Slicing "Yes": The UCSD Case

It's probably way too early to claim the UCSD John Doe sexual assault case as an unalloyed victory for those seeking something recognizable as justice; presumably there will be appeals, because the machine behind Title IX has a vast army to call on, and if we have learned anything, a jobs program needs defending at all costs, by both its administration and beneficiaries. (You can read the full decision text here.) But now that a real adversarial proceeding has kicked in, and the sanitizing blaze of sunlight admitted to the room, the accuser's puerile and narcissistic accusations have received the sort of response they duly deserve, i.e. contempt.

"The Court determines that it is unfair to Petitioner that his questions were reviewed by the Panel Chair for her alone to determine whether or not the question would be asked and then answered by the witness," Pressman wrote. "While the Court understands the need to prevent additional trauma to potential victims of sexual abuse, this can be achieved in a less restrictive manner. The limiting of the questions in this case curtailed the right of confrontration [sic] crucial to any definition of a fair hearing."

Pressman noted that seven questions not asked by the panel chair dealt with text messages between John and Jane. The panel chair also paraphrased a question regarding John and Jane's relationship after the alleged sexual assault and allowed Jane to claim that their post-encounter relationship was not relevant. Further, Jane's questions were not given the same prior review as John's.

Pressman also decried the school disallowing John to cross-examine and question the only "evidence" at his hearing beside the accuser's story. Submitted to the hearing panel was an investigative report conducted by Elena Acevedo Dalcourt, the school's complaint resolution officer. But Dalcourt did not attend the hearing, which prevented John from questioning her account of the incident.

Most crucially,

John was also not provided all of the evidence against him that was found in Dalcourt's report. He was not given the names of the witnesses interviewed by Dalcourt or all of Jane's statements prior to the hearing.

Beyond the unfairness of John's hearing, Pressman lambasted the university for continuously increasing John's punishment without any explanation. Upon the finding of responsibility, John was first sanctioned to a one-month suspension and required to attend sexual harassment training and counseling. He was also told never to contact Jane again, "due to the potential for ongoing harm to the complaining witness."

After John appealed the ruling, his sanctions were increased to a one-year suspension (meaning he would have to reapply to the university), put on non-academic probation and required to attend ethics workshops – on top of the original sanctions.

When John appealed that decision, his sanctions were increased yet again to a one-year-and-one-quarter-suspension. None of the additional sanctions were given any explanation.

 Which is to say, this is sound of UCSD administrators saying, our phony baloney jobs are on the line if we find you not responsible, so STFU. The reality of this case is the absurdities and rank injustice that "yes means yes" laws inflict on college men who happen to have consensual sex with women who later withdraw that consent, in whole or in part. Scott Greenfield today posted an excellent review of the charges that show just how inane they were. Between two instances of consensual sex that neither party disputes came a session of heavy petting that Jane Doe claimed constituted sexual assault.

There were only two people present when this alleged assault occurred, the students.  This is hardly unusual, given the nature of the conduct, but what distinguishes the allegations is the undisputed surrounding circumstances.  Sex before, all good. Sex after, all good. Touching in the middle, unwanted.

There is no allegation that the female student said “no” to the touching.  Of course, under the “yes means yes” concept of rape and sexual assault, she is under no duty to say no, to protest, to take any action to communicate to the male student that his touching was unwanted.  Indeed, the female could otherwise enjoy the touching without it being subject to affirmative consent.

Notably, the male student admitted sex before. He admitted sex after. He denied, consistently, the digital penetration that was the subject of the disciplinary hearing.

There is no mechanism available that could have protected the male from the accusation, short of being provably far away.  No signed contract. No video tape of consent.  No realistic (yes, there are some theoretically crazily intrusive possibilities) safeguard that would have prevented the accusation.

And then there's the matter of exculpatory post-sex texts which the investigating panel discarded without any justification. The entire post, of course, is worth your time, but I part with his concluding graf:

Somebody at the college needs to be the grown-up and say, “no, this wasn’t a rape, this wasn’t a sexual assault; this was just the normal regret that occasionally follows a young person’s experimentation with sex as they mature.”  But nobody says that anymore.  No grown-up will tell a female student that they weren’t raped, just because they weren’t raped.

Ayup.