The Moving Target of Rape at Duke

One of the questions asked regularly is why bother with gender politics and the definitions of language relating to sex crimes.  This is why. From Jacob Gershman at the WSJ Law Blog:

A North Carolina judge has stopped Duke University from expelling a male student who was accused of rape by a female freshman.

Following the lacrosse false rape fiasco, Duke has become particularly sensitive to issues and allegations of sexual assault and rape.  As a result, Duke has fallen willingly jumped down the rabbit hole:

Superior Court Judge W. Osmond Smith III on Thursday rejected Duke’s effort to dismiss a lawsuit filed by the accused student, Lewis McLeod, a senior who accuses the university of violating his contractual rights. The ruling blocks Duke from expelling him at least for now.

The female student, whose name has been redacted from court documents, accused him of raping her while she was intoxicated after the two met at a campus bar and took a late-night cab back to his fraternity house. After police investigated her claim but declined to file charges, she reported the matter to the school’s student conduct office. Mr. McLeod claims the sex was consensual and came to a stop after she started crying.

In March, a three-member Duke disciplinary panel ruled that the female student “had reached an incapacitating level of intoxication that rendered her unable to give consent to sex,” and that “a reasonable person would have known [complainant] was too intoxicated to be able to give consent,” according to the Indy Week newspaper, which published a lengthy account of the case.

The scenario ought to sound familiar at this point, as it’s consistent with the newish definitions of consent, vitiated by intoxication.  But then, what of the defense?

Mr. McLeod’s complaint claims that the panel failed to interview — or permit testimony — from key witnesses, including fraternity brothers at the house that night, while relying on a second-hand account of an anonymous witness. It also alleged that Duke discouraged him from seeking legal advice and expelled him under an unpublished policy.

“[W]hen Mr. McLeod’s representative asked for a copy of the policy, Dean Stephen Bryan slammed the door in Mr. McLeod’s face and said, ‘You can get it when you sue us,’” according to the complaint.

While the court stayed McLeod’s expulsion, the default remedy for his offense, he was denied graduation and a diploma, which will cause him to lose the Wall Street job he was offered and, as an Australian, require him to leave the country.

Notably, the unnamed victim’s allegation isn’t that sex was forcible, or that she was unconscious, but that she was “too intoxicated to give consent to sex.”  While McLeod responds that he stopped when she started crying, the first flagrant suggestion to him that there was a problem, it was too late.

There are two levels of questions raised by this case. The first is whether a person can be found guilty of violating a university disciplinary code without minimal due process. The second is whether the foundation for the claim of rape is viable.  In the Indy article, the “victim” claims she was incoherent, saying she had “at least two shots of tequila at the bar.”  But witnesses later saw them having a happy, friendly conversation.   To many, this will be a no brainer, a conclusively sufficient claim of rape.

As if the target wasn’t moving enough, the California Senate approved SB 967, which requires “affirmative consent” for sexual activity. Not just intercourse, but sexual activity. As Hans Bader explains:

The affirmative-consent bill, Senate Bill 967, does not explicitly require verbal permission to demonstrate consent, although it warns that “relying solely on nonverbal communication can lead to misunderstanding.”  But supporters of the bill are very clear about their desire to require verbal discussion or haggling prior to sex.  The Fresno Bee praised the bill because “it adopts in campus disciplinary cases the ‘affirmative consent standard,’ which means that ‘yes’ only means ‘yes’ if it is said out loud.”  The Daily Californian declared that “the proposal’s requirement that defendants in a sexual assault case demonstrate they obtained verbal ‘affirmative consent’ before engaging in sexual activity makes SB 967  a step in the right direction.”

At one time, the mantra was “no means no,” which itself was a departure from the gender politics of seduction and persuasion.  This law would morph it into “yes means yes,” and anything less means rape.  While it fails to address the “she said, he said,” problem, that’s subject to the evisceration of due process as reflected in McLeod case.

If the current trend of vitriol and presumptiveness was merely a benign means of those who wallow in victimhood sharing their stories and supporting each other, it would be of little legal consequence. But that’s a lie.

We are watching as definitions become untenable, where the line between right and wrong exists only in the mind of a woman, to be exercised afterward if that’s how she feels, and where the rigors of due process are no longer due the accused.  This is not an issue of feelings, but of criminalization, conviction and punishment that violates all established notions of fairness.

But then, that goes to the core of the issue. The only concern for fairness is for the victim, who is a victim because she decides she’s a victim, and that challenges to this notion prove misogyny and rape culture. The victim cannot be wrong here.  The perpetrator cannot defend himself.

It’s one thing if this is the nature of how people want their sexual relationships to be. It’s problematic, but if that’s the nature of the interaction that young men and women are prepared to accept, so be it.  But when they criminalize and punish a young man for this, then it demands scrutiny.  It doesn’t hold up.

16 thoughts on “The Moving Target of Rape at Duke

  1. Marc R

    Colleges have gotten out of hand…seriously what guy would think merely 2 tequila shots could incapacitate someone? And sexual consent “out loud,” kind of reduces every hookup to a narrative porno; now I want you to X, now you need to Y…I hope that guy cleans out his school. No cap on private school damages.

    1. Chris S

      In gay/lesbian culture, this problem doesn’t exist. In fact it’s only limited to cis-hetero females. If you’re gay male/female and trans*, a drunk yes still means yes. How could you take the legal opinion that you absolutely have zero capacity to make decisions or self-determination because your lips touched a bottle of tequila?

      Apparently the problem will have to be solved by technology—by text message evidence that consent happens or explicitly though a smartphone app

      1. SHG Post author

        This may be the first time I understood the reason to use “cis-hetero.” As for the smartphone app, I’m working on it. I just can figure out what pic to use.

  2. John Neff

    It must be very convenient to be able to expel a student for violating a secret rule. There must be a total absence of critical thinking.

  3. Michael McNutt

    I hate to think what will happen if the young man isn’t up to the task as it were, will he be charged with not “doing it” the correct way?

  4. Charlesmorrison

    It’s sad this young man’s name is now out in the internet world in perpetuity without any charging instrument ever having been filed. Presumably, he had to accept that fact in order to defend himself through his civil action.

    I like everyone else not present, have no idea what happened. But the procedures utilized by the school are woefully inadequate. An accused should not have to place his/her name in the public realm to mount a defense.

      1. Charlesmorrison

        To answer your specific question, of course it means something. Something, I’ve never found just. If you accuse, then you need to deal with what comes with the accusation. No matter the nature of the crime.
        I suppose I’ve dealt with sexual assault cases only in an era where the “Vic’s” identity is divulged only by initials, indictment through the appellate decisions (at least in Ohio). The newspaper never, ever says who is alleging, with the prior booking photo and all. Only a jury hears the full name. Same with child victims.

        I was more focused on the alleged here. It ain’t fair. Period.

  5. Nigel Declan

    Surely this law opens up a great opportunity for lawyers and notaries to set up shop in local drinking establishments to draft up and notarize sexual congress agreements (or, more likely, memoranda of understanding) outlining what acts are consented to, which are not, and all of the conditions precedent and subsequent which form the substance of the hook-up. There’s gold in them there hills.

  6. Todd E.

    Antioch (University?) in Yellow Springs, OH, initiated these kind of rules back in the 90’s, so it’s not unheard of. Just not widely practiced or enforced.

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