California’s “Yes Means Yes” Bill

Filed in National by on August 29, 2014

Via Washington Post:

The California state senate unanimously approved a bill on Thursday that defines when “yes” means “yes” to sex.

Instead of “no means no” – the phrase commonly associated with sexual assault prevention – the law would require “affirmative, conscious, and voluntary agreement” by each party to engage in sexual activity. If Gov. Jerry Brown (D) signs the bill into law – he has until the end of September – colleges and universities would have to adopt the so-called affirmative consent standard to continue receiving state funds for student financial aid.

[...]

Under the proposed standard, the fact that a person didn’t say “no” is no defense in a campus sexual assault investigation.

In addition to consenting up front, the bill requires affirmative consent to be “ongoing throughout the sexual activity,” meaning that sexual partners must agree to each step of a sexual encounter as it progresses and consent can be revoked at any time. The standard would apply to all sexual encounters regardless of whether the parties are having a one-night stand or are in a long-term relationship.

One thing the bill doesn’t say is that affirmative consent must be verbal.

Does everyone remember, during the Steubenville trial, where the defense attorney, in regards to the passed out girl not giving consent, said, “Well, she didn’t say ‘no’.”  Yep.  That was an eye opener and gives us insight into where, in part, this bill is coming from.

It’s no surprise that I’m okay with this bill.  The previous “No Means No” criteria put the responsibility on the victim – even if they were incapable of saying no.

And I really don’t get why consent is always a big deal – some sort of onerous burden.  Anyone having sex knows that consent is part of the act – every step of the way.  They are aware that sex isn’t a solo act.

But just in case there’s still some confusion, here’s my advice.  If you are with someone and the idea that they may claim rape in the morning pops into your head (not likely, but I’ll play along with this myth) then it is your responsibility to not have sex with them.  Got it?  It’s your responsibility – especially since thinking such a thing about a person you’re about to have sex with is a HUGE red flag.  Proceed at your own risk – and I do mean your risk.

Everyone owns their sexuality and placing your future – reproductive, health, freedom – into the hands of someone else is you abdicating your responsibility.  (I stress this because I had this conversation with my son and nephew this summer.  They were watching some show, and on the show one guy said, “She’s pregnant?  Oh man, she trapped you.” and the other guy responded, “She “claimed” she was on the Pill.”  I paused the show and told them that no one was in charge of their reproductive future but them.  And if they made the choice to abdicate their sexual responsibility by not wearing a condom then they had no right to point fingers at anyone but themselves.)

Basically, all this bill does is acknowledge that it takes two conscious, willing people to have sex.  Which seems pretty obvious, but maybe not.  And that’s a scary thought.

 

 

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Comments (135)

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  1. Unstable Isotope says:

    Yes to everything in this post. The Internet misogynists will go (more) insane over this but it protects both men and women. Both parties have to consent to sex. Every single time. This should not be a difficult concept. Thank you California for leading the way.

  2. Jason330 says:

    I heard a PSA about affirmative consent aimed at college kids when I was out there.

    Guy: I’d like to go down on you. Would that be okay?
    Girl: No I’m not conformable with that right now.
    Guy: We can still kiss and I’ll touch your breasts.

    I get that it makes sense, but part of my soul shuddered when I heard it. I LOVE the mutual tiptoe into sexual synchronization. The gentle nonverbal yes and no. Now it has all been reduced to metallic robot language. There is no poetry in affirmative consent, so how can there be love?

  3. pandora says:

    Well… “One thing the bill doesn’t say is that affirmative consent must be verbal.” So there’s that. :-)

  4. Dana says:

    The problem isn’t “yes means yes” or “no means no;” the problem is that drunk one night is not the same as sober the next morning, and “OMG, what have I done?”

    The Steubenville case pointed out one thing: the victim didn’t say no, because she couldn’t say either no or yes, because she was dead drunk. Nearly unconscious sex is less the problem on college campuses than pretty drunk but still quite conscious sex, in which both parties consented, but it’s arguable that one or both of them was really too intoxicated to have taken a conscious and informed choice.

    You could have an actual signed consent form, made out for every last move, and it would still be problematic if someone was too drunk to really have consented.

  5. cassandra_m says:

    How could that be problematic? If you can see someone is too drunk to consent, you already know that you should walk away.

  6. pandora says:

    Let’s start with this: the default on consent is set to no. Move on from there.

  7. pandora says:

    You know, sex is always about communication. Are people not paying attention to their partner? Aren’t they listening for “Oh baby, that feels good” or moans of pleasure or reciprocating touches? All of these signal consent and let you know to continue.

    Serious question… do people really not make sure their partner is with them every step of the way? Do they just plough on without seeing to their partner’s pleasure?

  8. puck says:

    So much for the zipless f**k.

    How is this new policy different from already-existing legal definition of sexual assault and consent? It is already illegal (in the real law) to have sex with someone who cannot consent. Kink-eee!

    I suppose that leaves the weird possiblity someone could be conscious, competent, and yet remain mute during a sexual encounter they do not wish to be part of.

  9. Jason330 says:

    That Dana. What an idiot.

  10. pandora says:

    Know why I like this bill? Because it places the responsibility on both people. Before it was “Did you say no? Loudly? Did you resist? Fight?” It made it the victim’s job to stop the rapist while the only thing the rapist had to do was rape. The rapist had no responsibility.

  11. Jason330 says:

    That’s a great point. If someone doesn’t or can’t offer affirmative consent there is a bright line.

  12. puck says:

    This sexual negotiation is (hopefully) happening behind closed doors. What will the parties offer for evidence?

  13. pandora says:

    Well, they’ve been pretty damn comfortable using the victim “didn’t say no” defense. And the evidence offered will be the same as before.

  14. puck says:

    Oh right, this is college – evidence is not required.

    It is still literally a he said/she said. And we know who wins that one (in college, anyway).

    Where has the “victim didn’t say no” defense ever been successful in modern times? Is this a problem that needs solving?

  15. Unstable Isotope says:

    I always hate threads about rape because people will pretend that rape is prosecuted a lot. Only 1 in 10 rapes are prosecuted, and the victim always gets the what were you wearing, what did you drink, etc. I just read there are 400,000 rape kits still untested. When places start testing they generally find serial rapists that have gone undetected.

  16. Geezer says:

    Dana’s example leads me to a different conclusion. Steubenville — disgusting as it was on the basis of how a defenseless person was exploited and humiliated alone — shows why the “no means no” standard is lacking: What does “uhhh” mean? Therefore we MUST require “yes means yes.” If you’re too far gone to communicate with language, you shouldn’t proceed. Trust me, this is one circumstance in which the nanny state is doing everyone a big favor.

    And golly, it’s nice to see that avatar just above.

  17. puck says:

    Is there some world in which the “didn’t say no” defense is letting laughing rapists go free? I am not seeing these news reports. Maybe they are circulating on some politically correct hashtag fad that I missed?

    In case everybody forgot, the Steubenville defense didn’t work. If anything, Steubenville put a nail in the coffin of the “didn’t say no” defense, and rightfully so.

  18. pandora says:

    “Is there some world in which the “didn’t say no” defense is letting laughing rapists go free? I am not seeing these news reports. Maybe they are circulating on some politically correct hashtag fad that I missed?”

    UI points out that only 1 in 10 rapes are prosecuted, and when they are prosecuted (in a court or by a college) she didn’t say no is always defense:

    – didn’t say no sternly, loudly, threateningly enough
    – didn’t fight hard enough
    – didn’t say no because… hey, look at what she was wearing
    – Hey, she was sexually active so she doesn’t say no to sex
    – didn’t say no when we were making out/she wanted it

    Every example above (and there are more) is saying the victim didn’t say no.

    And our colleges (and military/sports) have a problem.

    The college guys who filmed themselves sexually assaulting a women and who were punished with expulsion – after graduation.

    Most college rapists almost always get off the hook.

    Here’s more reading on who wins.

    And do we count the victim dropping out of school winning?

    I could go on and on because there’s so much of this.

    (And the only reason this defense didn’t work in Steubenville was due to the photograph showing the boys carrying the unconscious girl. If that photo hadn’t existed, those boys would have walked.)

  19. puck says:

    There is no argument that people who are passed out can give consent. That is already not a valid defense. To the extent that defense was ever successful in the past, it is clearly not successful in the present day.

    Your link for “Most college rapists almost always get off the hook. ” was based on a CPI report from 2002. A lot has changed in 14 years in Title IX cases.

    In criminal law the standards of proof for rape remain high, as they should. The reason not to prosecute is usually based on lack of evidence – but that is not a problem for Kollege Kourt.

    Remember, the rationale for allowing lower standards of proof in college cases was that they can only impose lower penalties. So now that we have the lower standards of proof, no fair complaining about the lower penalties.

    FYI, the Steubenville photos did not show a rape act, despite widespread implanted memories that they did. The rape case hinged not on photos but on the testimony of an immunized eyewithess.

  20. Geezer says:

    Puck asks, “Where has the “victim didn’t say no” defense ever been successful in modern times? Is this a problem that needs solving?”

    In what world does this constitute “a problem”? What is the “problem” in getting positive assent to intercourse?

  21. puck says:

    I think most consent is non-verbal. Verbal consent is usually part of a price negotiation.

  22. pandora says:

    “There is no argument that people who are passed out can give consent. That is already not a valid defense. To the extent that defense was ever successful in the past, it is clearly not successful in the present day.”

    Yes, it is. As soon as the victim is questioned on how much they had to drink, what they were wearing and if they flirted the passed out defense gives way to the “she wanted it” defense. Alcohol is used against women while being an excuse for men – she was drunk so she deserved/asked for what she got vs. he was drunk and wasn’t responsible for his actions. See how that works?

    “In criminal law the standards of proof for rape remain high, as they should. The reason not to prosecute is usually based on lack of evidence – but that is not a problem for Kollege Kourt.”

    I have told my daughter and son (as well as their friends), to bypass the college police and go directly to the police (altho, a women will deal with a lot of the same crap from them and better be prepared to have her entire sexual history put on trial), since the college police – even if they find the perp guilty – don’t mete out justice… unless you consider a book report, awareness courses or an apology for raping you letter justice.

    But even then I know that a girl’s sexual history, alcohol consumption and how she was dressed will be used against her. Remove those standard practices and then we can honestly discuss the he said/she said situation. But as long as the “she had sex before!” or “her irresponsible (drinking, flirting, looking sexy) behavior caused this” trope is constantly trotted out to excuse a rapist from raping, we have a long way to go. Until men’s/boy’s drinking, sexual history, flirting, etc. enters a courtroom all things aren’t created equal.

    “Remember, the rationale for allowing lower standards of proof in college cases was that they can only impose lower penalties. So now that we have the lower standards of proof, no fair complaining about the lower penalties.”

    Whose rational? The rational that says “if you want us to even acknowledge sexual assault/rape you’ll have to accept an apology for raping you letter? So yeah, I’m complaining, and until the alleged victim and the alleged perp’s stories are treated equally (which they aren’t – especially when we emphasize the accused rapist’s bright future, life and mental health over that of the alleged victims.) there really isn’t justice.

    Not to mention that most of these rapists are serial rapists who rely on the present system, and mentality and its defenders, to get away with rape. Yep, these rapists are counting on the system in place and when rape kits are actually tested we find out who they are, but… the backlog of rape kits is appalling. Guess it’s not a high priority – no sense in ruining those boys will be boys lives, and, you know, some girls rape easy.

    I’m not trying to beat you up, but do you realize how you come across? You sound like (in this and other threads) you’re claiming that it’s the norm that women lie about rape; that it’s some sort of lark. I don’t think you mean to do this, but it’s how it comes across. Every bit of research counters this claim – and I’m not saying that there aren’t women who lie about rape, but that number is in line with every other crime. To focus on women lying about rape is exactly like people who say voter fraud is the real issue. Yes, it happens, but statistically it’s not a problem. And the idea that a woman – who knows exactly how her sexual history, attire, personality will be destroyed – is eager to report rape is utter nonsense.

    That doesn’t mean I want to see innocent people imprisoned/punished. It means… we have to treat both sides equally. Which we don’t. And “Yes Means Yes” makes everyone responsible.

    “FYI, the Steubenville photos did not show a rape act, despite widespread implanted memories that they did. The rape case hinged not on photos but on the testimony of an immunized eyewithess.”

    Immunized witness/es who took/saw the video showing the sexual assault – and distributed it. And my point was… once everyone saw the picture of those boys carrying an unconscious girl everyone knew she wasn’t able to consent. That photo sealed their fate.

    “widespread implanted memories”

    Really? Really?

  23. pandora says:

    “I think most consent is non-verbal. Verbal consent is usually part of a price negotiation.”

    Which the “Yes Means Yes” bill addresses. Non-verbal consent is okay.

  24. Steve Newton says:

    @pandora

    Your part about telling your kids to bypass campus police depends in large measure on whether or not the campus has an accredited police force or mere a security force. There’s a difference: both DSU an UD have accredited police forces, for example, that operate under the AG’s office authority. If you tried to bypass them and go to either the Dover, Newark, or DSP you would be sent back as a purely jurisdictional issue if the alleged event occurred on campus property. That said, given the somewhat lower standards of campus police forces, the next immediate step is to directly contact the prosecutor in the AG’s office who covers the campus for an independent investigation.

    @puck: What you’re getting wrong is this: assume a student alleges sexual assault on campus. This will kick off TWO not one investigations. There will be a police investigation because sexual assault is a crime; there will be a university investigation because sexual assault is also a violation of university policy and Title IX. The two investigations are separate. If you read the California bill it ONLY applies to the non-criminal university investigations and DOES NOT change California rape law in the slightest.

    This is an important point, so I will reiterate: this only changes governance investigation and procedures by the university administration and NOT by law enforcement. It does not (whether or not it should is another matter) bring “yes means yes” into any California criminal court.

    I can’t deal with your apparent perception that phony sexual assault charges are constantly made by women on American college campuses, or that men who are behaving appropriately will begin ending up in “Kangaroo Kourts” for sexual assault. The changes mandated by US DOE and others, while I do not agree with them all in processual terms, have only tended to affect lower levels of sexual misconduct, such as sexual harassment, and have not impinged that greatly on cases of alleged rape.

    In fact, on more campuses than not (with UD having recently been cited in this regard, and DSU having been fined for not keeping good records about a decade back), sexual assault is far more often swept under the carpet by university administrators than ending up in metaphorical lynchings for innocent young men, the Duke lacrosse team aside.

  25. puck says:

    until the alleged victim and the alleged perp’s stories are treated equally

    The “perp” doesn’t nave to tell a story. I don’t really understand who the “prosecutor” is in these college hearings. but the burden is on the accuser to provide evidence that a) sex happened, and b) that consent was not given. I assume there is usually no physical evidence of either, and if there were the college is not equipped to evaluate it. And I assume there are usually no eyewitnesses.

    From a legal strategy point of view, for the life of me I don’t understand why these guys don’t just clam up on Fifth Amendment grounds, guilty or not. Only an idiot would go into one of these things without naming a lawyer as their “advisor.”

  26. pandora says:

    First, thanks, Steve, for that info. I intend to use it.

    Second… puck, do you really have a problem with reframing “no means no” with “yes means yes”? If so, why? Do you think knowing if your partner wants to have sex with you (which considerate, good lovers know) is a bar set too high? Are you saying that men are too stupid to know, or care, if their partner is willing? Or are you saying that men are just bad at sex – that most are doing it wrong. I doubt that. But then again, good sex is about good communication.

    This bill makes everyone accountable. Do you really have a problem with that? I don’t understand why focusing on willing, consenting partners is a problem… well, it’s a problem for rapists – everyone else, not so much.

  27. puck says:

    This will kick off TWO not one investigations. There will be a police investigation because sexual assault is a crime; there will be a university investigation…

    No, I totally get that. The university should be required to report potentially criminal accusations to police whether the accused wants to or not.

    This leads to those disturbing cases where police and/or prosecutors decide there is not enough evidence to prosecute, yet the university process somehow does find enough evidence for the same charges.

    If you want to make a case that police and prosecutors are biased or not sufficiently diligent in following up on college sexual assault, I would get behind a fact-based study of that, and would support reforms there if a problem is found. But you can’t just prosecute anybody who is accused of a crime. Be prepared to accept that the lack of evidence in these college sexual assaults may explain police and prosecutor’s lack of appetite for prosecution.

  28. Steve Newton says:

    @puck: This leads to those disturbing cases where police and/or prosecutors decide there is not enough evidence to prosecute, yet the university process somehow does find enough evidence for the same charges.

    No, that’s because what may not be prosecutable as criminal rape may violate sexual misconduct policies at a university. I’m not sure what part of that you have trouble understanding. When you decide to attend a university, public or private, you agree to abide by its policies.

    As for the idea that you wouldn’t go into a university hearing without an attorney present, that depends completely on whether attorneys are permitted in such hearings. Some universities do, some don’t. Again: as long as the policy is announced and maintained consistently before you come to the university, you don’t have a case.

  29. puck says:

    Yes, I do have a problem with defining rape ever-downward every few months.

  30. pandora says:

    Lack of evidence relates to the situation. Most girls/women have been trained to blame themselves.

    Parents: Educate your children on reporting crimes. Make sure they go to the hospital and that the hospital uses a rape kit – not that anyone will look at it, but still… do it!

    This summer we had a ton of teenagers at our house – yep, we are one those houses. One 14 year old girl related a story (I was in my room, right outside the door… so, yeah, eavesdropping) where a guy pressured her into sex. He had taken her to his beach house (under the pretext that he had forgotten his wallet) and then started making out with her. The girl really liked the guy, but wasn’t comfortable with having sex with him. She eventually had sex with him. Her concession? His wearing a condom – which he didn’t want to do. BTW, he’s a proud incoming UD freshman! Awesome! Also, he didn’t contact her after the “experience” but did post on FB that she was a slut. Charming. The girl was devastated, but she didn’t report him. Instead, she blamed herself – for liking him!

    As I sat in my room I was fuming, but I didn’t dare enter – since my daughter would have lost it. That said, my daughter said, “You didn’t want to have sex with him and ended up negotiating. Why?”

    The girl’s answer… “He was my ride home.”

    Sweet Jebus! Fathers, please talk with your daughters.

    Change that: Parents, talk to your flippin’ sons. They are getting this crap from somewhere. Hopefully, it’s not from you.

  31. puck says:

    No, that’s because what may not be prosecutable as criminal rape may violate sexual misconduct policies at a university. I’m not sure what part of that you have trouble understanding.

    The part where both kinds of accused are labeled “rapists.” Check this thread if you don’t believe me.

  32. Dana says:

    Cassandra asked:

    How could that be problematic? If you can see someone is too drunk to consent, you already know that you should walk away.

    The situation is more usually that both parties have been drinking, and both have impaired judgement. You are stating here that a drunk male should recognize that a drunk female might be too drunk to consent, and that gets you into debates on degrees of intoxication, which can normally not be proved in an after-the-fact report, unless someone has actually passed out.

    Let’s get to the real crux of the matter: date rape or acquaintance rape is very difficult to prove. It’s almost always a question of he said/she said, and that means that, in a system in which guilt must be proved beyond a reasonable doubt, actually guilty rapists are going to go free far more often than those who are accused but not guilty are going to be convicted, and that outrages the left no end. But this “system” is no solution: given that it allows consent to be given verbally or even non verbally, with no record created, it’s still a he said/she said situation.

  33. Dana says:

    Of course, the best way to avoid date rape or acquaintance rape is the simplest: don’t get drunk!

  34. Davy says:

    Why didn’t the California legislature change the standard for consent generally?

  35. puck says:

    Why didn’t the California legislature change the standard for consent generally?

    Because the general (non-academic) public still has some residual respect for the Constitution, but university trustees are a soft target.

  36. cassandra_m says:

    No:
    The situation is more usually that both parties have been drinking, and both have impaired judgement.

    Now you are changing the terms of your argument. Your original talked about *someone* who had been drinking. And the party you were talking about could tell that the other was too intoxicated. In that case (whether you are impaired or no) — if you know that the other person is too intoxicated to agree to anything — then you know enough to walk away.

  37. Geezer says:

    “I think most consent is non-verbal. Verbal consent is usually part of a price negotiation.”

    I’m not even going to ask how you would know that.

  38. puck says:

    Oh, are we starting personal insults? Are you sure you want to go down that path? Proceed…

  39. pandora says:

    There are different rules for different places. We can be fired from our job without going to jail.

    People lose criminal cases then win civil suits. We seem okay with civil cases relying on the preponderance of the evidence rather than beyond a reasonable doubt.

  40. Geezer says:

    No, I should have put an emoticon at the end. Meant it as a joke. If you think about how that sounds to someone not following the argument you’ll see what I mean.

  41. puck says:

    True.. but most civil suits are for civil issues. The thing that rankles about Kollege Kourt and sex charges is treating criminal charges as a civil complaint.

    For example, if you say that a college treated you unfairly because of your race – say, denied you entrance to some competitive program – that is a legitimate civil suit. You can’t take that to police, because it has no parallel in criminal law. It would be proper to hear that on the preponderance of the evidence – but in a real civil court, not in a back room of the university.

    But rape is a felony, no matter how you slice it or what Orwellian dodge you use to relabel it, and felonies deserve to be heard in a real court with real American jurisprudence. The victims deserve no less. LImiting the penalties does not make it OK to follow a lower standard of justice. Those due process protections are hard-won in America, and it is no victory for anybody to bypass them.

    I hear the argument that removing rights in college sexual assault cases will somehow make us safer. This is a deeply flawed argument, just as it is with terrorism and foreign combatants.

    It is ridiculous to try to legislate nonverbal consent given behind the bedroom door. It may be very satisfying for some to see this law go into effect. But really – How will it be enforced? What could possibly go wrong?

    The way the new law is written, at any point you can stop and say “AHA!! You didn’t say ‘Simon says!!'” Is that what proponents are hoping will happen?

    It is already illegal to have sexual contact with somebody who is incapacitated or to use threats or coercion to obtain sex. So are there really people, conscious, competent, and uncoerced, who have sex they don’t want while remaining catatonic? I admit I don’t get out much, but that is just bizarre.

    In the end I guess the new law will not contribute toward safety or change anything about sexual relations, so it is really just a sop to activists. But it will make fresh mischief in Kollege Kourt, until the first time an accused with his wits about him clams up and just says “Prove it.”

    I suggest activism should be focused on holding local police and prosecutors accountable for doing their jobs, not on holding out hoops and seeing how high you can make the trustees jump.

  42. puck says:

    The way the new law is written, at any point you can stop and say “AHA!! You didn’t say ‘Simon says!!’” Is that what proponents are hoping will happen?

    That doesn’t read quite the way I meant it. Of course you can stop at any time. The problem comes three months later when you try to explain what happened that night. How do you establish the moment when you withdrew consent?

  43. Liberal Elite says:

    @p “Oh, are we starting personal insults? Are you sure you want to go down that path? Proceed…”

    Why don’t was all just agree that non-verbal consent is the best kind of consent…

  44. Dana says:

    Puck labelled it:

    But it will make fresh mischief in Kollege Kourt,

    Given the state, perhaps we could complete it as Kalifornia Kollege Kourt? That makes it work out better!

  45. Liberal Elite says:

    @p “The thing that rankles about Kollege Kourt and sex charges is treating criminal charges as a civil complaint.”

    The reality is that most campus rapes cannot lead to criminal convictions, even if deserved. The bar for conviction is simply too high for the kind of situations that most often seem to occur in the college setting.

    If you accept that, then you must either
    a) turn your head away and let such bad behavior continue without real penalty, or you can
    b) punish the rapists in other ways where the bar for action is lower. Civil complaints and punishments that are relatively easy to impose and enforce will do more to prevent campus rape than any fear of an actual felony conviction.

  46. Dana says:

    Pandora wrote:

    People lose criminal cases then win civil suits. We seem okay with civil cases relying on the preponderance of the evidence rather than beyond a reasonable doubt.

    In a he said/she said case, that’s all about whom the “jurors” choose to believe.

    So, we have a case in which a 19 year old coed named Cassandra accuses a 19 year old male student named Jason of date rape, because, she claims, he didn’t stop when she told him to stop. There’s absolutely no outside evidence, other than their friends saw them leave the bar (where they were too young to be drinking anyway) and head off, to where they didn’t know.

    So, it goes to Kalifornia’s Kollege Kourt, where the “jurors” decide that they believe Cassandra, which the state and federal governments are giving them an incentive to do, and Jason is expelled. Now, not only has Jason been expelled, but he can’t get into college anywhere else, because the KKK jurors believed Cassandra, strictly on her word, without the first shred of corroborating evidence, and that expulsion is going to follow him as long as he tries to get into another college.

  47. Dana says:

    Mr Elite wrote:

    The reality is that most campus rapes cannot lead to criminal convictions, even if deserved. The bar for conviction is simply too high for the kind of situations that most often seem to occur in the college setting.

    If you accept that, then you must either
    a) turn your head away and let such bad behavior continue without real penalty, or you can
    b) punish the rapists in other ways where the bar for action is lower. Civil complaints and punishments that are relatively easy to impose and enforce will do more to prevent campus rape than any fear of an actual felony conviction.

    The problem with that argument is that, in point b, you assumed that the student against whom the complain is lodged is actually a rapist. You are advocating lowering the standard of proof to things “relatively easy to impose”, because some bad guys get away with it.

  48. puck says:

    The reality is that most campus rapes cannot lead to criminal convictions, even if deserved.

    But even in the same comment you spoke of “rapists.” Rape is a criminal charge, not a civil charge. Apparently we are incapable of keeping the two concepts separate. It apparently causes some people glee that some confuse the terms and call them all “rapists.”

    But in my view, it is defamatory to label someone a rapist or a burglar or a murderer who has not been convicted in a actual court. Professional journalists are aware of this distinction and editors take care to observe it.

    Look at it a different way. Suppose we decide that there is a problem with young African-Americans in urban centers becoming involve with the drug trade. Then, somebody in the neighborhod gets the bright idea to set up community drug boards to hold hearings for drug activity, with the power to impose some sanction on these young men based on community reports, without any actual drugs being found.

    Would that be OK?

  49. puck says:

    The problem with that argument is that, in point b, you assumed that the student against whom the complain is lodged is actually a rapist. You are advocating lowering the standard of proof to things “relatively easy to impose”, because some bad guys get away with it.

    I don’t often agree with Dana, but that was well expressed. Mark your calendars.

    I would add that even after the panel finds the student “responsible” for a rape, he is still not a “rapist” until convicted in a court of law.

  50. pandora says:

    Then what do we call a person who forces himself sexually on someone? What term should the accuser use? What should we call the act itself?

    This conversation makes me feel ill.

  51. puck says:

    What term should the accuser use?

    Defendant.

    What should we call the act itself?

    It depends on the circumstances, whatever the circumstances are proved to be.

  52. pandora says:

    So… after a person is forced to have sex against their will they can’t call it rape until it’s… proved?

    Are we headed towards a legitimate rape standard? It’s starting to sound like it, because it seems to me that what you guys are saying is… unless a person beats their victim, or someone (other than the victim, of course) witnesses the accused forcing the victim or drugging their drink…

  53. puck says:

    It is no different from any other crime. You can’t label the person a thief, and embezzler, a murderer, or a rapist unless they have been convicted. What is so hard about that?

    Are you saying people should be sanctioned for felonies just on the accuser’s say-so?

  54. Davy says:

    @Liberal Elite & Pandora:

    Neither justice nor punishment is the goal of these hearings.

    In these hearings, a college determines (1) whether sexual harassment occurred (2) whether the harassment interfered with or limited a student’s ability to participate in or benefit from the college’s program, and (3) who was responsible for the harassment. [Note: Sexual assault is defined as a type of sexual harassment.]

    The responsible party is not excluded from campus as punishment or even to mete out justice. The responsible party is excluded from campus as a precaution against future harassment. In other words, the goal of these hearings is to ensure that colleges do not violate Title IX.

    And Pandora, you are contorting what is being said. Proof beyond a reasonable doubt is required before a person is convicted of rape and labeled a rapist; however, rape is rape even if there is little proof. That is, you are intentionally conflating (1) what is required to prove rape with (2) what is rape. Yes, additional witnesses, drugs, and violence make proving rape easier, though none are required elements of rape.

    Your contribution to this conversation should make you feel ill(iberal). To me, you’re as bad as Puck.

  55. puck says:

    The responsible party is not excluded from campus as punishment or even to mete out justice. The responsible party is excluded from campus as a precaution against future harassment.

    Orwellian pablum – a distinction without a difference. All the high-fiving among proponents is about “accountability,” not precautions. Anyway, your point might make some sense if exclusion were the required sanction, but it is not.

  56. puck says:

    These threads are a kind of kabuki theater.

  57. Liberal Elite says:

    @D “The problem with that argument is that, in point b, you assumed that the student against whom the complain is lodged is actually a rapist.”

    Not really. No system is going to be foolproof. But I am willing to tolerate a fairly high false claim expulsion rate, if that’s what it takes to make thousands of women safer.

    You want fewer false accusations?
    Mothers… Tell your boys not to f**k crazy girls.

  58. ben says:

    A conviction of rape should be enough to ruin, or seriously complicate someone’s life… not an accusation. There would be no debate on that with any other crime.

    Im uncomfortable with this following scenario. (rare as I’ll admit it may be) 2 people have a consensual sexual encounter… but they met at a college party and are both drunk. before you read on, I know intoxicated people cant consent, and that is the backbone of date rape laws. It’s a good one. However…. BOTH of them are intoxicated, therefore neither one can consent. It doesnt matter that they are flirting with/ all over other. Erections dont equal consent, arousal doesnt equal consent. Just 2 wasted 19 year olds, away from home for the first time acting like they do. The next morning “what happened last night?”…. Do you have a rapist and a victim? It is not something anyone can prove either way.

  59. puck says:

    Not really. No system is going to be foolproof. But I am willing to tolerate a fairly high false claim expulsion rate, if that’s what it takes to make thousands of women safer.

    That’s a big “if.” And – for what other felonies are you willing to make the same dubious bargain?

    Rapists belong in jail, not in time out.

    All accusations are false until proven. That is what courts are for.

  60. ben says:

    And dont read that as a stand against laws that make it harder for rapists to get away. It is a logical problem in one of the ways we are trying to help rape victims. I think setting the standard for “everything but yes means ‘no'” is a step in the right direction even. This must be about perusing justice, law and order. Rules and procedures that dont require proof, or punish based on accusations are dangerous… no matter who they are targeting.

  61. Liberal Elite says:

    @p “Rapists belong in jail, not in time out.”

    Fine… And if you can’t get a conviction to put them in jail, then a time out (i.e. expulsion) is an OK second choice.

  62. puck says:

    That is like wnen Mommy says no, go ask Grandma – she’s a softie.

    If you can’t get a conviction, there is probably a damn good reason why not.

  63. Liberal Elite says:

    @p ” And – for what other felonies are you willing to make the same dubious bargain?”

    For all of them. When there’s not enough evidence to convict for a felony count, but enough for a civil case that sticks… I’m all for the civil case…. Just like they did in the OJ Simpson murder trials.

  64. Steve Newton says:

    @Davy: Note: Sexual assault is defined as a type of sexual harassment.

    Actually, under Title IX Sexual assault and sexual harassment are both types of “sexual misconduct.”

    The confusion here (where there is genuine confusion and not simply ideological posturing) is between what criminal law is intended to do and what is the impetus of Title IX and other policies in higher education.

    Criminal law (a) defines illegal behavior; (b) provides for the adjudication of charges; and (c) delivers punishments. Criminal law with respect to rape and sexual assault has been notoriously skewed in the direction of the accused for many decades, far beyond the standard of “reasonable doubt.” Criminal law, despite what, for example, death penalty advocates would like to believe, is not specifically intended to be a deterrent but the imposition of justice for acts committed. Rape cases in this country routinely make a mockery of any pretense of justice, and the men here agonizing over the potential losses of falsely accused men sound like they need to be out in the woods beating drums with the male liberationist cadres.

    Title IX (and etc.) are legal codifications of the doctrine of in loco parentis and establish the requirement for schools to create a safe environment for all students, including (surprisingly!) women. These are administrative and not judicial requirements, and the standards are different because the expectation is different. One of the tools chosen to do this is a lower evidentiary standard (and different rules of evidence) to be met before removing somebody from the community as a potential threat.

    People here busily building scenarios about two drunk freshmen getting it on and then one of them later having buyer’s remorse have offered nothing but their fears and imagination to support either (a) that such occurs with any frequency or that (b) existing mechanisms handle them incorrectly. As I tell students every week: The ability to create “what if” scenarios or to ask questions is not the equivalent of offering evidence.

    Finally, there is the very real calculus of cost and benefit. Death penalty proponents have long argued that the occasional execution of innocent people is not a sufficient reason to junk the penalty, because they believe it is both just and a useful deterrent. So it is apparently acceptable to use this form of argumentation.

    With rape, however, this thread is full of people arguing just the opposite: we must accept that many thousands of actual rapes will occur and the perpetrator will never be held accountable because the risk of occasionally convicting an innocent person is too high a price to pay to create strong deterrent.

  65. puck says:

    See, i feel the opposite. If a criminal court can’t find that you did the crime, neither should a civil court. OJ was obviously guilty, but I think the civil trial was double jeopardy and inappropriate. I would rather OJ go free than impose double jeopardy for a crime that wasn’t even proven.

    Anyway, a lot of these college cases don’t even bother with double jeopardy – they skip the prosecution altogether and go straight to Grandma softie. Which isn’t even a real civil trial, it is an administrative hearing using a parody of civil court procedures.

  66. Davy says:

    @Liberal Elite:

    But again, the goal of a wrongful death action is not punishment. The primary goal is compensation (though punitive damages can be awarded).

  67. Liberal Elite says:

    @D “But again, the goal of a wrongful death action is not punishment.”

    If the goal is to reduce bad behavior, then make an example of the bad guy anyway you can.

  68. puck says:

    @steve and others… If you read carefully, you will see I am not arguing from the point of view of a men’s rights fanatics. I don’t even know who those people are. All my issues that cut across the groupthink grain are based on principle, not ideology, and I arrive at them independently.

  69. puck says:

    If the goal is to reduce bad behavior, then make an example of the bad guy anyway you can.

    Sure – but first you have to prove the act happened, that it was in fact a bad act, and that THAT bad guy in fact did it. Come on folks, this is basic civics.

  70. Davy says:

    @Steve Newton:

    Actually, “[t]he sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime. . . . Sexual violence . . . refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A numner of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. All such acts of sexual violence are forms of sexual harassment covered under Title IX.”

    April 4, 2011 “Dear Colleague” Letter. The term “sexual misconduct” is not a legal term, though your experience at DSU might differ.

    That aside, I agree that everyone is confusing the purposes of criminal law and Title IX; however, contrary to what you wrote, criminal law has four recognized purposes:

    (1) deterrence (specific and general),
    (2) incapcitation,
    (3) retribution, and
    (4) rehabilitation.

    The death penalty (supposedly) serves three purposes (general deterrence, incapcitation, and retribution), though you recognized only one (retribution). This might be the result of my original focus on retribution.

    I wonder if supporters/opponents of these hearings also support/oppose civil commitment for sex offenders a la United States v. Comstock (putting aside the Necessary and Proper Clause issue).

  71. Davy says:

    @Liberal Elite:

    You still do not get it. The goal is not deterrence. The goal is incapacitation. That is why the results of the hearings are confidential. There is no example, just whispers, whispers that can get you sued for leaking confidential information.

  72. pandora says:

    There’s a long history here.

    I understand about proving the act happened, but, let’s be real… for centuries (and it’s continued today, but hopefully changing) raping/sexually assaulting a women was legal – a man’s right.

    Even today, there are some states where marital rape isn’t really viewed as rape unless certain conditions, besides, you know, rape, are present.

    This entire discussion seems to ignore the very real problem we are seeing on our college campuses and in our military (as well as everywhere else). It also buys into the myth that women lying about rape is the real problem. It is not.

    It’s like we’re skipping a step, and that step is actual rape. Taking this discussion and ignoring rape/sexual assault while focusing on myth that not only do women actually report rape (most don’t, because they know what’s in store for them if they do) but they lie about it as well.

    Women lying about rape is equivalent to the outrage about voter fraud. It isn’t the problem.

    Like I said above…

    Know why I like this bill? Because it places the responsibility on both people. Before it was “Did you say no? Loudly? Did you resist? Fight?” It made it the victim’s job to stop the rapist while the only thing the rapist had to do was rape. The rapist had no responsibility.

    And FYI… rapists rely on the present system. It serves them well.

  73. puck says:

    The history you cite is from a time gone by and has no impact on a 20 year old.

    Historically, people on campus or in the military weren’t allowed to have sex with each other whether they wanted to or not. That is the historical definition of sexual misconduct. Now that sex is allowed, it needs to follow the same rules as everywhere else. Same rules, same standard of proof, same penalties.

  74. pandora says:

    “The history you cite is from a time gone by and has no impact on a 20 year old.”

    Yep, gotta call BS on this.

    Unless you believe that rape/sexual assault victims are no longer asked/judged on what they were wearing, if they were drinking, were they flirting, how hard they fought, did they say ‘no’ loudly and forcibly enough, etc. None of these “standards” apply to the rapist.

  75. puck says:

    Unless you believe that rape/sexual assault victims are no longer asked/judged on what they were wearing, if they were drinking, were they flirting, how hard they fought, did they say ‘no’ loudly and forcibly enough, etc.

    State of sobriety is always fair game for witnesses to any crime, just as is vision, hearing, and lighting conditions, because it bears on accuracy and reliability of the account.

    For the rest of it,that sort of questioning almost always should not be allowed. I don’t have statistics but I expect it is dramatically reduced recently, at least in college.

    But that still leaves the burden on the accused to show evidence that a) the act happened and that b) consent was not given.

    I have tried not to use graphic examples, but I read one account of a “rapist” who said “I stopped as soon as she started crying.” That sounds less like a rape than the mutual act of two confused young people.

    The way consent is defined, as long as the accused believes he was given an approved go-ahead, he has consent. And consent could be any number of things, even non-verbal. As long as the accused claims consent was given, that leaves us at “it was rape because she said it was.” Not sufficient evidence for a finding.

  76. pandora says:

    You do know that most rape victims don’t report. Why could that be? (Hint: read the article)

    And the idea that colleges handle this better is laughable. There are countless stories of administrators under-reporting/ignoring and even victim blaming. I won’t re-post links from past posts, but the one that jumps out at me is the administrator who asked a victim to view her rape/assault as a previous lost football game and ask herself if there was anything she could have done differently.

    But in order to accept your premise there are three things we must accept as fact.

    1. Rape victims almost always report rape and are taken seriously
    2. The norm is for women to lie about rape.
    3. Women who accuse someone of rape no longer (or in extremely rarer instances) have their credibility/sexual history/attire, etc. called into question.

    And we do understand this when it comes to other things. Forgetting to lock your door doesn’t mean you’ve given permission for someone to enter. Even inviting people into your home for a party doesn’t mean you consented for them to take your tv or computer.

  77. pandora says:

    One more thing… 1 in 33 men will be raped in their lifetime, men are 82,000x more likely to be raped than falsely accused of rape.

  78. puck says:

    There are countless stories of administrators under-reporting/ignoring and even victim blaming.

    I have to ask you to provide the vintage of those stories. I am just googling around and I find those stories just like everyone else, but most of them pre-date the recent awareness-building campaign. Also, there is little objective reporting on these stories. Almost all of them come from an advocacy point of view.

    If accusers don’t report “because they don’t want anyone to know” – what do they expect will happen? Do they expect to just quietly give their report to some matron, and then see the accused whisked off campus?

    By the way, I am all for providing equal confidentiality to accuser and accused.

  79. pandora says:

    Matron? Really? Careful, I’m sure you don’t want to be portrayed this way.

    They don’t report because they know they’ll be blamed and their credibility trashed because they wore a mini skirt and drank alcohol or *gasp* liked/trusted the guy. Do you really not see this? That women who report rape fear becoming an outcast and losing friends/family as well as being called every name in the book?

    You seem to say you want equality in the he said/she said situation, but I’m not seeing you demand it of the accused. How many women has he slept with? Should we be able to call them as witnesses? Was he flirting? How often does he take women home from bars? How many drinks does he buy them/order for them? And on and on it goes.

    And the article I linked to isn’t an advocacy article.

  80. Steve Newton says:

    OK this is for puck, davy, dana–

    You clearly object to the “yes means yes” standard, and you equally object to administrative investigations, expulsions, etc. etc.

    So let’s turn it around: you are a university administrator with the responsibility for developing polices that will protect female students on your campus from sexual harassment and rape, and insure that students who commit such are both dealt with appropriately and steps are taken to protect their victims.

    What is your policy? Don’t palm off the old rationalization “Well, I know what my policy wouldn’t be …” as an answer.

    Tell me, if you ran the campus where my daughter goes to school, what guiding principles, what general policy outlines you would use to insure her safety?

    Because if you haven’t got an alternative, you don’t have a legitimate place in this discussion.

  81. pandora says:

    I’m very interested in the responses to Steve’s question.

  82. puck says:

    If the issue is safety, first of all I would look into the reasons women don’t report rapes, and try to mitigate them as much as possible, by tightening confidentiality or whatever.

    Then I would make sure I personally follow up on every reported felony with police, and if they don’t fully investigate I want to know why. And the whole faculty and campus community will get a direct message never to attempt to dissuade anyone from reporting to police or campus.

    Then, I would take steps to educate the athlete community – both the athletes and their groupies. (Yes, groupies. You don’t think athletes skulk around dark alleys waiting for a victim to happen by, do you? No, they have relations with the people who hang around them like moths to a flame). In fact, if you really want safety the thing to do is abolish sports and sport scholarships.

    I would look at statistics to see where and when these incidents are occuring, and make changes to policies and scheduling to try to make the campus safer at those times and places.

    My message to students would be that yes, we are taking steps to make you safer, and that in order to do that we need you to report what is happening. On the other hand, this is still America and there is no gurarantee reporting the incideng will give you the outcome you want.

    Th

  83. puck says:

    I am very interested in hearing what the objections to my approach are.

  84. Steve Newton says:

    @puck: A quick (albeit not all-inclusive) response:

    1. A large body of research already exists to tell us why women don’t report rapes. The reasons include fear of reprisals by the rapists (or his friends); community shaming; fear of having their entire sex lives called into public question; fear of reporting a rape, having the rapist found not guilty, and then having to sit in the same classes or live in the same dorm with him and his buddies over the long term. In short, we know why women don’t report rapes. Increasing confidentiality is not an answer to any of those reasons.

    2. Police investigate when there is a complaint. But if the person is pressured into withdrawing that complaint, or it seems like they’d have difficulty winning the case (even if they believe the guy did it) prosecutors put a great deal of pressure on women to drop these cases. More to the point here, let’s be clear: as a university administrator you acknowledge ABSOLUTELY NO responsibility to take interim measures to keep a woman who has reported a rape safe from the alleged rapist or his friends. No measures to keep him away from her while there is an investigation, no measures to insure they aren’t required to attend the same classes, no measures to insure they aren’t placed in the same dorms. In fact, in your policy the university DOES NOTHING for the woman who says she has been raped except to tell her to report it to the police.

    3. Faculty and staff are already legally required to report any knowledge about sexual assault whether the victim who shares that information wants it made public or not. According to a wide variety of statutes and policies I can be summarily fired if I fail to do so, even as a tenured professor.

    4. Your profiling of athletes is, quite frankly, ludicrous. Athletes comprise between 2-10% of university populations, so when you take out the female athletes, you get about 1-5%. Nor, despite the skew in media coverage, is there ANY evidence that a non-athlete male is less likely to commit rape than a football player. So you have just focused your energy and efforts on only about 5% of the males on campus, with nothing to back that up (and your offhand about groupies is pretty revealing).

    5. Unfortunately, the place that rape happens (reported rape at least) on college campuses is a dorm room, frat house, or off-campus apartment. Not in cars, not at parties. How do you make those environments safer?

    6. If I were a woman, and you told me that I should report everything that happened, but that you had no plans to safeguard me once it did report it, and that if the police chose not to prosecute for lack of evidence I was on my own, then–guess what?–nobody would every report anything, and your college would end up pretty much as a rapist’s paradise.

    If that last seems to be an excessive comment, consider: I would NEVER allow my daughter to attend a university that had only your policies in effect, because it would be like sending Bambi into a hunting preserve.

  85. puck says:

    Excuse me for not doing a six-month study and successive drafts of my policy. Note that first off I said I would try to mitigate the apprehensions about reporting were. I have no doubt that young women have all sorts of apprehensions. But if there is anything to show fear ot the accused is based in reality, then that would be one of the mitigations. But let’s see the statistics first. And I mean the statistics at my college, not some ten-year old study or collection of narratives collected back when policies and awareness were different.

    And your lack of awareness of social groups is pretty revealing.

    One thing I could not accept is to allow a student to just point at some guy and have him immediately whisked off campus for the rest of the semester. I could not advise my son to choose a school under that policy, but I fear it is universal now.

    if the police chose not to prosecute for lack of evidence

    Remember, I said I would follow up on each felony accusation, and if police didn’t thoroughly investigate I would find out why.

    But some of us have to grow up and accept that sometimes there is not enough evidence. What do you expect to happen if you can’t prove the accusation?

  86. puck says:

    I also want to point out that regular civilian law has even more effective ways to keep an accused away from the accuser pending resolution. A restraining order would keep them apart anywhere, not just on campus. But you have to make that report first if you want that protection.

    And the law has the crazy idea that to get a restraining order, you have to convince a judge that there is a real risk of physical danger. Tough sanctions require tough justifications.

  87. pandora says:

    I’m really trying to understand the evidence you’re looking for, puck. What would that evidence be?

    And if we chalk all of this up to a “he said/she said” then “he” always wins – which (until recently, and not so much now) has pretty much been the case… and rapists do rely on this system. That’s why most offenders are serial rapists. The system has allowed them to operate.

  88. puck says:

    What would that evidence be?

    Something other than “because the accuser said so.” I am shocked and disappointed at how willing some of the smartest people around here are so eager to abandon the presumption of innocence.

    I guess to really develop this idea, I would have to analyze several hundred transcripts of these hearings – something that is not permitted.

    These cases are almost always unprovable due to lack of evidence. It is a travesty to pretend that you can find the truth.

  89. puck says:

    Actually, I imagine the best evidence against the accused is usually his own statements. These proceedings start with an administrator demanding a written statement. I don’t think students are advised of their right to remain silent, or have the wit or the resources to obtain a lawyer, which is definitely advisable at that point. Instead, they (trusting their administrators and the process) just jump right in and foolishly write with no legal experience, with nobody to warn them of the pitfalls of the words being twisted or used against them.

  90. Liberal Elite says:

    @p “I am shocked and disappointed at how willing some of the smartest people around here are so eager to abandon the presumption of innocence.”

    That’s fine for felony convictions. Sure… You need proof beyond reasonable doubt.

    But for throwing an exploitive sexual predator off campus? You shouldn’t need that level of proof. A simple preponderance of evidence is more than enough.

    I’m shocked and disappointed at how willing you are to let an obviously broken system to continue as it exists. That system allows predators to ply their “recreational” pursuits. And that system puts virtually all college women at risk for exploitation.

    The old system was broken. If you don’t like what California has done, suggest something better or something else… just stop begging for the old broken system!

  91. pandora says:

    I’m really trying to understand this, puck. You say, “These cases are almost always unprovable due to lack of evidence. It is a travesty to pretend that you can find the truth.”

    So… if we can (almost) never find the truth then we should (almost) never punish for rape/sexual assault accusations. Question: Do you believe rape/sexual assault on college campuses (and elsewhere) is happening? Or do you think it’s happening and there’s nothing we can do about it?

    Then you say this, “Actually, I imagine the best evidence against the accused is usually his own statements.”

    Which would be where educating them on “Yes Means Yes” would be beneficial, no? If their own statements turn into evidence against them then wouldn’t it be wise to educate our sons on what constitutes rape/sexual assault? There’s been a lot of ink spilled on telling women how not to get raped why is educating men on how not to rape (consent and Yes Means Yes) different?

    What, exactly, is the problem with the “Yes Means Yes” bill?

  92. ben says:

    Im kind of ready to just agree that our “nation of laws” standard has found an area where it cant really apply in black and white.
    Everyone knows “that guy” … we’ll call him “Bobin Bicke”…. who sees things like negging as a legitimate way to get a date… the kind of guy who would consider a slurry “hmmphm” so be “yes”. There would likely be no way to prove one way or another, but because of the guy in question everyone “knows”. I’ve met guys whom I wouldn’t put it past to, pardon the reference, blur some lines and they make my skin crawl. I doubt they would ever attack and rape someone… but intentionally hit on too-drunk girls… yeah, they are everywhere. Guys like that are a product of our culture. It’s time to change the culture. Could it turn into a witch hunt where a few innocent people are falsely accused, and therefor destroyed? possibly.. hell, probably. People are ass holes. It happens. We’re trying to make an omelette here.

    Here, I think, is the point. If you’re a man and you think the sexual adventure you are about to embark on could ANY WAY be construed as rape, don’t do it. Don’t just “convince her to say yes” make “her” (or him) insist. (more fun that way)

  93. liberalgeek says:

    I think the criminal/civil side of this is pretty well established. Sometimes the burden of proof is too high to get a conviction or even an indictment. The law allows people to seek damages, whether or not criminal charges were brought or proved (OJ is a great example).

    Whether you call the accused a rapist or a killer or whatever is largely semantics. We could just change it to the accused-rapist or accused-killer.

    The Universities have the ability to dismiss students for violations to the code of conduct, just like an employer. And if my employer believes that I have violated a law, whether I have been convicted or not, they can dismiss me. Do we want the Catholic Church to keep pedophile priests around even if there isn’t enough evidence to convict them or the statute of limitations has expired?

    The final point that I’ll make is that this will give another tool to empower peers to identify the rape to a rapist. This can have a more significant impact on the underlying behavior than any laws that we can pass by starting to drain the swamp of rape culture.

  94. pandora says:

    Both LG and Ben make great points. We have a good idea who these predators are (mainly because they flippin’ tell us). And if you read LG’s second link you’ll see that rapist self report as long as you don’t call it rape – and they are repeat offenders.

    Which brings me back to when we put the alleged victim’s behavior, attire, sexual history, etc. on trial (and yes, that is still very prevalent). Should we put the accused rapist’s past behavior/sexual history on trial – for example: how many inebriated girls has he taken home?

    Of course, peer groups tend to protect their own. Which is why LG’s point about educating/giving tools makes a lot of sense.

  95. ben says:

    What i dont get is how anyone expects a society to produce people who can communicate about sex, when the only thing (for the most part) parents/schools/churches teach is “procreation only/its wrong and you should be ashamed for having sexual desires”. How can you tell someone what you want if you are uncomfortable saying it?

  96. pandora says:

    And now we have Cee-Lo Green (someone who has PR people/publicists/handlers) tweeting about rape.

    Singer CeeLo Green took to Twitter today to make an attempt to define what rape is, shortly after pleading no contest for charges that he slipped a woman ecstasy without her consent in 2012.

    Cee-Lo tweeted, “If someone is passed out they’re not even WITH you consciously.” He also added, “People who have really been raped REMEMBER!!!” and pointed out that there was metaphorical “no broken glass” to prove the charges. Cee-Lo added that his no contest plea was not an admission of guilt (and can’t be used in any civil litigation). “So if I TRIED but did NOT succeed but the person said I DID then what really happened?”

    I wish I could say this attitude surprises me, but that would be a lie.

  97. ben says:

    Not to derail too much from the California law, but it may be interesting to some to look up The Bureau of Erotic Discourse and the consent culture around Burning Man (and Burning Man-like festivals….. called Burns). There lots of internetz info.
    If you want to see a community that is being very proactive in fighting rape-culture, look no further than America’s most miss-characterized arts festival.

  98. puck says:

    @pandora So… if we can (almost) never find the truth then we should (almost) never punish for rape/sexual assault accusations.

    Nobody should be punished for accusations. And I thougnt we were talking about safety, but I see it is about punishment.

    LG: The Universities have the ability to dismiss students for violations to the code of conduct, just like an employer.

    No they do not. I have dealt with this analogy previously. Employers can fire you at any time for any reason or no reason. A university can only expel you for cause. I suggest that getting an academic panel’s agreement of 50.1% is not “cause,” and certainly not when it comes to a felony. Codes of conduct are not substitutes for felony law.

    I don’t buy the “It’s not about a felony, it is about violating the code of conduct.” Being “found responsible for a rape” is a de facto rape conviction, just with lesser penalties. It deserves a robust defense just like a criminal rape charge.

    I understand the wishy-washy nature of our current law that allows double jeopardy in civil court for the same charge. I don’t agree civil courts should be used as a chance to take a second whack at a felony suspect, and certainly not a first whack. And remember, the college panels do not even meet the standards of a civil trial.

    Rapists belong in front of a judge and then in jail. The victims deserve no less.

  99. pandora says:

    You say, “Rapists belong in front of a judge and then in jail.”

    Before you said, “These cases are almost always unprovable due to lack of evidence. It is a travesty to pretend that you can find the truth.”

    And punishment wasn’t really my point/best word (but I bet you knew that already), but I did notice how you didn’t answer my questions:

    Do you believe rape/sexual assault on college campuses (and elsewhere) is happening? Or do you think it’s happening and there’s nothing we can do about it?

    What, exactly, is the problem with the “Yes Means Yes” bill?

  100. puck says:

    I think it is happening, but I think the extent is probably exaggerated. Just like when there are reports of UFO sightings, everybody starts scanning the skies and seeing UFOs everywhere, complete with abduction stories that are graphic, detailed, emotional, and with no evidence.

    There is plenty we can do about it. Education and public awareness mostly. I am not even in the target audience but even in the last few months, the awareness campaigns have certainly captured my attention. I suspect when very recent studies become available, they will show – well, I don’t know what they will show, because an increase in reports is suppsed to be a good thing.

    Hold police and prosecutors accountable for doing their jobs. Every case can’t result in a conviction (which is part of being an American) but a lot more probably can at least be brought to trial. Unless of course the goal is to avoid those pesky trials.

  101. puck says:

    What, exactly, is the problem with the “Yes Means Yes” bill?

    In fairless, I explained it last month. It’s been a while:

    http://www.delawareliberal.net/2014/08/29/californias-yes-means-yes-bill/#comment-447028

    http://www.delawareliberal.net/2014/08/29/californias-yes-means-yes-bill/#comment-447055

    Sorry, there’s more but I only get two links in a comment.

  102. pandora says:

    UFO sightings? Oh please, please, please tell me you didn’t mean to imply mass hysteria?

    Awareness = discussion of things previously kept secret.

  103. puck says:

    The thing is, people aren’t lying; they really are seeing UFOs. They just aren’t aliens.

  104. ben says:

    Puck, I think murky situations where there is a “gray area” surrounding whether consent was given happens a lot more than you think. Especially in college where people are just figuring out everything from how to make food for themselves to their own sexuality. Part of educating people should be to remove predators from the population.

    Continuing the “UFO” analogy…. if a woman truly believes she was raped, she was raped. Rape is real and it happens. It’s confirmed. UFO’s are a fairy tale and they dont actually exist.

  105. liberalgeek says:

    And in my link above, the UFO sightings (rapes) were as reported by the aliens (rapists). When it comes to aliens (rapists), they’re out there.

    All told, 120 men in the sample, or about 6 percent of the total, had raped women they knew. Two-thirds of those men were serial rapists, who had done this, on average, six times. Many of the serial rapists began offending before college, back in high school.

    “Most of these men have an image or a myth about rape, that it’s some guy in a ski mask wielding a knife,” says Lisak. “They don’t wear ski masks, they don’t wield knives, so they don’t see themselves as rapists.”

    In fact, they’d brag about what they had done afterwards to their friends. That implied endorsement from male friends — or at the very least, a lack of vocal objection — is a powerful force, perpetuating the idea that what these guys are doing is normal rather than criminal.

    They just don’t know that they’re aliens (rapists).

    And for what it’s worth, the UFO sightings analogy is pretty disgusting. I’d start walking that shit back.

  106. pandora says:

    Yeah, I wasn’t even sure how to respond to the UFO analogy. It was pretty disgusting – and depressing. Are we really at the “legitimate” rape point? It sure seems like it.

  107. ben says:

    Out of curiosity…. puck, how do you feel about not allowing a mentally unstable person… who has never shot anyone.. to purchase a gun? Taking away their constitutional right to buy a gun based on what they might do? Im for it. I’m also for neutralizing a sexual predator before they actually rape someone.

  108. hank says:

    “if woman truly believes she was raped, she was raped.” ben, that is a very stupid thing to say. people believe all kinds of things that aren’t true. it might, of course, be true in any given case. or not. but to the gulag anyway! if somebody (perhaps a mentally troubled person) “believes” it.

  109. pandora says:

    No, it’s not stupid. It’s a generalization, but most of us understood Ben wasn’t talking about mentally troubled, lying women – which, believe it or not, isn’t not the default setting for women.

  110. hank says:

    pandora, you’re simply saying you’d believe all women who aren’t lying. me too, if i knew which ones they were. and the mentally unstable (possibly just temporarily) can’t exactly be trusted to have it right (though they might). so this can be very tricky. don’t let your ideology overwhelm your common sense, manifest elsewhere on this blog.

  111. ben says:

    Hank, would it help if it re-worded what i said?
    If a woman…. know what, scratch that. men can be had sex with against their will too.
    If a person says that a sexual encounter was not totally consensual… and if they are determined to be of sound mind, it doesnt matter what the other half of that sexual encounter thinks they heard or think happened.
    And to argue from the perspective of men who think women go around reporting rape after an embarrassing one night stand. (something i DONT think… but hey, they deserve an argument too) … maybe you should re-think your partners. Get to know who ever you about to stick yourself in enough to know how the next day is gonna go. Sorry for the crassness, but I just cant see going to bed with someone you arent totally sure of. Maybe im old fashioned.

  112. pandora says:

    You know, I’ve never said women never lie – but to focus on that extremely small percentage undermines (deliberately?) the discussion at hand. Here’s a few questions for you, “Hank” (will you be sticking with that name? That’s allowed if you let us know, but sock puppetry isn’t.).

    Do you believe rape/sexual assault on college campuses (and elsewhere) is happening? Or do you think it’s happening and there’s nothing we can do about it?

    What, exactly, is the problem with the “Yes Means Yes” bill?

    And your… “don’t let your ideology overwhelm your common sense, manifest elsewhere on this blog.”

    Please tell me you didn’t intend that statement as a compliment. Pretty please.

  113. Steve Newton says:

    @hank

    So if a woman’s perception that she was raped cannot be trusted as evidence that she was raped, then what exactly would be sufficient evidence?

    Normally, for example, a person’s perception that they were robbed at gunpoint is accepted as evidence that a crime was committed, even if the person may not be able to identify the attacker.

    It seems to me that you are arguing for a default definition of rape that includes specific physical evidence, an admission of guilt, or perhaps something like a surveillance tape.

    Which means, therefore, if I wear a condom, don’t hit a woman or tear her clothes [all under category of no physical evidence]; if I don’t tell anybody I did it; and I am careful not to be caught on a surveillance camera, then I can have forcible sex pretty much whenever I want, and haven’t committed rape.

    The reality is that the crime of rape exists independent of the evidence or the ability to convict the rapist. Many murderers go undetected and unpunished, but we do not raise doubts that murders were committed.

    And who would be best positioned to know if she were having intercourse against her will, other than the woman?

    Unless, of course, you believe that the default setting of such a high percentage of women is to lead men on and then cry, “rape” that we must bend over backwards to protect all men from these vampiric vaginas, even if that means letting the occasional serial rapist off scot free.

  114. hank says:

    pandora, i forgot. if somebody doesn’t agree with every single bit of your ideology, then he or she cannot be allowed to agree with any of it.

    i do believe rape happens on campus, and i don’t know what to do about it. i would say, however, be careful about who you get into an intimate situation with. there’s a lot of bad dudes out there.

  115. ben says:

    you dont know what to do about, but since you don’t like this new definition of consent, you are basically advocating doing nothing.
    Lets do nothing to stop those promiscuous sorority girls who should know better than to go to a PKE party oh homecoming weekend eh? Just tell them to “be more careful” because guys rape. Is that the solution?
    Why not make the Bros of summer so afraid of being labeled a rapist, they start to behave like men?

    (no offence to any brother of PKE, it was literally the first frat that popped into my head)

  116. pandora says:

    Hank, don’t let your ideology overwhelm your common sense, manifest elsewhere on this blog.

    You okay with that? (Yes, I know. You’ll say you are.)

    And Ben and Steve are correct. Steve accurately points out the way someone can get away with rape by employing the standards some are setting – woman may be mentally troubled or simply lying or not having physical evidence. And Ben, rightly, focuses on the men that rape.

  117. ben says:

    http://www.huffingtonpost.com/2014/09/03/emma-sulkowicz-mattress-rape-columbia-university_n_5755612.html

    3 women accused the same guy. Perhaps he cant be tried and sent to jail. Maybe, because the only evidence is the word of 3 co-eds, he wont see actual punishment for his crimes. But kicking him out of school will hopefully bring some peace to his victims… and the victims of Columbia’s inability to protect its students. Guy got into Columbia for pete’s sake. Statistically, he is probably white and from a well-off family. He’ll figure something out. Maybe he’ll open a gelato cafe.
    Other than men, however, (well, i bet i know who is in charge) institutions that mishandle assaults like this should be brought to their effing knees. IMO, PennState did not suffer enough for how it allowed little children to be raped by a darling coach. If you cant see to it that your students are protected, or don’t punish offenders at the risk of looking like you are failing at protection, your school should be in danger of losing ALL public funding, grants, tax exemptions… If you dont feel comfortable stopping known predators before they attack, this should at least be an alternative.

  118. puck says:

    For those of you who read selectively (and that would be all of you), note that my UFO sightings analogy was my explanation of what I suspect is an exaggeration of the extent of the problem. And I said this in the course of AGEEING that on-campus rapes were real.

    It was others (look in the mirror) who pretended I said ALL reports of rape were like UFO sightings. Shame on you and your debate skills. I bet you thought I wouldn’t notice? I guess if others fell for it that is good enough, right? I am tired of answering for positions you wish I had taken, instead of what I actually said.

    And stop demanding that I answer questions you pose, until you go back and answer some of mine that I have posed. I have been answering all of your questions in good faith as much as possible, but mine fall like rain with no answer.

  119. liberalgeek says:

    Puck – we get your analogy. It is bullshit. I’m not sure how else to state it.

    You are comparing rape victims that historically have been discouraged to report the crimes committed against them and slut shamed for getting raped, and compared it to a fanciful search for mythical creatures.

    You have been given ample data to show that rape is STILL under-reported by the victim and the perpetrator. That is real data. Now if you have data that says that the sightings of flying saucers and little green men are actually under-reported with studies of rednecks in backwoods Alabama and aliens from Alpha Centauri, bring the analogy. Otherwise, you are comparing the victims of violent crime to attention-seeking, delusional and/or misinformed yokels with overactive imaginations.

    So please don’t try to spin this around on us for mischaracterizing your priggish analogy.

  120. puck says:

    Raise your hand if you believe that 1 in 5 women have been raped in college.

  121. ben says:

    That kinda depends if you only define “rape” as being attacked, beaten, and forcibly had sex with… while struggling the whole time and yelling “no”.
    The 1 in 5 statistic is also about sexual assault which, while still pretty much rape, doesn’t have to mean penetration happened.
    It’s all vile and it is all perpetuated by predators who have no place on a college campus.. or anywhere, really.

    I bet if you included groping, cat calling, and that sad thing guys do where the go up to some girl in the club and grind their boner on them by way of saying ‘hello”, that number jumps to 1 in 2…. probably higher.

  122. Steve Newton says:

    As rape and sexual assault are defined in the study that produced those numbers, I will raise my hand.

    I’ve taught at multiple institutions of higher ed for about 30 years. From the number of young women who have walked sobbing into my office to talk about assault or date rape, from the accounts I’ve been given in my classes, from the discussions with campus police and counselors, the answer is yes.

    A woman entering a four-year-program as a residential student at an American college or university easily faces a 1 in 5 chance of being sexually assaulted before she graduates. We don’t like to talk about that any more than we like to talk about the chances of an enlisted woman in the US military having a 1-2 chance of being sexually assaulted in a four-year enlistment. It’s ugly. It says something really awful about us as a society and about us as men.

    But it’s happening. And it’s time to stop backing down from the people who simply find it too uncomfortable to talk about it rationally.

  123. puck says:

    Well, it was a trick question. You had to think critically about the answer. Ben came closest but then veered off.

    Remember, I stated that I believed campus rape was real, but that the extent was exaggerated. And I was called out for it: “You have been given ample data… So you won’t mind if I take a critical look at that data.

    The most obvious flaw in the’ 1 in 5 raped” statement was the distinction between rape and other forms of sexual assault not meeting the definition of rape. That was the easy part. So just look how many times you read the claim “1 in 5 raped.” I won’t call it nysteria, but it is certainly exaggeration.

    Apart from that confusion, the survey in question had serious flaws in polling science and innumeracy, unpacked by several reasonably reliable sources, including this representative one:

    http://www.washingtonpost.com/blogs/fact-checker/wp/2014/05/01/one-in-five-women-in-college-sexually-assaulted-the-source-of-this-statistic/

    It is clear the actual number is something lower than 1 in 5, possibly much lower.

    Having said that, it is still unacceptable and too high. Remember I am not suggesting we discount the reports. I am defending my belief that the current state of the problem has been exaggerated. By how much, nobody really knows. Based on the facts of the survey, I think I am on pretty solid ground for that claim. There are other surveys, but that is the one most often quoted, and I think it yields the highest numbers. Which is probably why it is the most quoted.

  124. pandora says:

    Wait… did someone quote that 1 in 5 claim in this thread? (Don’t have time to reread all the comments, but I don’t remember it – but could have missed it) Wondering how this discussion became about 1 in 5 number.

  125. puck says:

    The CDC survey was the source of the 1 in 5 statistic, which was recently quoted by the White House, and became the nucleus of Senate hearings and much reporting and blogging, and I assume the CA bill as well. It is a good handle for referring to the current state of heightened awareness, It doesn’t matter if it was quoted in THIS thread. That statistic is why this thread exists.

    Plus, I was told I nad been presented with “ample data.” Was the CDC survey not the centerpiece of that?

    Just replace “college men and sex charges” with “inner city men and drug charges” and you will (hopefully) see how illiberal the rush to a lower standard of proof is. In fact, there have been real proposals to kick people out of public housing for drug involvement. Is everybody behind that?

  126. Steve Newton says:

    That the 1 in 5 statistic has been misquoted by those who did not bother to read the actual categorizations is not the problem of the people who did the survey.

    Your “trick” question, puck, was painfully obvious, as my own answer showed.

    It is perhaps expectable to find you taking the excuse to jump on the “exaggeration” bandwagon without acknowledging either (a) qualitative data from people who have worked in the field, or (b) the difficulties in collecting and verifying the data when many women don’t report, and many universities (hundreds cited and fined in the past two years) don’t live up to their obligations under the Cleary Act to report such incidents publicly.

    But for the sake of exposing your game, let’s suggest that instead of 1 in 5 (20%) the statistic were actually closer to 1 in 20 (5%). In other words, for sake of argument I will grant you that the statistics have been exaggerated fourfold. So what? Given the number of college students in America that would still be millions of young women on campuses being raped or sexually assaulted each year. Millions.

    Yet instead of thinking seriously about protecting them, you fixate on (a) protecting men from false claims of rape (without providing ANY quantitative evidence to back up the accuracy of your assertion) and (b) on absolving university administrations of doing anything after a reported incident except making sure the police follow through.

    You’ve tried dissembling, UFOs, and racism over drug charges to hide the fact that you don’t believe that campus rape and sexual assault demands any other response to reported incidents except “let the police handle it.”

    But that’s all you’ve got.

  127. puck says:

    Finally common ground. So stop pretending I don’t agree that there is a problem and it is real. I know pretending helps you get up on your high horse, but it isn’t true.

    We apparently don’t agree on the size of the problem and the solutions suggested for it. That is fine for now.

  128. ben says:

    Dont compare raping someone to having a little bit of weed. Most of the violence surrounding the drug trade exist because drugs are illegal. No one is actually hurt by someone sitting at home getting high. You know that.
    A rape … or any sexual assault on the other hand.

    When you say you dont agree on the size of the problem…. Why is that?
    Do you think some of the sexual assaults that happened, like Steubenville, “arent that bad” because there was no PIV penetration? Do you think there are a significant amount of false rape reports… (i.e next day regret “maybe he raped me… I would NEVER sleep with THAT GUY”)
    Maybe it would help, me at least, understand you position better if you explained how small you think the problem is with the kind of evidence you have been presented to the contrary.

  129. Dave says:

    Various studies have shown that the rape prevalence among women in the U.S. is in the range of 15–20%. So 1 in 5 would seem to reflect the nation as a whole. However, because of the age group of those in college, I would guess that the incidence is higher on campuses.

    Even so, I would classify this as a workplace violence and (obviously) a crime. Campuses should have a legal obligation to maintain a safe and healthy campus (workplace) and law enforcement must treat this as a crime. Honor committees or similar extra-judicial bodies should have no place and no authority when it comes to violence of any kind.

    While there will always be a fuzzy line, women especially need to be taught to report crimes and let justice (hopefully) take it course. If the problem is underreporting, then let’s fix that. If it is lack of prosecution then fix that. We can and should debate numbers, but violence is violence. Rape is assault and should be treated as such. There are false claims of assault and battery as well and we don’t tiptoe around that crime.

    Draw a bright line and prosecute when it is crossed. If the bright line results awkward relationships and college students don’t hook up as much because they are nervous then so much the better. Think about the collateral benefits, less STD, less pregnancy, less violence, less regret. What’s the downside?

    I would even accept such draconian measures as a requirement that each party file a written intent to engage in sexual relations with each other with a 3 day waiting period and if caught doing it without having done so, are immediately expelled.

  130. Dana says:

    Now, after investigation by the police resulted in no charges, Florida State quarterback Jamies Winston is going to be investigated by FSU under Title IX.

    It’s one accusation, and not even totally he said/she said, because two of Mr Winston’s teammates claimed to have witnesses the beginning of the sexual encounter, and said that it was consensual; the woman claims that she had taken a drink and then lost consciousness. In other words, nothing can actually be proved.

  131. pandora says:

    “Maybe it would help, me at least, understand you position better if you explained how small you think the problem is with the kind of evidence you have been presented to the contrary.”

    I’d be interested in this answer to Ben’s question, as well. You say these claims are exaggerated. How many do you think are exaggerated? Yes, you’ve already said you don’t know, but surely you think the number is high enough for your concerns about false accusations (misunderstandings?) to be valid.

    The reason I’m questioning where you’re coming from, puck, has to do with:

    1. Your UFO example – which came across like mass hysteria and sounded like George Will’s column.

    2. Your comment about matrons: “If accusers don’t report “because they don’t want anyone to know” – what do they expect will happen? Do they expect to just quietly give their report to some matron, and then see the accused whisked off campus?”

    3. Describing women as groupies: “Then, I would take steps to educate the athlete community – both the athletes and their groupies. (Yes, groupies. You don’t think athletes skulk around dark alleys waiting for a victim to happen by, do you? No, they have relations with the people who hang around them like moths to a flame).”

    These comments are quite telling and might explain why people are questioning where you’re coming from.

    And… when I go back and read my original post I don’t see where I, or the “Yes Means Yes” bill, state that this will result in more convictions or charges – that it will solve the problem. What it does do is acknowledge there are two people involved and both have responsibilities. To me this bill is more about awareness.

  132. pandora says:

    Just going by your linked article, Dana, those two witnesses have a vested interest in saying this was consensual. Because, you know… “Hey, the sex I taped and watched was consensual!”

    (And I’m not claiming it wasn’t since I haven’t read up on this and am not privy to testimony.)

    Casher and Darby were both brought up on code-of-conduct charges after admitting they watched a portion of the sexual encounter between Winston and the woman. Casher, who admitted to police that he taped a portion of the encounter on his phone, was placed on disciplinary probation after being accused of violating student code-of-conduct rules addressing sexual misconduct and invasion of privacy, FOX Sports has learned. Darby, who also said in a sworn statement that he watched part of the encounter, was cleared of wrongdoing

    So please stop pretending that these witnesses aren’t biased. They are.

  133. ben says:

    If we, as a society, could bring ourselves to stop slut-shaming women who have sex AT ALL….
    then to stop slut shaming women who have sex anywhere close to the frequency men are expected to brag about having it… (that always confused me, is there just supposed to be a “slut class” that helps frat buys get bead post notches until they find their virgin, future wife?)
    THEN MAYBE we, as a society, can stop slut-shaming rape victims…
    Rape goes unreported because women know they stand a very real chance of being violated again…. publicly… if they try to bring their attacker to justice. Hell, they may get called a slut by a nationally syndicated radio host… maybe an entire news network. They may have to accuse a university star athlete… and thus become the enemy of a University Athletic Association. How can you be at all confused as to why women dont report?
    Imagine if you were mugged, beaten, then robbed…. and had to worry about suffering bullying and blow-back for trying to find justice.

  134. pandora says:

    Just released from the CDC:

    Results: In the United States, an estimated 19.3% of women and 1.7% of men have been raped during their lifetimes; an estimated 1.6% of women reported that they were raped in the 12 months preceding the survey. The case count for men reporting rape in the preceding 12 months was too small to produce a statistically reliable prevalence estimate. An estimated 43.9% of women and 23.4% of men experienced other forms of sexual violence during their lifetimes, including being made to penetrate, sexual coercion, unwanted sexual contact, and noncontact unwanted sexual experiences. The percentages of women and men who experienced these other forms of sexual violence victimization in the 12 months preceding the survey were an estimated 5.5% and 5.1%, respectively.