You are currently browsing Angus Johnston’s articles.
I’ve just hit Tallahassee for the 61st annual National Student Congress of the United States Student Association, and I’ll be blogging from the ground here for the next six days.
USSA is the oldest and largest student-led national student organization in the United States. Founded in 1947, it’s a confederation of student governments and State Student Associations that prioritizes grass-roots organizing and legislative lobbying from its headquarters in Washington DC.
Much more about USSA, and this year’s Congress, to come…
A few months ago I was out at a fancy ice cream place with my eight-year-old daughter. She got chocolate chip, and on a lark I asked for a taste of tarragon and pink peppercorn. It was delicious, and I wound up buying a cup.
I offered her a taste. She declined. I thought she’d really like it, and I thought she’d be chuffed to have tried such a weird flavor, so I offered again. She declined again. “Just one taste,” I said.
“No,” she said. “My body, my choice.”
I’ve used that phrase with her and her sister since they were toddlers, trying to drum it into them. Don’t want to hug your grandma? Don’t want your sister tickling you? Don’t want to wear the mask from your Halloween costume when you trick-or-treat? Your body, your choice.
But this was the first time she’d used it on me. She was right. And I apologized.
Her body, her choice. Period.
The Department of Education recently issued new guidelines on campus policies on sexual assault, including a directive that judicial bodies investigating sexual assault allegations employ the “preponderance of the evidence” standard in their deliberations.
“Preponderance of the evidence” is the standard commonly used in resolving civil cases — lawsuits — in the United States. It basically means that the question at hand will be resolved by a determination of which party’s version of events is more likely to be true. (“Beyond a reasonable doubt” is the standard of guilt used in criminal cases in the US, and there are other standards used in other circumstances, too.)
I don’t yet have an opinion on the DOE’s directive, and I think it’s an important question, so I’ve been reading up on it. And I just noticed something really weird.
As I noted above, “preponderance of the evidence” basically means that the judicial body will determine which side of the case, based on the evidence, is more likely to be in the right. If they come down on the side of the complainant, even hesitantly, the defendant is found guilty. It makes no difference, in other words, whether they’re completely convinced or have major doubts — whichever side they think is more likely to be in the right is the side that wins.
A common way of explaining this is to say that preponderance of the evidence means that if even 51% of the evidence presented supports one party, that party gets the decision. It’s an arbitrary number, of course — there’s nothing magical about 51% as opposed to 55% or 50.623% — but it gets the concept across. Whoever has the stronger evidence wins. Period.
So you see the 51% thing a lot. It’s all over the place — the number 51 appears in about a quarter of all web hits for the phrase “preponderance of the evidence.” But occasionally you see other numbers, like 50.1%, or even 50.000001%. And here’s where it gets interesting.
The number 50.1 appears only rarely in Google hits on “preponderance of the evidence” — a few times per thousand. But in pages in which the word “rape” or one of its variants appear as well, 50.1 shows up almost three times as often. You see a similar bump for 50.01, 50.001, etc.
Those numbers aren’t that big. It doesn’t seem to be a complete glitch — the numbers go in the opposite direction when you add “civil law” to the search instead of “rape,” for instance — but the magnitude isn’t huge.
Check out what happens when you substitute “campus sexual assault” for rape, though. The number 50.01 shows up three times as often as you’d expect, and 50.0001 shows up nearly seven times as often. Plug in “Title IX,” the campus sex-discrimination law on which the ruling was based, and 50.0001 shows up more than fifteen times as often as it should.
What does all this mean?
Well, one thing it doesn’t mean is that a campus assault case in which 50.0001% of the evidence supports the complainant is going to result in a conviction. The very concept of “50.0001% of the evidence” is meaningless — the idea that you could quantify the evidence in a sexual assault case to a precision of two parts in a million is absurd.
And that, of course, is why “50.0001%” is a figure of speech that you hardly ever see in discussions of this legal standard. It’s not coherent. It’s not meaningful. It’s not illuminating of the issues at stake.
And that is precisely why it keeps coming up in discussions of Title IX and campus sexual assault. Because “preponderance of the evidence means the side with 50.0001% of the evidence wins” is a lot scarier than “preponderance of the evidence means that the relevant body looks at all the evidence and rules for the party it thinks has the stronger case.”
Today is Nelson Mandela’s 93rd birthday, which seems like as good a reason as any to tell this story.
Mandela’s first experience in political organizing didn’t come in the anti-apartheid movement. It came in student government at his undergraduate college, the University of Fort Hare.
In his senior year, Mandela was nominated for Fort Hare’s Student Representative Council, a six-member student government. But in a mass meeting shortly before the elections, the student body of the college voted to boycott, citing the poor quality of the food on campus and the weakness of the SRC itself.
Twenty-five students out of the campus of 150 broke the boycott and voted in the election, and Mandela was elected. He and the rest of the SRC-elect refused to take their seats. Another election was held, a similar number of students voted, and Mandela again refused to serve. Mandela again refused to serve, and was expelled for his protest. He would go on to finish his undergraduate education by correspondence at another university.
Julian Assange, founder of Wikileaks, is back in court for a second day today, appealing an order that he be extradited to Sweden to face questioning on rape charges. As I noted yesterday, his defense team has shifted tactics in this latest round of argument, and they now claim that the charges against Assange, even if proven, don’t amount to rape. However “disturbing” or “disrespectful” his actions may have been, they say, however much he “push[ed] at the boundaries” of the complainants’ wishes, the two women ultimately consented to the acts in question.
Today Clare Montgomery, a representative of the Swedish prosecutors, is rebutting those arguments, and she’s pushing back hard.
The fact that the two women eventually acquiesced to advances they had originally rejected, Montgomery argues, is evidence not of consent but of coercion. In their statements to police, she says, the complainants describe “circumstances in which … they were coerced by physical force or were trapped.” In two cases — one in which Assange is alleged to have ripped a condom, and another in which he is accused of penetrating a complainant without a condom while she slept — “the complaint is unprotected sexual intercourse where consent had only been given to protected intercourse.” In the latter of these instances, she notes, “nobody suggests she was positively consenting.”
What is at stake here is the fundamental question of what constitutes consent in a sexual encounter. Yesterday Assange’s attorneys suggested that an encounter that begins non-consensually may become consensual if the passive party eventually agrees to the other’s advances, while today Clare Montgomery is arguing that such grudging consent is no consent at all.
The two complainants “let him continue,” she said this morning, but that did not make his actions legal. In fact, that construction is itself evidence of coercion, and thus of rape. “This is non-consensual,” she argued. “It is coerced, and the words used — ‘I let him’ — means non-consent.”
The hearing has just resumed for the afternoon session. More later if events warrant.
Update | More from Clare Montgomery on the incident in which Assange is alleged to have penetrated a complainant while she slept:
“The evidence is absolutely clear that this complainant may be legitimately described as given evidence that she had been penetrated whilst asleep. Furthermore, being penetrated in a way which [it] is absolutely clear … she had not consented to, namely unprotected. It is doubly clear there is no consent. She may later have acquiesced. That didn’t make the initial penetration anything other than an act of rape.”
Montgomery went on to say that the complainant had, by her own account, been “shocked and paralyzed” when she realized what Assange was doing, in part because she had never had unprotected sex before in her life.
Second Update | Montgomery has accused Assange attorney Ben Emmerson of “winding the law of consent back to the 19th century” with yesterday’s arguments.
studentactivism.net 
Recent Comments