Judge Joel Pressman ruled that UC San Diego’s actual disciplinary procedures, not to mention their self-assessment that provided the male student with an “abundance of process,” failed to approach anything a rational person would consider due process. At Minding the Campus, K.C. Johnson provides a thorough recap of the hearing.
But one piece remains somewhat underdeveloped, and is critical as its parameters remain problematic, misunderstood if described kindly, batshit crazy otherwise. What was the actual allegation, in context, that gave rise to the male student being put through this educational and legal nightmare? From the petition:
Petitioner, a 20-year-old college student, seeks redress for his de facto expulsion from UC San Diego for an alleged instance of unwanted heavy petting that occurred between two sessions of consensual sexual intercourse with an adult female student on the weekend of January 31, 2014.
These details weren’t clearly stated, and yet are the facts giving rise to all that followed. The sexual assault consisted of an allegation, made three months after the fact when the students were no longer romantically or sexually involved, that sandwiched between two sessions of consensual sexual intercourse, the accuser alleges the accused digitally penetrated her vagina.
There was no claim of force. There was no claim of incapacitation, or even mild intoxication. There was no claim of coercion, in the sense of the male student promising to love her ’til the end of time and then failing to honor his promise. The only claim is that after concededly consensual sex, and before another round of concededly consensual sex, he digitally penetrated her.
The underlying sexual misconduct complaint has nothing at all to do with sexual violence against women; the male student is being effectively expelled from UCSD for allegedly trying to touch Jane Roe in a manner that was unwanted in the morning of February 1, 2014, but was wanted later that same day when Jane Roe had consensual sexual intercourse with Petitioner in her apartment. See Appeal, at BS0002-03. Jane Roe waited over three months to make a report, and only after Jane Roe and Petitioner John Doe has a falling out.
There were only two people present when this alleged assault occurred, the students. This is hardly unusual, given the nature of the conduct, but what distinguishes the allegations is the undisputed surrounding circumstances. Sex before, all good. Sex after, all good. Touching in the middle, unwanted.
There is no allegation that the female student said “no” to the touching. Of course, under the “yes means yes” concept of rape and sexual assault, she is under no duty to say no, to protest, to take any action to communicate to the male student that his touching was unwanted. Indeed, the female could otherwise enjoy the touching without it being subject to affirmative consent.
Notably, the male student admitted sex before. He admitted sex after. He denied, consistently, the digital penetration that was the subject of the disciplinary hearing.
There is no mechanism available that could have protected the male from the accusation, short of being provably far away. No signed contract. No video tape of consent. No realistic (yes, there are some theoretically crazily intrusive possibilities) safeguard that would have prevented the accusation.
While a post-sex text from the female student about how she consented to the digital penetration might have helped, the college panel, in its abundance of process, concluded that the male student’s contention that post-sex texts were not relevant precluded its use.
The panel was bizarrely wrong in its grasp of process, but they’re not lawyers, and they’re neither equipped nor inclined to provide a full and fair opportunity to hear evidence or grasp relevance. Even well-educated people are ignorant when it comes to the intricacies of materiality and relevance. Overt concern with not “re-traumatizing survivors” tends to dull their search for the truth.
But this wasn’t about truth. Even assuming there was digital penetration, despite the male student’s denial, sandwiched between bouts of consensual sex, without any indication of disapproval, a grown-up was needed in the room to say, “no, you were not sexually assaulted, even if you later decided that this one act amongst the many to which you admittedly consented, wasn’t something you wanted.”
In discussions about the criterion to be used in determining whether a sexual assault or rape occurred, the simplistic resort is to fortune cookie rules such as, “don’t rape,” as if that answers anything. Some do it to manipulate the ignorant who lack sufficient grasp to hoot and holler their support. Others are the manipulated ignorant, pounding the table without the ability to understand that they’re screaming empty rhetoric.
Even assuming, arguendo, that the male student digitally penetrated the female student’s vagina in between sessions of consensual sexual intercourse, does that constitute rape? What if the female student claims that she consented to sex, but after a few thrusts, she changed her mind, failed to communicate her changed mind because she’s under no duty to do so, and complained of the thrusts thereafter? Rape?
Under the strict, or as I would argue, simplistic, affirmative consent approach, it would indeed be rape. The female has the personal autonomy to change her mind at any moment for any reason or no reason. She need not communicate her withdrawal of consent, because the standard is not “no means no,” but yes, yes, yes. And, she cannot be blamed, as that would be the forbidden victim blaming, for not mentioning that an issue exists for months, even years.
There is an explanation, which would be better characterized as a rationalization, for every piece of this scenario, and indeed, every scenario imaginable, wherein these crazy fact patterns are not only accepted and prosecuted by colleges, but explained away by a series of handy theoretical excuses that cover any and every act or omission by an accuser. And, bottom line, there is really nothing a male student can do to prevent it. The situation is untenable, but since nobody really gives a damn about the accused, so what?
The answer really isn’t hard to discern. Somebody at the college needs to be the grown-up and say, “no, this wasn’t a rape, this wasn’t a sexual assault; this was just the normal regret that occasionally follows a young person’s experimentation with sex as they mature.” But nobody says that anymore. No grown-up will tell a female student that they weren’t raped, just because they weren’t raped.