Your claim that the question can't be answered doesn't follow from the fact that we don't have a complete policy. The constraints on policy imposed by this law together with Title IX do in fact appear, at least prima facie, to constrain every compliant policy to conclude an absence of consent given these conditions, irrespective of the further details of the policy.
Specifically, it appears that if Jim's testimony clears the "preponderance of evidence" standard concerning the events of the evening, then any compliant policy must provide that neither party in Bitterroot's example successfully obtained affirmative consent. Any belief by either party that they had such consent is nullified by Section I.a.4.B of SB967.
I don't think that's true. I don't see any requirement that a board be at all concerned with Jim's testimony. Could a policy not say "an investigation will only be opened at the request of an alleged victim, not a third party?" I'm not even suggesting that's a wise policy, but surely it's not constrained against by this law, and seems to very clearly preclude any finding of guilt of Jerry or Jane. And that's hardly the only way that a policy could avoid this situation. Perhaps, for example, a board could accept retroactive consent on the part of an alleged victim. We are also given more leeway than Bitterroot claims to make use of the fact that they are in a relationship. The law only prevents us from using that fact "by itself" to conclude consent - we are not prevented from using it in conjunction with other pieces of evidence.
I don't think that's true. I don't see any requirement that a board be at all concerned with Jim's testimony. Could a policy not say "an investigation will only be opened at the request of an alleged victim, not a third party?"
While it's true that SB967 itself contains no language that would forbid this, it appears that Title IX does, at least if your "Dear Colleague" letter is to be believed:
Regardless of whether a harassed student, his or her parent, or a third party files a complaint
under the school’s grievance procedures or otherwise requests action on the student’s behalf, a
school that knows, or reasonably should know, about possible harassment must promptly
investigate to determine what occurred and then take appropriate steps to resolve the
situation.
Perhaps, for example, a board could accept retroactive consent on the part of an alleged victim.
Though I am not a lawyer, I believe the wording of I.a.1 prevents this. A "retroactive consent" standard is less stringent than an "affirmative consent" standard, so if "affirmative consent" is the minimum standard a policy may implement, then a "retroactive consent" standard is ruled out.
We are also given more leeway than Bitterroot claims to make use of the fact that they are in a relationship. The law only prevents us from using that fact "by itself" to conclude consent - we are not prevented from using it in conjunction with other pieces of evidence.
I am not sure what to make of this. Surely the fact that the parties are in a relationship always appears alongside other evidence. It's not as though that fact would ever be considered completely in isolation. Thus, if you are correct in your claim here, that provision effectively says nothing at all. Bitterroot's interpretation seems to be more sensible.
It is unclear to me whether that Dear Colleague excerpt is a reference to an actual legal requirement or to a DoE recommendation, since it doesn't have a footnote sourcing it. It's certainly plausible to me that Title IX requires an investigation of third-party allegations, but this sort of ambiguity is exactly why we can't reach a conclusion without knowing the full policy.
I disagree that retroactive affirmation of consent is necessarily weaker than affirmative consent, but again this is the difficulty of working without an active policy.
It seems to me that the "by itself" clause indicates that the relationship cannot be the only piece of evidence that would point to consent, we will certainly have other pieces of evidence of the case, but if there is nothing else that suggests consent, we cannot simply rely on the existence of a relationship. By bitterroot's reading, the words "by itself" mean exactly nothing at all.
I'm sure most schools allow third parties to file complaints (what if the victim is too traumatized to come forward), but if you like you can change the last sentence to "Jerry and Jane have a bad break up a month later, and now each remembers that night less fondly and decides to file a complaint."
What does "retroactive consent" even mean? If you read the statute, it says affirmative consent must be "ongoing throughout a sexual activity." Affirmative consent is not something that can be given later.
Reading the statute, what would you say is an acceptable way to consider the parties' relationship? Also, are you saying the outcome should be different if they weren't in a relationship? I.e. They're innocent here, but if they weren't dating they're both guilty of sexual assault and should be expelled. Edit: Additionally, no matter how you interpret this part of the statute, we all agree that the relationship "by itself" cannot indicate affirmative consent. What evidence of affirmative consent, other than the relationship, is present in my hypothetical? None; the parties were too drunk to even remember having sex. The only thing that remotely shows affirmative consent is the existence of a dating relationship, and we are not allowed to consider that by itself.
It is unclear to me whether that Dear Colleague excerpt is a reference to an actual legal requirement or to a DoE recommendation, since it doesn't have a footnote sourcing it. It's certainly plausible to me that Title IX requires an investigation of third-party allegations, but this sort of ambiguity is exactly why we can't reach a conclusion without knowing the full policy.
The answer to this question is "it's complicated" and "footnotes sourcing it are irrelevant". The fact of the matter is that Title IX is the law, and the Dear Colleague letter is the DoE's statement of how they understand (and will attempt to enforce) the law.
The Dear Colleague letter can be wrong (even with a sourced footnote), Title IX could be found unconstitutional (unlikely, but possible), Title IX could be amended by Congress, or any number of other matters.
There are currently three cases, that I'm aware of, of men being accused of rape and being drummed out of school where the men are countersuing that hte process was unfair and biased against them. In at least one of those the plaintiff (the male student) is raising a Title IX action against the school alleging that the school's process was inherently biased against men, in violation of title IX.
I do not konw the strengths or weaknesses of that case, so I can't comment on how likely it is to succeed, but I think if a case along those lines made it sufficiently far, there could be some real changes to the requirements on colleges. Particularly to the "presumption of guilt" element that is all too common.
I disagree that retroactive affirmation of consent is necessarily weaker than affirmative consent, but again this is the difficulty of working without an active policy.
As Bitteroot pointed out, the law is pretty explicit that the consent is required to be affirmative and ongoing *during the act itself* or it is to be considered sexual assault. Retroactively affirming consent doesn't meet the explicit standard set by the law.
Seems like they both, technically, raped each other with a completely even level of evidence. What do preponderance based judgements do when it's, literally, 50/50? Or when neither believes they've been wronged even if a rule was technically broken?
Really, the only victim here is Jim. Unless he likes to watch.
Jim's a compelling and underdeveloped character. I'll be sure to flesh him out if we have another hypothetical.
Preponderance of the evidence has nothing to do which who can be found "guilty." If the conduct of both Jerry and Jane violates the sexual assault rules, then they can both be found guilty. Preponderance has to do with what evidence the fact-finder is allowed to believe if there's a dispute. But in my hypothetical, all the evidence is undisputedly true, so the standard of proof doesn't matter.
Edit: In terms of what we do when "neither believes they've been wronged even if a rule was technically broken," I suppose the school could institute a rule requiring that the victim actively "press charges" so to speak. But this would almost certainly be regarded as problematic by victim's advocates, since sexual assault and rape victims often do not want to be involved in the prosecution of the perpetrator due to the lingering pain and trauma of the event. Also, what do we do when one or both parties in my hypothetical decide they actively want to "press charges?" Why should their after-the-fact feelings determine whether the act was wrongful at the time? If it was sexual assault, it was sexual assault, regardless of how they feel about it later. If it wasn't, then it wasn't, regardless of how they feel about it later.
What gets confusing is if Jane is a man, too. Would Jerry then still be a rapist if it was a homosexual relationship?
I pretty much always use gay men when I give my version of this argument. It eliminates, and hopefully exposes through contrast, any underlying sex-based prejudices. (The lesbian variant doesn't work as well, because there are some weird ideas out there about lesbians being categorically unable to rape.)
I don't think that's true. I don't see any requirement that a board be at all concerned with Jim's testimony. Could a policy not say "an investigation will only be opened at the request of an alleged victim, not a third party?" I'm not even suggesting that's a wise policy, but surely it's not constrained against by this law, and seems to very clearly preclude any finding of guilt of Jerry or Jane. And that's hardly the only way that a policy could avoid this situation. Perhaps, for example, a board could accept retroactive consent on the part of an alleged victim. We are also given more leeway than Bitterroot claims to make use of the fact that they are in a relationship. The law only prevents us from using that fact "by itself" to conclude consent - we are not prevented from using it in conjunction with other pieces of evidence.
Tiax, these arguments have already been shot down in detail, but I'd like you to take a step back and look at what you're doing here generally. You're wriggling. Seeking any excuse, even those that aren't "a wise policy", to get out of conceding the obvious: that this law requires the disciplinary board to find both Jane and Jerry rapists. If you don't want the disciplinary board to find both Jane and Jerry rapists, you need to ask yourself again why you're trying to defend the law.
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Vive, vale. Siquid novisti rectius istis,
candidus inperti; si nil, his utere mecum.
Tiax, these arguments have already been shot down in detail, but I'd like you to take a step back and look at what you're doing here generally. You're wriggling. Seeking any excuse, even those that aren't "a wise policy", to get out of conceding the obvious: that this law requires the disciplinary board to find both Jane and Jerry rapists. If you don't want the disciplinary board to find both Jane and Jerry rapists, you need to ask yourself again why you're trying to defend the law.
I'm proposing excuses that may be unwise because I am only trying to illustrate the point that we cannot know what the correct finding would be if we do not have an actual policy before us. I am not suggesting that these particular reasons are what should be put into policy, only that the law appears to leave plenty of room for a school to set a policy which does not find Jane and Jerry to be rapists. Show me an actual policy that finds them to be rapists, and I'll agree with you that that is a bad policy. But the law doesn't demand that by itself.
EDIT: I picked a well-known school in California (Stanford) and looked up their policy:
1. This law never mentions "initiating intercourse" as a relevant consideration.
If you want a legal brief, ask a lawyer. But what the law does say is: “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity." A rape, by definition, is not voluntary.
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What's the big deal? You could have played multiple Righteous Avengers for years now.
1. This law never mentions "initiating intercourse" as a relevant consideration.
If you want a legal brief, ask a lawyer. But what the law does say is: “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity." A rape, by definition, is not voluntary.
So, what about the drunk chick who propositioned me? She initiated. I was sober, and could tell she was drunk. The point being that initiation =/= consent.
So, what about the drunk chick who propositioned me? She initiated. I was sober, and could tell she was drunk. The point being that initiation =/= consent.
She was not conscious or capable to volunteer, therefore you initiated.
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What's the big deal? You could have played multiple Righteous Avengers for years now.
1) Does this policy meet the relevant requirements of this law?
2) Does this policy find Jane and Jerry to be guilty of sexual assault?
1) No it does not. Stanford is not a state school, so it is not required to implement the policies of this new legislation. Moreover, the misconduct policy you linked was updated long before the law was passed (12/06/2013).
2) Unclear. The only hitch is that sexual misconduct must be "unwanted" in addition to nonconsensual, and it's not clear when we evaluate the "unwanted " prong. Unwanted at the time of the misconduct report? Unwanted at the time it occurred (what if the person was unconscious)?
A better policy to look at is the actual UC systemwide policy, which applies to all the major state schools (e.g. UCLA, Berkeley, etc). This policy has also not yet been updated to reflect the law, but it does contain a definition of sexual assault:
Sexual Assault occurs when physical sexual activity is engaged without the consent of the other person or when the other person is unable to consent to the activity. The activity or conduct may include physical force, violence, threat, or intimidation, ignoring the objections of the other person, causing the other person’s intoxication or incapacitation through the use of drugs or alcohol, or taking advantage of the other person’s incapacitation (including voluntary intoxication).
The policy also permits third parties to file reports:
All members of the University community are encouraged to contact the Title IX Officer (Sexual Harassment Officer) if they observe or encounter conduct that may be subject to the Policy.
And it requires the University to take action even if the person reporting requests that no action be taken:
... the Title IX Officer (Sexual Harassment Officer), managers, supervisors, and other designated employees have an obligation to respond to reports of sexual harassment or sexual violence, even if the individual making the report requests that no action be taken.
Applying the UC-wide policy (which covers roughly 236,000 students in California) combined with the new definitions of "consent" in SB 967, are Jerry and Jane guilty of sexual assault?
So, what about the drunk chick who propositioned me? She initiated. I was sober, and could tell she was drunk. The point being that initiation =/= consent.
She was not conscious or capable to volunteer, therefore you initiated.
uhhh, no. By definition, she initiated. What do you think initiation means?
I am not suggesting that these particular reasons are what should be put into policy, only that the law appears to leave plenty of room for a school to set a policy which does not find Jane and Jerry to be rapists.
Bitterroot and bLatch have shown that the law doesn't leave any such room. Any compliant policy is going to have to find that neither Jane nor Jerry had consent for their sex.
2) Does this policy find Jane and Jerry to be guilty of sexual assault?
It says they committed sexual assault. It does not "find them guilty" because it is not a criminal trial (and that's an additional element of the problem here). But "Sexual assault is the actual, attempted or threatened unwanted sexual act, whether by an acquaintance or by a stranger, accomplished (1) against a person's will by means of force (express or implied), violence, duress, menace, fear or fraud, or (2) when a person is incapacitated or unaware of the nature of the act, due to unconsciousness, sleep and/or intoxicating substances" leaves no wiggle room. They were incapacitated due to an intoxicating substance. They performed a sexual act. The act was "unwanted" or unconsensual by definition because "If a person is mentally or physically incapacitated or impaired so that the person cannot understand the fact, nature or extent of the sexual situation, there is no consent; this includes conditions due to alcohol or drug consumption or being asleep or unconscious."
So, what about the drunk chick who propositioned me? She initiated. I was sober, and could tell she was drunk. The point being that initiation =/= consent.
It predates the law, but it seems compliant to me.
Right, I understand that this policy is not one created in response to this law, but it seems to match the law.
It says they committed sexual assault. It does not "find them guilty" because it is not a criminal trial (and that's an additional element of the problem here). But "Sexual assault is the actual, attempted or threatened unwanted sexual act, whether by an acquaintance or by a stranger, accomplished (1) against a person's will by means of force (express or implied), violence, duress, menace, fear or fraud, or (2) when a person is incapacitated or unaware of the nature of the act, due to unconsciousness, sleep and/or intoxicating substances" leaves no wiggle room. They were incapacitated due to an intoxicating substance. They performed a sexual act. The act was "unwanted" or unconsensual by definition because "If a person is mentally or physically incapacitated or impaired so that the person cannot understand the fact, nature or extent of the sexual situation, there is no consent; this includes conditions due to alcohol or drug consumption or being asleep or unconscious."
Unwanted and non-consensual are not the same thing. I can offer my consent to something which I do not want, and I can fail to consent to something I do want. In order to be sexual assault, the act must be both unwanted and non-consensual. The law makes clear that Jerry and Jane could not consent in their state, but it does not mean that the sex was unwanted. Bitterroot's scenario seems to imply that they agree the sex was wanted.
Applying the UC-wide policy (which covers roughly 236,000 students in California) combined with the new definitions of "consent" in SB 967, are Jerry and Jane guilty of sexual assault?
Yes, the UC policy is overbroad if combined unaltered with the consent definition in the law. It should be adjusted to account for this sort of situation.
uhhh, no. By definition, she initiated. What do you think initiation means?
To begin. Which you did when you decided to take advantage of the situation.
First, I know you understand this, but I want it on the record that this is a hypothetical we are talking about.
Second, In what way did I even remotely begin the encounter? I was minding my own business. The girl walks up to me. The girl propositions me. The girl took the lead in literally every step of the process. Me being sober doesn't suddenly make me the initiator, it just makes me the only one able to form consent.
What I'm highlighting here is that initiation =/= consent. Someone can initiate and still not have provided consent.
uhhh, no. By definition, she initiated. What do you think initiation means?
To begin. Which you did when you decided to take advantage of the situation.
This thread is two pages long, dude. Reading is a valuable tool when crafting an argument, and it's an especially smart idea to read the thread before you accuse someone of rape:
When looking at this in the "campus" context, I think it is evidently and empirically clear that the victim *can* initiate. Person A goes out drinking, and gets drunk, but is still walking and talking. Person A then goes and starts hitting on Person B (who can tell Person A is drunk). Person A, then just comes out and says "hey you want to ****"? Person B says "sure". ... No, I have no idea how common the above example is. But, It has happened to me (at least up until the Person B says "sure", in my case I said Eww, no. Not my most tactful moment.) If it's happened to me, I'm sure it has happened to at least some of the myriad of more attractive women and men out there than me.
(emphasis added)
To get back on the topic: sometimes both parties are very, very drunk (as in my Jerry/Jane hypo). Who "initiated" then? Who should be punished? I'm under the impression that this new law punishes both parties in this situation, and so far no one has convinced me otherwise.
This thread is two pages long, dude. Reading is a valuable tool when crafting an argument, and it's an especially smart idea to read the thread before you accuse someone of rape:
(emphasis added)
If I wanted to reply to that comment, I would have. The quote tool is so handy for making it clear what I'm replying to when!
To "initiate" means to begin, not to consent. When someone walks up to you and says "Let's have sex", they are beginning a sexual encounter. Their state of intoxication may mean that the encounter is not consensual, but it does not change the fact that it began there.
You are also ignoring the further examples of the mutually drunk Jane and Jerry and the drunk rapist attacking sober victim.
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Vive, vale. Siquid novisti rectius istis,
candidus inperti; si nil, his utere mecum.
Don't shoehorn the meanings of words to fit the conclusion you want. She initiated. Deal with it.
Don't ignore the actual meaning of a word because it doesn't fit the conclusion you want. He initiated. Deal with it.
YOU defined it as "to begin". Now, justify your statement that *I* began it in the following hypothetical:
Drunk Girl Approaches me and begins flirting. I ignore.
Drunk Girl becomes less subtle, begins feeling me up. I start paying attention because phyiscal contact, but don't express interest.
Drunk Girl Finally comes out and says "Lets go back to my place". I say "eh, I guess that's all right".
Drunk Girl takes us both back to her place. I sit down.
Drunk Girl goes and changes into lengerie.
Drunk girl starts groping me. Despite my intenions otherwise this arouses me because physical sensations are difficult to ignore.
Drunk Girl then starts to perform sex acts on me, with me remaining passive.
To "initiate" means to begin, not to consent. When someone walks up to you and says "Let's have sex", they are beginning a sexual encounter. Their state of intoxication may mean that the encounter is not consensual, but it does not change the fact that it began there.
The sexual encounter isn't the sex. The sequence of events that lead up to the sex isn't the sex. The cabbie didn't initiate the sex when he drove our guy to the bar, his mother didn't initiate the sex by giving birth. How the encounter began is irrelevant to how the sex began.e
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What's the big deal? You could have played multiple Righteous Avengers for years now.
YOU defined it as "to begin". Now, justify your statement that *I* began it in the following hypothetical:
Drunk Girl Approaches me and begins flirting. I ignore.
Drunk Girl becomes less subtle, begins feeling me up. I start paying attention because phyiscal contact, but don't express interest.
Drunk Girl Finally comes out and says "Lets go back to my place". I say "eh, I guess that's all right".
Drunk Girl takes us both back to her place. I sit down.
Drunk Girl goes and changes into lengerie.
Drunk girl starts groping me. Despite my intenions otherwise this arouses me because physical sensations are difficult to ignore.
Drunk Girl then starts to perform sex acts on me, with me remaining passive.
At which point did *I* initiate? Why?
Just after bold part. What did you think was going to happen?
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What's the big deal? You could have played multiple Righteous Avengers for years now.
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I don't think that's true. I don't see any requirement that a board be at all concerned with Jim's testimony. Could a policy not say "an investigation will only be opened at the request of an alleged victim, not a third party?" I'm not even suggesting that's a wise policy, but surely it's not constrained against by this law, and seems to very clearly preclude any finding of guilt of Jerry or Jane. And that's hardly the only way that a policy could avoid this situation. Perhaps, for example, a board could accept retroactive consent on the part of an alleged victim. We are also given more leeway than Bitterroot claims to make use of the fact that they are in a relationship. The law only prevents us from using that fact "by itself" to conclude consent - we are not prevented from using it in conjunction with other pieces of evidence.
While it's true that SB967 itself contains no language that would forbid this, it appears that Title IX does, at least if your "Dear Colleague" letter is to be believed:
Though I am not a lawyer, I believe the wording of I.a.1 prevents this. A "retroactive consent" standard is less stringent than an "affirmative consent" standard, so if "affirmative consent" is the minimum standard a policy may implement, then a "retroactive consent" standard is ruled out.
I am not sure what to make of this. Surely the fact that the parties are in a relationship always appears alongside other evidence. It's not as though that fact would ever be considered completely in isolation. Thus, if you are correct in your claim here, that provision effectively says nothing at all. Bitterroot's interpretation seems to be more sensible.
Which if thou dost not use for clearing away the clouds from thy mind
It will go and thou wilt go, never to return.
I disagree that retroactive affirmation of consent is necessarily weaker than affirmative consent, but again this is the difficulty of working without an active policy.
It seems to me that the "by itself" clause indicates that the relationship cannot be the only piece of evidence that would point to consent, we will certainly have other pieces of evidence of the case, but if there is nothing else that suggests consent, we cannot simply rely on the existence of a relationship. By bitterroot's reading, the words "by itself" mean exactly nothing at all.
What does "retroactive consent" even mean? If you read the statute, it says affirmative consent must be "ongoing throughout a sexual activity." Affirmative consent is not something that can be given later.
Reading the statute, what would you say is an acceptable way to consider the parties' relationship? Also, are you saying the outcome should be different if they weren't in a relationship? I.e. They're innocent here, but if they weren't dating they're both guilty of sexual assault and should be expelled. Edit: Additionally, no matter how you interpret this part of the statute, we all agree that the relationship "by itself" cannot indicate affirmative consent. What evidence of affirmative consent, other than the relationship, is present in my hypothetical? None; the parties were too drunk to even remember having sex. The only thing that remotely shows affirmative consent is the existence of a dating relationship, and we are not allowed to consider that by itself.
The answer to this question is "it's complicated" and "footnotes sourcing it are irrelevant". The fact of the matter is that Title IX is the law, and the Dear Colleague letter is the DoE's statement of how they understand (and will attempt to enforce) the law.
The Dear Colleague letter can be wrong (even with a sourced footnote), Title IX could be found unconstitutional (unlikely, but possible), Title IX could be amended by Congress, or any number of other matters.
There are currently three cases, that I'm aware of, of men being accused of rape and being drummed out of school where the men are countersuing that hte process was unfair and biased against them. In at least one of those the plaintiff (the male student) is raising a Title IX action against the school alleging that the school's process was inherently biased against men, in violation of title IX.
I do not konw the strengths or weaknesses of that case, so I can't comment on how likely it is to succeed, but I think if a case along those lines made it sufficiently far, there could be some real changes to the requirements on colleges. Particularly to the "presumption of guilt" element that is all too common.
As Bitteroot pointed out, the law is pretty explicit that the consent is required to be affirmative and ongoing *during the act itself* or it is to be considered sexual assault. Retroactively affirming consent doesn't meet the explicit standard set by the law.
Jim's a compelling and underdeveloped character. I'll be sure to flesh him out if we have another hypothetical.
Preponderance of the evidence has nothing to do which who can be found "guilty." If the conduct of both Jerry and Jane violates the sexual assault rules, then they can both be found guilty. Preponderance has to do with what evidence the fact-finder is allowed to believe if there's a dispute. But in my hypothetical, all the evidence is undisputedly true, so the standard of proof doesn't matter.
Edit: In terms of what we do when "neither believes they've been wronged even if a rule was technically broken," I suppose the school could institute a rule requiring that the victim actively "press charges" so to speak. But this would almost certainly be regarded as problematic by victim's advocates, since sexual assault and rape victims often do not want to be involved in the prosecution of the perpetrator due to the lingering pain and trauma of the event. Also, what do we do when one or both parties in my hypothetical decide they actively want to "press charges?" Why should their after-the-fact feelings determine whether the act was wrongful at the time? If it was sexual assault, it was sexual assault, regardless of how they feel about it later. If it wasn't, then it wasn't, regardless of how they feel about it later.
I pretty much always use gay men when I give my version of this argument. It eliminates, and hopefully exposes through contrast, any underlying sex-based prejudices. (The lesbian variant doesn't work as well, because there are some weird ideas out there about lesbians being categorically unable to rape.)
Tiax, these arguments have already been shot down in detail, but I'd like you to take a step back and look at what you're doing here generally. You're wriggling. Seeking any excuse, even those that aren't "a wise policy", to get out of conceding the obvious: that this law requires the disciplinary board to find both Jane and Jerry rapists. If you don't want the disciplinary board to find both Jane and Jerry rapists, you need to ask yourself again why you're trying to defend the law.
candidus inperti; si nil, his utere mecum.
I'm proposing excuses that may be unwise because I am only trying to illustrate the point that we cannot know what the correct finding would be if we do not have an actual policy before us. I am not suggesting that these particular reasons are what should be put into policy, only that the law appears to leave plenty of room for a school to set a policy which does not find Jane and Jerry to be rapists. Show me an actual policy that finds them to be rapists, and I'll agree with you that that is a bad policy. But the law doesn't demand that by itself.
EDIT: I picked a well-known school in California (Stanford) and looked up their policy:
https://adminguide.stanford.edu/chapter-1/subchapter-7/policy-1-7-3
1) Does this policy meet the relevant requirements of this law?
2) Does this policy find Jane and Jerry to be guilty of sexual assault?
If you want a legal brief, ask a lawyer. But what the law does say is: “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity." A rape, by definition, is not voluntary.
So, what about the drunk chick who propositioned me? She initiated. I was sober, and could tell she was drunk. The point being that initiation =/= consent.
She was not conscious or capable to volunteer, therefore you initiated.
1) No it does not. Stanford is not a state school, so it is not required to implement the policies of this new legislation. Moreover, the misconduct policy you linked was updated long before the law was passed (12/06/2013).
2) Unclear. The only hitch is that sexual misconduct must be "unwanted" in addition to nonconsensual, and it's not clear when we evaluate the "unwanted " prong. Unwanted at the time of the misconduct report? Unwanted at the time it occurred (what if the person was unconscious)?
A better policy to look at is the actual UC systemwide policy, which applies to all the major state schools (e.g. UCLA, Berkeley, etc). This policy has also not yet been updated to reflect the law, but it does contain a definition of sexual assault:
The policy also permits third parties to file reports:
And it requires the University to take action even if the person reporting requests that no action be taken:
Applying the UC-wide policy (which covers roughly 236,000 students in California) combined with the new definitions of "consent" in SB 967, are Jerry and Jane guilty of sexual assault?
uhhh, no. By definition, she initiated. What do you think initiation means?
It predates the law, but it seems compliant to me.
It says they committed sexual assault. It does not "find them guilty" because it is not a criminal trial (and that's an additional element of the problem here). But "Sexual assault is the actual, attempted or threatened unwanted sexual act, whether by an acquaintance or by a stranger, accomplished (1) against a person's will by means of force (express or implied), violence, duress, menace, fear or fraud, or (2) when a person is incapacitated or unaware of the nature of the act, due to unconsciousness, sleep and/or intoxicating substances" leaves no wiggle room. They were incapacitated due to an intoxicating substance. They performed a sexual act. The act was "unwanted" or unconsensual by definition because "If a person is mentally or physically incapacitated or impaired so that the person cannot understand the fact, nature or extent of the sexual situation, there is no consent; this includes conditions due to alcohol or drug consumption or being asleep or unconscious."
Bitterroot is a lawyer.
For that matter, actual rapists can be drunk too.
candidus inperti; si nil, his utere mecum.
To begin. Which you did when you decided to take advantage of the situation.
Unwanted and non-consensual are not the same thing. I can offer my consent to something which I do not want, and I can fail to consent to something I do want. In order to be sexual assault, the act must be both unwanted and non-consensual. The law makes clear that Jerry and Jane could not consent in their state, but it does not mean that the sex was unwanted. Bitterroot's scenario seems to imply that they agree the sex was wanted.
Yes, the UC policy is overbroad if combined unaltered with the consent definition in the law. It should be adjusted to account for this sort of situation.
candidus inperti; si nil, his utere mecum.
First, I know you understand this, but I want it on the record that this is a hypothetical we are talking about.
Second, In what way did I even remotely begin the encounter? I was minding my own business. The girl walks up to me. The girl propositions me. The girl took the lead in literally every step of the process. Me being sober doesn't suddenly make me the initiator, it just makes me the only one able to form consent.
What I'm highlighting here is that initiation =/= consent. Someone can initiate and still not have provided consent.
This thread is two pages long, dude. Reading is a valuable tool when crafting an argument, and it's an especially smart idea to read the thread before you accuse someone of rape:
(emphasis added)
To get back on the topic: sometimes both parties are very, very drunk (as in my Jerry/Jane hypo). Who "initiated" then? Who should be punished? I'm under the impression that this new law punishes both parties in this situation, and so far no one has convinced me otherwise.
Don't ignore the actual meaning of a word because it doesn't fit the conclusion you want. He initiated. Deal with it.
If I wanted to reply to that comment, I would have. The quote tool is so handy for making it clear what I'm replying to when!
Because the beginning of the encounter isn't where the sex happens. The sex happens when you take someone unable to consent and still do the sexing.
You are also ignoring the further examples of the mutually drunk Jane and Jerry and the drunk rapist attacking sober victim.
candidus inperti; si nil, his utere mecum.
YOU defined it as "to begin". Now, justify your statement that *I* began it in the following hypothetical:
Drunk Girl Approaches me and begins flirting. I ignore.
Drunk Girl becomes less subtle, begins feeling me up. I start paying attention because phyiscal contact, but don't express interest.
Drunk Girl Finally comes out and says "Lets go back to my place". I say "eh, I guess that's all right".
Drunk Girl takes us both back to her place. I sit down.
Drunk Girl goes and changes into lengerie.
Drunk girl starts groping me. Despite my intenions otherwise this arouses me because physical sensations are difficult to ignore.
Drunk Girl then starts to perform sex acts on me, with me remaining passive.
At which point did *I* initiate? Why?
The sexual encounter isn't the sex. The sequence of events that lead up to the sex isn't the sex. The cabbie didn't initiate the sex when he drove our guy to the bar, his mother didn't initiate the sex by giving birth. How the encounter began is irrelevant to how the sex began.e
Just after bold part. What did you think was going to happen?