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Rape, sexual assault, college campuses, and burdens of proof
zakkiel
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Since the last post in this thread, there have been a lot of new developments in the US regarding rape, consent, and standards of proof.
- Using Title IX, the Obama administration has directed that schools use a preponderance of evidence standard to evaluate rape accusations
- Many states are considering making affirmative consent the law
- Affirmative consent statutes are drawing some opposition within the American Law Institute:
In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”... The hypothetical crime cobbles together two of the draft’s key concepts. The first is affirmative consent. The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. As the authors of the model law explain: “Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched.” So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. “With passivity expressly disallowed as consent,” the memo says, “the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint.”
- A considerable number of accused men are suing their schools, claiming their due process rights were violated. The most newsworthy are probably the University of Michigan case, the Occidental college case, and the Columbia case (the mattress case). That last one is about harassment rather than due process.
- The Rolling Stone article - doubt a link is necessary for that one.
- Related: a Northwestern professor who wrote an opinion article about "sexual paranoia" on campuses. She received two Title IX complaints in response, which the university investigated (they were ultimately dismissed). During the process, she wasn't allowed to have a lawyer but was allowed to have a colleague speak as a character witness. In a Kafkaesque twist, said colleague promptly received his own Title IX complaint.
Account not recoverable. So long.
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No, I think they are saying the described behavior should not be a crime. You disagree?
Hand holding?
If, on the other hand, you keep touching and kissing somebody who doesn't want you to do that, that's a problem, and one way of discouraging that is by moving to an affirmative consent standard.
I guess their statement just seems like begging the question. They might as well be saying, "If we outlaw murder, and then I go and murder somebody, I'd go to jail! You don't want that, do you?" Like, yes, that is the proposal here, we are going to criminalize behavior that is not currently illegal. Do they have a real argument against that change?
I think they take it as obvious that handholding should not be a crime. Saying, "Well no one would prosecute that and they'd lose if they did" is not a good case for a law - it's tantamount to saying, "This law is ridiculous." And also, it's naive. If you put a law on the books, you can and should expect that prosecutors will use it to the fullest, most literal extent they possibly can regardless of your intentions when you write it.
Touching and kissing someone when they don't want you to is already a crime. The difference is that now if there is some reasonable basis for this behavior - i.e., you're on date, not being grabbed in the street by a random stranger - then you have the obligation to say that the contact is unwanted. I am having a hard time coming up with a scenario that would be newly criminalized by affirmative consent that should be criminalized.
If I am misunderstanding this id appreciate clarification, but right now it looks like criminalizing stuff that should not be criminalized. Like hell, my current girlfriend took the plunge and initiated everything with a kiss that took me by surprise. The idea of something like that being against the law is crazy to me. Can't figure out if it really is this silly or if I'm just missing something important.
No.
the "no true scotch man" fallacy.
Ok.
Than I guess i am very confused as to how it is supposed to work.
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If we outlaw trespassing, what happens if I'm being chased by a rabid dog and I accidentally put one foot in somebody else's yard!?
If we outlaw shoplifting, then what happens if a shopkeeper puts a bowl of mints out and I take one but it turns out they weren't free and they catch me on camera and charge me for shoplifting!?
If we outlaw child abuse, then what happens if I grab my child's arm to pull him out of the way of a bus but I pull too hard and give him a bruise and then somebody calls child protective services!?
If we outlaw graffiti then what happens if I'm painting my house and I accidentally get a tiny paint splatter on my neighbor's house and the police arrest me for vandalism!?
If we outlaw mugging, then what happens if I'm panhandling and somebody gives me a dollar but then claims later on that he only gave it to me because he felt threatened!?
No, constructing outlandish hypotheticals that might, if everybody involved is overwhelmingly stupid, result in a conviction does not mean that a law is intrinsically bad.
the "no true scotch man" fallacy.
Do you regularly engage in sex where you're uncertain of whether your partner is willing?
I'm guessing not. So think of all the ways you judge consent.
the "no true scotch man" fallacy.
Sure, let's play.
Shoplifting is already illegal. If you introduce a new law that says "Anything whatsoever that you remove from a shop without the shopkeeper's express permission is theft," well, then people are going to ask questions about lint and water from the bathroom tap, because what else could this law be intended to do? Given, as stated, that shoplifting is already illegal.
Edit: the trespassing example is particularly apt, because actually if you go knock on someone's door during the day, you aren't trespassing until they tell you to get off their property. So if you introduce a law that says "You must have express permission to enter anyone's property," yes, you will indeed get a lot of horrible counterexamples just like the one you describe, because it's a shitty law.
In my opinion human beings know the difference between touching that is inappropriate/sexual in nature and touching that isn't. Basically I disagree that hand holding falls under a law intended to criminalize "the touching of any body part, clothed or unclothed, with sexual gratification in mind". So I reject their absurd hypothetical as being non-applicable.
Being on a date is not consent to be touched, sexual assault is often perpetrated by acquaintances rather than random strangers, do I really have to say this in 2015?
What sorts of touching should be crimes, that currently aren't?
Is whatever the standard is now that a person must expressly say no for it to be wrong?
Because otherwise I don't understand what the effect of change would be.
It you don't want to answer my question you don't have to. I'm unsure of how affirmative consent differs from just what people do normally, which is further clouded by examples provided by the opposition in the OP. You are under no obligation to explain anything or engage with my question, but I don't get the terse non answers.
Simply put, the opposition in the OP seems to indicate that consent has to affirmed in some concrete way, while my experience has been that consent is often given in a nonverbal manner, and often in response to someone else's initiation. Which leaves me rather confused about what the whole damn thing is and what it is supposed to accomplish.
Ah. Then we have the fundamental disagreement.
Two people are on a movie date. Person A has their arm around person B. Person A feels the moment is right and reaches down to cup person B's breast. Person B does nothing one way or the other. They watch to the end of the movie and part ways. In my view, this should not be a crime, even if person B did not like this touch. Without even a minimal effort to refuse the touch or disengage, I don't think this can reasonably be described as sexual assault and should absolutely not be a matter for the criminal justice system.
That's already a crime. They're not suggesting that doing so shouldn't be, more as I read it, if someone goes for a kiss on a date after misreading the mood that you would be criminalising that. Whereas for example going up to a random person unknown to you on the street and trying that is already.
We also don't typically interrogate theft victims to find out if they were insufficient in their efforts to stop the thief. We don't let thieves get away with "well, I didn't KNOW I didn't have permission to take that" unless there was some reasonable signal that the item in question was free.
Sexual assault is the only crime in which we regularly put the burden of proof on the victim to demonstrate that they in fact expressly forbid the accused from acting. Affirmative consent policies bring sexual crimes in crimes of violence and property.
the "no true scotch man" fallacy.
Let us grant that rape and sexual assault is the only crime that we do interrogate the alleged victims with regard to their behaviour. What follows from that?
Because the vast majority of sexual encounters are consensual. If your neighbor has your hammer, and you claim it was stolen and they claim you loaned it to them, the police are indeed going to ask you questions to establish who's telling the truth. And then probably give up after you get your hammer back because there's no way to resolve it. If you walk out of a store with a brand new hammer you didn't pay for, yes, they won't ask the store owner to prove you stole it. The difference in the burden of proof is based on the likelihood of consent.
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It's interesting that you choose to use this example. Because this happens all the time. Like literally all the time. You can't prove the intentionality and dishonesty you can't prove the theft.
I do not agree that sexual crimes are sufficiently different from violent or property crimes to justify a difference in the way we treat a victim's statement of nonconsent.
What follows is that sexual assault is the only crime in which we can have solid forensic evidence that the accused committed the act in question, where the victim can adamantly say "I did not want this to happen," yet the perpretrator can be found innocent on the basis that he was unclear about the situation.
Among other things, this is what allows rapists to commit multiple rapes without ever facing conviction.
the "no true scotch man" fallacy.
As such, committees of college administrators and professors who want to make performance art have no business bumbling around playing investigator, prosecutor, judge, and jury in these cases. They're driven by interests other than those of justice; administrators bring all sorts of institutional ass-covering, and professors bring all sorts of ideology. I think we've seen both these motivations; "investigations" where mountains of exculpatory evidence wouldn't exonerate the accused, and cases where real crimes were covered up so as to not embarrass the college.
And even if they mean well, they have no idea what they're doing; spoliation of evidence and influencing of witnesses are things likely to happen when your "investigator's" credentials is a two-day seminar on harassment.
Title IX should be changed, or DOE guidance should make clear that these matters should be handled by the real detectives, preferably by a professional special-victims unit, which fortunately are very much a thing in most cities now. They're not perfect, but for all the effort that's going to go into making fake college courts, we could make them a lot better...
Having special "consent" laws for college students is a political side-show. We're either going to treat rape and assault like thesis projects or like heinous crimes.
Age is a more concrete foundation for accusation than consent. From an outside perspective you can objectively determine one but not the other. Between the two I'd say that is the more relevant difference.
Edit: For my own edification l, what sort of steps are you thinking of? Given that consent need not be verbal, what exactly are you proposing that differs from how things stand now. And given the criminal aspect, how does one prove consent was given if they should require such a defense?
The vast majority of property exchanges are consensual, too. I don't know about y'all, but I've given gifts far more often than I've been stolen from.
The difference here is in implied consent. The situations in which consent is implied for property exchanges or violence are relatively narrow and require some affirmative (see what I did there?) defense. But we imply sexual consent in any situation in which two adults are alone together.
the "no true scotch man" fallacy.
I want affirmative consent to be the standard in all sexual assault cases. I don't think that universities should have to play judge and jury, either.
the "no true scotch man" fallacy.
Propert exchanges absent compensation between people who have some relationship are generally consensual. And, in general, I'd think you'd have a hard time pressing charges for theft against a family member, boyfriend, or even friend absent some significant aggravating circumstances.
There's also a difference between consent being implied and with non consent being an element that must be proven. Functionally they may seem the same, but saying "I do no know if x happened" is not the same as saying "I know that x did not happen."
In the case of pretty much every other crime, the former is sufficient for acquittal.
Does it have to be verbal?
Does it need to be given before beginning a sexual act?
Does it need to be explicit or can it be implied?
Can it be revoked mid-act, and what is the legality of actions taken immediately after? Does revoking consent need to be explicit or implied?
Affirmative consent sounds like a very good thing, but I want to know exactly how it differs from the current legal standard of passive consent.
It doesn't matter. The law needs to stand up to an unreasonable pressing of charges, especially with how the American criminal justice system tends to operate.
A great, sexually related example was age based consent in areas without Romeo and Juliet laws. Two teens of approximately the same age, who had been in a long term sexual relationship, could see one of them age a single day and become a convicted felon sex offender under laws ostensibly designed to protect teens from predation.
So, the better written laws now make it legal for a 17 year old and 18 year old to have sex, while still criminalizing 42 year olds trolling past high school campuses to pick up underage individuals. That's how laws ought to be written. Any law that we would be uncomfortable with if it was enforce 100% of the time should be assumed to be a bad idea without powerful evidence to the contrary.
That's not really true, especially in practice. For example, my state's criminal code requires that trespass be intentional, and it only applies when someone is specifically told not to go onto the property, or it is specially protected (dwellings). Someone is not guilty of criminal trespass if they deliberately go onto someone else's land, unless the owner can show they asked them to leave and the person refused to comply, or explicitly forbade it by signage before their trespass.
So, trespass does effectively operate under a "no means no" framework, much like sexual assault does now.
And even in terms of thieving, while the thievery equivalent of stranger rape is very obviously illegal, if someone takes their roommate's car without his permission to pick up dinner for both of them, which they've allowed before, well, I strongly doubt that is going to go to trial, or get a conviction, unless we're talking about a poor minority defendant pleading out, the latter example not being a shining accomplishment in our criminal justice system.
I think there are tools to help increase arrest and conviction rates without going down dangerous roads in terms of guilty until proven innocent standards. For example, in my hometown, the local sexual assault victim's non-profit has a fantastic relationship with the police, DA's office, and hospital, and has trained forensic interviewers to help in trials, so there's a consistent, working system to provide all the way from from the immediate short term crisis of someone showing up to the hospital after an assault, to long term support and counseling.
I'm more curious as to how it can differ without disrupting our current legal system entirely. You can (foolishly imho) mandate that consent be concretely asked and received, but without enforcing written contracts of some kind I see no way to actually determine that consent was/ was not given in all but the edge cases.
Our legal system denands the sort of evidence that is in short supply for the cases that really do need prosecuting due to the nature and privacy of these interactions. This is unfortunate, but I see no way around it. Affirmative consent seems like more of a good idea to personally practice than the basis of a law.
the "no true scotch man" fallacy.
This. Affirmative consent is useful, perhaps, as a way of shifting societal attitudes. Legally, you still run right up against state burden of proof and presumption of innocence. And doing away with that is much more problematic.
Otherwise all you've done is force rapists to lie differently.
No. But there are all sorts of things which are not sex, for which would be considered sexual assault, were they performed, which would be prosecutable under these types of laws.
The problem, as it stands, is that our current social norms do not mesh well with this type of law. Not only is it the norm that one gender initiates intimate relationships, but its the norm for the other gender to be, more or less, entirely passive until that point. There is very little explicit indication of interest. Rather interest is indicated by engineering time away from peers or other such activities.
In short, if a guy says "lets go to my place and have some coffee" then he isn't asking for coffee, he is asking for sex, and vice versa. But this has no amount of affirmative consent. Its the same he said she said think "I asked if she wanted to come up for coffee, she said yes, i thought that meant sex". The first action, which under these laws, will always either be potentially a sexual assault depending on the reaction of the potential victim. "She looked like she wanted it" isn't a defense against an affirmative consent law. That or we're going to have to start asking for sex directly, which is a bigger leap than it sounds, to universally change our culture.
Prior to now we had set up an assumed consent "no means no" structure to try to reconcile the fact that assaults and rapes were occurring at high rates with the fact that the social norms were to not ever explicitly request or ask for sex. This clearly isn't ideal since there will be times when social pressure or fear will prevent the victim from speaking up. And of course because some amount of assault is likely to have happened before they say no anyway. In these terms affirmative consent is clearly the proper law, given we can choose our social norms.
But as it stands we've got the disconnect because we can't change our social norms and because we're actively fighting against them.
It's almost as if the criticism is based more on what they imagine the law to be, rather than on what the law actually is.
I am still unsure what facts you hope to find that illuminate the he-said she-said narratives. Ultimately you run into the fact that acts performed In private that in themselves are legal save the state of mind of the actors involved are simply a nightmare to prosecute. Affirmative consent isn't going to stop rapists.
From reading up I believe I have a better idea of what affirmative consent is supposed to be, but I'm still curious how you are defining it so as to avoid talking past each other.