It would be nice if the AD or University Lawyers would admit they had Hoke make this statement due to privacy rights. I would feel better about Hoke if they did.
[Meta: I thought given the nature of subject it was better to break all this off from Dear Diary.]
Duty Calls (xkcd)
In the wake of news that Brendan Gibbons had been [Michiganese for] expelled for his 2009 rape allegation, there has been precious little more information made available, lots of questions raised, and a whole heck of a lot of judgments from people whose expertise=="I'm on the internet!" I'll admit to personally being one of the latter. However, buried amongst over 2,500 comments in Gibbons-related threads have been a few with actual constructive and helpful experiences to better help us understand what went down and why it took so long. A few suggested they had actual knowledge of the specific events and investigation, or second-hand knowledge speaking to his personality and reputation, but all had credibility concerns. Some were confronted and had their posts deleted when they couldn't back it up; those who named their sources stayed up but none really offer anything definitive.
User Erik_in_Dayton posted and has been updating a rather comprehensive chronology of the things not in debate. They are:
[Hit the Jump for best answers to the hard questions]
User Cold War provided a few more bits of speculation after the WTKA show that conveniently serve as a starting point for addressing the known unknowns. I present those restated as questions, with counterpoints from the board:
1) Is Gibbons guilty?
The AAPD did not charge Gibbons, let alone convict him. On the other hand reported rapes are far more likely to be actual rapes than false accusations. You cannot completely discount the possibility that the accusation is false, because that happens. There doesn't seem to be a strong reason in this case, however, to disagree with the university's preponderance of whatever evidence they have. It is possible that evidence only covers part of the allegations and that the university is limited by the extent of its jurisdiction.
Public opinion is not held to the same standards as a court of law, and the fact that the university expelled him is strong enough reason to believe Gibbons may be guilty despite the lack of criminal charges.
2) Why didn't I read about this on MGoBlog before now?
I can answer for myself only. There were several points at which this appeared on the board. The first was in 2009, did not give the player's name, and I just didn't see it before the mods of those days unpublished it. The first I ever heard of it was 2011, when Washtenaw Watchdog pulled his stunt of handing out copies of the police report and his version of events at a Regents Board meeting, and this trickled out to the board. Actually a mod at that point had already unpublished it; I read the thread to double-check that decision and ultimately agreed with it.
At that time, given the well-established nature of the accuser (Smith), and the fact that Gibbons hadn't been removed from the team or apparently punished by the university or the justice system, there was a strong enough reason to doubt his guilt that it would not have been right to help publicize the allegations.
The second was last August when the gadfly published much of the same on his blog. At that time I discussed the matter with Brian and we determined to lock the thread (which had already gotten nasty) but to leave it so readers could find it and judge for themselves.
There are 280,000 unique visitors who come here every month, and publicizing a rape allegation would permanently damage that player's reputation. "Publicizing" includes publishing an FOIA'ed report of a case where no charges were brought, because far too many people will take the police report as fact rather than as a report. The effect on the accused would be akin to passing sentence, which is not the media's job. To do so without proof is incredibly irresponsible, Daulerioist even.
Lacking better knowledge, we'll trust that the proceedings of the various levels of justice—legal, campus, team, etc.—are functional. The downside is when they don't function properly we may fail to inform you in a timely fashion. The upside is we won't ever ruin somebody's life and then have to walk that back.
This goes for other players mentioned.
3) Did Rodriguez/Hoke/Dave Brandon believe Gibbons wasn't guilty?
…until at the latest, December 19, 2013 or sometime soon after, when there couldn't have been much more doubt? Maybe? This is a question we'd like answered but given the university's standing behind FERPA for even acknowledgement of the reason he was expelled, and it's a good guess their lawyers have made it clear they're not to be talking any more than they have to, I'm guessing it's going to be very difficult to pry those recollections out of them.
|With apologies to Keith Stone.|
Some readers questioned why Hoke wasn't forthcoming in the latest stages, e.g. did he know before the Iowa game that Gibbons had received his notice but hadn't appealed or spoken to . The university's reported timeline, which notes (at least someone at) the athletic office was informed on 12/19, is quite plausible since the AD's office is purposely kept out of the disciplinary system until a decision is to be announced.
4) Why did it take until 2013 to investigate an incident nearly 4 years old?
It is unclear and maddening, and the subject of the greatest speculation. Apparently, at least on the criminal level, 4 years to prosecute a rape case isn't unusual because of the psychological trauma to the prosecution's lone witness.
The inferral from the university and the Daily is the university's new policy on investigating all sexual misconduct, as an interim policy from 2011-'12 and a policy that went into effect right before the 2013-'14 school year began, created a different standard by which to judge the case and to initiate an investigation.
It is likely that because the initial incident occurred off campus, though it was, according to the police report, reported through university channels, the university didn't investigate it at the time. It seems likely that their first investigation began under the 2013 policy.
The interim policy and the real one are supposedly very similar, so the question remains why wait until September 2013 instead of launching this in November 2011 (when aforementioned gadfly Smith came to the Regents meeting with his letter). We have no lack for lawyers on the board, and many have speculated the university wouldn't take action (on a public case or any case) until it had an established policy, possibly for fear of the legal ramifications of doing so. That is, again, speculation.
The clearest guess to this answer is there was no criminal charges so nothing happened, and if the White House's mandate and the university's subsequent revision of its policy hadn't happened, nothing would have. Hail to better late than never.
5) If the victim wasn't saying anything, how did they proceed anyway?
This was pulled from MLive's timeline today:
"The new policy does not require a victim to report an incident in order for it to be investigated. Instead, the university is required to investigate all reports of sexual assault regardless of who makes the report. The standard of proof needed is also lowered."
A complaint may initiate a review but—this is important—it appears it may have gotten nowhere without the cooperation of the victim. This may have been widely misreported by us because the guy who worked at OSCR who gave us context earlier left out an important part and later tried to rectify that:
Yes, my apologies for not making that clear in the initial post. The rules on "standing" to file a complaint are a little sketchy when it comes to *institutional* complainants (i.e. there were many occasions when Housing or DPS would file a complaint that perhaps *could* have been filed by a wronged individual but was *also* a transgression against general Housing/University policies). But in a case like this, the complainant would almost certainly be the sexual assault survivor herself. No need to worry about some random student/professor/staff member reading these allegations on MGoBlog and taking it on himself to file and pursue the complaint with OSCR. Sorry again for the lack of clarity on that topic in the initial post, was trying to fit a lot of information in and missed that fairly major point.
Takeaway: even if she didn't start it, it seems likely the victim cooperated in the 2013 re-investigation that led to Gibbons's expulsion.
6) Was there a cover-up by the university or the football program?
There is no evidence for one. The only action the university appears to have ever done to keep back information is claiming FERPA when asked to confirm the reason Gibbons was expelled. There is suspicion because we never saw any disciplinary action until he missed the Copper Bowl trip this year. The injury that kept him out of the Ohio State game is of course called to question. These all come back to "did Michigan try to hide this for the month after the university made its determination?" There's nothing to suggest a four-year cover-up spanning multiple coaches and ADs.
That said, specifically regarding Gibbons missing the Copper Bowl trip for "family matters," I co-sign this byMGlobules:
There's some annoyance on the board at Hoke's characterization of Gibbons's absence as owing to family problem. I share that annoyance--it's a mischaracterization and tends to elicit sympathy when some more sterile characterization would have done. But this remains a fairly small thing, and might have been what Hoke was instructed to do.
Which is a nicer way of saying this by Bando Calrissian. Lying to journalists: meh. Playing it like he did nothing wrong: wrong and unnecessary.
Motive too is a giant stretch. In late 2009 Michigan's season was over and Gibbons was redshirting. He'd be a plurality participant in the worst kicking season in school history the following fall. He was a decent kicker in 2011, by which time Wile was on hand. A scenario where they protected Gibbons to another player for sticking up for him in an epically stupid manner is facially ridiculous.
7) How do I explain this to Sparty/Bucky on Facebook?
If you're being trolled by someone looking to make a rivalry mark stretch as far as possible, ignore or un-friend this person. Rooting for your kicker to make field goals against their team is not an act that mean you condone horrible actions later found to have been committed by that player. Rooting for maximum PR damage to your rival to the point where you don't even care what the facts represent is as despicable as it is typical of RCMB.
8) How do I explain this to human beings with souls?
The legal system failed, and so did the university until years later when they finalized a policy the White House (i.e. the Education Department) told them to put in place in 2011, because prior to that universities routinely failed their students in this regard and most probably still do.
There's a lot that's unclear, and plenty you should hold the university and its athletic department and its football coach accountable for, even if answers never come. A conspiracy to cover up a rape isn't one of those things.
Also, and I mention this because my friend who worked in SAPAC said it needs to be repeated as much as possible: getting intoxicated impairs your ability to make decisions; it does not forfeit your right to make decisions. If you do get someone who's drunk to do something, and when sober they say they wouldn't have done it, you have made them do something against their will. People sitting around joking about "having sex with drunk chicks" constitutes a rape culture.
It sickens me too. FWIW the shirts were taken down long before we found them to be creepy.
It would be nice if the AD or University Lawyers would admit they had Hoke make this statement due to privacy rights. I would feel better about Hoke if they did.
They probably can't say anything about what they told Hoke to say to avoid violating a student's privacy rights without violating the student's privacy rights.
Family matters is not outrageous. It was probably coached to him and it is not unique. See similar for Noah Spence at OSU. It is hard to understand how any suggest it is firable because it probably drafted or given to him. Are folks so naive to think otherwise?
Not in anyway to deflect any negative attention from this to ohio but...The 'family matter' comment was used in the case of Noah Spence(DE ohio from my hometown) which intrigued me because he lives around the corner from me. So I followed it to see what it was and it turns out he was suspended for the bowl game and I believe three games next season for some sort of violation concerning a banned substance. That's not a big deal to me because everything is banned these days and it didn't seem to be an effort to blatantly use PED's. But, seeing this conversation made me remember the 'family matter' release that ohio put out in a situation that was not a family matter. Also, if Hoke is not involved in an investigation/questioned in anyway, which I doubt he was as he was not our coach at the time of inncident, how much could the investigating bodies inform him of? One more question. If there was a police report filed and there was a 'preponderence' of evidence at that time isn't the DA's office obligated to pursue the case criminally? I don't know if this isn't a slippery slope lowering the bar at which we can find guilt.
I get the directory exception, but not your second point about releasing the violation that led to the expulsion. What I see in the FERPA statute is a list of "crimes of violence and non-forcible sex offenses" that doesn't include sexual misconduct as defined by the University.
Basically, the only non-forcible sex offenses that are exceptions under FERPA are statutory rape and incest (obviously not what we're talking about here) and sexual misconduct as definied by the University isn't necessaily forcible, which is required to meet the FERPA definition of "crime of violence".
What am I missing?
I wasn't specific enough about what sorts of violations could be announced to the public, and you're right to point to the list of "crimes of violence and non-forcible sex offenses" as being those that can be. However, we might - through my sloppiness and your on-the-ballness - have stumbled upon ambiguity in FERPA that causes The Daily's expert to say one thing while U of M's legal team apparently thinks another.
The problem to me with part (b)(6)(B) is that it has schools conducting disciplinary proceedings in which they determine whether a student violated the school's rules or policies with respect to a crime. What does that mean? Does it imagine universities deciding whether or not someone committed a crime as it is defined in a state law? Does it mean that someone is first convicted of a crime and then the school investigates whether the commission of the crime violates the school's code? The latter seems a little silly, because surely the school would typically have a handle on which of the State of Michigan's crimes were violations of its code. The former is obviously problematic too, because it has the school interpreting criminal law.
To muddy the waters further: U of M's sexual misconduct policy defines both "sexual misconduct" as an umbrella term and "sexual assault" as a more specific one. You're right that the former doesn't seem to inherently fit the types of behavior that makes the (b)(6)(B) exceptions list, but the latter arguably does. Does "unwanted or unwelcome touching" necessarily involve force? I don't know, and maybe there is no equivalent of U of M case law to clarify. Also, does Michigan make specific findings such as "sexual misconduct, specifically sexual assault"? Or does it just find "sexual misconduct"?
Without further information - and with a little bit of beer in me - I don't know whether Michigan could say that Gibbons was expelled for a violation of the sexual misconduct policy or not. I can see why The Daily's person would be firm in saying yes - though I wonder if that opinion isn't a bit of advocacy mixed in with interpretation - but I can also very much see the school erring on the side of not offering anything other than that Gibbons is no longer enrolled. Assuming he didn't opt out of the directory exception, they can do that.
It at least seems clear - though I'm quickly learning not to trust FERPA - that the school cannot release anything other than the "final results" of a disciplinary proceeding even when the determination that results from the proceeding is that the behavior of the defendant (for lack of a better term) fits into the (b)(6)(B) exception. So those hoping for a moment-by-moment account of the investigation likely aren't going to get it.
Does that make any sense?
"Does "unwanted or unwelcome touching" necessarily involve force?"
No. Unwanted or unwelcome penetration doesn't even necessarily involve force (except in those states where there's case law that penetration in and of itself involves force--Michigan isn't one of them as far as I know). If it did, the Michigan statute wouldn't need to include certain situations in which unwelcome penetration was a crime even if it didn't involve force, because there would be no such situation.
It was pretty clear to me that it's not just the University's definition of "sexual misconduct" that doesn't fit the FERPA exception list but "sexual assault" as well, because the definition hinges entirely on consent and not force.
I think the Daily's expert got it wrong--I had a pretty clear sense, reading the piece, that he hadn't done a careful analysis at all. I'm not even sure he had the University's policy in front of him--he seemed to be making a general argument regarding "violent crimes" without bothering to notice if the case in question involved one. It was pretty unimpressive.
One thing's for damn sure--if there's any doubt at all, there's no reason for the University to make use of their dubious right to release the information. Why risk the potential civil liability if you don't have to?
I was just reading a DOE publication that was supposed to provide guidance on the tension between releasing information during emergencies and protecting student privacy. http://www2.ed.gov/policy/gen/guid/fpco/pdf/emergency-guidance.pdf
I suppose you could argue that announcing that you found a student to have violated your "sexual assault" prohibition would be justified by a concern for student safety. In other words, you'd be annoucing, "Hey, this guy is dangerous" to protect people. The DOE may be suggesting that in the link. The ambiguity of the law, though, I think points schools in the exact direction Michigan went - expel the dangerous person but don't explain your reason to the public. The law should be amended if they want announcements to be made.
thank you for this (seemingly) thorough and readable summary.
That's not the "White House" proper any more than it's the "White House" that pays your Grandma's Medicare bill.
I didn't want to start making direct connections but it was very much a top-down decision, and I wanted that to be clear so this whole thing can be judged appropriately. It wasn't a branch of the federal government saying "let's go do something" one day. It was the result of a presidentially ordered task force after the 2010 Mizzou case in which the victim committed suicide.
Moreover, the author of the April, 2011 "Dear Colleague" letter was Department of Education Assistant Secretary for Civil rights Russlynn Ali, nominated to the position by the Current Occupant of the White House and confirmed by the Senate. There are of course plenty of good career lawyers in the Department of Education. A lawyer like Russlynn Ali, with her background, is placed in that position (by an administration of either party) precisely to extend the administration's social, political and administrative ideology. (I have every expectation that the "Dear Colleague" letter would in fact have been reviewed by several layers of White House and/or DoJ lawyers, so there's that too but now I think we are running up the score on this point.)
How MGoShoe got any upvotes for his comment is explainable only by something other than the facts. That first downvote is mine, for sure.
I just want to thank this blog for the tone in #8 and #9. There was an attitude of "why do we need to say "Don't Rape," its so obvious" in previous comments. That is wrong. Males standing up and declaring that this behavior is wrong is a powerful statement to other males (and females). That is a statement that can be made regardless of alleged guilt of anyone or political party/affiliation.
I'd love to see more sports blogs take these opportunities to educate when (as it happes far too often) a member of our team or another team finds himself in these situations.
Completely agree. There's a need for society to clearly reject and speak against rape. As a corollary, there are a number of ways we use language to sterilize what is happening.
For this reason, I believe "rape" is a much better term than "sexual assault." Maybe you qualify "rape with the words "forcible" or "violent" or "coercive." But call rape "rape," not the more sterile phrase "sexual assault."
Likewise, "domestic violence" is a lot more neutral and sterile than the phrase, "beat up his wife/girlfriend." Call it what it is.
I hate weasel words. "fired" or "let go/laid off" is better than "RIF," reduction in force.
Much of the last debate stemmed from someone who took Brian to task for not explicitly denouncing rape or saying how bad it is in his initial post. We all AGREE, and it would have been perfectly appropriate if he included it, but it's absence didn't condone or minimize the impact of rape.
I understand and agree to a point. This is a large podium and this is a perfect opportunity (not just Brian, but other sports sites as well) to be allies. Unfortunately, we do not "all AGREE" otherwise incidents of rape would not happen with the frequency that they do.
That specific commenter went about it in a rude way as well... better to enlist an ally than berating one.
Brian didn't write this article. :(
The single issue that I am having a problem with is the methodology used by the University to reach its conclusion as well as the ramifications of concluding falsely using "preponderance of the evicence" as the burden of proof. Presumably, the uinversity does not have a fraction of the tools that a prosecutor has available when making a case, the least of which is subpoena power, nor does the accused have the safeguards that constitutional protections provide in a criminal proceeding, at least that is what I assume. If someone knows otherwise, please share the information. Yet, once the University reaches a conclusion, the party coming out on the short end of the stick may have a black mark for life.
A "he said/she said" situation with alcohol involved, and the burden of proof is preponderance of the evidence?
If Gibbons were proven guilty in a court of law, I'd be happy to see his nuts get cut off, but i feel very uneasy about the change in burden of proof. Maybe this is the reason why it took so damn long for the University to develop their procedures as to how to implement the new rules that someone in Washington thought was an improvement.
As far as Hoke is concerned, I'd like to hear his story before reaching any conclusions.
This is why laws like FERPA are soo important in order to protect students. At the end of the day, this has no effect on my life and I shouldn't know about it. However, Gibbons' life has been destroyed, deserved or maybe not.
If he forced himseIf on this girl, go ahead and cut off his balls but it feels like (to me) all the evidence needs to be there first. If it was a drunken hookup with someone willing to file a police report after, he deserves to be expelled but not have that information made public to everyone.
I served on a Grand Jury before and the one thing that I think was not stressed enough was that indicting a person gives them a huge black mark they can't get rid of. The USADA had no problem bringing up how he would not bring someone before the grand jury without doing his due diligence but not the serious nature of an indictment.
It does make me extremely happy IF the AD wasn't made aware of this investigation until December. It's good to think the AD isn't all knowing and powerful.
Maybe his reputation is irrevocably tarnished to Michigan football fans, and he's been expelled from his graduate school.
But he's not in jail, he's not listed as a sex offender, and his life is not destroyed.
I think people are using some hyperbolic liberties and equating the University's punishment to a criminal punishment.
as a criminal finding.
I'm no lawyer, but all universities feel free to define the conditions under which they are willing to include someone in the university community, and is not unreasonable to extend prohibitions to include sexual encounters that include alcohol and have unpleasant outcomes, whether a rape is committed or not. I don't think its asking too much to ask someone to forgo these types of encounters as a price of participation in the life of the university, and I don't think there is doubt here that something of this nature transpired.
the accuser in question is not the woman in the incident. Seth is referring to the blogger who tried to present this as fact in 2009 and 2011
regarding this comment:
"publicizing" includes publishing an FOIA'ed report of a case where no charges were brought, because far too many people will take the police report as fact rather than as a report. The effect on the accused would be akin to passing sentence, which is not the media's job. To do so without proof is incredibly irresponsible, Daulerioist even."
I hope this blog applies the same standard for when these reports are for our competitors' players. For example, if this happened to Braxton Miller, would you be so diligent about protecting his reputation? Maybe you have been, but if you haven't, then the sincerity of the logic rings hollow.
Out of the three main rivals, each has had ugly accusations similar to the ones laid out against Gibbons, and all have been made to go away without real sources naming names (my rule of thumb is an established news outlet and a byline, not sure what Seth and Brian use for the front page).
I'm pretty sure we've maintained that standard. The roughest I've ever been on an opposing team's players was the 2nd time 20% of MSU's team attacked a dorm, and I said the repeat offenders obviously shouldn't be there anymore. I also questioned the wisdom of having one of the 2nd time offenders go right from prison to the practice field without any apparent punishment from the school, in light of the repeat offense.
With that we had a lot of police statements to go on, and it was very fresh, and ultimately everyone down to Dantonio agreed to dismiss both players in question. The events were widely reported, and anything I said--which was mostly about the hypocrisy of news coverage if I recall--had any potential to unfairly change the public's opinion of a potentially innocent person.
I never once commented on the ND rape case, for a lot of the same reasons as with this one.
But let's not forget what a total slimeball the teammate threatening dude is. Intimidation of a victim following a personal catastrophic event has got to be one of the more disgusting things I have heard. Whoever that teammate was (wink wink) he likely never showed much leadership on the field, his team was one of mchigans most rudderless an confused and took advantage of his stature, both physically and within the university world. He doesn't deserve whatever number he wore and I am as glad he is gone as I am gibbons. F**k you both, you are both a discredit to Michigan.
I also think for those who view the university from afar when they speak of "cover up" it is not to protect a no name kicker who not all that critical to the team in 2009-most of 2011, but a potential future all american linemen. I dont recall if he was a starter in 09 or 10 but whatever the facts or opinions in the case, the timing of this looks VERY bad. The can was kicked down the road from 2011 to 2014 (for whatever reasons you may or may not believe in) just after which time (a) said lineman used up all eligiblity and (b) the president of the university handed off the baton to a new president. It just really smells.
it is not clear to me at all that Lewan intentionally intimidated someone that he believed to be innocent. the comment in the police report (which is the textbook definition of hearsay) it sounds like Lewan actually believes that Gibbons is innocent and wrongly accused and he is voicing his anger that his friend is (as Taylor believes) being victimized. I still think that (if he said it) it was an inappropriate thing to say, but context convinces me that it is not a threat intended to cull a rape victim into submission
I interacted with Taylor Lewan a fair amount in 2012 and I would be shocked if he knowingly threatened a rape victim and allowed such a horrific act to go unpunished. He always referred to females respectfully in my presence and relationship issues came up several times. Could I see him lash out at someone he percieved as unjustly threatening a friend? Absolutely. He is fiercely loyal, perhaps to a fault. He loves the people around him and it shows. He is also still a young man growing up (at least he was in 2012) with some maturing to do.
Everyone is entitled to their uninformed opinions. Disowning someone who gave a great deal to the University of Michigan on such insubstantial information strikes me as deeply wrong. If you have firsthand information that the rest of us are not privy to, that might be a different story.
As for me, I fully support Taylor unless I see something more concrete than "my friend heard that my friend heard" and the substance of the supposed comment is at worst misplaced loyalty to a friend. Good luck in all you do, Taylor; you are a Michigan Man until I see some reason to believe otherwise.
The strength of some of the uninformed opinions on this board is amazing. I'd rather go it alone than have some of you guys at my back. An investigation should take place and so should punishment (including disapprobation) if it is warranted, but it should be fair and informed.
"Motive too is a giant stretch. In late 2009 Michigan's season was over and Gibbons was redshirting. He'd be a plurality participant in the worst kicking season in school history the following fall. He was a decent kicker in 2011, by which time Wile was on hand. A scenario where they protected Gibbons to another player for sticking up for him in an epically stupid manner is facially ridiculous."
They probably weren't protecting Gibbons. Lewan on the other hand...
It stuns me to think that there are males out there who believe that "having sex with a drunk chick" is anything but the worst possible thing you can do. I expect that from the lowest members of the species, the miscreants, but not from those who study hard to get their ACT's above 30, and who are relatively sophisticated and well-read. To have to make it a point - #8, I believe - is saddening and sickening. To have to reiterate what should be as obvious as "don't point a gun at an innocent person and pull the trigger" is just beyond me.
But it also stuns me that women who worked so hard to get their ACT's above 30 will get so drunk that they literally can't see straight or think straight or walk straight - or know who they go home with. My son will get the talk, but so will my daughter. As females, we have to protect ourselves against this kind of thing because society hasn't done such a great job so far.
Intelligence does not equal wisdom. The two sets of actions you are describing have little to no bearing on the other. To add to that, teenagers have next to no common sense.
Thanks for this. I think your second paragraph is important, and should not be readily dismissed or attacked as "victim blaming". It's important for everyone to take responsibility for their safety, because there are and always will be bad actors out there looking to take advantage, sexual and otherwise, of people who don't have their wits about them.
Regarding your first paragraph, I don't think many people would push back against the idea that having sex with a falling down / can't see straight person is bad, full stop. Where you will get pushback is with the idea that drunk = not responsible for your actions only applies to sex, and only applies to females. There's an important destinction between laughing about taking advantage of drunk girls and honestly questioning whether it's a good idea to criminalize sex between two intoxicated persons (with the built in sexist and heteronormative assumption that the male is the aggressor and the female the victim). I think it's healthy and important to discuss the latter openly, without conflating it with the former. (There is also a distinction that often gets lost between "things that are wrong" and "things that should be legally punishable")
Obvious disclaimer is that what Gibbons was accused of is not sex that two drunk people have and one regrets when sober. It was definitely rape. It's one thing to question the certainty of the event, given the evidentiary standards, but it's not okay to question whether what Gibbons is alleged to have done is okay.
You make some excellent points, especially differentiating the criminalization of sex between two drunk people (not my intent). And my second paragraph was in no way meant to blame the victim. Its intent was to keep women from becoming victims in the first place, and more importantly was not a judgement about this particular victim, whom I don't know. I also don't know the details of the assault, how much alcohol was consumed, etc...I'm just responding to #8.
As a parent of a girl, I'm acutely aware of how girls present themselves to the world and how they can be perceived. Some people feel that females should be able to dress any way they want (or drink as much as they want) without fear of being assaulted either verbally or physically. I don't even want to have that argument. I want my daughter - and all young women - to know that their sexuality isn't their identity. Their intelligence, strength, and accomplishments come first.
I'm older than most on this board, and so perhaps the years have given me a different perspective. I drank in college and high school and did crazy, stupid things. But there was always a line for me, I was always aware of letting things go too far. The scary thing about consenting drunk people is, the next morning, one could decide that he, or she, hadn't consented afterall. So in the drunken heat of the moment, both people say yes, but then the next morning, in the ugly light of day, a mind changes. So then is that rape?
The SAPAC volunteer in me says "yes, it is."
Should it be though? How can you expect an intoxicated person to predict the future regret or non regret of another equally intoxicated person? Are both parties guilty of raping each other? Is it Schrodinger's sex, simultaneously rape and not rape until either someone regrets it or both parties agree on their deathbeds that they had a great time?
I've consented (soberly) to plenty of things I later regretted. And I've consented (drunkenly) to plenty of things I'd regret NOT having done. I would expect no sympathy if I drunkenly "consented" to drive into a lamppost.
To my mind, the crime of rape needs some mens rea, some ill intent, on the part of the rapist, and I don't think it's fair to tie that to the presence or lack of a penis, which is what the SAPAC standard seems to do.
That doesn't mean that drunken (but functional, not blacked out) sex is necessarily good, or that it can't be hurtful the morning after. I think a good person would recognize that if you have sex with someone while their inhibitions are lowered by alcohol, it's more likely that the act will be regretful or otherwise emotionally scarring. This is bad, so the good person will avoid it out of respect for themselves and their partner. But while we should strive to meet that standard, and educate people to that standard, that doesn't make everyone who fails that standard a rapist.
I suppose it's a matter of where do we as a society draw the line? If my son came home and said, "Something awful happened......." and recounted the scenario you lay out, my heart would be broken. Because while I know he's not "A Rapist", he let himself get into a situation that led him to engage in a criminal act (I don't know if rape is defined the same in every state - let's say it is). My son is a sweet, kind person. But his hypothetical act was criminal. So how do we punish him? He can't go unpunished - that would set a terrible precedent, allowing people to get away with all sorts of things just because they were drunk and out of control.
If you're responding to me, I'm going off your scenario of two people who have consensual sex, one of whom decides "in the harsh light of day" that they really wish they hadn't. No illegally coercive behavior was implied - do you still think that's criminal? Do you think it would be fair that your sons life be ruined because of the decision to have sex with a willing partner while mutually intoxicated?
You're still making a very gendered assumption of how sex works. A man can have his inhibitions lowered to the point where he has regrettable sex just as easily as a woman - or have you not heard of "beer goggles"? If a guy gets drunk and hooks up with his ex, is his ex a rapist? Why not, by the SAPAC standard. But I have a feeling if he brought that complaint to the university he'd be laughed out of the office.
I feel like my original point from an hour ago has gotten lost in all this discussion of what is rape (non-consensual sex).
The point that I guess I was unsuccessful in making was this:
In #8 in Brian's post, he talks about how a rape culture can come out of guys laughing about having sex with drunk chicks, among other things. I intended to say that I found it hard to believe that members of this board would need to be told that, that they'd already know that laughing about having sex with drunk chicks was a bad thing to do. I also wanted to point out that women in the same demographic group have a responsibility as well, and that's to not get so drunk that they can't see straight. That would help them avoid being in a situation where they're not conscious of what is happening to them. It was not a "blame the victim" comment; it was meant to empower women to have some control over what can happen to them.
To my original point: don't get so drunk that the next day you either a) realize you had sex with someone but aren't sure if you said yes, which would lead you to feel victimized whether it was legally rape or not, or b) realize the next day that the woman you thought said yes is now saying she said no and has called the police.
That was the point where many in the SAPAC office and I parted company (and why I responded earlier with "the SAPAC volunteer in me would say 'yes'"). At some level, we are all responsible for our own actions.
As I mentioned just now in another response, SAPAC would define alcohol impairment as a valid reason why consent could not be given; i.e. it puts the would-be attacker in a position to control/coerce the victim. I agreed then as I do now that it's a grey area, although simply regretting a one-night stand that may have been fueled by alchohol shouldn't be a valid reason for one party to accuse the other of rape. Was that the case with Gibbons? Only he and his accuser know for sure, but I do know that it at least afforded enough doubt that a conviction would have been a remote possibility.
broading the definition of rape to the point of essentially marginalizing it. That's horrible. Please don't confuse poor decisions with rape because rape is an awful thing and shoudn't be conflated with having sex with someone with poor judgement.
No, I didn't, and I stand on the fact that I was a volunteer at the University's SAPAC (which, in case you're unaware is the "Sexual Assault Prevention and Awareness Center") to make the case. All forms of sexual assault are disgusting and the worst forms, inclusive of rape, are monsterous - even evil - acts.
The reason that SAPAC classified a person under the influence of alcohol as a possible sexual assault victim (whether or not it could be considered "rape") was because the use of alcohol impaired the victim's judgement and diminished (even eliminated) his or her ability to consent. If you argue with that point, take it up with the SAPAC office staff and see how far you get.
While I understand the use of this classification by the SAPAC, I do think it's a slippery slope to say that any intoxicated person, as a result of being intoxicated, is unable to provide consent to a sexual act. By that definition, Gibbons was also a rape victim since he was under the influence of alcohol and could not have provided consent himself.
The fault lies in the phrase "under the influence of alcohol." There is, obviously, a large difference between being intoxicated and having had so much to drunk that you can't stand up, talk clearly, and/or remember the details of what's transpiring around you.
Of where my views differed from some at SAPAC who would strenuously suggest that women could not be guilty of rape because men hold the power in our society. They would also cite studies (I never saw them so I can't comment on their veracity or the data sources) that suggested most examples of women raping women were in fact, the result of coercion by men.
I thought these opinions were over the top and I still do. However, I also didn't have their perspective. Several of the women with whom I worked (SAPAC was largely but not exclusively staffed by women in the late 1980s) had either been raped themselves or were close to other women who had been. Most staffed the Rape Crisis Hotline, were often the first people contacted by victims after a sexual assault, and would frequently accompany victims to the hospital ER or clinics. I can well imagine that their views were forged from anger and unspeakable pain.
Changing your mind later is not rape. There needs to be more to it than that. It appears that in the Gibbons case there was.
Read my responses elsewhere for the clarification.
No, that is not rape...
You are responsible for your actions when drunk. You get drunk and drive a car, you get a DUI; you get drunk and have sex with someone you otherwise wouldn't have, you have regrets, not a means for rape charges.
DISCLAIMER: Regular sex that is consentual in the moment between two drunk people is very different from sex that occurs when a female is so drunk she can't even forumlate the words "no"... That IS rape.
I agree with your second point completely
Taking advantage of, or targeting, a severely intoxicated female is very different from two drunk people having sex, which while consentual at the time, is maybe a bit regretable (for EITHER PARTY) upon waking the next morning. I (a male) have had sex with someone while under the influence of alcohol that I more than likely would not have if I was sober, but I would never claim I was taken advantage of; being drunk doesn't mean you are no longer responsible for your actions. According to that same point, a drunk guy having sex with a girl who is so intoxicated she cannot even think or walk is responsible for that choice, and I DO think that constitutes rape. I understand the issues with trying to draw the line between simply being drunk but cognizant, and black-out drunk- it is not simple, but things aren't always simple...
This is obviously not what happened in Gibbons' case, and his actions are sickening. I do not mean to defend rape or rape culture, I have family and friends who are victims and take it very seriously, but to label all sex that occurs under the influence of alcohol "rape" is beyond ridiculous to me, and actually pretty insulting to real cases.
Only the reasoning of females is affected by alcohol.
See, that's the sort of glibness that gets people defensive and makes a fair discussion on this so damn difficult. Thank you for the upvote, but please don't defend/agree with me like that.
the back. If you look closely, you can see that I was not replying to you, and I most certainly did not upvote you. Glib, perhaps, but I'm not going to have a serious conversation about a comment that paints an entire body of people with a broad brush while recognizing the affect that alcohol can have on another group.
Please note that I am not defending sexual assault, I am replying to a totally one-sided, misandronistic comment.