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Rape Culture Theory Ensnares Innocent Men

Rape Culture Theory Ensnares Innocent Men

Relaxed standards assist female accusers, but for accused men, the process can be punishment itself.

Many people hearing talk of America’s campus “rape culture” might be tempted to dismiss the overheated rhetoric as harmless.

Despite little evidence “rape culture” exists, though, three recent roundtable discussions on campus sexual assault hosted by Sen. Claire McCaskill (D-MO) showed that not only do some people absolutely believe a rape culture exists on college campuses, but the federal government is involved in policing the issue on campuses.

The Department of Education mandates colleges to handle every single student sexual assault through internal quasi-legal proceedings, in which the school performs all the roles of investigator, prosecutor, judge, executioner and statistics compiler.

From the perspective of accusers in campus sexual assault cases, they may very well prefer a quasi-legal adjudication of their complaints because it provides a much broader definition of sexual assault, a much lower burden of proof and an environment in which “student’s rights” tend to be accuser’s rights, with little emphasis on rights for the accused.

For the accuser, it makes the alleged post-assault experience that much less stressful.

From the accused’s perspective, though, he’s not gonna know what hit him.

Schools Play Law and Order: SVU

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Speaking amongst friendly colleagues last Monday at the third roundtable, Mike Jungers, the dean of students at Missouri State University, made the surprising statement that new investigation procedures of campus sexual assault were resulting in the alleged perpetrators agreeing to be interrogated without obtaining an attorney.

He considered this to be a good thing.

“They used to lawyer up immediately, first thing,” Jungers said, with a laugh. “You know, you’re cut off from talking to your student—which drives me crazy—by an attorney saying, ‘This is my client, and…you don’t talk to him or her directly, you talk to me.’”

It drives him crazy if a student obtains legal counsel for questioning, as if an accusation of rape could be handled in an amicable fashion, with no concern that the system could go against him and result in the young adult having to register as a sex offender for the rest of his life—or alter the remainder of his college career and his college record.

The regular criminal justice system may also undertake the case, where he’d even be offered an attorney if he couldn’t afford one. But under the extensive Title IX investigation guidelines put out by the Department of Education’s Office for Civil Rights (OCR) at the end of April, schools don’t have to contact law enforcement at all (unless their state or local law requires it).

If the school obtains forensic evidence in their investigation, the OCR merely states “it may be helpful for a school to consult with local or campus law enforcement or a forensic expert to ensure that the evidence is correctly interpreted by school officials.”

In fact, much is left up to the school’s interpretation, including defining exactly what “sexual assault” is.

This (Probably) Isn’t Your Grandmother’s Definition of “Sexual Assault”

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The meaning of sexual assault is not what it used to be. As Jennifer Gaffney, the special victims deputy bureau chief of New York County’s district attorney’s office, said in the roundtable discussion, there is often a gap between the college definition and what they can actually prosecute under state statutes.

The panelists at McCaskill’s roundtable tended to accept a new definition of sexual assault in which a vague, unquantifiable sense of too much alcohol may not incapacitate the female but could make her less than able to fully consent.

The accuser may appear to be fully functioning and participating in the sex act, and therefore seeming to fully consent at the time. But she can later say that she was too impaired to have exercised good judgment and make her consent invalid, leaving her sex partner to be charged with sexual assault for an act he believed was consensual, where the woman had said “yes.”

The definition of “sexual assault” and its varied related terms, such as “sexual violence,” is one of the key battleground areas, and the types of offending behaviors may be about to be expanded even further.

McCaskill has been conducting these roundtables regarding campus sexual assault in advance of introducing legislation in August, which will also impose additional mandates on schools in regards to domestic violence, “dating violence” and stalking.

Michael Stratford of Inside Higher Education reported Tuesday that “McCaskill said that she is working with a bipartisan group of lawmakers in crafting the legislation, including Republican Senators Dean Heller of Nevada, Kelly Ayotte of New Hampshire and Marco Rubio of Florida.”

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Note that the line is not being drawn at only changing the sexual assault definition at colleges. McCaskill also would like to see states adjust their legal standards to be more in line with the looser college definition. Last year, the FBI changed their definition of rape, part of which changed the phrase “forcibly or against the victim’s will” to “without the consent of the victim.” Some states are also changing or adding to their sexual assault statutes.

Katharina Booth, Boulder County chief deputy district attorney, said that the State of Colorado has an additional standard beyond “physically helpless” (that is, the accuser was asleep or unconscious). Under it, she can bring criminal prosecutions if the accuser meets the standard of “’incapable of appraising the nature of your conduct,’ which is going to encompass the bulk of what we see, which is the voluntarily intoxicated but not all the way at the passed-out stage. So we’re in that gray area,” she said.

An Alcohol Aside

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The issue of alcohol consumption is a very touchy one in rape-culture activism.

No one wants a woman blamed for being sexually assaulted because she wore a skimpy outfit. Likewise, many fear a sexually assaulted woman will be blamed because of her drunkenness. It is common thinking that because no one should ever be sexually assaulted, no blame should ever be put on them.

Under the new sexual assault definition, though, a consenting woman can later claim (and have a charge initiated because) there was really no consent because she was too drunk.

Booth noted that incidences in which the woman is drunk beyond her ability to consent are the ones that “encompass the bulk” of the sexual assault cases she sees.

Studies have shown that the majority of unwanted sexual encounters experienced by collegiate women occurred when they were intoxicated. Yet the roundtable panelists adamantly rejected the suggestion that sexual assault prevention education should encourage reduced alcohol consumption.

As for the accused’s state of drunkenness, no one at McCaskill’s roundtable suggested that the man should have as a defense that he was equally too incapacitated to make good judgments.

In fact, take the case of Lewis McLeod. He is suing Duke University for expelling him for what he and the local police say was a false allegation of sexual assault.

Attending the trial, John H. Tucker of Raleigh-Durham’s Indyweek reported, dean Sue Wasiolek was asked in court whether both parties would be considered guilty of rape and thereby expelled if they engaged in sex while both were intoxicated to “incapacity.”

The dean responded, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”

In the new climate of sexual assault pseudolaw, the female apparently has no responsibility other than to say yes, which can be revoked anytime, including after the sex is over.

The Unburden of Proof

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It’s not just their broad definition of “sexual assault” that makes college-adjudicated cases less likely to be prosecuted in the criminal justice system.

The minimal proof required by the Department of Education’s Office for Civil Rights—and therefore used for the national sexual assault statistics they collect and publish—doesn’t pass the much stricter burden of proof used by real-world prosecutors, judges and juries.

Forget the “beyond a reasonable doubt” standard of courtrooms and crime dramas. They’ve even decided the lower standard of “clear and convincing evidence” is too tough.

As KC Johnson of Minding the Campus puts it: “the Education Department’s Office of Civil Rights has mandated a lower threshold of certainty in sexual harassment and assault cases, from the clear-and-convincing standard (around 75 percent certainty) to the preponderance of evidence standard (50.01 percent).”

This means the school only has to find it’s a smidgen more likely than not that the crime occurred. Therefore, a college can convict someone of sexual assault much more easily than a criminal court could.

New Federal Guidelines Say Accused Don’t Need Constitutional Privileges

A college-adjudicated case of sexual assault also has no requirement to provide the alleged perpetrator the rights and protections he would receive in the real world. The government actually says he doesn’t need them.

OCR tells schools there is a distinct difference between a criminal investigation and a Title IX one (emphasis added):

A criminal investigation is intended to determine whether an individual violated criminal law; and, if at the conclusion of the investigation, the individual is tried and found guilty, the individual may be imprisoned or subject to criminal penalties. The U.S. Constitution affords criminal defendants who face the risk of incarceration numerous protections, including, but not limited to, the right to counsel, the right to a speedy trial, the right to a jury trial, the right against self-incrimination, and the right to confrontation. In addition, government officials responsible for criminal investigations (including police and prosecutors) normally have discretion as to which complaints from the public they will investigate.

By contrast, a Title IX investigation will never result in incarceration of an individual and, therefore, the same procedural protections and legal standards are not required. Further, while a criminal investigation is initiated at the discretion of law enforcement authorities, a Title IX investigation is not discretionary….even if a criminal investigation is ongoing, a school must still conduct its own Title IX investigation.

That’s astonishing for the government to say a school investigation will “never” result in incarceration. Sure, the school can’t imprison the accused in its basement, but can the product of their interrogations and evidence collection never end up being used in a criminal court?

If the school does indeed find the accused guilty, the OCR does not require any appeals process. It permits a college to offer one if it so chooses, but only if both parties are offered the same opportunities.

For instance, the accused may appeal a punishment as being too harsh, but only if his accuser can appeal the punishment as being too lenient.

Currently, the OCR guidelines give schools wide discretion in deciding punishments. (That’s something McCaskill would like to make uniform—more one-size-fits-all sentences.)

They can expel him or merely force him to move to a different dormitory or a different school. They can restrict the places he can go on campus and the courses or extracurricular activities he can attend.

For instance, if the accuser has the same major as the accused, she may opt to take the courses she wishes, and he’d be required to take them at an alternate time or manner, such as online or by independent study.

In fact, many of these sanctions can be applied even before the investigation is complete in order to comply with Title IX’s mandate to make the accuser feel safe from further alleged harm and to prevent contact between them.

Someone ultimately found innocent by the school could suffer these penalties before that finding is reached. The OCR guidelines are silent on what a school should do to make restitution if that occurs.

Who Is a Good Guy in a Rape Culture Theory World?

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It should go without saying, everyone wants rapists stopped and punished. But rape culture theory implies all men are potential rapists, and sexual intimacy under the influence carries the threat of being deemed sexual violence.

What’s a regular non-rapist guy supposed to do if he gets ensnared in the “rape culture” frenzy? Once a Title IX investigation begins, there is no telling where it will end for the accused. Yet he’s denied the Constitutional protections he would receive if he were speaking to the police instead of the school’s Title IX Coordinator. (That’s the person who’s supposed to be preventing sex discrimination.)

Some are advocating for upcoming legislation to include attorneys for both parties. The current OCR guidelines don’t preclude that, but do state that schools can limit the parts of the proceedings an attorney can participate in.

Teresa Watanabe of the Los Angeles Times wrote, “At present, campuses vary in policies on attorneys — the University of California allows them but Occidental does not. Ruth Jones, Occidental’s Title IX coordinator, said the college has barred attorneys to prevent the discipline process from being too “adversarial” but would change the policy in accord with final federal regulations.” She wouldn’t have much choice, if it becomes the law.

It’s easy to see why school administrators like Jungers at Missouri State University find things run much more smoothly without an attorney clogging up the process with non-Title IX law.

The Department of Education gives him a suggested maximum of 60 days to get the whole thing investigated, adjudicated and punished so that he can get his report to them and they can add a tickmark to their campus sexual assault statistics. If he’s slow in getting his results, or if the accuser doesn’t like the results, the feds can put his school under investigation and take away its federal student aid money.

The young man shouldn’t have any fear of that, right? The government and the school tell him he doesn’t need a lawyer, even if he’s being accused of what’s considered a felony outside the campus walls.

In an essay for Time last month, Christina Hoff Sommers, author of The War on Boys, vividly portrayed the problem facing male students in the “rape culture” environment:

On January 27, 2010, University of North Dakota officials charged undergraduate Caleb Warner with sexually assaulting a fellow student. He insisted the encounter was consensual, but was found guilty by a campus tribunal and thereupon expelled and banned from campus.

A few months later, Warner received surprising news. The local police had determined not only that Warner was innocent, but that the alleged victim had deliberately falsified her charges. She was charged with lying to police for filing a false report, and fled the state.

Cases like Warner’s are proliferating. Here is a partial list of young men who have recently filed lawsuits against their schools for what appear to be gross mistreatment in campus sexual assault tribunals: Drew Sterrett—University of Michigan, “John Doe”—Swarthmore, Anthony Villar—Philadelphia University, Peter Yu—Vassar, Andre Henry—Delaware State, Dez Wells—Xavier, and Zackary Hunt—Denison. Presumed guilty is the new legal principle where sex is concerned.

On campuses across the country, there’s actual rape and sexual assault by anyone’s definition. And there’s false accusations of it. And there’s “the gray area” in between. The Department of Education has decided to be the overseer of it all, with all schools receiving federal dollars given the impossible mandate of serving as its prevention and enforcement bureaus.

Many schools already feel overwhelmed with the new responsibilities. Still, in an effort to increase reporting of campus sexual assault, the government created a website for the accusers: NotAlone.gov.

The OCR claims it wishes to treat the accused with fairness and equity. For all the accused stripped of Constitutional rights and wondering if they do need an attorney, perhaps the government should create a DontBeAlone.gov site for them.

—————–

“Prudence Paine” is a pseudonym for a former journalist whose work has appeared on newsstands in national magazines. Her quest for knowledge has led to an excessive amount of time spent on college campuses. She can now be found writing a couple books, participating in the MOOC revolution (free online college classrooms) and tweeting at @prupaine.

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Comments

Feminism- We want to be treated just like men but with none of the personal responsibility.

    mzk in reply to JohnC. | June 30, 2014 at 1:26 pm

    “The dean responded, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”

    This cannot be legal. Maybe we do need an Equal Rights Amendment to protect men.

    If the man is drunk, he should make a rape accusation first. And always.

    Whispering: Once upon a time, people of the opposite sex were not allowed in the dorm. Would you let your daughter into such a setting? Or your son?

      richard40 in reply to mzk. | July 3, 2014 at 11:29 am

      And notice he did not address rules at all for female on female and male on male. Probably because there are no rules there, since the leftists also beleive that gays can never be guilty of anything. Only hetero males are always wrong.

Canada tried to go to a standard like this under former Justice Minister, Kim Campbell, sadly of their former Conservative party. I say former because when Campbell was chosen as interim Prime Minister to lead the party into national elections it received an epic historical crushing and Stephen Harper’s current Conservative party government was created, years later, from a merging of Canada’s version of the Tea Party with what was left of the Conservatives, with the “Reform Party” people in charge.

Anyway, I heard a lot about the effort at the time from my father. He wasn’t much amused by the standard of “if a man is drunk, he is responsible; if a woman is drunk, she is incapable of consent (if she decides she didn’t like the sex later.” And yet that could have easily been the law in Canada.

    mzk in reply to JBourque. | June 30, 2014 at 1:28 pm

    This means that women are inferior beings incapable of judgment. That is what these women are saying. So why are they allowed to vote or drive?

    richard40 in reply to JBourque. | July 3, 2014 at 10:51 am

    I noticed that once canadas conservative party got taken over by the reform party, they have reformed considerably, and may have even become better than US repubs. Canada is ceertainly better governed today than the US is, which is something I never would nhave said during Reagan, when we looked upon canada as our friendly socialist brothers from the north.

how can it be legal for these schools and, this is the critical part, the students to act as prosecutors and sentence someone.
who in their right mind thought it would be a good idea for these schools to have their own (for all intents and purposes) governments and court systems??

been raped?
call the cops.
don’t want to call the cops?
too bad, sucks being you.

enough playing around letting these students think they are more important than they really are.
they are students, go to class and shut up.

    Uncle Samuel in reply to dmacleo. | June 30, 2014 at 9:23 am

    There is an increase of sexual violence on campuses, but the truth of it is not being told.

    Yes, the women are inviting it, engaging in risky behaviors, but the perpetrators of rape have also been sickened by their upbringing and the media.

    A sexually promiscuous hook-up culture is dangerous due to STDs, injuries, mental health consequences as well as sexual violence. Promiscuity increases the incidence of negative outcomes.

      Herald Reasoner in reply to Uncle Samuel. | July 1, 2014 at 12:17 pm

      Hey Uncle Sam, Please state your source for your assertion that “there is an increase of sexual violence on campus.” Because: statistics can lie.

      For instance, if there are more reports by administrators that there is an increase, then that might enhance their job security. Or, if the category of sexual violence includes what was once not categorized that way, then it would “increase.” (Counting oranges as oranges is one thing, but redefining oranges as fruit, and then counting apples and bananas and grapes as fruit gives an increase in “fruit.”)

      Frankly, Reasoner’s Laser would suggest that this is merely an extension of the War on Men perpetrated by feminists and aided and abetted by PC-addled administrators.

      richard40 in reply to Uncle Samuel. | July 3, 2014 at 10:47 am

      First he says sexual violence is increasing, while giving no solid evidence for it, even though FBI stats show it is decreasing. Then in the rest of his comment he talks about women voluntarily and promiscously participating in a drunken sexual hookup culture, as if that is somehow rape, rather than iresponsible risky behavior on the part of the women participlating (and the men as well, but they aren’t being convicted of iresponsible behavior, they are falsely being convicted of rape, while the equally iresponsible women are being convicted of nothing)

    richard40 in reply to dmacleo. | July 3, 2014 at 11:25 am

    Simple, Obama and his civil rights division says it is legal, not just legal but absolutely required, and in fact punish the colleges by witholding fed aid if they dont do it. What else do you need, Obama, corrupt dem senators like McCaskill, and their army of leftie bureaucrats, are the only law that matters now. Forget about such outdated things as constitutional protections for the defendent, due process, and laws that are clearly defined so you know when doing something whether you are guilty of a crime.

    I remember a time when many liberals actually used to care about civil liberties, defendent rights, and free open debate. But since liberals turned into todays leftists, they are not liberal anymore.

Uncle Samuel | June 30, 2014 at 9:19 am

The feminists, rape culture theorists, the US government and the UN all ignore the most frequent perpetrators of the rape in the USA and western nations: Islamists, African-American gangstas, pedophiles, prisoners and pansexual deviants.

It isn’t PC to tell the whole truth about rape and rape statistics.

Since the accused are effectively detained and charged with a crime, are they advised of their rights at any point, i.e., ‘Mirandized’?

    MarkS in reply to MrE. | June 30, 2014 at 12:57 pm

    You miss the point. The accused is deemed guilty by the accusation and therefore violating his rights to achieve the narrative is all that matters

I R A Darth Aggie | June 30, 2014 at 10:11 am

So, in other words they’re moving sexual assault cases out of the criminal court system into higher ed’s disciplinary system?

This is an improvement?

    richard40 in reply to I R A Darth Aggie. | July 3, 2014 at 10:56 am

    Yes, and into a system with such a lack of due process protections for the defendant that it is more akin to a stalinist show trial, or the salem witch trials, than any kind of court. This is feminisms idea of justice, and the corrupt dem party is fully behind it.

Bizarre in the extreme. There should be no action by the university without adjudication in a court of law. There should never be an adverse action against anyone accused of such a heinous crime without a court decision yea or nay. To do otherwise, to codify these college kangaroo courts in law gives an air of wisdom and legitimacy to academic vigilantism. A pox on all their universities.

Follow the money.

This article (similar articles about the rape “crisis” and “rape culture” regularly have been coming out for 40 years), is being circulated today http://www.thenation.com/article/180441/how-did-fbi-miss-over-1-million-rapes If you read carefully, you will notice that it’s really all about justifying government grants and funding for feminist stakeholder organizations and secondarily pushing the discrimination issues in “marginalized” communities.

smalltownoklahoman | June 30, 2014 at 11:00 am

So even if both parties are drunk to the point of being incapacitated the guy is still held to blame. Makes me think that would just lead to a new default prohibition for the male population on campus.

Rules like this are not going to help relations between men and women on campus. About the only thing it will do is leave a lot of men basically gun shy (second def: http://www.merriam-webster.com/dictionary/gun-shy) of even getting close to women. This is something that could leave them emotionally messed up for years even after they have finished college.

    richard40 in reply to smalltownoklahoman. | July 3, 2014 at 11:14 am

    And the same feminists are also complaining that there are no decent guys in college willing to date them anymore. With rules like this would any guy with any sense ever go out with any college girl today.

MouseTheLuckyDog | June 30, 2014 at 12:00 pm

What if only the guy is drunk? If a guy wakes up next to a coyote ugly teetotaler can he cry rape?

Pure evil. Just pure evil.

Title IX needs to be repealed, and the entire department abolished.

As the parent of four children, this is very disturbing. I have three daughters, all college /grad school enrolled, and one son starting college now. My oldest daughter had roommates who routinely brought home random guys drunk and late at night who they slept with. They even at one point had a competition to see who could bring home the most , different guys (sad , but true). Needless to say, they didn’t have much relationship luck. To think that they could now claim to have been raped by anyone of these guys , because they were drunk is crazy. I fear for my son now. Going to a party, “hooking up” , could mean an end to his college and career plans ? A vindictive (or remorseful)girl just needs to make the claim , and he is guilty? This makes
“dating” a hazardous activity. Does he need to have a certified BAL and signed consent form ? Very romantic. It is ironic that feminists will kill the sexual revolution. By the way, do these rules apply to same sex hook ups? Can a female student rape a drunk female student (who later decides she didn’t like experimenting with a woman?)

    randian in reply to tblackwell. | July 1, 2014 at 3:33 pm

    “Can a female student rape a drunk female student”

    Obviously not, just like a drunk female student apparently can’t rape a drunk male student. Only male students are held to a standard of responsibility when drunk.

      Micha Elyi in reply to randian. | July 2, 2014 at 7:14 pm

      Defining rape as penetration but not engulfment is sexist.

      You’ll notice the feminists gave their movement a blatantly sexist name. Only fools believe feminism is about ‘equality’.

    richard40 in reply to tblackwell. | July 3, 2014 at 11:11 am

    “Can a female student rape a drunk female student”

    Or even better, what if you have 2 drunk male students, who is the guilty male rapist then. I suspect nothing would happen at all, even if one of the men actually engaged in forcible rape, since these same leftists just love homosexuals.

markswanson222 | July 2, 2014 at 5:45 pm

Eventually, will women be able to get drunk and rob a bank? Surely, they’re not able to make good choices while they’re drunk. Perhaps while being on drugs, women can get away very easily with shop-lifting? Of course, a woman could never be responsible for anything she does when she’s intoxicated. Unbelievable!

“McCaskill said that she is working with a bipartisan group of lawmakers in crafting the legislation, including Republican Senators Dean Heller of Nevada, Kelly Ayotte of New Hampshire and Marco Rubio of Florida.”

Rubeo lost enough conservative cred already from his embrace of amnesty, although I was willing to forgive one mistake by an otherwise promissing newcomer, and was not a single issue voter on immigration anyway. But if Rubeo is also willing to participate in this travesty of justice, in actually sanctioning these campus kangaroo courts with law, he is out forever as any kind of conservative or tea partier in my book.
I expect this kind of thing from Ayotte, since New Hamshire is enough of a dem leaning state is is hard to be a full conservative there, and she never really pretended she was a full conservative anyway. But Rubeo specifically ran as a tea party conservative, and now he is considering once again allowing a leftist dem to use his name for an obsenity like this.

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