Both He and She Were Too Drunk to Recall Sex, So the University of Tennessee Expelled Only Him

In May of this year, the U.S. Department of Education’s Office for Civil Rights (“OCR”) released a memo listing fifty higher education institutions with open Title IX sexual violence investigations. This means that these schools’ responses to sexual abuse and violence on campus have come under suspicion and might well be actionably inadequate. The institutions included both Harvard College and Harvard Law School, a proper source of embarrassment for those of us who matriculated at either institution.Title IX of the Educational Amendments Act of 1972 is the federal law prohibiting sex discrimination in educational institutions. One form of sex discrimination is institutional indifference or inability to respond properly to sexual assault on campus. Accordingly, the apparent failure of so many colleges to effectively prevent or otherwise address the large number of sexual assaults that take place on college campuses indicates a problem, one that might perhaps be amenable to resolution through changes to campus codes of conduct.The California law passed earlier this year represents one response to this disturbing state of affairs in which institutions of higher learning have evidently been either unable or unwilling to protect the sexual safety of their students. To the extent that women (disproportionately the victims of sexual assault outside of the prison context) cannot safely navigate their college careers without fear of sexual assault and other sexual misconduct, their experience of education cannot be accurately characterized as equal to that of men. Changes in campus codes, required by the California law and urged by the OCR, then, result from a salutary impulse to improve the lives of the women and men who may be vulnerable to sexual predation.

One common critique of the “yes means yes” standard is that if a victim must say yes or otherwise affirmatively indicate an interest in having (or a willingness to have) sex before sex take place, then this will mean that the burden of proof in a rape case effectively shifts from the person complaining of a crime to the person defending himself against an accusation. As one example, Florida International University Professor Emeritus Gordon Finley, an advisor to the National Coalition for Men, claims that under a “yes means yes” approach, “it is virtually impossible to ‘prove’ affirmative consent for a man.” He continues that “[m]en are presumed guilty and have to prove their innocence . . . as opposed to the criminal justice system in which men and women are presumed innocent and must be proven guilty.”Finley’s suggestion, which I have heard from others as well, is mistaken for a variety of reasons.First, the definition of an offense has nothing to do with the burden of proof. The definition simply tells everyone (including potential perpetrators and potential victims) what the law requires in order for a sexual encounter to be called “consensual” and, on the contrary, what it requires in order for the encounter to be classified as a rape or sexual assault. If the campus code places the burden of proof on the accuser, then the burden remains on the accuser, regardless of how the misconduct is substantively defined.Under a “yes means yes” framework, then, where the burden of proof is on the accuser, the accuser must persuade the fact-finder by whatever standard of proof (whether “beyond a reasonable doubt,” “clear and convincing evidence,” or a “preponderance of the evidence”) that the events in question happened in the way that she says they happened and that, specifically, the accused engaged in sexual conduct with the accuser in the absence of either verbal or behavioral indications of interest in having sex. If the factfinder thinks there is a 50-50 chance that the complaining witness said “yes,” for example, and a 50-50 chance that she said “no,” then the factfinder will find for the accused, given that the burden is on the accuser. The definition of rape thus leaves in place the perpetrator’s presumption of innocence.Second, in order to obtain a finding of guilt, given that the burden of proof is on the accuser, it will likely be necessary for the complaining witness to provide testimony. That is, she cannot just sit back and say nothing, as could a party whose opponent bears the burden of proof, because she must convince the trier of fact that things happened in the way that she claims they did. Once she testifies, of course, there is some pressure on the defense to offer a counter-narrative, but that is hardly unique to the sexual assault context—once the prosecution has presented its evidence of the defendant’s guilt, the defense will always feel some pressure to offer evidence pointing in the other direction.An accuser’s testimony that the accused engaged in sexual intercourse (or some other sexual interaction with her body) without any affirmative consent, whether verbal or nonverbal, from her, is itself evidence. It is evidence of the perpetrator’s guilt on the basis of which a factfinder may and ought to be able to conclude that the things she described did indeed occur. Again, in all criminal cases, juries are empowered to find a defendant guilty on the basis of eye-witness testimony by a victim, and we do not ordinarily characterize this fact as either unjust or as shifting the burden of proof to the defense.Critics of acquaintance rape prosecutions more generally (as well as of the more demanding “yes means yes” approach to consent) frequently speak of a woman’s testimony in an acquaintance rape context as somehow inherently unworthy of belief or as “less than” the sort of evidence that usually generates fact-findings in a court of law. Critics use the expressions “swearing contest” and “he said/she said” to manifest their skepticism about how a fact-finder could possibly draw the conclusion that a rape really happened on the basis of mere testimony from a victim that it did, opposed by testimony from an accused perpetrator that it did not.If we look closely at the motives in place as well as at the typical resolution of disputes in court, however, we can see that this “swearing contest”/”he said/she said” talk represents a thinly veiled expression of sexism that harks back to misogynistic ideas about women from centuries past. When a woman testifies that a man had sex with her without her consent (whether that lack of consent takes the form of a vocal “no,” or of silence in a “yes means yes” regime), she has given the factfinder evidence of a crime that, unlike other crimes, is likely to cause shame and embarrassment to the victim reporting the offense. As a general matter, then, there is no positive benefit—and much detriment—that comes to a woman from testifying that a man has raped her. Lying about rape is thus a bizarre and peculiar thing to do, and there is no structural reason to expect such lies to be uttered on a regular basis in court.For a man who stands accused, by contrast, there is plenty of reason for him to say he did nothing wrong, regardless of what the truth might be. That is, like all criminal defendants, the accused in a rape case has a powerful motive to claim that he is innocent. This motive is—in most criminal cases—so well understood by juries that according to a study published by R. L. Wissler and M. J. Saks back in 1985, juries do not consider a defendant’s prior conviction for perjury especially informative in assessing his credibility. According to the study, the jury generally regards the credibility of a criminal defendant—structurally driven to say “I am innocent” no matter what happened—as so much lower than that of other witnesses in a criminal case that proof of his character for veracity has little to offer in terms of exposing the truth about his testimony.In short, if we want to call the dispute between a rape complainant and a defendant denying the accusation a “swearing contest,” it is—all things being equal—a properly one-sided contest between a woman who has no structural reason to lie, and a man who has every reason to say “not guilty” about himself, irrespective of what really happened.Yet I routinely run into otherwise sensible people who cannot seem to accept that a woman’s testimony that she was raped is strong prima facie evidence that she was in fact raped. They similarly cannot appreciate the fact that a man’s testimony that he committed no rape is weak evidence of his innocence. People do sometimes falsely accuse people of rape, just as people sometimes falsely accuse people of other things, but there is no reason—other than rank sexism—to systematically distrust rape accusations or to assume that the accuser and the accused in an acquaintance rape case are equally likely to be lying.In most cases, testimony is a crucial part of determining what occurred in a contested case and whether what occurred did or did not violate the law; a sudden skepticism about testimony in the context of rape is therefore unwarranted.The “yes means yes” law, moreover, has a second aim. It is not solely a tool for determining what happened once there has already been a rape accusation. It has another important function that has been largely ignored by critics of the new law. That function is to teach college students what it means to have a consensual sexual relationship with another individual.When one individual is interested in having sex with another, the law tells the former that the desire to have sex is not enough of a reason to go ahead and touch another individual. There is another person whose autonomy, interests, and wishes must also be taken into account, and the best way to do that is to look for affirmative indications of sexual interest (or ask a question) rather than simply viewing the other person as an obstacle course to be overcome. It may be the case that some women who would not have even known to call what happened to them “rape” will, when asked, “is it okay if I go ahead?,” say “actually, it isn’t.” The California law and the campus codes that it requires, if followed by people embarking on sexual experiences, will accordingly give women (and men) the space in which to say when they are truly interested in a sexual engagement and to safely withdraw into their own thoughts when they are not interested but prefer to avoid being confrontational with someone who appears committed to his sexual objectives.“Yes means yes,” if taken to heart by the men and women on college campuses, will lead people to take responsibility for checking in with a partner rather than surrendering themselves to what they may believe without any evidence to be a mutually desirable sexual encounter. People tend to be motivated to draw conclusions that allow them to do what they already wanted to do, a motivation that could easily lead an aroused person to imagine that the stillness and silence of a partner somehow evidence a desire to have sex. “Yes means yes” represents a positive intervention in the bedroom (or dorm room), one that informs initiators of sexual interaction that there is someone else in the room with them who must affirmatively consent before permissible sex can happen. Perhaps, if things go well, we will see fewer after-the-fact complaints, because couples will be led to have actual conversations about what each person wants before it is too late.

CampusSexualAssault:AParticularProblem.As noted, 1 in 5 women has been sexually assaulted while she’s in college. The dynamics of college life appear to fuel the problem, as many victims are abused while they’re drunk, under the influence of drugs, passed out, or otherwise incapacitated. Most college victims are assaulted by someone they know – and parties are often the site of these crimes. Notably, campus assailants are often serial offenders: one study found that of the men who admitted to committing rape or attempted rape, some 63% said they committed an average of six rapes each. College sexual assault survivors suffer from high levels of mental health problems (like depression and PTSD) and drug and alcohol abuse. Reporting rates are also particularly

This report analyzes the most recent, reliable data about rape and sexual assault in our country. It identifies those most at risk of being victims of these crimes, examines the cost of this violence (both to survivors and our communities), and describes the response, too often inadequate, of the criminal justice system. The report catalogues steps this Administration has taken to combat rape and sexual assault, and identifies areas for further action. An overview of the problem: Women and girls are the vast majority of victims: nearly 1 in 5 women – or nearly 22 million – have been raped in their lifetimes.1Men and boys, however, are also at risk: 1 in 71 men – or almost 1.6 million – have been raped during their lives. Women of all races are targeted, but some are more vulnerable than others:33.5% of multiracial women have been raped, as have 27% of American Indian and Alaska Native women, compared to 15% of Hispanic, 22% of Black, and 19% of White women. Most victims know their assailants. The vast majority (nearly 98%) of perpetrators are male.Young people are especially at risk: nearly half of female survivors were raped before they were 18, and over one-quarter of male survivors were raped before they were 10. College students are particularly vulnerable: 1 in 5 women has been sexually assaulted while in college. Repeat victimization is common: over a third of women who were raped as minors were also raped as adults. Other populations are also at higher risk of being raped or sexually assaulted, including people with disabilities, the LGBT community, prison inmates (of both genders), and the homeless. Undocumented immigrants face unique challenges, because their abusers often threaten to have them deported if they try to get help

 What are colleges and universities required to do under Title IX?

Isn’t sexual violence too serious for schools to handle? A: Sexual violence is very, very serious – which is why survivors need multiple real options. Indeed, it is too serious to leave to a faulty criminal justice system, no matter how comforting our misplaced faith in that system may be. Q: Shouldn’t perpetrators be imprisoned, not expelled?

ccording to a recent BJS report (1994), attempted crimes, and crimes that did not result in physical injuries were less likely to be reported to police than completed crimes or those producing injuries. Victims of violent crimes who reported said they did so to help prevent future acts of violence and because they thought it was the right thing to do. A primary reason for not reporting was a victim�s desire to maintain privacy. The Rape in America report (Kilpatrick et al., 1992) included information relevant to why most victims are reluctant to report (see Figure 1). Major concerns identified by victims were: being blamed by others, their families finding out about the rape, other people findings out, and their names being made public by the news media. A victim with these concerns would likely have substantial reservations about reporting the rape to police. However, it is reasonable to assume that addressing these concerns might encourage reporting. A second part of the Rape in America report described the results of a national survey of 522 organizations that provided crisis-counseling services to adult victims, some of whom did not report to police. Representatives from these agencies provided a list of actions that would increase victims� willingness to report rapes to police. Below are the actions and the percentage of agencies that thought each action would be effective. Educate the public about acquaintance rape/99% 0Pass laws protecting confidentiality victims� identity/97% Expand counseling and advocacy services/97% Provide mandatory HIV testing for indicted defendants/80% Provide free pregnancy counseling and abortions/77% Provide confidential, free testing for HIV and STDs/57% Efforts to increase the reporting of rape cases must be as big a priority as effective processing of cases. This requires a great deal of public education about rape, especially acquaintance rape. It will also require ensuring victims have access to needed support services and that they know their privacy will be protected to the extent that is legally possible. It also requires a public education campaign stressing the importance of reporting all rapes.

mplications for Sexual Assault Forensic Medical Examinations In sexual assault cases, the victim�s body is the primary "crime scene." The forensic medical examination is a critical part of evidence collection. Based on the victim�s report of what sexual acts occurred, the forensic exam collects evidence from the victim�s body that can establish: 1) sexual activity occurred 2) that a given person committed the acts 3) the sexual act produces physical injuries consistent with forced sex. The exam needs to collect evidence documenting that a sex act occurred to counter the defense that a suspect never had sex with the victim. The exam also needs to collect DNA or other evidence proving the named suspect committed the sexual act(s) in question. This evidence can be used to prove that the sexual act occurred and that the defendant was responsible for it. The only remaining defense a suspect can use is a consent-defense. One of the few ways to counter a claim of consent is to collect evidence of physical injuries (to the vulva, vagina or anus) that are inconsistent with consensual sex. Most sexual assault protocols for adult victims do not include state-of-the-art procedures for detecting physical injuries to the victim�s vulva, vagina, or anus. Fortunately, new technology exists that may greatly increase detection of physical injuries. The colposcope is a standard tool used by gynecologists for the evaluation of microscopic cervical, vaginal, or vulvar disease. Using a colposcope, the vulva, vagina, cervix, and/or anus can be examined at magnifications over 30 times the actual size. This permits detection of tears, bruises, or abrasions invisible to the naked eye. Colposcopic examination provides a much more objective and sensitive way of seeing and documenting genital, anal, and other injuries in sexual assault victims. Conventional rape exams without colposcopes typically report evidence of genital injuries in only 19%-28% of cases (Slaughter & Brown, 1992). However, examiners using colposcopes find evidence of genital trauma in up to 87% of cases (Slaughter & Brown, 1992). Another important finding is that colposcopic examinations of women who have had recent consensual sexual intercourse do not find evidence of physical injury. Thus, the colposcope is not only capable of detecting physical injuries invisible to the naked eye, but a trained expert examiner can also testify that such injuries do not occur during consensual sex. The ideal acute sexual assault exam protocol would have two parts: The first part would be similar to the existing protocol, which is conducted within 72 hours of the assault. However, the protocol would be changed to include a colposcopic exam. The second part of the protocol would include a second colposcopic exam conducted 4-6 weeks after the assault. The purpose is to collect evidence of a victim�s recovery from physical injuries detected during the first exam. That would provide evidence for an expert examiner to testify about recovery from injuries inconsistent with consensual sex. A final advantage of the colposcope is that technology exists to take color photographs or make videotapes of the injuries detected. This documentation of injuries has been described as having a powerful impact on jurors. And defendants, who entered guilty pleas when confronted with this evidence.

he NWS dispelled the common myth that most women are raped by strangers. For example: Only 22% of rape victims were assaulted by someone they had never seen before or did not know well. Nine percent of victims were raped by husbands or ex-husbands. Eleven percent by fathers or stepfathers. Ten percent by boyfriends or ex-boyfriends. Sixteen percent by other relatives. Twenty-nine percent by other non-relatives, such as friends and neighbors. In addition to the data just presented, the NWS gathered information about new cases that happened to adult women during the two-year follow up period. This information on the 41 such cases provides excellent information about the breakdown for new rapes experienced by adult women (Kilpatrick, Resnick, Saunders, & Best, 1998) (Dohrenwend book chapter). 24.4% of offenders were strangers. 21.9% were husbands. 19.5% were boyfriends. 9.8% were other relatives. 9.8% were friends. 14.6% were other nonrelatives.

nreported Sexual Assault Cases National research indicates that most sexual assaults are never reported to police. The best data on unreported crime comes from victimization surveys. The surveys interview representative samples of adults and/or adolescents asking if they have been victims and if they reported the crimes. Some surveys also ask why victims did not report these crimes. At the national level, major victimization surveys suggest that most sexual assaults go unreported. The National Crime Victimization Survey, conducted each year by the U.S. Department of Justice, found that only 32% of sexual assault cases were reported to police in 1994. The Rape in America survey conducted as a part of the National Women�s Study found that only 16% of rape cases were reported to police or other authorities (Kilpatrick, Edmonds & Seymour, 1992). Data from the National Survey of Adolescents indicated that only 14.3% of sexual assault cases had been reported. Thus, these national studies indicate that somewhere between 14% and 32% of all sexual assaults or rapes are ever reported to police. A study of nonincarcerated sex offenders conducted by Dr. Gene Abel and his colleagues found that 126 men admitted that they had raped. These 126 rapists had committed a total of 907 rapes involving 882 different victims. The average number of different victims per rapist was seven (Abel et al., 1987).

According to a report done by the National Institute of Justice, it is estimated that approximately 5% of college women were raped in a one-year period.[2] On a college campus of 10,000 that would mean that 500 women were victimized during a single year.

though, 90 percent of rapes are not reported and in 60 percent of those cases that are reported, the victim knew her assailant.  A study by the National Center for the Prevention and Control of Rape showed that 92 percent of adolescent rape victims said that they were acquainted with their attackers.

impaired judgement and motor skills Combining alcohol and Rohypnol is particularly hazardous because together, they have a much greater effect on memory and judgement. Effects begin within thirty minutes, peak within two hours, and can persist for up to eight hours. The combination of alcohol and Rohypnol can cause "blackouts" lasting eight to twenty-four hours. Loss of inhibitions (losing your social inhibitions and judgement) is another widely reported effect of Rohypnol, when taken alone or in combination with alcohol. decreased blood pressure memory impairment drowsiness visual disturbances dizziness confusion urine retention

how we think about ourselves and how we approach relationships with others.  In the long run, it is more harmful to pretend it never happened than to make him pay for violating her and not respecting her wishes. Be smart.  Do not put yourself in a situation that you are not comfortable with.  Pay attention to signals he puts out about his values and views of women.  If you get the sense that he is not listening to you, taking what you say to heart, or if he makes degrading comments to you, leave!  Find an excuse to leave the party, end the date early, or whatever else it takes to get you out of the situation. [ To Top ]

Mostof the time you will not know until it's too late.  About ten minutes after ingesting the drug, you may feel dizzy and disoriented, simultaneously too hot and too cold, or nauseated.  You may experience difficulty speaking and moving, and then pass out.  Such victims have no memories of what happened while under the drug's influence. The best action to take if you begin to notice these symptoms in yourself is to find a friend or call 911 immediately. For more information on Rohypnol see: http://www.4woman.gov/faq/Rohypnol.htm [ To Top ]

When you’re engaging in sexual activity, consent is about communication. And it should happen every time. Giving consent for one activity, one time, does not mean giving consent for increased or recurring sexual contact. For example, agreeing to kiss someone doesn’t give that person permission to remove your clothes. Having sex with someone in the past doesn’t give that person permission to have sex with you again in the future.

Positive consent can look like this: Communicating when you change the type or degree of sexual activity with phrases like “Is this OK?” Explicitly agreeing to certain activities, either by saying “yes” or another affirmative statement, like “I’m open to trying.” Using physical cues to let the other person know you’re comfortable taking things to the next level

It does NOT look like this: Refusing to acknowledge “no” Assuming that wearing certain clothes, flirting, or kissing is an invitation for anything more Someone being under the legal age of consent, as defined by the state Someone being incapacitated because of drugs or alcohol Pressuring someone into sexual activity by using fear or intimidation Assuming you have permission to engage in a sexual act because you’ve done it in the past

Consent is an agreement between participants to engage in sexual activity. There are many ways to give consent, and some of those are discussed below. Consent doesn’t have to be verbal, but verbally agreeing to different sexual activities can help both you and your partner respect each other’s boundaries.

As of Sept. 3, seven states put in orders to the USDA for about 2 million pounds of beef that may contain the controversial product for the meals they serve in the 2013-14 school year.

Currently, USDA allows these beef products to contain up to 15 percent lean finely textured beef without labeling requirements, but last year the department said it would allow voluntary labeling.

hese are ordinary, middle-income folks who have become really engaged in food and really care about where their food comes from.” It’s a movement that is gradually reshaping the business of growing

Bush has threatened to veto the bill, but it passed with enough votes to sustain an override. Predictably, the overwhelming bulk of its $290 billion would still go to powerful agribusiness interests in the form of subsidies for growing corn, soybeans, and cotton.

The local food movement has already accomplished something that almost no one would have thought possible a few years back: a revival of small farms.

These are ordinary, middle-income folks who have become really engaged in food and really care about where their food comes from.”

Bush has threatened to veto the bill, but it passed with enough votes to sustain an override.

Small farmers will be able to get up to 75% of their organic certification costs reimbursed, and some of them can obtain crop insurance.