Sunday, November 16, 2014

Difficulty in defining/protecting against rape and sexual abuse in college

NY Times     by Jed Rubenfeld is a professor of criminal law at Yale Law School

OUR strategy for dealing with rape on college campuses has failed abysmally. Female students are raped in appalling numbers, and their rapists almost invariably go free. Forced by the federal government, colleges have now gotten into the business of conducting rape trials, but they are not competent to handle this job. They are simultaneously failing to punish rapists adequately and branding students sexual assailants when no sexual assault occurred.

We have to transform our approach to campus rape to get at the root problems, which the new college processes ignore and arguably even exacerbate.

How many rapes occur on our campuses is disputed. The best, most carefully controlled study was conducted for the Department of Justice in 2007; it found that about one in 10 undergraduate women had been raped at college.

But because of low arrest and conviction rates, lack of confidentiality, and fear they won’t be believed, only a minuscule percentage of college women who are raped — perhaps only 5 percent or less — report the assault to the police. Research suggests that more than 90 percent of campus rapes are committed by a relatively small percentage of college men — possibly as few as 4 percent — who rape repeatedly, averaging six victims each. Yet these serial rapists overwhelmingly remain at large, escaping serious punishment.[...]

At Columbia University and Barnard College, more than 20 students have filed complaints against the school for mishandling and rejecting their sexual assault claims. But at Vassar College, Duke University, The University of Michigan and elsewhere, male students who claim innocence have sued because they were found guilty. Mistaken findings of guilt are a real possibility because the federal government is forcing schools to use a lowered evidentiary standard — the “more likely than not” standard, which is much less exacting than criminal law’s “proof beyond a reasonable doubt” requirement — at their rape trials. At Harvard, 28 law professors recently condemned the university’s new sexual assault procedures for lacking “the most basic elements of fairness and due process” and for being “overwhelmingly stacked against the accused.” [...]

Consider the illogical message many schools are sending their students about drinking and having sex: that intercourse with someone “under the influence” of alcohol is always rape. Typical is this warning on a joint Hampshire, Mount Holyoke and Smith website: “Agreement given while under the influence of alcohol or other drugs is not considered consent”; “if you have not consented to sexual intercourse, it is rape.”[...]

According to an idealized concept of sexual autonomy, which has substantial traction on college campuses today, sex is truly and freely chosen only when an individual unambiguously desires it under conditions free of coercive pressures, intoxication and power imbalances. In the most extreme version of this view, many acts of seemingly consensual sex are actually rape. Catherine A. MacKinnon took this position in 1983 when she argued that rape and ordinary sexual intercourse were “difficult to distinguish” under conditions of “male dominance.” [...]

Under this definition, a person who voluntarily gets undressed, gets into bed and has sex with someone, without clearly communicating either yes or no, can later say — correctly — that he or she was raped. This is not a law school hypothetical. The unambiguous consent standard requires this conclusion. [...]

6 comments :

  1. Where is this going to go? Pretty soon, it'll take a written contract, with witnesses, and a public display of the woman's assenting (such as a symbolic act like the placing of a ring) before relations will be legal...hey, WAIT a second!

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  2. People boiling with biology are supposed to study together and live near each other for years and guess what? The same is happening in the military. Well, what do you think is going to happen? Women push into a man's world, and guess what? "The honor of a woman is in her private domain" in the family. But today's woman live in a world where marriage is very dangerous. But is living alone not a problem? Now the government is accommodating radical ladies by lowering the strength qualifications for actual combat so that women can protect our country with their strength which is clearly inferior to male strength. But this is politics. And the more the radical women push, the more they get, guess what?

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  3. The Harvard case is different than the "usual" rape / sexual harassment claim -- that involves a professor having the hots for a student.

    Not that the system isn't stacked against a male student (are there stats on female rapists on campus?)

    2. This professor rubenfeld is the husband of the "tiger mom" , for those who remember that book / controversy.

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  4. fedupwithcorruptrabbisNovember 16, 2014 at 7:20 PM

    Well perhaps society should accuse women who dress provocatively of raping a man, after all that is "their method of coercive sex"!

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  5. A response to Professor Rubenfeld


    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/17/three-questions-about-the-legality-of-the-obama-administrations-anti-sexual-assault-on-campus-policies/

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  6. Joseph,
    The article makes it clear that there is no solution. One out of ten are whatever and there is no defense. And when colleges make fake defenses, the husbands sue and win. Because everybody sees it is fake for the husband to be accused without proof. This is college. And now they are thinking of drafting women, meaning our daughters, like men, into the military, in Jan of 2-16. Men and women mean one thing. It is against the Torah.

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