[ZeroGravitas]

That's impressive. Twice on HN I've asked someone to back up the drunk sex = rape claim and in both occasions they've came back with the exact same incident.

It truly must be an epidemic.

As I pointed out the last time, and indeed in this very thread when I asked for some kind of proof this wasn't all just bunk, both these people were very, very drunk. Vomiting repeatedly drunk. No recollection of having sex drunk. If anyone sober had had sex with these people, they'd be considered by most people to have been taken advantage of. The only reason this is a gray area is that both people got themselves into such a state that they themselves have no idea whether they broke the law that night. Which isn't a great defence in any legal situation.

[thaumasiotes]

This incident is being given to you because it has facts which are overwhelmingly, lopsidedly in favor of the boy, and he was expelled anyway (also, it features a formal legal opinion from a DA). It shouldn't be surprising that with those features, it comes up more than other cases do when you ask for an example. Two other cases are discussed just in the links I've given you -- and mentioned in my comments. I just posted a series of four comments to evade HN's length restriction on comments; I don't think it's particularly weird that I only included a quoted description of one case in that series.

But hey, here's another case from the Slate article:

> A group of students had been hanging out in the dorm on a Friday evening—there was drinking, but no one was incapacitated—when CB told Sterrett that her roommate had family members staying in their room and she needed a place to spend the night. Sterrett loaned her a shirt to sleep in and assumed she’d crash on the mat he and his roommate kept for visitors. Instead, CB came and lay down next to him on his bed. The two had made out in the past but had no serious romantic interest in each other.

> They talked quietly, started kissing, and then things escalated, as they often do when two teenagers are in bed together. When it became clear they were going to have intercourse, CB asked Sterrett about a condom, and he retrieved one from a drawer. Their sex became so loud and went on for so long that Sterrett’s roommate, unable to sleep in the upper bunk, sent Sterrett a Facebook message around 3 a.m.: “Dude, you and [CB] are being abnoxtiously [sic] loud and inconsiderate, so expect to pay back in full tomorrow …”

> The events that prompted the university to take these actions against Sterrett are detailed in an affidavit sworn on Sterrett’s behalf by LC, a friend of CB’s and her sophomore year roommate. LC stated that in July she received a call from an “emotionally upset” CB who explained that her mother had found her diary. LC recalled that CB explained that the diary “contained descriptions of romantic and sexual experiences, drug use, and drinking.”

> At the beginning of his sophomore year, Drew Sterrett was in limbo. He did not know whether he would face further disciplinary action as a result of the accusation against him, and indeed no formal written charge was ever issued. The single, cryptic Skype interrogation—the one that blindsided Sterrett over his summer vacation—was to be his sole hearing with campus administrators. He never met them in person.

> On Nov. 9, 2012, Sterrett was given a one-page document titled “Summary of Witness Testimony and Review of Other Evidence.” It consisted primarily of summaries of statements from anonymous witnesses. For example, it stated: “Two witnesses stated the Complainant reported to them that she tried to push the Respondent off her.” (CB didn’t know who these two witnesses were. She confirmed in her deposition that in her original statement to Cowan, she never said that she had tried to push Sterrett off her.) It also stated: “[A] witness reported that the Respondent told them that he engaged in penetration with the Complainant and ‘she was saying ‘no,’ and that it was just—it was ‘just like a second,’ and then he stopped, and then the Complainant left.’ ” (In her deposition, CB acknowledged this was not how their sexual encounter transpired, although she maintained that at some point she said “no.”)

> The document made clear to Sterrett that CB was claiming that she had said “no” during their encounter. He put together a lengthy rebuttal. Of CB’s claim, he wrote, “I cannot state it more clearly that this is untrue. I asked her if she wanted to have sex; she said ‘yes.’ ” (CB’s assertion was also challenged later by an affidavit sworn on Sterrett’s behalf by his freshman year roommate, the one in the upper bunk. The roommate said that he saw CB get into Sterrett’s bed of her own volition and that his bed and Sterrett’s were so close that he would have heard if she had exclaimed, “no” or “stop.” He stated that he was annoyed that their sex was keeping him awake and that as a friend of both he would have intervened if he felt something untoward was happening.)

> CB’s roommate, LC, in an affidavit sworn on behalf of Sterrett, said that over the summer CB’s mother had called her repeatedly warning her not to talk to Sterrett and to take CB’s side in all proceedings. LC stated that she never saw any change in CB’s behavior from the time of the alleged assault until the end of freshman year. But, she said, CB’s personality changed dramatically after her mother found her diary and the fall semester began. In her affidavit, LC said it pained her to speak against her friend, but she stated: “It is my belief, based on my personal observations and conversations with CB, that it is possible CB manufactured a story about a sexual assault in response to the conflict CB described occurring between her and her mother in the summer of 2012.”

> n Nov. 30, Sterrett received Cowan’s final “Sexual Misconduct Investigation Report.” His lawsuit states that the final report failed to take note of anything he had written in his rebuttal. The final report was longer than Cowan’s previous one, and included further allegations that either CB herself did not corroborate or appeared unsupported by the available evidence. For example, it stated: “The Complainant framed the events in question as a sexual assault to witnesses the day following the event.” In her deposition, CB acknowledged that she didn’t do that, that in fact she’d never used the words “sexual assault” to describe what happened. The report said that Sterrett’s roommate was asleep during the entire sexual encounter. This was contradicted by the time-stamped Facebook message complaining that he was being kept awake.

> With the help of a lawyer, Sterrett filed an appeal to the Office of Student Conflict Resolution. He included affidavits from classmates who said their words had been misconstrued and even falsified, and included the statement by Sterrett’s roommate that CB was a willing participant and that the roommate would have heard and intervened if CB had said no. The university’s response was to stand by its finding that Sterrett was responsible for sexual misconduct but to change the reason. Now Cowan issued an addendum stating that Sterrett had committed sexual misconduct because CB was too drunk to consent.

[thaumasiotes]

You want to argue that a university policy which prohibits sex while one party is "intoxicated" without specifying any method for assessing whether that standard is met, isn't a problem and can't be triggered by a minimal level of alcohol consumption. But this is not the case. If you'll permit a digression into some cases where alcohol did not figure in the judgment:

Here ( http://reason.com/blog/2016/04/07/student-suspended-for-rape... ) is reason covering a case in which USC found a boy responsible for sexual assault and was then overruled by the courts.

> The University of Southern California found a male student, "John Doe," responsible for sexual assault and suspended him for two years. But his alleged victim, a female student, "Jane," maintained that the sex between them was consensual.

> Doe was ultimately punished, not because he hurt Jane, but because he did nothing to prevent two other males from having rough sex with her—from slapping her on the buttocks—during an orgy.

> After dancing together, Jane, Doe, and Student 1 went off to a bedroom together to have sex. All agree that this encounter was consensual

> Later that evening, Jane and Doe returned to the bedroom to have sex again. Jane maintains that their sexual activity remained consensual, but other men—likely including Students 1 and 2—entered the room and also began performing sexual acts on Jane. These activities became rough, and culminated in one or two of the men—not Doe—slapping her butt.

> Jane later texted Doe that she had a good time with him, but "your friends suck though." She approached him again at a party some weeks later, but he declined to dance with her.

> Months later, in August of 2014—after discussing her "confidence issues" with a counsellor—Jane decided that the incident constituted sexual assault and filed a complaint. Still, she maintained that she had consented to sex with Doe: it was the other men who had violated her.

> USC disagreed, and accused Doe of violating 11 different sections of the student code of conduct, including "endangering the health of others," "engaging in obscene behavior at a university-sponsored event," and "engaging in non-consensual sexual touching."

> Consider that for a moment. Jane said her sexual activity with Doe was consensual. The university then made the paternalistic and indefensible decision to override her opinion on the matter and described their sex as rape anyway.

[thaumasiotes]

Here ( https://reason.com/blog/2016/04/06/this-university-cleared-a... ) is Reason on a case where alcohol might have been involved. Who can say?

> Doe and his accuser, "Jane Roe," met during an impromptu gathering at a mutual friend's dorm on August 22, 2014. They first had sex that very night. They exchanged friendly text messages the next day, which were later provided as evidence in Doe's favor at his hearing, according to the judge's decision. They eventually had sex a second time.

> They had sex two more times after that—Roe was the initiator both times, according to the mutually agreed upon facts of the case.

> But on November 6, 2014, the university informed Doe that someone had accused him of sexual misconduct. He did not immediately learn that his accuser was Roe, though he was barred from having any further contact with her. The university also moved him to another dorm against his will.

> Roe's residential advisor and Title IX coordinator had submitted reports agreeing with her contention that their very first sexual encounter wasn't consensual. This logic seems to rest on the disputed fact that Roe was drunk at the time.

> At the actual hearing—which was attended by both Doe and Roe—Roe's roommate testified that she did not believe "Roe was drunk or otherwise incapacitated when she saw her shortly after her sexual encounter."

> A three-person panel sided with Doe and cleared him of sexual misconduct. But Roe appealed.

> At this point, the proceedings veered into Franz Kafka territory. Doe was barely able to review the new evidence against him, and was not allowed to even appear at the second hearing. The new evidence undermined Roe’s roommate’s testimony, but at no point was the roommate called upon to defend her original statements about Roe’s lack of incapacitation. JMU went to great lengths to accommodate Roe—even granting her several extensions on submitting new evidence—while making it all but impossible for Doe to defend himself. As a result, he was found responsible for sexual misconduct and suspended from the university for five and a half years.

> Given that this case appears to rest on whether or not Roe was drunk during the encounter, the accusation seems extremely dubious. Even if Roe had been drinking, mere intoxication does not render a person incapable of consenting to sex. It certainly looks like the university conflated intoxication with incapacitation, and that Roe ultimately failed to prove either state.

[thaumasiotes]

When you can be found to have committed sexual assault over the top of your "victim"'s vociferous assurance that nothing of the kind happened (oh wait, here's another case:

> Colorado State University-Pueblo suspended a male athlete for years after he was found responsible for sexually assaulting a female trainer. But the trainer never accused him of wrongdoing, and said repeatedly that their relationship was consensual. She even stated, unambiguously, "I'm fine and I wasn't raped."

> When confronted, Doe confessed to the Complainant that she and Dean had engaged in sex. According to the lawsuit, the Complainant "presumed" this sex was nonconsensual, and reported it to the director of the athletic training program.

> Later, when Doe found out, she gave Neal the bad news, and texted him the following messages:

>> "One of the other Athletic Training students screwed me over!...She went behind my back and told my AT advisor stuff that wasn’t true!!! I’m trying so hard to fix it all."

> Neal and Doe met in person to discuss the situation. Without Doe's knowledge, Neal recorded their conversation. This audio recording further establishes that their sex was consensual. While in Neal's presence, Doe fielded a phone call from a coordinator of the athletic training program and stated "I'm fine and I wasn't raped." She then called her mother and told her the same thing.

> Both Doe and her mother pressed the administrators of the athletic training program—a husband and wife team—to drop the matter, but it was too late: they had already informed the Title IX office.

> Doe told another administrator, "Our stories are the same and he’s a good guy. He’s not a rapist, he’s not a criminal, it’s not even worth any of this hoopla!"

> The predetermined outcome for Neal was a guilty verdict: he was suspended for the remainder of Doe's time at the university.

( https://reason.com/blog/2016/04/19/female-student-said-im-fi... )), you need to read the sexual assault policy as if it will only ever be used to justify finding you responsible for sexual assault, because that is the case. Where there is ambiguity in the policy, it is fair to read it as if any formal proceeding will interpret it as far as is possible in favor of the accuser (or farther). And in the Minding the Campus report, 18 of 55 schools were found to have policies involving no stated threshold at all, while using language that is deliberately weaker than the legal standard for rape. At those schools, you are vulnerable to a claim of rape if the girl has had any amount of alcohol, just as you're vulnerable to a claim of rape by campus administration if the girl had nothing to drink, maintains an ongoing relationship with you, and makes the formal statement that you never raped her at any point.

If you want to appeal to the idea that vague policies are benign as long as they're applied reasonably in practice, then (a) this is a deeply misguided approach to a justice system, specifically designed to allow persecution on flimsy grounds of anyone disfavored, and (b) the facts are clear that, as applied, college sexual assault policies are being used to convict boys who have done nothing wrong. As cited in Emily Yoffe's article, one higher education insurer found that of the sexual-assault-related claims it paid from 2006 to 2010, 72% went to men suing their school for railroading them.