But It Seemed Like A Good Idea

Exhibit A:


Q: You were handed this flyer at orientation?

A: Yes.

Q: So you knew that “if she has touched alcohol, do not touch her.”

A: Yes.

Q: You saw her put the bottle of beer to her lips?

A: Yes.

Q: You saw her drink from the bottle of beer?

A: Yes.

Q: And after that, you had sex with her?

A: Yes.

No further questions.

Ashe Snow writes:

To combat wrongful accusations of sexual assault on college campuses, a pro-due process group is distributing flyers meant to prepare young men for potential expulsion.

The organization, Families Advocating for Campus Equality has already begun distributing the flyers on California campuses, where “yes means yes” consent policies were adopted last year. The policies purport to make clear what is and isn’t consent, but make it impossible for accused students to prove their innocence and in fact redefine normal human actions as rape.

The road to hell is paved with good intentions, particularly when the good intentions are in the hands of an advocacy group comprised of passionate volunteers with inadequate understanding of law.

It’s difficult to imagine what purpose was served by this flyer. It’s not merely hyperbolic, but at most a lame attempt to ridicule the excesses of Affirmative Consent combined with the evisceration of due process on campus.

The latter is particularly ironic, given that the group, in particular, is at the forefront of trying to horse-trade other people’s due process rights in exchange for being given table scraps.  Advocacy groups trying to establish their bona fides often do that, desperately seeking to appear reasonable so that they won’t be laughed at.

“This flyer was created by a small group of California mothers of sons, including some whose sons have been falsely accused, to raise awareness of the propensity of college and university disciplinary panels to find male students guilty of sexual misconduct, often with no evidence except the accuser’s claim, and frequently in the presence of tangible evidence to the contrary,” said Cynthia Garrett, an attorney and board member of FACE.

This flyer was created by people who have never litigated anything.  This flyer was created by people who lack the capacity to understand that things that seem like a brilliant idea to that small circle of people who chat amongst themselves play out very differently when exposed to people who do not share their narrow view of life.  But it was well-intended.

Garrett says her group has “encountered many young men who were literally blindsided by false accusations of sexual assault made by a former girlfriend or someone whom they honestly believed had consented to a sexual encounter.” She stressed that the purpose of the flyer “is not only to encourage young men to carefully adhere to campus policies, but also to alert them to the possibility that they could be falsely accused.”

What does “encountered many young men” mean? The sons of the mommies? Young men who might otherwise turn to competent counsel but for the fact that mommies have created their own groups to feel as if they’re helping because they really, really hate what happened to their own kids?

Q: She sent you a text that said, “Okay, do you have a condom”?

A: Yes.

Q: You responded “yes”?

A: Yes.

Q:  She replied, “Good give me two minutes”?

A: Yes.

Q: And then you had sex?

There are advocacy groups, like the ACLU and FIRE, which over time and with great effort have established a level of sophistication and legal acumen that allows them to do excellent work in furthering their mission.  Even so, there is a fine line where they decide internally that they have the authority to trade-off other people’s rights.

Much as we may admire their work, it does not follow that we have endowed them with decision-making authority over our rights. And these are well-established advocacy organizations, with proven track records in the litigation of substantial issues.

In contrast, a fledgling organization with no track record, no litigation capacity, proposed to vulnerable male freshmen that, should they find themselves falsely accused, to call 661-829-6848. That’s the telephone number for stopabuseforeveryone.org, “a human rights agency.”

Stop Abuse For Everyone (SAFE) provides unique services for domestic violence victims. We help those who typically fall between the cracks of domestic violence services and few services are available: straight men, GLBT victims, teens, and the elderly. We promote that there should be services for ALL victims and accountability for all perpetrators.

Seems legit.  Or, they could tell students to obtain competent legal counsel immediately. But that appears nowhere on their flyer.*

When FACE first appeared by press release, I questioned their qualifications and efficacy. My doubts were swiftly confirmed.

On August 22, 2014, an email arrived from the three mommies at FACE, containing a “White Paper” as to their mission and seeking Applicants (yes, applicants) for their Board of Directors, because what lawyer wouldn’t want to apply to three mommies to see if they are worthy of their time being used to bask in the reflected glory of these monumentally important people.

As trial lawyers know from painful experience, the only thing we fear more than our adversaries are inept “allies.”  We expect our adversaries to attack us from the front, but it’s our “allies” who stab us in the back.

There are myriad excuses for this, that they’re volunteers, they’re too busy, they don’t have enough time, it seemed like a good idea at the time, and nobody said that this could end up backfiring and being used as the bludgeon to destroy those we really, really wanted to help.

That will likely prove of little comfort to the mommies of male students who suffer as a result of a well-intended but inept advocacy group.

*Yes, the flyer says “consult a lawyer before you say anything — your school will not help you prove your innocence.” That’s not the same thing, and let’s not even start with “proving your innocence.” But then, in big bold letters toward the bottom (by the QR code that no one has used in the past two years), the flyer says “start here.”

18 thoughts on “But It Seemed Like A Good Idea

  1. Osama bin Pimpin

    Take your point. The mommy brigade should be agitating, protesting and doing other forms of PR, not advising the accused.

    Why did FIRE sign up with them?

      1. mb

        If they have, my guess would be that it’s because they recognize that mommies have the correct genitalia to be immune from criticism as rape apologists and to have their feels count.

  2. Lee Thompson

    I think you’re conflating your negative view of the group with the effacacy of the flyer. The flyer is much better than you’re giving it credit for.

    “It’s difficult to imagine what purpose was served by this flyer.”

    No it’s not. The primary message is “You could be expelled for sexual assault even though she clearly consented, so watch out!” That’s an accurate message, and the image backs it up well.

    Or in the words of the attorney, “[The purpose of the flyer] is not only to encourage young men to carefully adhere to campus policies, but also to alert them to the possibility that they could be falsely accused.” I don’t know about the first part, but the second part is pretty obviously the main thrust of the poster.

    “Seems legit. Or, they could tell students to obtain competent legal counsel immediately. But that appears nowhere on their flyer.”

    I notice you don’t actually dig in to the actions they recommend–you just say that CONSULT A LAYWER should be more prominent. I don’t disagree, it should be, but does that really make the whole thing worthless?

    “But then, in big bold letters toward the bottom (by the QR code that no one has used in the past two years), the flyer says “start here.”

    Personally, I read that as “start here to learn more”, and considering there’s an entire other section devoted to actions to take if you’re accused, I think that’s a reasonable interpretation. It would be better if it heard “Learn more:” instead of “Start here:”, but again, does that really undermine the whole flyer?

    Your view on FACE is clear, and I’m not arguing whether they are generally competent. But this flyer is not evidence of their incompetence. In fact, I say that, considering the prevailing narrative “If you don’t do anything wrong, you have nothing to fear”, this flyer is quite useful for informing incoming college students at affirmative consent schools of the threat posed by false accusations.

    1. SHG Post author

      My “negative view of the group” comes from a negative view of what they do. Otherwise, they’re no different than any other group of clueless passionate dilettantes who confuse their interest with expertise. My negative view of the group is due to the harm they cause others in their zeal to be relevant.

      As for the flyer, had they handed one out that said “You could be expelled for sexual assault even though she clearly consented, so watch out,” it would have been monumentally less dangerous than what they did. You disagree because you see it differently? Based on what? You offer nothing to suggest that you’re a lawyer (which, in itself, would mean about as much as FACE’s lawyer, who has a ticket and no other relevant experience whatsoever), no less experience representing, trying cases, dealing with these problem in real life.

      But that’s not the message. The message is what the flyer says, not whatever fuzzy feelings you have about it. There’s no spinning the actual content into whatever you feel it kinda means, and it surely won’t work that way when it’s used against a male student to expel him. What will you do then, when you wring your hands and say, “but I didn’t think it was so bad.”

    2. Myles

      Lee, you do realize that the flyer is right there, on the page, so we can all see it. And if we can all see it, we can all make our own assessments of it. And if we can all see it, and can all make our own assessments of it, we don’t need you to tell us all about how you feel about it.

      Not to be rude, but nobody cares what you think of it. You know why? Because we can see it for ourselves and decide for ourselves whether this flyer is good, bad or otherwise.

      You do understand how this whole thing works, right?

      1. Lee Thompson

        Yeah, I understand. No one cares what I think. No one cares what you think. The only thing that matters is what our hypothetical freshman does with the flyer. So what does he do?

        He gets accused, looks at the flyer, sees the “What you need to know if you’re accused…” section, and does four things.

        -Assumes the school thinks he’s guilty
        -Consults a lawyer
        -Calls his parents
        -Gets ready for a fight

        If you would like to explain which of these four things is bad, I’m all ears.

        1. SHG Post author

          I like your fantasy, and had the flyer only said that (except the “consult a lawyer” bit, which is what people who don’t get it would say) I would have no issue. But alas, it’s only your fantasy. The flyer says what it says, even if you want to pretend otherwise.

        2. mb

          Whether the poster is taken as legal advice or as public advocacy, it is a colossal failure. The tips for protecting yourself are wholly inadequate, and the instructions to those whose legal interests are already implicated by an accusation of wrongdoing to take any action prior to consulting with a qualified attorney put them at risk of harming their own cases. Meanwhile, the failure to adopt a strong position on the issue concedes major portions of the debate. Affirmative consent policies effectively negate lack of consent as an element of a crime. To flatly declare all proponents of this to be evil, stupid, or crazy is not a difficult position to defend. It’s not that there’s nothing correct or useful on the poster. It’s that they’ve made the mistake of pretending that that any of this is being done in good faith.

    3. Rick Horowitz

      Frankly, I think the one fragment – “prove your innocence” – is enough to show these people should not be giving anything remotely resembling legal advice to anyone.

      Add to that the idea that sex is a battlefield, and males should start strategizing how they’re going to survive it, that just seems a little off. If only they wouldn’t behave like ordinary people, accepting the idea that someone who asks if there is a condom available, then says “give me two minutes,” and then shows up for sex is consenting, then they wouldn’t be falsely accused.

      Plus, of course, he shouldn’t have worn that décolletage.

      1. SHG Post author

        The shift between arguing against due process deprivations (particularly in light of recent court opinions holding these deprivation to be wrongful and unconstitutional) and this amorphous hysteria to incoming freshmen is deeply disturbing.

        No, not every sexual encounter results in cries of rape. No, not every male is “convicted” and expelled (Nunsgesser, anyone?). No, not every college admin would read that text exchange and see it as compelling proof that no consent was obtained. No, not every male freshman needs to whipped into a fear-crazed frenzy. And most importantly, no, the “advice” is false and can be used against someone. They don’t think so? No do-gooder ever thinks their ill-advised, ham-handed effort, of which they’re so proud because it’s their baby, will end badly. Until it does.

        This is a minefield, but sound advice, fair explanation of what the issues are, what the applicable law is, might illuminate. As for how young men can “protect” themselves, that’s something of a crap shoot. There is no fool-proof mechanism from what I’ve seen. And yet, whipping up hysteria isn’t an answer, and may well be more of the problem.

        Crazed crap is just crazed crap. And yet, this was what they deemed a good idea to do.

  3. Tice with a J

    You’ve written a number of excellent posts over the years, but this one might be the one I most need, because it targets a tendency I often suffer from (yay activism!). The flyer posted above looks like something I might have written, or at least shared with all my friends, had you not pointed out its folly. Thank you, sir.

    I shall have to do better in the future, always remembering the rationalist’s battle cry:
    “I think you’ll find it’s a bit more complicated than that.”

    1. SHG Post author

      The best explanation of this I can remember was at Cracked:

      Let’s say that the person you love the most has just been shot. He or she is lying in the street, bleeding and screaming. A guy rushes up and says, “Step aside.” He looks over your loved one’s bullet wound and pulls out a pocket knife — he’s going to operate right there in the street.

      You ask, “Are you a doctor?”

      The guy says, “No.”

      You say, “But you know what you’re doing, right? You’re an old Army medic, or …”

      At this point the guy becomes annoyed. He tells you that he is a nice guy, he is honest, he is always on time. He tells you that he is a great son to his mother and has a rich life full of fulfilling hobbies, and he boasts that he never uses foul language.

      Confused, you say, “How does any of that fucking matter when my [wife/husband/best friend/parent] is lying here bleeding! I need somebody who knows how to operate on bullet wounds! Can you do that or not?!?”

      Now the man becomes agitated — why are you being shallow and selfish? Do you not care about any of his other good qualities? Didn’t you just hear him say that he always remembers his girlfriend’s birthday? In light of all of the good things he does, does it really matter if he knows how to perform surgery?

      In that panicked moment, you will take your bloody hands and shake him by the shoulders, screaming, “Yes, I’m saying that none of that other shit matters, because in this specific situation, I just need somebody who can stop the bleeding, you crazy fucking asshole.”

      Either you are qualified to do whatever it is you purport to do, or you’re just a well meaning incompetent.

      1. Tice with a J

        Good advice, and it grows more applicable by the day as specialization increases. Sometimes it’s important to be nice and have a good heart, but sometimes all that matters is that you know what you’re doing.

        1. SHG Post author

          The two aren’t mutually exclusive. But then, when someone is bleeding out, best not to start a chat with the usual pleasantries. Save the life first, and there will be time for niceties later.

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