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

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

#161

Post by Lazare »

CthulhuOvermind wrote: post #14

"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…

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.

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

#162

Post by tremon »

techdragon wrote: post #143
chris_wot wrote: post #98

Earlier quoted context omitted.

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"?

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.

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

#163

Post by Kenji »

mc32 wrote: post #25
CthulhuOvermind wrote: post #14

"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…

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 t…

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 ;)

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

#164

Post by ZeroGravitas »

nailer wrote: post #158
ZeroGravitas wrote: post #157

Earlier quoted context omitted.

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 bearin…

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.

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

#165

Post by ZeroGravitas »

danieltillett wrote: post #139
ZeroGravitas wrote: post #103

Earlier quoted context omitted.

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 neithe…

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.

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

#166

Post by Steuard »

nailer wrote: post #156
Steuard wrote: post #115

Earlier quoted context omitted.

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…

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.

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

#167

Post by DanBC »

reso wrote: post #132
anu_gupta wrote: post #116

Earlier quoted context omitted.

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.

Yes, only one of your three examples was correct.

Homicide is so broad it's meaningless.

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

#168

Post by tremon »

ZeroGravitas wrote: post #164
nailer wrote: post #158

Earlier quoted context omitted.

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 cha…

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.

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

#169

Post by danieltillett »

ZeroGravitas wrote: post #165
danieltillett wrote: post #139

Earlier quoted context omitted.

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…

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.

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

#170

Post by ZeroGravitas »

danieltillett wrote: post #169
ZeroGravitas wrote: post #165

Earlier quoted context omitted.

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…

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.…

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?

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