Yes Means No

The Setting

In 1972, Title IX is passed.  It states that: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

In 1980, Alexander vs Yale, sets the precedent for the notion that sexual harassment on campus can constitute a violation of Title IX. This eventually leads colleges to set up a process for internal investigations of sexual misconduct, with tribunals tasked with discovering the truth of allegations and punishing perpetrators.

In 2007, the Campus Sexual Assault study conducted by the department of justice asserts that 19.8% of female college students in their sample experienced sexual assault, which is widely interpreted proof that 1 in 5 college students in the US is raped.

~2010, the Affirmative Consent movement starts to gain steam, possibly originating with 2008 the publication of a book by Jaclyn Friedman and Jessica Valenti (this is a guess, I do not know the origins for certain)

2011, a Dear Colleagues from the Department of Educations urges colleges to be more aggressive in dealing with Sexual Harassment on campuses, in order to remain in compliance with Title IX, threatening cutting funding to institutions not in compliance.

2014, California passes Senate Bill No 967, mandating all educational institutions receiving state funding to use affirmative consent as the standard in adjudicating sexual assault allegations.

What happened

On the night of September 2nd, ’16, two University of Minnesota football team members met a female student (RS) at a party in their apartment. The female student was drinking before arriving at the party, and was later drinking with the two team members. Afterwards they led her to a room where they engaged in sex with her. At some point more team members and/or male students and a high school prospect who was at the party, observed the sex act, with some of them also participating in the sex act which at times involved more than two people at a time.

Afterwards RS had little recollection of what had happened. After the effects of the alcohol started to wear off, she apparently felt conflicted about what had transpired, and tried to seek reassurances. She confided to her friend that she did not really know what happened and did not know whether she had been raped. She did not wish to go to the police. She went to a hospital where she was examined and no significant injuries were discovered. At some later point she told her mother about what happened, and her mother called the police asking them to investigate the rape of her daughter.

RS proved to be a reluctant witness. At her interview she provides a hazy recount of the event. She states that sex with the first two participants “may have been consensual, but believes that sex with the others was not”. Among indications of her lack of consent she mentions that she was scared, that at some point she tried to push someone off, but was unsuccessful, that at some point she yelled to one of the male students to stop letting more people in. It appears that, more so than try to accuse anyone, she’s trying not to come off as an overly eager participant in front of the officer(s) interviewing her.

The Minneapolis police choose not to pursue the case because of lack of evidence and also because of two videotaped recordings of part of the act, in which she appears alert, a willing participant, and not showing any signs of distress.

The University of Minnesota’s office of Equal Opportunity and Affirmative Action conducted a separate investigation. In it, RS revealed many more details as the investigation progressed. She claimed that she felt “shocked and overpowered”, that she didn’t resist because “she felt here resistance would be ignored”, that at the start of the encounter “she did not want to do this but felt compelled”. All of this was directly contradicted by both the statements of all of the accused and also the two videos which were taken after the start of the encounter.

These contradictions did not go unnoticed by the EOAA, rather, they were willfully ignored, as they chose to suspend 10 students for “Sexual Harrasment” and “Sexual Assault, Stalking and Relationship Violence”. The leaked report says as much:

We considered that RS at times behaved in ways that may appear contrary to how one might expect a sexual assault victim to behave. For example, RS reported the following to EOAA. She returned to apartment B to speak with A2 soon after the alleged sexual misconduct occurred in that same apartment. She did not consistently scream, fight or try to escape during and between the violent sexual assaults that she describes, and she engaged in what could appear to be casual conversation with some of the men in between these sexual encounters, such as speaking with A6 about their previous conversations over Tinder, telling A10 that she probably would not remember his name and asking A1 and A5 how long she had been in the apartment.

We do not find that these behavior indicate that RS did not experience the sexual misconduct that she describes. Rather, we find that RS conduct during the sexual encounters likely resulted from her shock, confusion and inability to focus because of the events she was experiencing. We also find it likely that RS communicated with A2 after leaving apartment B in an attempt to determine what had happened to her, to normalize the situation and to regain control of the situation.

The “Sexual Assault” that the students were found in violation of is code word for rape. “Stalking” and “Relationship Violence” are obviously not at issue here, and neither are any of the categories of the nebulous and confusing definition of “Sexual Assault“. The delta between “Sexual Assault” and rape is simply designed to allow for obscuring the fact that evidence of rape (in cases such as this one) is lacking, while not relinquishing the right to assert that a heinous crime took place.

The football team tried to protest the injustice befalling their teammates by boycotting  the Holiday Bowl, but they were pressured by the university to abandon their attempt.

CNN, Washington PostForbes, and other publications responded with ardent calls to equate innocence with guilt. Issac Bailey of CNN writes that he’s horrified at how no one intervened in order to stop what was a consensual sex act. The major theme in the coverage is “ok, they may be innocent but…”.

The precedent the EOAA findings are trying to set is clear. You are always guilty. Even if there is ample evidence of your innocence, even if you have a video recording of the event, demonstrating your innocence, you are still guilty. She was only faking consent because she was scared and in a deep state of shock.

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4 Responses to Yes Means No

  1. zolltan says:

    From what you’ve written, I’m inclined to think that you’re totally wrong here, but I admit I haven’t read about this specific case. I may be misunderstanding.

    Things that jump out at me from your summary:
    –there was videotape of this? Why? Like that in itself seems very likely to be a violation of reasonably assumed consent.
    –It’s totally reasonable to consent to sex with two people, and then not consent to a bunch of other people joining. This doesn’t seem like some bizarre story that was cooked up on the spot! It’s like the most normal reaction to such a situation, I would think.
    –people do get shock and act weird! That’s not somehow suspicious!
    –But even apart from that, you may not know what to say when a bunch of other people join in on them having sex. Like, again, joining in in other people having sex is probably a situation where you actually should have affirmative consent as a matter of basic decency, even if I disagree with the California law.
    –as you mention, there seems to be no way to prove crime beyond a reasonable doubt in this case. So they weren’t sentenced for a crime. That seems to be the correct outcome. They were suspended, from what I understood. I would certainly rate what they did as worse than “insulting a referee” or “potentially playing with footballs that you knew were deflated” or whatever stupid shit.

    In general, I think “If you and ten of your closest buddies wanna have sex with a really drunk chick who you can’t tell whether she would want that or not, then don’t” is not a horrible imposition on your rights and if you think that it isn’t a reasonable guideline, that’s fucked up.

    All of which is not to say there aren’t issues with how university sexual assault tribunals are set up, and, again, I haven’t read about this specific case. But really???

    • zipppa says:

      – There was no evidence to suggest that the video was taken without RS’s knowledge or consent, and in fact I don’t believe she makes this allegation in either report.
      – Yes. I talk about this in the other reply.
      – Yes, I agree that it’s probably a good idea. However that is my own opinion. I am not of the opinion that “what people should and should not do” should be somehow a legal standard, or that it should somehow be enforced by any authorities, university or law enforcement. This is especially true with respect to sexual acts people may engage in.
      – This is hyperbole. Essentially you are saying that the specifics of the sex act should somehow determine the involvement of authorities in regulating it. I think that beyond the question of whether all parties consented, there shouldn’t be any, ever.

      • zolltan says:

        About the last point: I agree that there’s a danger in using sexual assault laws as part of a moralistic crusade against sex acts you don’t like. We’re already seeing this with some radfem commentators stating that BDSM cannot possibly be consensual, for example. This is very bad.

        Nevertheless, I think it is reasonable that different sex acts may require different degrees of ascertaining consent, just because the repercussions are different. Like, for instance there’s people who get off on having their balls crushed in a vice by another person. If two people consent to this, it should be totally legal. But I think it is perfectly reasonable that the threshold for being certain of consent in this act should be higher than for, let’s say, fellatio. That’s all I wanted to say with the last comment.

  2. Pingback: Why zipppa’s post is totally wrong | Rated Zed

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