CHE article: Rape Procedures

[Wahoo Redux]

By the way, the prediction of derailment seems to be off, Wahoo! Sorry. It might have been more interesting if we had all called each other idiots.

Actually yeah, I expected more heat.  Good job.

[marshwiggle]

By the way, the prediction of derailment seems to be off, Wahoo! Sorry. It might have been more interesting if we had all called each other idiots.

Actually yeah, I expected more heat.  Good job.

Well, I'm going to go out on a limb and suggest some common ground of everyone who has commented.

• Sexual assaults do occur, and when they meet the threshold for criminal prosecution should be investigated by the police, regardless of whether there is an institutional process in parallel.
• Much of what occurs on campus falls short of that threshold.
• Actions that fall short, but which are well-established, are fair candidates for institutional sanction.

The disagreements I think mainly are regarding what is (or can be) "well-established". Is that a fair summary?

[Ruralguy]

I think that's fair.

[Ruralguy]

However....the school can't be the ones to report a sexual assault to the police. Well, they can, but if the complainant (victim) doesn't want that to happen, then it probably won't because if the police aren't likely to investigate an assault without a cooperating victim unless the victim isn't in the condition to be giving testimony.

[marshwiggle]

However....the school can't be the ones to report a sexual assault to the police. Well, they can, but if the complainant (victim) doesn't want that to happen, then it probably won't because if the police aren't likely to investigate an assault without a cooperating victim unless the victim isn't in the condition to be giving testimony.

It does kind of raise a red flag if what is being claimed would definitely qualify as a legal sexual assault but the complainant refuses to go to the police. The lower bar for evidence in the institutional process could allow a claim to be exaggerated, if not completely fabricated, in a way that would not fly in court.

[Ruralguy]

One problem with that is the evidentiary standards. With, say, a preponderance standard, one could argue that much of it wouldn't fly in *criminal* court.
maybe that's what you want. By current Title IX standards, if a school goes by a very strict "reasonable doubt" standard (and almost none do..probably none), they *must* use that standard for all investigations and hearings, whether it be student justice or faculty discipline (say, a hearing to dismiss a faculty member due to faking his resume or being a serial harasser, or whatever).

[Parasaurolophus]

I do agree that there is some ambiguity here. Maybe both people thought that they gave consent, but didn't. Maybe one person thought the other was awake when she was really asleep. Strictly speaking, these cases could be examples of rape, but if there are no witnesses (even to just the drinking or the effects of the drinking) and no physical evidence, the cases like this usually lead to a "not responsible" verdict (for either--or in some cases, multiple individuals---individual) .

If two people were drinking, and the woman suggested they have sex, and the man has regrets the next day, is she guilty of rape?

Regret is not the same thing. If your hypothetical man says he doesn't want to have sex but your hypothetical woman insists, then yes. Consent should be enthusiastic and ongoing. If it's not either of those things, then there's a real problem.

It's absolutely the case that women did and do marry people who raped them, or who will rape them. Even if they don't initially see it that way. A child doesn't have the requisite concepts, but we certainly think that children can be raped--including by people they genuinely love.

I was sexually harassed (and assaulted) by a fellow grad student in my PhD program. It went on for years. It took me a very long time to recognize that it was sexual harassment and assault because I didn't think of those things as things that could happen to me, a huge muscular fellow, especially at the hands of a tiny shit like him. But they can, and did. I even continued to try to be his friend for a while, despite it all, because I felt sorry for him and because I thought his behaviour was somehow my fault.

But it wasn't, and it wasn't acceptable.

Similarly, I don't need the concept of a catamaran to build one. I can just attach pontoons to my canoe, and presto, I have a catamaran. I might even deny that it's a catamaran, but I'd be wrong about that.

[smallcleanrat]

Our university's online training on Title IX included an example scenario of a man and his girlfriend. Girlfriend alludes vaguely to some sex act she wants him to participate in ("so have you thought about trying that thing I told you about?"), and he says he has and he's decided he doesn't want to do it.

Girlfriend won't let it go, continuing to pressure him, being pushy as well as emotionally manipulative ("if you really loved me, you'd do this for me"). She keeps badgering him until he reluctantly gives in and agrees they'll do what she wants.

IIRC, this wasn't referred to in the training as "rape" but it was still used as an example of non-consent because of the harassing and coercive behavior on the part of the girlfriend.

[mamselle]

You really think that women married men who had raped them? Seriously????? Maybe when women were legally property, but that's long before any of these people were born.

You wouldn't be so incredulous if you'd been the one with a fist aimed at your stomach when you'd started saying, "please, no, I don'tfeel well...." even a long time AFTER the wedding.

M.

[ergative]

(You really think that women married men who had raped them? Seriously????? Maybe when women were legally property, but that's long before any of these people were born.)

I absolutely believe that this kind of thing happened, and still happens, all the time. There's a scene in Mad Men that i think perfectly encapsulates what we're talking about here. Joan shows her fiance her workplace, and he thinks it will be a great idea to have sex in the boss's office. She doesn't want to. She says no. He insists, and she stops resisting, even though it's very, very clear that she doesn't want to be having sex with him at that time in that place. By any modern standards, what he did was rape: She said no, he didn't stop. And she goes ahead and marries him. Is this an utterly unbelievable plot development? I believed it without question.

This is rape. It is not Todd Aiken-style "legitimate rape", but it is rape. She doesn't see it that way, although she's pissed off about it, but there is no way to describe it as anything but rape. She said no, he didn't stop.

What's changed now is that modern day women in Joan's position recognize that these sorts of situations are rape.

That's a condescending view of women in the past; the fact that they chose not to interpret it as rape is as legitimate as modern women choosing to interpret it as rape.

How women choose or don't choose to interpret their experiences is irrelevant to your original statement. It was rape, and she married him. This scenario illustrates a believable case in which a woman would marry a man who raped her.

Unless it was in a situation where the woman was forced to marry that man, then the fact that she married him indicates that she did not see the situation as traumatic in the same way as modern women might. That doesn't make either one "right" or "wrong"; it just reflects different views of the same situation.

Whether the event was traumatic is irrelevant. It was rape, and she married him.

[marshwiggle]

Our university's online training on Title IX included an example scenario of a man and his girlfriend. Girlfriend alludes vaguely to some sex act she wants him to participate in ("so have you thought about trying that thing I told you about?"), and he says he has and he's decided he doesn't want to do it.

Girlfriend won't let it go, continuing to pressure him, being pushy as well as emotionally manipulative ("if you really loved me, you'd do this for me"). She keeps badgering him until he reluctantly gives in and agrees they'll do what she wants.

IIRC, this wasn't referred to in the training as "rape" but it was still used as an example of non-consent because of the harassing and coercive behavior on the part of the girlfriend.

This is a good example. Especially if the person who was coerced doesn't take any action or complain for some time after the incident, and even more so if the two continue to have a sexual relationship in the interim.

Yes, relationships can be complicated and messy, but setting an arbitrary threshold for "consent", (and pretending that it's easy to evaluate after the fact), and calling behaviour that falls short of it "rape" is not the best solution, even if it does mean that more "action" gets taken than previously. (Many people have pointed to the vast increase in incarceration due to the "war on drugs". Does a high conviction rate solve the underlying problem?)

[Caracal]

Our university's online training on Title IX included an example scenario of a man and his girlfriend. Girlfriend alludes vaguely to some sex act she wants him to participate in ("so have you thought about trying that thing I told you about?"), and he says he has and he's decided he doesn't want to do it.

Girlfriend won't let it go, continuing to pressure him, being pushy as well as emotionally manipulative ("if you really loved me, you'd do this for me"). She keeps badgering him until he reluctantly gives in and agrees they'll do what she wants.

IIRC, this wasn't referred to in the training as "rape" but it was still used as an example of non-consent because of the harassing and coercive behavior on the part of the girlfriend.

That strikes me as an unhelpful and weird definition of consent which risks confusing the issue. Something can be emotionally manipulative or shitty without being non consensual.

[Parasaurolophus]

By definition, however, coercion means you didn't consent to something.

Where sex is concerned, one's consent should be ongoing and enthusiastic. If it isn't, there's a problem.

[Ruralguy]

I don't think "enthusiastic" is quite the right term. At least, I haven't seen it in Title IX documents. I've seen language such as "reciprocating."

The Smallcleanrat example, which is similar to those I have heard before in Title IX training, do show that the situations can be complicated. From this example one could probably conclude that many married couples in the world have raped each other more than a few times. I am actually saying that somewhat facetiously, but whether or not they (or anyone else) really has raped anyone else in a similar situation is going to depend on the exact circumstances most likely. That is, its unlikely we'd just be able to look at this theoretical scenario and declare from on high that this is always rape.  In terms of a Title IX hearing, indeed issues such as ongoing consent, reciprocal behavior, level of intoxication and possible incapacitation, etc. are going to be the issues focuses on. Just because Title IX training says something *could be* rape, doesn't mean it always is, and even if it is, it doesn't mean it will lead to conclusions of "responsibility" in all such cases.

[Caracal]

By definition, however, coercion means you didn't consent to something.

Where sex is concerned, one's consent should be ongoing and enthusiastic. If it isn't, there's a problem.

Ethically and morally, I agree. However, I think its is a bad idea to conflate moral breaches with criminal ones.

The problem is how you define coercion. I don't see how it does much good to define it in really broad ways. The example smallcleanrat mentioned from the training might be abusive and it might be crummy behavior. However, it isn't something that can be dealt with by a college disciplinary process.

Obviously some coercive behavior can be rape, or even if it doesn't fit a criminal definition could result in school sanctions.