golden state society

Tuesday, September 27, 2011

College paper takes college to task for sexual assault training video that presents males as crass, offensive caricatures

Email to Maria Tsikalas
Maria Tsikalas
Marquette University

Dear Ms. Tsikalas,

I founded the Web site devoted to giving voice to persons wrongly accused of sex crimes, False Rape Society. I am forwarding a copy of this email to FIRE because it is the authority on the issues raised in this note, and the matters referenced here might be of interest to it.

I write regarding your thoughtful editorial titled "Sexual violence videos make mistakes, but don’t give up on them," found here: http://marquettetribune.org/2011/09/27/viewpoints/editorial-sexual-assault-videos-make-mistakes-but-dont-give-up-on-them-kc1-sb2-td3/.

In your editorial, you explain that Marquette is sponsoring online videos to train student leaders and incoming students on sexual assault. A previous article in the Marquette Tribune noted: "All first-year students and many student leaders are partaking in a sexual assault awareness program as part of a new initiative against sexual violence on campus." http://marquettetribune.org/2011/09/20/news/assault-bg1-sb2-td3/

I am assuming that the program referenced in that previous article is the same one you discuss in your editorial, but I am not sure that this assumption is correct. I am also assuming that the program you discuss is mandatory for first year students. Would you be able to verify?

In your editorial, you state the following:

"While the videos provide a lot of good information addressing what sexual assault actually is and how to recognize and prevent it, the valuable parts are juxtaposed with off-putting moments and absurd ideas.

"The 'typical male college student' played by an actor is offensive and completely unaware of the issues and why they are important, which seems unfair to males in general. One has to wonder why the videos could not have portrayed the character as a normal college student looking to learn more about sexual assault instead of a crass and willfully ignorant male needing to be set straight.

"Do we need such an overtly negative image of college guys? The clips describing different ways men try to pressure college women into potential assault situations, while fair and comprehensive, seem to do the job.

"If we want college men to take these videos seriously and realize the immensity of the issues, it is questionable whether this caricature is the best way to depict them."

You are to be commended for highlighting the "overtly negative" and "offensive" portrayal of the "typical male college student," as "crass and willfully ignorant," which, if your description is accurate, clearly is "unfair to males in general." I am not able to find the program in order to view it, and would very much appreciate that opportunity. Could you be able to assist in that, or to advise who might be able to help?

Your editorial raises a concern that this video presentation may constitute an impermissible invasion of students' conscience. Last year, FIRE challenged a college for making attendance mandatory at a sexual assault program that was overtly offensive to males and that sought to reengineer student thinking to conform to an ideology of the college's preference. See here: http://thefire.org/public/pdfs/ec98c2707e17186e96211e9aa553e699.pdf?direct The college backed down and make attendance at the program discretionary.

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Your editorial also references "clips describing different ways men try to pressure college women into potential assault situations." I am also interested in seeing those. I note that Marquette's sexual assualt policy, found here http://www.marquette.edu/osd/policies/sexual_policy.shtml, says that a person may not consent to sex if s/he is "psychologically pressured." The clips you reference seem speak to such psychological pressure. Is that correct?

The "psychologically pressured" definition is problematic for at least two reasons:

First, Marquette's prohibition is worded so broadly that it could be applied to punish conduct that that is, by any lawful measure, consensual. A college's sexual misconduct policy cannot be a clearinghouse to redress every less than ideal sexual encounter. Marquette's policy could be applied to punish students for engaging in what is nothing more than immature and boorish sexual nagging, even though the "nagged" student had a reasonable alternative other than to engage in the sex act. By no recognized legal standard does sexual nagging or anything similar negate consent.*

Second, the language of the policy is so vague that it does not pass Constitutional muster. "The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. DeGeorge, 341 U.S. 223 (1951). A college's sexual misconduct policy cannot be a guessing game. It is entirely uncertain what "psychologically pressured" means, and it could be applied to all manner of situations that, by any reasonable measure, should not be prohibitted. Therefore, it does not adequately put the student body on notice as to what is prohibited.

I also note that, apparently, the clip shows only guys pressuring women. That, too, is problematic, and offensive, because studies show that men experience alleged sexual coercion almost as much as women. http://pubpages.unh.edu/~mas2/ID45-PR45.pdf

These are issues of serious concern to the community of the wrongfully accused. We promote respect for the critical balance between (1) punishing sexual wrongdoing, and (2) insuring that the innocent are not punished with the guilty. The matters referenced in this note and promoted by your university do not adequately respect the latter part of that balance.

Thank you.

False Rape Society
http://goldenstatesociety.blogspot.com/

*The concept of consent has its roots in the common law equitable doctrine of assumpsit, based on contract. A contract is voidable for duress if a victim's manifestation of assent has been induced by an improper threat, and if the victim has no reasonable alternative but to agree. At the very least, that last part -- the "no reasonable alternative" -- is missing from Marquette's "psychologically pressured" definition.

College paper takes college to task for sexual assault training video that presents males as crass, offensive caricatures

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Monday, September 26, 2011

Sex assault claim teenager fined for wasting police time

A TEENAGER has been fined after making a false report that she had been sexually assaulted. The 19-year-old, from Bolton, told police she had been sexually assaulted while on a night out in the town centre.

An area on Bradshawgate, near to the junction of Princess Street, was cordoned off for several hours while detectives investigated the allegation in the early hours of Sunday.

After a thorough search by police it was discovered the sexual assault claim was not true, and the woman was given a £60 fixed penalty notice for wasting police time.

Det Sgt Tony Lunt, from Bolton CID, said: “On this occasion, the sexual assault that was alleged to have taken place has proved to be a false account. We take all reports of assault and rape seriously and investigate thoroughly and without prejudice.

“Greater Manchester Police encourages anyone who has been a victim of rape or any sort of sexual abuse to come forward.

“But I must also stress the importance of providing police with genuine reports due to the time we invest in investigating these cases.

“I hope this incident does not deter genuine victims from coming forward to police.

“We have speciallytrained officers who give a tremendous amount of time and support to anyone who has been a victim of rape and we work extremely closely with the St Mary’s Sexual Assault Referral Centre.”

Link: http://www.theboltonnews.co.uk/news/9265679.Sex_assault_claim_teenager_fined_for_wasting_police_time/

Sex assault claim teenager fined for wasting police time

U.S. Military, D.C. and Washington state now put the burden on the accused to show consent

There is a gradual, but indisputable and disturbing, trend to engorge the definitions of rape and sexual assault in order to snag more convictions. All of these changes, which typically occur beneath the radar, are initiated at the behest of victims' advocates, and there is rarely ever more than cursory and superficial consideration given to insuring that innocent men and boys are not punished with the guilty. While everyone with a passing interest in this area knows about this trend, few are able to articulate exactly what is happening.

One of the most important, and startling, efforts to engorge the definition of rape has been to shift the burden of proving consent from the state to the accused. This is both important and starting because the very essence of rape law is the absence of consent, and shifting the burden of proof to the accused about a matter that goes to the essence of a criminal offense raises a host of due process concerns. To put it in plain English, shifting the burden of proof enhances the risk that the innocent will be punished with the guilty.

Few readers probably know that the U.S. military, the District of Columbia, and the state of Washington have already shifted the burden of proving consent to the accused. More about each below.

Bourque, Valenti, Alexandre, and Caringella

The shifting the burden of consent is an idea being pushed by extremist victims' advocates. Linda Brookover Bourque's Defining Rape said in 1989 that the ultimate objective of rape reform is shifting the burden of proof from "the victim" to "the offender."

Mainstream feminist guru Jessica Valenti (best known for the "Feministing" blog) advocates that America look to Swedish law as its legislative model for rape. "In fact," she notes without objection, "some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it."

Valenti's suggestion is backed by serious feminist scholars. Criminal law professor and feminist Michele Alexandre would make the sex act a presumed crime whenever a woman cries rape. The burden would be on the defendant to prove “that express and present consent was explicitly obtained at the time of the actual sexual interaction, not before or after . . . .” Only if the defendant is able to establish “express, present, and uncontroverted consent to the sexual interaction at issue” does the burden shift to the prosecution to prove withdrawal of consent . . . ."

In Addressing Rape Reform in Law and Practice (2008), Professor Susan Caringella of Western Michigan University's Sociology Department, not only refuses to pay lip service to insuring that the innocent aren't punished with the guilty, she goes so far as to declare that men accused of rape are "overprotect[ed]." She writes: "It is high time to give victims a fair shake, to dismantle the zealous overprotections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied." Prof. Caringella advocates "a shift in the burden of proof to the defense [that] would entail that the defense establish, with a preponderance of the evidence, that it was more likely than not that the woman alleging the rape did give clear indications of freely chosen agreement to engage in the sex acts. Affirmative consent constitutes the kind of consent that would be . . . necessary to overcome the presumptive or implied nonagreement in the law. . . . . What the defense would be required to do would be to introduce adequate evidence to show that the alleged victim did openly and affirmatively express a yes of her own free accord."

These egregious notions have already been given statutory articulation in three jurisdictions.

U.S. Military

Article 120 of the Uniform Code of Military Justice, revised in 2006, removed "consent" as an element of rape and other forms of sexual assault and required the accused to raise "consent" as an affirmative defense and to prove it by a preponderance of the evidence. If an accused proves the affirmative defense, the burden shifts to the government to disprove the affirmative defense beyond a reasonable doubt.

It is a source of confusion how the prosecution could ever prove non-consent by a reasonable doubt after the accused has already proven consent by a preponderance of the evidence. But the more important problem is that a cry of rape literally turns the sex act into a presumptive crime.

In United States v. Neal, 68 M.J. 289 (2010), the U.S. Court of Appeals for the Armed Forces explained why shifting the burden of proof was proper in words that are as chilling as they are peculiar: "When sexual abuse by members of the armed forces occurs within a military organization, it can have a devastating impact on the good order and discipline essential to the conduct of military operations. When sexual abuse by deployed military personnel involves civilians, it can undermine relationships with the local population critical to our Nation's military and foreign policy objectives. These factors illustrate the importance of recognizing the broad authority of Congress to regulate the conduct of military personnel. That authority includes the power to define rape and its related offenses in a manner that does not require proof on the subject of consent, notwithstanding the traditional requirement in military and civilian law for such proof."

(Recently, there was a rare moment of sanity when a military court ruled that forcing the accused to prove consent in a case of aggravated sexual assault where the alleged victim was supposedly "substantially incapacitated" was unconstitutional because the absence of consent is implicit in the nature of substantial incapacitation. United States v. Prather, 69 M.J. 338 (2011).)

District of Columbia

In the District of Columbia, a sexual abuse statute, which encompasses any sex act committed by force or which places a victim in fear ob bodily injury, puts the burden on the accused to show consent. D.C. CODE § 22-3007 (2007). A court explained that the statute "was intended . . . to change the focus of the criminal process away from an inquiry into the state of mind or acts of the victim to an inquiry into the conduct of the accused." Russell v. United States, 698 A.2d 1007, 1009 (D.C. App. 1997).

Washington State

Moreover, as Prof. Richard Klein explains here, in Washington state, courts typically include the following instruction to juries in rape cases: "A person is not guilty if the sexual intercourse is consensual. “Consent” means that at the time of the act of sexual intercourse, there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual." Prof. Klein explains that this instruction was challenged in 2006, but the court allowed it to stand.

U.S. Military, D.C. and Washington state now put the burden on the accused to show consent

Is justice a security issue?

Most people would probably say they would prefer to live in a more just world to a less just one. There is a strong moral basis for preferring justice. But is this a consideration that states and large international organizations need to take into account as they design their strategies and plans for serving their present and future interests? Do national governments have good practical reasons to think about the consequences their policies and actions may have on the circumstances of justice in the world? What about policies and actions through which states attempt to secure their future economic wellbeing -- do policy makers need to pay attention to the social justice consequences of these actions?

There is a strong empirical and historical case for thinking that the answer to this question is "yes." Injustice is a source of resentment, indignation, and conflict. In the long run, the victims of injustice will not be ignored. Justice is a security issue for states and supra-national organizations, and simple prudence demands that policy makers take it into account. To put a simple label on this idea, justice is a security issue.

Here is a European Union statement about its longterm interests that makes this point fairly explicitly (link):

In the context of ever-increasing globalisation, the internal and external aspects of security are inextricably linked. Flows of trade and investment, the development of technology and the spread of democracy have brought prosperity and freedom to many people, while others have perceived globalisation as a cause of frustration and injustice. In much of the developing world, poverty and diseases such as AIDS give rise to security concerns, and in many cases economic failure is linked to political problems and violent conflict. Security is a precondition for development. Competition for natural resources is likely to create further turbulence. Energy dependence is a special concern for Europe.

What are the theoretical and historical arguments for this conclusion? Here are several.

On the side of theory, several points are well established. Chronic and unrelieved poverty leaves people with low attachment to their own societies and less for the global community. The frustration of very basic human needs is bound to fuel indignation and resistance. So poverty and deprivation are causes of resistance. But there is also evidence that inequality itself has negative consequences for a society's health; this is the central finding of The Spirit Level: Why Greater Equality Makes Societies Stronger (link). Finally, the social psychology created by a system that is perceived to be unfair and exploitative is likely to breed resistance and lawless action. Barrington Moore, Jr. was right when in Injustice he wrote:

Without strong moral feelings and indignation human beings will not act against the social order. In this sense moral convictions become an equally necessary element for changing the social order, along with alterations in the economic structure. 469

Gareth Stedman-Jones summarizes Barrington Moore's conclusion in these terms: "His argument is that human beings in stratified societies accept hierarchies of authority, so long as these hierarchies are not merely imposed by force, but based upon an 'unwritten' social contract, which binds together dominant and subordinate groups in a set of mutual obligations" (link).

So there are good empirical reasons, based in social psychology and the study of contentious politics, for expecting that injustice breeds conflict.

Are there historical demonstrations of the consequences of injustice for disorder? There are. We have the examples of slave revolts throughout the Americas in the 18th and 19th centuries; anti-colonial movements in Africa and Asia following World War II; the sustained resistance of the Burmese and East Timor peoples to dictatorship; and the sustained struggle for equal rights in the United States by African Americans, sometimes punctuated by major urban riots. In each case a set of social institutions had been created that were profoundly unjust for a sizable population, and this population gathered resolve and courage in opposing those arrangements.

So the conclusion seems clear. If we want to have a world in which there is a sustainable level of the rule of law and a low level of social conflict, we need to invest in justice. We need to work to create a system in which all peoples can satisfy their most basic human needs; where everyone can feel that he/she is respected in her humanity; and where no one judges that the basic structure of social life is exploitative.

In other words, states are well advised to actively include the basic requirements of justice in their plans for the future. Otherwise they are simply creating the tinder for future conflict.