagining a more general situation. Rather than "a woman changes his mind and they have sex", they're instead picturing "a woman gets him to have sex anyway". And that has a lot more room for ambiguity. Maybe she did something to really turn him on and they wound up eagerly jumping each other (not rape). Maybe they had a heart to heart talk and he decided that even though he wasn't eager, this would be really special to her and he went with it (not rape). Maybe he kept trying to leave but she blocked the door and was physically threatening and he concluded the only way he could get away without injury was to let her take what she wanted (that's rape). Maybe she kept giving him alcohol until he wasn't able to process what was going on and got sexual once he was to that point (that's rape; given his initial refusal I'm definitely inclined to call it deliberate even if she was drinking too: this is a well-established serial rapist technique). Maybe she kept gradually pushing his boundaries and wearing him down, ignoring his clear lack of any positive reaction to what she was doing, and eventually escalated things to sex (borderline: I'd need more info to judge if it's rape, but she's definitely an asshole).

> No rape involved, and I don't think I've ever met anyone who would say otherwise.

I know many people who could consider responding to negative or neutral signalling to be 'coercion' and either 'rape' or 'rape-like', including both of:

> Maybe she did something to really turn him on and they wound up eagerly jumping each other. Maybe they had a heart to heart talk and he decided that even though he wasn't eager, this would be really special to her and he went with it.

Agreed on your views regarding all of those situations though.

A moment ago the discussion was about requiring /affirmative/ consent at every escalation. But your example is "is the person giving moderately subtle-to-overt signs of non-consent."

The example of "affirmative consent" I've been presented with generally include explicitly verbalizing requests for consent, so as to preclude things like reading body language, because... well, that's where things go awry.

Affirmitive just means "yes", getting the other party to say it out loud helps if you're really that bad at body language and non-verbal communication but is not required.

As someone else stated, if verbal consent was what was required, they'd call it "verbal consent" not "affirmative consent". Affirmative meaning, from a plain dictionary definition: "saying or showing that the answer is "yes" <He gave an affirmative answer.> ".

Again, the history and context is people being raped who did not "fight back", and it was held against them, and people accused of rape who said in their own defence that they didn't think they were raping the person because they didn't do anything to stop them. That's not their responsibility, it's yours to get "affirmitive consent".

In answer to your initial questions, yes? To all of them?

If you're sitting close to someone you're attracted to and you turn to stare into their eyes and they don't smile back or snuggle closer or lick their lips or do something to indicate that they appreciate the increased attention, it seems like a no-brainer that the right move at that point is to back off at least to the level of interaction that they last seemed happy about. If you're not sure about the signals you're getting, that's when you need to ask out loud.

To put that another way, yes, many non-verbal cues are easily misunderstood. Many others aren't. (Most behaviors involving eager smiles and reciprocated action are unambiguously positive. Most behaviors involving uncomfortable frowns or attempts to reduce contact are unambiguously negative.) When there is ambiguity, you absolutely need to ask for clarification verbally before continuing what you're doing or escalating anything. That's especially common with a new partner: you'll probably learn each others' main cues pretty quickly, but nobody's going to complain about extra care to avoid misunderstandings under those circumstances.

> If you're sitting close to someone you're attracted to and you turn to stare into their eyes and they don't smile back or snuggle closer or lick their lips or do something

That's afterwards. I was asking about the general explicit consent concept, which is one must ask explicitly before escalating.

I feel like you're framing this as enormously more complicated than it needs to be. As I understand it, within the affirmative consent framework it is fine to move toward escalating as long as your partner has sufficient chance to signal their comfort before you actually cross any lines.

In a lot of the essential cases, those lines are reasonably well-defined. So (e.g.) if you want to touch someone's bare skin under their clothes for the first time in a given encounter, signal that intention somehow and then pause a moment to catch their eye or to give them a chance to react. If their reaction isn't unambiguously positive, back off, and don't be the first one to signal that interest again without checking in verbally. (If their reaction is positive, cool.)

In other cases, like many of your examples, the lines are fuzzy. Merely looking at someone briefly isn't any more intimate than "sitting close" (which we're assuming they've already signaled they're happy with), but eventually a long gaze might become pretty intense (pro or con). So as you approach that fuzzy border, it's your job to pay attention to their reaction. If they smile and gaze back, awesome, keep it up. (Hey, maybe they're gearing up to lean in and offer that kiss.) If they turn away or look annoyed, then of course you should ratchet back rather than maintaining your stare all the way to the creepy point.

I feel silly spelling all of that out so explicitly! It seems like any person who's paying attention to whether their partner is having a good time would just automatically pick up on these reactions as a matter of course (and at that point only a real twit wouldn't adjust their own behavior accordingly). And when there's any uncertainty, yeah, you've got to touch base verbally.

But in practice I think that's pretty rare. Honestly, based on my own limited experience in these situations, people who want a sexual encounter to progress are usually entirely unambiguous about that fact, with or without words. If they're not actively encouraging you (and you don't know them really well), why push it if they're not into it?

Isn't taking all reasonable steps to ascertain consent what the affirmative consent thing is all about?

Yes. But if you take those steps and still end up being mistaken -- to take a deliberately bizarre hypothetical, suppose you're in bed with someone who has a brain tumour causing them to say "yes" when they mean "no" -- then you might believe that you have that consent when the "experience of the victim" is that they did not consent.

Yeah, it's pretty shocking to me too. I don't know how it happened, but somehow people interpret affirmative consent as meaning we're going to start prosecuting rape cases with presumption-of-guilt.

In my brain these are actually two different things. One is how we teach consent to teenagers and young adults, the other is fixing extremely well-documented biases in how rape cases are tried in court. Key phrase being "extremely well documented".

I don't think affirmative consent is sensible at all.

If it were made law, then I would have been raped, and been raping at the same time, during pretty much all sex I've had in my life!

Obviously it's possible to have amazing consensual sex without affirmative consent.

I think you've just been misled (or are actively trying to mislead) about what affirmative consent involves.

This is the rhetorical equivalent of "but it's snowing, so much for global warming!", a ha-ha-gotcha cliché, maybe you should try to engage with the topic on a deeper level.

Maybe we need a clearer definition then...

I literally cannot imagine amazing sex that doesn't easily pass the threshold of "affirmative consent".

As I quoted elsewhere in the thread, the definition that pops up on Google reads, "Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity." [http://system.suny.edu/sexual-violence-prevention-workgroup/...]

Any attempt I make to imagine "amazing sex" involves my partner being every bit as excited about what's going on as I am, at every step along the way. That means that when I'd signal interest in doing something new, she'd be expressing delight about it in one way or another (and vice versa). Anything of the sort would satisfy this definition with flying colors.

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If someone is into BDSM or some sort of role playing that doesn't line up with my own (admittedly vanilla) vision, good for them. But everyone I've known who's into that scene takes an even stronger position on consent than the "affirmative consent" standard: they negotiate boundaries with their partners up front, and they agree on specific safewords that are given absolute respect. We don't generally ask that much of most people!

What models of "amazing sex" do you have in mind that would not satisfy at least an affirmative consent standard? As I said, I literally can't imagine such a thing, so I'd welcome further insight.

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Thanks for answering: I appreciate it.

I'll admit that that notion is pretty foreign to me: "unenthusiastic" is pretty antithetical to "awesome" in my book (not just when it comes to sex). But setting aside the "awesome" label, I can definitely see a place for occasional unenthusiastic (but fondly willing?) sex in a long-term relationship. And I'm willing to grant that some folks might be turned on by "hateful" sex (though the combination of "hateful" and "unenthusiastic" seems exponentially less interesting).

But in either case (and maybe especially both together), the sex in question is almost by definition going to look one heck of a lot like rape. If your partner is actively demonstrating a distaste for what you are doing, how do you know that they're consenting? I would hope that the people involved would have some very explicit conversations about what was expected in advance (and ideally even set up a safe word), just as for BDSM. (And as I noted, I consider that a stricter standard than affirmative consent.)

Without those safeguards, if one of the participants in such an arrangement accused the other of rape, I honestly couldn't begin to see a reason to disagree with them. ("It wasn't rape, it was unenthusiastic, hateful sex! He's into that, believe me! Even though he says he isn't." That's not gonna fly.) Is there something I'm missing about this?

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As noted, angry sex isn't my thing, but hey, everybody's got their own kink. I wasn't trying to advocate banning it at all! But I would think that it really ought to fall under the heading of "needs a safeword". Otherwise, I feel like it would have an unacceptably high likelihood of misunderstanding leading to rape.

If there's nothing resembling affirmative consent during the encounter itself and there's not a careful conversation about boundaries (including a safe word or something comparable) beforehand, what is the mechanism by which the people involved can feel confident that their partner is in fact consenting?

Why stop there?

Why not install a video camera on every street corner, in every home, and deep packet inspection on every network hub?

Panopticon seems really nice in theory, and it's easy to support if you think you're the watchman. But in reality you are one of the watched.

    > It would be contrary to the principles of fundamental
    > justice ... then any lack of consent is a tragic
    > mistake, not a criminal offence

There's a reason jurisprudence is a doctorate:

https://en.wikipedia.org/wiki/Strict_liability_%28criminal%2...

There's a reason jurisprudence is a doctorate:

Yes, there is:

http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985ca...

I'll risk down votes...but...this is one of those posts that doesn't fair well here in the sense of balanced conversation...and the comments I have already read...I hope it disappears soon...

I'll vote you up mainly because I also wonder a bit about why this article is here. I haven't been around HN for that long, but even a year ago I seem to remember that the articles voted up were mainly technical in nature or related to startups. I have noticed that as discussion boards get more popular they seem to move to being platforms for expressing opinion on political subjects. It may be my imagination, but these kinds of topics seem to be becoming prevalent to the point where I'm seriously thinking of not checking in any more.

One may wonder why I am looking at the comments for such a topic, if I am not interested. To be honest, I'm wondering if I am the only such person. Possibly not.

The comment is topical on HN because of previous incidents of sexual assault allegations at/after tech conferences that were not dealt with by the criminal justice system, but rather by internet mobs and character assassination.

I'm of the opinion that this kind of stuff should be reported to the police and be dealt with there, rather than via blog posts and twitter, but the argument "police don't care" seems to trump my position.

I live in Australia where the police would give a flying shit, especially if you have corroborating witnesses (the case I am thinking of here on HN did).

This all ties in with the "All White Men"/"Women In Tech"/"Male Privilege" microcosm that is not unique to startup web tech, yet has somehow crept in, in the last few years.

I like to keep my peas and corn separate on my plate, but others like to mix them together. Oh well.

I think that this is probably just your perception. I've been here on and off for at least a few years now and I don't think that the content has really changed.

When you read the guidelines[0] it is clear that basically anything can be discussed here, given the right angle.

> anything that gratifies one's intellectual curiosity

> Off-Topic: Most stories about politics, or crime, or sports, unless they're evidence of some interesting new phenomenon [emphasis mine]

[0] https://news.ycombinator.com/newsguidelines.html

Social/political issues are not orthogonal to technical issues -- in fact, the belief that they are orthogonal is fundamentally conservative (protective of the status quo).

As in, if I'm not part of the solution I'm part of the problem? ;-) I can understand that this is an important issue. I can understand the desire to discuss it and to do so in front of specific segments of the population for which the issue is important (in this case technology workers). I would argue, though, that this particular issue clearly is orthogonal to technical issues in that it is something that is important and relevant to all humans in all walks of life. That's what orthogonality is. I think that's precisely why people want to discuss these kinds of things in terms of technology/hacker culture.

However, as important as this issue is, there are other issues that are just as important to every human in the world. And just like this issue, they are orthogonal to technology. They are just as important to discuss in front of an audience like HN as they are anywhere else. As such, there are people who are very determined to get access to this audience. It is easy to reason that these are important issues that nobody should ignore. It is easy to reason that we should make sure to provide a stage and put it front and centre.

But my life is full of people screaming to get my attention to important issues. I spend quite a lot of my time and energy dealing with them. Sometimes I don't want to do that. Sometimes I want to find out about trivial things like what new crazy javascript framework I'm going to be cursing about tomorrow. Or why I should pay attention to some unicorn startup (who will almost certainly be gone in a few years despite all the hype). Sometimes I don't want important. That's why I come here. I assume there are others who feel the same way, but I could easily be wrong.

You do have a point. It's conservative in the sense that it has been this way for a long time and that it's been working out well enough. Why do we need to change it?

And no, rehashing the old ">2011" meme for the millionth time is not a valid argument.

Working out well enough for whom?

I would like to posit a variation of the anthropic principle:

We are currently alive to have this discussion, therefore the things we've done to get here are not the worst we could have done.

I recognize that's not the strongest argument, but it sure as heck beats the stupid "it's 2016, therefore you are on the wrong side of history" meme that people seem so fond of throwing around.

To answer your question: Working out well enough for you, me, and everyone here.

So can we please stop trying to force the latest political fad into everything ever?

It's been working out well enough that we're alive? That's a pretty low standard for whether we should discuss the intersection of social/political issues and the tech industry. Surely in that case, we shouldn't be discussing any regulations or taxation of the tech industry either?

That was more intended as a defense of conservatism in general, since the post I was replying to gave the impression that "conservative" was synonymous with "wrong, evil or stupid" - maybe I'm reading too much into it.

Still, humor me. Can you tell me why we should be wasting time with the ever more outlandish demands of the politically correct language police? Can you tell me why we should replace merit-based hiring with some variation of the progressive stack? Can you tell me why we should be expelling people from conferences and open source projects over things they say on their private twitter accounts?

Because when I see someone advocating for "intersectionality" those are the kinds of suggestions they seem to come up with.

My own comment has been bouncing between a score of three to zero and up again. It's fun to see the limits of HN's scoring system - there are plenty of greyed out comments that are reasonably argued and that many people upvoted, but if the same number of people plus one downvoted it, then you get a lighter colour signifying, fairly inaccurately, that you have overstepped some sort of bounds.

There should only be one legal system to make rulings, nothing secret, nothing private. The only exception is that private councils or mediators should be opt-out, no strings attached, no questions asked, in order to easily gain access to a real court. This may be unpopular, and I've never been part of the military, so I don't know the drill there, but just as secret courts for the likes of Snowden, there is no place for a military tribunal. And just like a normal court has to rule on parking tickets and serial murders, it shall also rule on war crimes. Think Den Hague as somewhat of an example. I'm perhaps repeating myself, but a secret court nobody can discuss, attend or scrutinize, does not exist in the real world and is something else misusing the existing name (court). I think of it as good marketing for a system that wants to get rid of dissidents and is basically no different than any other show trial under dictatorships. If you cannot defend yourself properly, it's not a trial. If you're sure you're in the right, you have no justification to hide behind closed doors whose existence is denied as well.

Uh, isn't the headline obvious? Crime such as sexual abuse should never be prosecuted by anyone other than the government!

This is precisely the reason why the Roman Catholic Church and other institutions were able to cover up child sexual abuse on a massive scale!

Australia is learning the extent of this now because the much maligned former Australian PM, Julia Gillard, established a Royal Commission into child sexual abuse within Institutions. This has been painful but cathartic for Australia - and a key thing that is emerging is that institutions who investigate the incidents themselves almost always cover up the abuse. This isn't just the Catholic Church - it's the YMCA, Buddhist organisations, dance schools, the Salvation Army, and numerous boys and girls homes. The Catholic Church is probably the most egregious offender, and its illustrative to note that rather than report serious sexual crimes to police, they shamed the victims and moved the offenders to different parts of the country (or overseas!) thus spreading the abuse.

I wonder how many Colleges have done similar cover ups?

It wasn't long ago that I would have agreed with this article in full. I may have even posted here on HN to that effect before. I am still sympathetic to the point it makes. However:

Universities boot people out for other reasons which are not actionable in a criminal (or even civil) court all the time. Getting shitty grades, being a disruptive asshole in a class on a regular basis, and so on, can end your university career.

So, with that in mind, "creeps everyone the fuck out and is probably a rapist", isn't such a stretch. I would not put someone in jail for that for any length of time. But, I don't know if "deserves jail time" is the right comparison. Maybe "I would fire this person, if they worked for me" or "I would kick this person out of my social club" are more apt.

Now, I think that someone so expelled should have an easier time getting into another university than they currently do. Right now it seems that getting expelled because a university tribunal found you responsible for an alleged rape carries, for the purposes of college admissions elsewhere, nearly the same consequences as being an actual convicted rapist. This puts too much faith in the judgement of some other university's tribunal, which bring me to my next concern:

These tribunals are too often full of shit. There are a few horror stories going around and you've probably read a few. Some places I think are not requiring a high enough burden of proof. The regulations and standards at the federal and state levels ought to be improved, and in light of the fact that sexual violence on campuses is on the decline, the improvements should result in fewer students being expelled, not more.

But, in principle, I think it's fine for a university to do this, even if the accused rapist could not possibly be convicted in a court of law.

>These tribunals are too often full of shit. There are a few horror stories going around and you've probably read a few. Some places I think are not requiring a high enough burden of proof. The regulations and standards at the federal and state levels ought to be improved, and in light of the fact that sexual violence on campuses is on the decline, the improvements should result in fewer students being expelled, not more.

Part of the problem is that the Obama administration has been issuing new "legal interpretations" (i.e. making up new laws) that require colleges to apply a preponderance standard to sexual assault proceedings, based on a very contorted reading of Title IX, which requires equal treatment of genders by universities receiving federal funds. "Preponderance of the evidence" means that whoever is more likely to be right wins, even if its 51-49. So in a "he said, she said" situation you have to convict if the accuser's story is even a bit more plausible. Additionally, accused are denied the right to have counsel, to confront their accusers, to remain silent. Such rules are particularly egregious when you realize that the contents of the proceedings could prejudice the result of a subsequent criminal trial.

the contents of the proceedings could prejudice the result of a subsequent criminal trial.

To the extent that universities coerce testimony from their students, shouldn't it be inadmissible in court?

The major problem with this is the person booted is “convicted” of a very serious crime. Getting kicked out because you have been found guilty of rape by some sham court is a lot more harmful to the person than getting kicked out because you are disruptive in class.

I sometime think we should adopt the Scottish system of not proven [1].

1. https://en.wikipedia.org/wiki/Not_proven

Yeah, I know. That's why I'm still sympathetic to the view. I would hope that we could still have the tribunals but treat their findings for what they are: the non-professional opinions of a few administrators, based mostly on informal testimony, hearsay, and perhaps a poorly-executed investigation.

But, perhaps there is no way to accomplish that in a way palatable to most people attending a school. Maybe people are just going to take the obvious shortcut and say "this school admitted a rapist" instead of what actually happened.

If we can't work that out, then maybe these tribunals shouldn't exist. I'm just saying I'm not opposed to them in principle.

There is really no way to solve this problem when you have basically one person’s word against another. I really feel for the victims, but I don’t know what can be done when the consequences of getting a conviction wrong are so high.

I mean we could force everyone must wear cameras at all times.

But yeah, rape cases are always going to have the lowest rate of conviction because most of the time they fall to he said/she said.

I agree, it really sucks for the victims, and as you say the consequences of getting a conviction wrong are so high, and for these reasons we really need to fight these infantizing statements like "we need to listen to the woman's perspective". We do need to listen to victims, and provide them appropriate support but we can't compromise on justice.

What if gay and transgendered people "creep you the fuck out", or orthodox jews, or people in wheelchairs?

Once you start making the case for expulsion and the application of a sliding scale of guilt due entirely to other people's beliefs about an unpopular individual or group as fine in principle, you've basically undone the entire enlightenment in law, governance, and ethics.

Those are all protected classes under the law, so it doesn't hold up. It's the "and is probably a rapist" (or more likely to be than the average student) (according to the university's tribunal) which is the important part.

"Is probably gay", "is probably transgendered", "is probably a jew" and "is probably disabled" are not analogous and I hope I don't have to explain why.

Ask anyone sufficiently conservative/radical feminist which groups of people they think are "probably rapists", and you get the same results as baseless discrimination but through a different explanation.

People tend to think "probably" a lot more often with a lot less evidence about individuals or groups they dislike for any reason.

For instance, I think you're probably a crypto-nazi and should lose your job, but that's almost certainly a totally unfair belief based on my very limited and highly subjective viewpoint.

Good thing we're not talking about what some random person on the internet thinks, but rather a conclusion the university arrives at after a rigorous and hopefully well-defined process which still comes short of the burden of proof required for a criminal conviction.

Rigorous? Citation needed, since a great deal of evidence points to the opposite--that these are politically motivated kangaroo courts with decisions being made by a single individual with no appeals process and no oversight.

At this point I don't know what to tell you other than to re-read my post. I am clearly talking "ought" there, and not "is". This should be especially obvious considering I allocated a paragraph in my OP to explain that I think the tribunals currently are not doing good work, not to mention another paragraph to claim that the consequences of their findings are too high.

It seems like you're reading just enough of what I write to type up an indignant reply, but no more than that. "Dr_tldr", indeed.

yes, clearly swimming seamlessly between what you think should exist and what actually exists and then only distinguishing between the two when you're called out is both clear communication and rhetorically effective.

Especially on the internet, where everyone has full context of your life and personal views, can see your face, listen to your intonation, and hear the comment out loud in your voice, as it was intended.

Oh wait...

It's not like leaving incoherent posts on HN is a war crime, but it makes the site less good when you do that. So maybe you shouldn't do that.

Gay and transgendered aren't federally protected classes. Many states have laws protecting them, but many do not.

But it's not just about Universities booting people out of school because it's their own private club and they can do what they want. There are some weird terrible consequences that come out of the "school court" system that many people don't realize are perfectly legal, and commonly practiced.

A student at my alma mater was brought before the "honor board," where the school specifically prohibits lawyers at the hearings. Part of the required procedure for these hearings is giving a full account of your side of the story, and answer questions from school administrators, a "jury of your peers" and the person bringing the case against you.

These two things combined wouldn't be such a huge deal, except that the person bringing the case against her was the chief of campus police -- a registered police officer in the town the school was in.

So the deal was either "automatic expulsion with no proceedings" or "give your account of the story and answer questions from us and a police officer without a lawyer present"

So we have 18-21 year olds, forced to testify against themselves, without lawyers, in front of police officers. Also keep in mind that this often isn't just a case of "well, it sucks that they're threatening your degree..." These students often live and eat on-campus. They may not have significant money in the bank between student loans. They may have recently moved and not know anyone in the area. In the case of my friend, the school got a restraining order that prevented her from being on campus, and changed the locks on her housing, all without warning, in order to put pressure on her to leave quietly. I mean, she was living out of a backpack and sleeping on a couch while going through the Honor Board case, but if she left, she'd have access to her stuff again. It was nuts.

> Maybe "I would fire this person, if they worked for me" or "I would kick this person out of my social club" are more apt.

You can't have it both ways. Universities shouldn't be able to get the benefit of federal endowments and federally guaranteed student loans while also being considered aristocratic social clubs with the autonomy to pick and choose and deny whoever they want.

If they're a resource that is so important that it must be protected and governed and funded by the federal government, then you should go full-stop and consider it a public resource. And if it is a public resource, then there should be no special laws that the institution is governed by, and the deciding factor as to whether someone should be kicked-out should be violation of general law, decided by real courts, brought by real police, and argued by real lawyers.

By that logic, universities shouldn't be able to kick someone out for being disruptive repeatedly or getting bad grades. No?

I think you could work those policies into law.

So, to be clear, you think it's okay to ruin people's lives because one woman doesn't like them?

Expulsion for rape is a lot more severe than merely firing someone. Your name gets tarnished in the press and your future employability is destroyed. At that point, you might as well be in jail—your life is already ruined.

> So, to be clear, you think it's okay to ruin people's lives because one woman doesn't like them?

I don't know how you could possibly take that away from my post unless you are being deliberately ignorant and selectively ignoring things I write. I quite clearly stated that I think the tribunals doing this stuff now are too often full of shit and that the federal regulations governing their behavior need to be reworked and that the result of the reworking (i.e. as a goal of the policy) should be that these tribunals find fewer people guilty than they do now, resulting in FEWER EXPULSIONS THAN WE SEE NOW.

If a university expels a students because they have arrived at the conclusion that they believe, with let's say 3:2 odds on, that a particular student did in fact commit a rape, then I have no problem with that. That is, however, substantially less than the burden of proof typically required to obtain a criminal conviction. Moreover, I don't think that the findings of that tribunal, after the expelling the student, should have a serious impact on that student's ability to successfully apply for admittance to some other school.

Sorry, I don't think I read your comment closely enough.

I interpreted "creeps everyone the fuck out and is probably a rapist" as a euphemism for a simple rape accusation (since, in practice, that's sometimes what's going on).

Your other ideas are solid and I definitely think students who are expelled should have an easier time applying elsewhere. However, I think in practice these tribunals are too corrupt and incompetent to do any good. They're too susceptible to activism by students on campus and hence it seems unlikely they'll ever provide justice—even to a lesser standard than courts.

the accused rapist

Agreed with most of what you wrote, but there's no such thing as an accused rapist (unless you're including previous convictions).

Title IX requires schools to perform some level of investigation. This is backwards. Title IX should FORBID schools for investigating and mandate forwarding of information to the police.

The purpose of internal disciplinary systems is to have a weaker burden of proof.

Meeting "beyond a reasonable doubt" is very difficult when the victim and perpetrator are in something resembling a romantic relationship and behind closed doors, to the point that almost no rapists would be found guilty.

Schools instead use the standard of "more likely than not" to return a finding of "responsible," which means the school can get rid of the rapist, even if there's not enough evidence to put him in prison. Lower certainty required for a less drastic action.

If only cases that DAs think are winners get acted on, the vast majority of campus rapes are immune from punishment.

>"Lower certainty required for a less drastic action."

If you consider what happens to male college students if they are accused of rape and found "guilty" to any degree by the university, then you wouldn't say it's a "less drastic action".

They get expelled, likely have their reputations and lives ruined. This is the reason we have courts, and it is the reason we don't give judge/execution rights to police.

Getting expelled is less drastic than being put in prison.

Sorry but if its he said/she said how it faire on the accused? To get kicked out of school, have massive debts, have their name trashed all because you had drunken sex with someone and they regret it in the morning?

We have courts for a reason. And these kangaroo courts are a travesty of justice.

Presumption of Innocence is considered a human right by the United Nations. Manipulating the system to implicitly lessen the burden of proof is horrific.

But at least the intentions are noble. As the current police system's handling of rape cases is also horrific. However two wrongs don't make a right.

Balance of probability has nothing to do with presumed innocent.

In other words, it allows them to get rid of who they see to be "undesirable".

There's a reason why the legal system requires a certainly level of certainty before a conviction stands!

> Meeting "beyond a reasonable doubt" is very difficult when the victim and perpetrator are in something resembling a romantic relationship and behind closed doors, to the point that almost no rapists would be found guilty.

That's totally fine if you ask me.

I think we should be having people signing this paper when they turn adolescent:

That they understand that they are responsible for selecting their sexual partners, and once they engage in consentual sex with them, they can no longer accuse this person of rape unless they later acquire a restraining order against them. They can still accuse their sexual partners of violence (that's verifiable) but not of rape.

Do not want to sign it? You have to tell this before any kind of sex to your potential partners.

> I think we should be having people signing this paper when they turn adolescent:

> That they understand that they are responsible for selecting their sexual partners, and once they engage in consentual sex with them, they can no longer accuse this person of rape unless they later acquire a restraining order against them. They can still accuse their sexual partners of violence (that's verifiable) but not of rape.

> Do not want to sign it? You have to tell this before any kind of sex to your potential partners.

Were you born like 200 years ago? Please do not visit my country.

The problem is not the investigation it is the conviction. Schools should investigate, but they should pass on their finding to the relevant authorities and not try to replicate the court system with people who don’t know what they are doing.

Same author, more recent post [1]

I really like the way that he expanded on this theory and talks about the authority that universities have accumulated and the effect that it is having on students. For more on this topic, I really recommend an article, Campus Protesters Aren’t Reliving the 1960s -- (Yesterday’s student activists wanted to be treated like adults. Today’s want to be treated like children.) [2]

[1]: https://familyinequality.wordpress.com/2015/11/09/university...

[2]: http://www.politico.com/magazine/story/2015/12/campus-protes...

Not completely off-topic, but: Is there an api-based HN client/site that can filter out certain topics?

I've been mulling over creating such a thing. I would like something just about programming. No valley gossip and other off topic stuff. The biggest problem as I see it is that posts aren't tagged/categorized. I suppose one solution is applying some kind of bayseian filter to the linked article to figure out whether its a programming article or not.

Yeah, I was contemplating the same.

I think for just filtering out, having rule-based blacklisting of keywords would suffice for 95%. Of course it would be much nicer to have classification and then also be able to positively switch between certain categories (say, AI, programming languages etc).

Should more of the disciplinary action [involving criminal activity] be moved from the purview of colleges to the courts? I can see this making sense not only for cases of allegations of rape but also allegations of censorship, bias, underage drinking, etc. Sometimes colleges exercise a little too much discretion in adjudication. On the other hand, if we move not only grievous allegations but other less grave cases to the courts altogether, the caseload may overwhelm courts.

Is there a divide between commuter campuses vs more residential campuses?

> allegations of censorship

Greg Lukianoff wants to sue the department of education [1]. He just needs a case. Here is his org's free speech case list [2], and here's another clip of him talking about it [3]

Laws do not enforce themselves. People need to make an effort to bring cases to court when there are injustices.

The video clips are from the time of BLM protests at Yale at the end of 2015. Students were upset about an email from a faculty member who suggested that, while certain racist halloween costumes were ill-advised, they aren't against the law and other students should learn to deal with them peacefully.

BLM students were in an uproar and saw this email as an approval of costumes like black face. The Yale President came out in support of the protesters. Erika Christakis, the author of the email, eventually resigned, despite support from thefire.org and others. Greg predicted this [4]

The same thing happened around the time of the Vietnam war at Yale. Some guy named Shockley was invited to talk about eugenics. The idea was to allow his bad ideas to be heard so that he could hang himself. But some students protested and would not let him speak. Here's the full story [5]. The culmination of that episode was a report from a newly created committee on Freedom of Expression, led by Vann Woodward, also known as the Woodward report [6]. Its final paragraph reads,

> The conclusions we draw, then, are these: even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression. This obligation can and should be enforced by appropriate formal sanctions. If the university's overriding commitment to free expression is to be sustained, secondary social and ethical responsibilities must be left to the informal processes of suasion, example, and argument.

So that all sounds good. Lukianoff and thefire.org argue that Yale's administrators haven't been living up to the actions suggested by the report.

Contrast this to how Columbia handled a visit by Ahmadinejad. Many people felt very strongly he should not be allowed to speak at such a reputable institution. Yet, they allowed it, and now he's on record saying that Iran has no gay people. It was an absurd thing to argue. Those who invited him knew he was going to say it. They wanted him to share his true feelings, hear foreigners' reactions, and give more of the world a chance to hear and talk about that viewpoint.

[1] https://youtu.be/qGnNKmR1EEc?t=57m02s

[2] https://www.thefire.org/category/cases/free-speech/

[3] https://youtu.be/qGnNKmR1EEc?t=20m40s

[4] https://youtu.be/qGnNKmR1EEc?t=17m32s

[5] http://scienceblogs.com/dispatches/2008/02/05/william-shockl...

[6] http://yalecollege.yale.edu/faculty-staff/faculty/policies-r...

Yes, because what we really need right now is the courts bogged down deciding whether Johnny Fratboy cribbed a few too many quotes without properly citing them.

I've amended the comment to refer to criminal accusations --which is what I mean to specify.

Of course they do, just like when it occurs in the military.

That's why we have a justice system.

Anywhere else is a matter of other people trying to exercise political power over outcomes and corrupt the process so it has lesser impact.

That's why when you pour money into third party systems like the VA, you weaken the original system (public hospitals) by taking funding away from them that could have helped everyone. Stop making circumventions.

(2014)

With all the hoopla going on about it nowadays, you'd think this article was published in reaction to what just happened.

No, apparently someone saw this coming. I wonder what we could have done to avoid this.

It seems I'm out of the loop: what just happened?

Added.

http://www.wired.co.uk/magazine/archive/2009/06/features/gui... is better to solve such cases in campus

> why not impose a simple set of rules to work with the criminal-justice system

It's really simple. First you just need to figure out who's telling the truth.

Which is the justice system's whole job, and they've gotten pretty ok at it.

Courts start from presumption of innocence. Which is something that is not compatible with the "victim's story should not be questioned or challenged" approach that some advocates like.

Who has time for due process when such misogynistic injustice is taking place.

> and they've gotten pretty ok at it

By that do you mean "pretty mediocre" or "pretty good"?

If I was being charged with something and they offered the 'pretty mediocre' option for determining guilt vs the 'believe the victim' option, I know which I'd take.

The system isn't great, but it's the best we've got, sadly.

In rape cases about 1,5% proven guilty, about 1% proven false. But I guess ~97% failure rate can be considered OK in such situation?

Could you show source for the stats. I've seen 5 to 7% but 1,5% seems extremely low.

Given that it's literally one person's statement vs. the other person's statement, anything > 0% of proven cases is a win.

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