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May 13, 2013

More Anedotal Reporting on Military Rape

Here we go again:

The incident she remembers most is an assault that took place July 2000, shortly after she had turned 18. She was a newly arrived Basic Training graduate at the Defense Language Institute. It was then that Driessel was successfully “sharked” within the first few weeks of arrival after accepting a dinner invitation from a prior-service soldier 15 years her senior. (“Sharking” was a term used by the male recruits; when new females showed up, it was like a bucket of chum thrown into the ocean.) He had badgered her relentlessly from the day she’d shown up, and despite her misgivings, she thought he might leave her alone if she agreed. (In a way she was right—he was never heard from again after that "date.")

Question #1: how did this young woman get through basic training without learning that the UCMJ explicitly forbids fraternization?

After dinner, he stopped by a convenience store and bought a soda in a big plastic cup. He dumped half of the soda onto the parking lot pavement and pulled a bottle of vodka from his backpack, replacing the soda he’d just poured out.

Let me get this straight: we're talking about a young woman who was "badgered" into going on a date "against her misgivings" with someone senior to her. She watches him dump half his soda out and fill the cup with vodka. She is 18, which is under the legal drinking age. She is clearly intimidated by her date (otherwise, she would have just said no and reported him if he kept after her).

And she accepts an obviously too strong drink from him and drinks it.... why???

In short order, Driessel was drunk. Consent wasn’t exactly an option because by the time they got back to his room, she was barely conscious. Floating in and out of awareness as he pulled her shoes off, she was lying on the bed, essentially immobile—she remembers him shifting her limbs around to take the rest of her clothes off. Driessel didn’t resist or say no. By agreeing to have dinner with him and then drink his alcohol, she felt that whatever was happening may not have been something she wanted, yet did not jibe with the definition of rape she’d had in her mind: gang rape, forcible rape, aggravated rape—in other words, “real” rape.

Driessel went back to her room the next morning. She thought she could just put it behind her, but ended up calling her mother in tears several days later. She was confused—she felt violated and ashamed. There was also the worry that reporting what had happened might have lead to disciplinary action against her, due to underage drinking. Concerned about her mental well-being, Driessel’s mother called the drill sergeant regardless. Driessel was called into the sergeant’s office the next day and recounted what had happened. After formally reporting the incident (which at the very least involved the crime of providing alcohol to a minor), she heard nothing more. Driessel was not referred to the police or any counseling services. The whole experience was if it had never even been reported.

The list of things that went wrong here is so long that it's hard to know where to start.

1. Senior NCOs should not be asking junior personnel out on dates. It's not as though they're unaware of the ban on fraternization.

2. Junior personnel should not be going out on dates with senior NCOs. It's not as though they're unaware of the ban on fraternization.

This scenario should have set off alarm bells in either the civilian or military world. If you're an 18 year old civilian, in what world is it smart to go out on a date with a 33 year old man who won't take no for an answer and hands you an industrial strength drink in the parking lot of a convenience store? What could possibly go wrong?

If you're a young recruit fresh out of Basic training, it only gets worse. In what world is it NOT painfully obvious that a senior NCO or officer (in other words, someone who gets paid to enforce the rules) who violates those rules by badgering you to break the fraternization regs and then illegally offers you a drink (violating both military and civilian rules) is not someone you should trust to observe the niceties?

3. Women shouldn't go out on dates with men they're not interested in who "badger" them, "despite their misgivings".

4. The notion that rewarding "badgering" will cause the badgerer to stop is delusional.

5. Underage people should be not be drinking. Amazingly, there are rules against underage drinking in the UCMJ. It's actually a punishable offense! We hear there are also laws in the civilian world against underage drinking. Ergo, the conscious decision to ignore both civilian laws and military regulations can only have been caused by insufficient training... and unwillingness to hold commanders responsible for the intentional off duty actions of every single person under their command:

Service members are adults. If we think they are incapable of making responsible decisions, then why are we giving them guns? It scares me because commanders already get blamed if soldiers break laws or just do dumb, immature stunts. My husband is a company commander so I have a bunch of examples, but here's my favorite: One of my husband's soldiers (new guy, from the National Guard, fresh off the plane) showed up drunk to work and got belligerent. MPs were called, he was given a breathalyzer, etc. My husband got asked by the Battalion XO "Did he get a safety brief? Has he been told not to show up to work inebriated?" Yes, I sh*** you not, my husband was specifically supposed to tell this soldier--who had been in the unit for about a week--"Don't show up to work drunk." Shouldn't that go without saying? Are commanders also supposed to specifically say "Don't drive drunk, don't beat your wife, etc etc"? Prevention and education are needed, but if people are too stupid to function, let's take their weapon away and get them out of the service and off the taxpayers' hand-outs.

6. When presented, weeks later, with an unsubstantiated charge of "rape" (for which there is no physical evidence), commanders should ignore the law and bring the "rapist" up on charges. Never mind that there's no evidence to prove the victim was incapacitated by the alcohol she chose to drink. Clearly, had this case been handed off to civilian authorities, arrest, trial and conviction would have swiftly ensued.

Remember, military rape is skyrocketing:

unwanted sexual contact over time.png

And the military doesn't understand rape (or do enough to educate service members about the dangers):

Just a personal anecdote, but I do think that the army has made some progress in terms of addressing a culture of sexual violence. When I first went to basic, we got a 'training' on sexual assault. The training basically advised women to avoid dark alleys, strange men, and alcohol. For the men, we were told to not be alone with women because things could be 'misinterpreted' and to fight off dark strangers from gang raping female soldiers. Basically, as clichéd a take on sexual violence as is possible. Just a month ago, we got another 'training' (yes, the army is huge on 'check the box,' soldier is now trained on subject, on everything from the law of war to suicide to boating safety). This training actually focused on acquaintance rape and the idea that fellow soldiers have a duty to stop in when they see problematic situations with alcohol and soldiers. The video shown produced some laughter, but it did at least somewhat realistically simulate an acquaintance rape at a party with alcohol. There was even a reference to male on male assault in the training, though it was fairly muted and mainly focused on not demeaning men who report (still, a positive step). Just some observations from a current 11B (army infantry).

Sure, there's that whole inconvenient report no one writing about this seems to have read, but....

13 YEAR OLD ANECDOTE!!!!

Don't get me wrong - no one should ever have to be raped. I don't agree this anecdote actually describes rape, though.

At some point, if we ever mean to be taken seriously, women are going to have to stop expecting Someone In Power to protect them against their own freely made decisions. Should we be asking whether the military has a rape problem?

Sure - and the fact that DoD spends a ton of money every year on education, training, counseling, and studies like this years' report show that they're asking the right questions. But when we get hysterical activists who haven't even bothered to inform themselves seriously suggesting that somehow, the military can prevent something that no civilian law enforcement agency has ever been able to prevent is just plain irresponsible.

Holding the military to a far higher standard than civilian law enforcement is just plain irresponsible.

Commanding officers cannot follow troops around 24/7 in hopes of preventing sexual assault. Rules do not prevent Bad Things from happening. What they DO is provide a way to address Bad Things after they happen. If sexual assault victims refuse to come forward, refuse to cooperate with law enforcement (as they do in too many civilian and military cases), report assaults but then give up the first time they encounter indifference or malfeasance, refuse to follow military regulations and civilian laws themselves, or refuse to take reasonable measures to protect themselves, how is the military to protect them?

Posted by Cassandra at May 13, 2013 07:10 AM

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Comments

Your work on this topic has been quite strong, but I do have a question. You say: "I don't agree this anecdote actually describes rape, though. At some point, if we ever mean to be taken seriously, women are going to have to stop expecting Someone In Power to protect them against their own freely made decisions."

So let's say that this doesn't describe rape -- because she didn't say no, being drunk; because she got drunk, when she should have known it was unwise; because she was breaking the law against drinking and the rules against fraternizing; because so many bad decisions of hers enabled the senior NCO to take sexual advantage of her.

What, then, do we call it? Consensual sex? Clearly not that. So we'd need a third category of non-rape that is still nonconsensual sex. How do you want to define that category?

Posted by: Grim at May 13, 2013 10:14 AM

Here's the problem I'm having.

Two statutory adults go out on a date. Both of them choose to drink from very strong drink. Neither of them is forced to drink this very strong drink.

One of them knows it's against the law for her to be drinking AT ALL. So she is knowingly breaking the law. The other may or may not know her age.

They go back to his place and have sex. She NEVER says no, or even lets on that she doesn't want to.
Now unless we want to criminalize the inability to read minds, I'm not seeing rape or even any form of coercion in this scenario.

Moreover, I'm trying desperately to envision any other employer who would be held responsible for the voluntary actions of two employees occurring after work hours and having NOTHING to do with their job responsibilities.

If one or both employees knowingly broke laws while off duty, that only lessens any tenuous argument for holding the employer responsible. Employers have NO responsibility to prevent their employees from doing stupid and/or illegal things in their free time.

So whence comes the expectation that the military can or should be able to prevent people from doing things no authority, anywhere in human history, has EVER been able to prevent people from doing?

The guy in this scenario has broken military rules against fraternization and could (arguably should) be punished. Whether or not there would be sufficient evidence in this case to prosecute him successfully is doubtful. But I think the command erred in not investigating once they were put on notice that one of their people was violating the regs.

I think I would call this foolish or bad judgment sex. People do things they don't want to do in relationships all the time. They allow themselves to be guilted or pressured into unwise acts they later regret.

But the military isn't in loco parentis here. This happened off duty, and the woman in question was 18. We're acting like she was a child. By the time I was 13 or 14, I knew not to encourage romantic overtures from guys who were older than I was.

I knew that if you went on a date, rape was a possibility.

I knew that it's weird for a guy in his 30s to ask a young girl in her teens out.

Our instincts in this case are to be outraged. And I *am* outraged by this creep's actions, but I'm also outraged and extremely skeptical of the notion that the military can prevent adults from taking foolish risks or breaking rules/laws.

Posted by: Cassandra at May 13, 2013 10:33 AM

"What, then, do we call it? Consensual sex? Clearly not that."

Why not "that"?
She consented when she said she'd go on the date.
(With a guy she didn't even like! Really?!?)
She consented when she got into his car.
She consented when she watched him make an unGodly strong drink and then drank anyway -- apparently a lot by her description of her level of inebriation.
To Every Single Action the guy took, she consented.
Should the guy have taken advantage of her in her compromised state?
HELL NO!
But, then we all know that this was his plan all along - get her out, get her drunk and get his way - don't we?

Posted by: DL Sly at May 13, 2013 12:40 PM

Sly:

Why not that? Because she didn't consent to the sex. If we choose to include in the category of "consensual sex" acts of sex where the woman is too drunk to say "yes" or "no," we do avoid creating a third category between "consensual sex" and "rape," but we have all the same consequences -- plus the additional consequence of making it harder to think about the issue, because we've disallowed clear categories.

Cass:

I understand the skepticism about holding the military to a much higher standard, especially given that the military already has much higher standards (for example, if these were civilians, most of the broken rules wouldn't exist at all).

I'm also not opposed to the idea that the drinking was consensual (and, for her, illegal); and that the consequences of getting drunk are therefore something for which she ought to be responsible.

However, we do have the right as a society to delimit what those consequences legally include. We can say they include 30 days in jail for underage drinking, or we can say that they include 100 hours of community service work. We can say that they include having to pay for any damages she causes, and if she drives drunk, we might impose significant costs (especially if she kills or injures someone).

I gather you intend to suggest that we also say that the state will not consider it rape if her date has sex with her without her consent. We can do that: and for the purpose of this discussion, I'm not even going to argue that it's wrong to do it. I just want to pursue the question of how you think we ought to bracket the category between "consensual sex" and "rape."

This is clearly not the first: consent is neither given nor even asked, and it appears he intentionally tried to put her in a position in which she would not be able to refuse before he pursued the point. If it is also not in the other category, i.e., if it isn't rape, we need a third category of legal, non-consensual sex. How should we bracket it?

Posted by: Grim at May 13, 2013 01:03 PM

The problem is that non-consensual isn't really the right term if you want to consider that Consent can take more than "Yes" and "No" as values.

The issue is whether non-consensual means Consent = "No" or Consent != "Yes". Since these two definitions are not the same thing when there are 3 or more possible values, there is a definitional problem.

In this case, consent did not equal "No".
Most likely it was "NULL" but also possibly "Meh, whatever", or even "Yes" and later regretted.

There are lots of things that people "go along with" while drunk that they would not have done had they been sober (tattoos, anyone?). I don't think you could fairly say that their participation was "non-consensual" though.

Posted by: Yu-Ain Gonnano at May 13, 2013 01:40 PM

My problem with this scenario is that we have NO idea how drunk she really was. We have only her word and her version of events.

If we take her at her word - exactly - then we know she wasn't passed out cold.

And her wording is somewhat ambiguous as to her actual condition. A guy undressing a woman (or the female being somewhat passive) isn't exactly unusual during sex. My husband has undressed me when I was perfectly capable of undressing myself. He enjoys doing that, and sometimes I enjoy it too :p

It may be suggestive, but suggestive doesn't meet the burden of proof (beyond a reasonable doubt) required to convict someone of a crime. I have plenty of reasonable doubts here, not the least of which is whether her account is factually accurate, or whether - as often happens - it is colored by subsequent regret about having gone out with him and having had sex with him. Her recollection may well be accurate, though people who are so drunk that they're essentially helpless aren't known for remembering their drunken escapades in great detail. It's a bit problematic, arguing that you were out of it but remember everything clearly. The problem is that I don't know, and neither does anyone else who wasn't there, and there's no way to prove any of this.

... it appears he intentionally tried to put her in a position in which she would not be able to refuse before he pursued the point

Maybe, maybe not. He may have only intended to tamp down her inhibitions a bit. Or he may have intended to drug her senseless. Not being a doctor, why would we assume he would be able to accurately assess her ability to handle alcohol on a full stomach?

Were his actions gentlemanly? Of course not. Do I approve of them?

No, but then frankly I don't approve of her actions either. This isn't an "either/or" situation, and there's nowhere near enough evidence to establish rape under our laws, even in the civilian world.

And the sad, sad truth is that she put herself in that position. She incapacitated herself. That's not wise. It doesn't absolve him in the slightest, but it makes it hard as hell to protect her from her own poor judgment.

One more thing here. Note that this sad story starts with "...the incident she remembers most.... Two observations:

1. She remembers this one better than any others (yes, there were others).

2. She remembers it at all, which suggests she wasn't drunk to the point of passing out.

3. She remembers what she was thinking at the time, which also suggests she was... well, thinking.

4. She spent the night in this guy's room. So our "rapist", rather than dumping her off back at her place, let her stay the night?

I sympathize. I really do. I also think she got off lightly. A lot worse things could have happened to her that night than what did happen - she had sex with a man who did not force her and wasn't violent.

At some point we really do need to credit women with having some agency.

Posted by: Cassandra at May 13, 2013 01:57 PM

Ok, that was more than two observations... :p

That's what happens when you get interrupted 4 times while typing a comment!

Posted by: Cassandra at May 13, 2013 01:59 PM

This is where push meets shove in feminism. How can women insist we are competent agents yet demand we be protected from ourselves? I believe that what the older man did was wrong but (leaving aside military rules about fraternization and so on), I don't believe that means it is illegal. In other words, if this had happened between, say, two civilians who knew each other slightly from belonging to the same gym, I don't see how the woman could claim rape or sexual assault.

At the same time, I do think it's reasonable to expect that the older man should suffer professionally. Without knowing (or understanding) all the ins and outs of rank, a reasonable analogy might be to an older doctor or professor who has sex with an 18-year-old patient or student. There is a reasonable assumption of undue influence. Again, not illegal but professionally unacceptable.

I find myself impatient - perhaps unfairly - with the young women's complaint that she was not "referred" to the police or to counseling and her complaint that her sense of worthlessness lingered for the rest of her enlistment. Perhaps I'm missing something peculiar to the military but could she not have gone to the police on her own? Or, if she didn't want to do that, rape crisis hotlines are thick on the ground in most places. Could she not have called one of them for help? This seems to me uncomfortably passive, as if she's waiting around for someone to do something to fix her. I'm a big fan of fixing myself - and of believing I can be fixed.

Posted by: Elise at May 13, 2013 02:34 PM

Grim: I gather you intend to suggest that we also say that the state will not consider it rape if her date has sex with her without her consent.

I think most laws are quite clear on this subject - sex without consent is rape, though there may be different severities of the offense depending on the circumstances (as there should be). Suspecting is an entirely different thing from being able to prove something, though.

I think it's important to separate out several questions here:

1. Whether having sex with a woman without her consent is rape or not? Probably varies from jurisdiction to jurisdiction but here we're dealing with the UCMJ. From what I can see, this scenario isn't rape under the UCMJ:

Nature of offense. Rape is sexual intercourse by a person, executed by force and without consent of the victim. It may be committed on a victim of any age. Any penetration, however slight, is sufficient to complete the offense.
(b) Force and lack of consent. Force and lack of consent are necessary to the offense. Thus, if the victim consents to the act, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent. Consent, however, may not be inferred if resistance would have been futile, where resistance is over-come by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties. In such a case there is no consent and the force involved in penetration will suffice. All the surrounding circumstances are to be considered in determining whether a victim gave consent, or whether he or she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm. If there is actual consent, although obtained by fraud, the act is not rape, but if to the accused’s knowledge the victim is of unsound mind or unconscious to an extent rendering him or her incapable of giving consent, the act is rape. Likewise, the acquiescence of a child of such tender years that he or she is incapable of under-standing the nature of the act is not consent.

Seems pretty unambiguous to me. Keep in mind that the burden of proving the elements are present falls on the accuser. So she (or the command, really) would have to prove beyond a reasonable doubt that either force was used OR that she was incapacitated. I'm not seeing evidence of either of these. Suggestion or suspicion aren't enough for a conviction.

2. Whether there's sufficient evidence to justify filing rape charges

3. What is reasonable to expect from both parties? From her, I think it's reasonable to expect an adult not to break the law and not to voluntarily render herself incapable of giving consent.

From him, I think it's reasonable to expect him not to take advantage of someone who is OBVIOUSLY incapacitated, and not to give alcohol to anyone he knows is underage.

Then there's the question of, "How much slack do we cut people of either sex who choose to become very drunk around someone they hardly know, or who insist on having casual sex with people they barely know?"

As you know, I've been fairly unsympathetic to guys who want to have casual sex and then complain when one of their partners turns out to be unscrupulous or even actively malicious. They're taking a very big risk, and people who take risks often suffer very predictable consequences. That doesn't mean the other person isn't wrong - false rape accusations are still wrong, even if the victim also took foolish risks. Rape is wrong even if the victim also took foolish risks.

Posted by: Cassandra at May 13, 2013 03:43 PM

I think the UCMJ does define this as rape, because as you say she was "OBVIOUSLY incapacitated," and if "the victim is unable to resist because of the lack of mental or physical faculties... there is no consent and the force involved in penetration will suffice."

But I'm not really asking about what the law does say. What I'm asking about is what you think it ought to say. It was this remark I'm asking after:

"I don't agree this anecdote actually describes rape, though. At some point, if we ever mean to be taken seriously, women are going to have to stop expecting Someone In Power to protect them against their own freely made decisions."

If this isn't rape, when she is obviously incapacitated, how should we bracket the category to which it properly belongs?

Elise suggests, for example, that this might belong to a category for which there are not criminal penalties, but professional ones (presumably a professional association might impose some kind of sanction on you for conduct unbecoming a lawyer, if there is any such thing). I don't think that's a good solution (sorry, Elise!) because it's too aristocratic: relatively few Americans belong to anything like a profession. Most people aren't doctors or lawyers. College professors are professionals, I suppose, but the date rape problem is really among college students, who don't. It can work for the military, but not for pizza delivery guys.

So set aside what the law does say, and tell me what it would say if you could write it. There's rape, which is one thing. There's clearly consensual sex, which is another. How would you, if you could do it however you wanted, bracket out the rest of the categories as a matter of law? What's legal and what isn't? What do we do with sex that isn't consensual, but that we don't want to treat as rape-full-stop?

Posted by: Grim at May 13, 2013 04:46 PM

I think the UCMJ does define this as rape, because as you say she was "OBVIOUSLY incapacitated," and if "the victim is unable to resist because of the lack of mental or physical faculties... there is no consent and the force involved in penetration will suffice."

Well, actually that's not what I was saying at all :p

I put "obviously" in all caps precisely because I don't know that it was all that obvious that she was incapacitated (or even that she WAS truly incapacitated).

I think the way the UCMJ is written is close to perfect. The law shouldn't require anyone to read other people's minds. It's "obvious" if someone is passed out that they cannot resist or consent.

If the accuser is conscious, nothing is obvious. If the accuser recounts thinking about the whole thing while it was going on, recalls thinking, "This isn't really rape, at least as I understand it" and the accuser gave no sign (struggling, saying "No", etc) of reluctance... I think a reasonable person could well think they consented:

...lack of consent required, however, is more than mere lack of acquiescence. If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent.

There's no obvious bright line (other than unconsciousness) between "drunk but still in possession of mental faculties" and "not drunk enough to pass out or black out, but too drunk to speak a simple, one syllable word: NO".

Posted by: Cassandra at May 13, 2013 05:23 PM

Oh, and by the way women (and girls) passively 'give in' to sex they really don't want all the time. It's not a pretty thing, but it's something that happens. Sometimes, they give no sign (other than not seeming all that into it) that they really, really don't want to have sex.

Part of being an adult is understanding that you (and you alone) are responsible for your own decisions in life, and that other people don't automatically know what you want or don't want unless you tell them.

I dislike and disapprove strongly of guys who pressure women to have sex, just as I dislike and disapprove of anyone who essentially bullies or guilts or manipulates other people in any way. I ran into more than a few guys like that during my dating years.

I think they're cads. But I don't think they're rapists or criminals any more than I think women who manipulate men (and many men are easily manipulated) are criminals unless and until they actually commit a crime.

Posted by: Cassandra at May 13, 2013 05:32 PM

If this isn't rape, when she is obviously incapacitated, how should we bracket the category to which it properly belongs?

If I believed that she was 'obviously incapacitated' then I would say it was rape. As it is, it's classic poor judgment leading to morning after regrets.

Posted by: Cassandra at May 13, 2013 05:35 PM

If this isn't rape, when she is obviously incapacitated

Is it obvious?

*She* tells you she was: *after* the fact. But his recollection may be very different. You are assuming that her story is the correct one, but the memories of drunk people are not known for their veracity.

How are you to construct laws for when your one and only witness, who honestly and sincerly trusts their own memories to be accurate, may, in fact, be wrong?

How are you to construct laws for when your one and only counter witness, who honestly and sincerly trusts their own memories to be accurate, contradicts the first person?

Posted by: Yu-Ain Gonnano at May 13, 2013 05:42 PM

Grim, if the man is a pizza delivery guy and the woman works at the convenience store next door to the pizzeria, I'm not convinced there is a problem for which we need a solution. To me, the problem arises if the woman can claim she felt she had to go out with the guy or felt she couldn't refuse to drink with him. That only happens if there is a mismatch in status/power. Hence, a doctor with a young patient; a professor with a young student; a senior military man with a young recruit.

In this case, the man may well have been way out of line but no one could ever prove it. Was the woman so drunk she was basically comatose? In that case, the man's behavior was equivalent to raping an unconscious woman he found lying in the street. Or was she simply drunk enough to be confused? She states that:

By agreeing to have dinner with him and then drink his alcohol, she felt that whatever was happening may not have been something she wanted, yet did not jibe with the definition of rape she’d had in her mind: gang rape, forcible rape, aggravated rape—in other words, “real” rape.

If she was thinking all that while she was in his room then it doesn't sound like she was "barely conscious". It sounds like she was drunk enough to be stupid but not necessarily so drunk the man with her (who was probably somewhat drunk also) would see her as unconscious.

The man was a cad. The woman was foolish. She paid too high a price for it but I don't see this type of situation in and of itself as a problem that needs a solution.

I can see it as a problem when both people belong to the same organization and that organization wants to discourage that sort of thing - whether it's the military or a university or a large corporation. That's the problem for which suffering professionally would be a possible solution.

Posted by: Elise at May 13, 2013 06:57 PM

"By agreeing to have dinner with him and then drink his alcohol, she felt that whatever was happening may not have been something she wanted, yet did not jibe with the definition of rape she’d had in her mind: gang rape, forcible rape, aggravated rape—in other words, “real” rape."

It's possible that she applied this reasoning to her behavior after the fact while she made sense of her blurry, disjointed memories of what happened; I can't recall narrating any of my own memories as they happened, anyway, and I'm rarely inebriated. Of course, if that's the case, it also throws doubt on the accuracy of her recollection.

Based on the interpretation of the law I've been seeing in the military's online training for years now, if her recollection is accurate, it would be counted as rape on account of her severe intoxication. But under such circumstances, it would be all but impossible to prove as much, unless (as we've seen in recent cases) there was video involved. I think the failure to refer her to counselling services was a foul on her commander's part, but that seems to have improved since then -- or at least, it gets emphasized in the training now.

Posted by: Matt at May 14, 2013 12:52 AM

Wow, this topic has legs! Observations:

1. Back to basics; within the military, fraternization (inappropriate senior/junior relationships) is always a mistake. Even if was only a Chief having regular beers with a Seaman (of the same gender) from another division (or the more common stories of officers & enlisted) creates a perception of special consideration to others. Though it's much too common in the 'outside' civilian world, it's easy for civilians to see why they wouldn't want their co-worker dating their common manager when annual pay raises (or more importantly, retention lists) are being decided.
- after reading comments, I think Elise makes this point better.

2. "Moreover, I'm trying desperately to envision any other employer who would be held responsible for the voluntary actions of two employees occurring after work hours and having NOTHING to do with their job responsibilities.
. . .
So whence comes the expectation that the military can or should be able to prevent people from doing things no authority, anywhere in human history, has EVER been able to prevent people from doing?"
>thanks for making this point; I've always been annoyed w/ folks that the entire military for the actions a single jerk.

3. Though I may be the elder curmudgeon around here, I have a problem with forbidding alcohol to people in the military. Obviously vodka & soda in a parking lot/room is a mistake. We've chased people out of base clubs, where we could supervise them, keep them out of (serious) trouble, and walk them back to the barracks.

4. BoTA to Cass for pointing out that any account of past events between two people in private automatically invoke 'he said, she said,' absent physical evidence of obvious abuse (bruises, etc).

5. BTW Grim, the UCMJ does not define anecdotal tales as evidence of any violation. Having completed more that one preliminary investigation, article 32 inquiry, and sitting on two Courts martial, I distinctly recall the Manual of Courts martial as specifically defining the elements of proof for each and every UCMJ article.

Best Regards,

Posted by: CAPT Mike at May 14, 2013 01:32 AM

A couple of good points raised earlier:

Elise wrote: I find myself impatient - perhaps unfairly - with the young women's complaint that she was not "referred" to the police or to counseling and her complaint that her sense of worthlessness lingered for the rest of her enlistment. Perhaps I'm missing something peculiar to the military but could she not have gone to the police on her own? Or, if she didn't want to do that, rape crisis hotlines are thick on the ground in most places. Could she not have called one of them for help? This seems to me uncomfortably passive, as if she's waiting around for someone to do something to fix her. I'm a big fan of fixing myself - and of believing I can be fixed.

That sense of "worthlessness" she was feeling is shame/embarrassment. It doesn't surprise me that she didn't recognize it for what it was - we've all but banished shame from the moral lexicon.

It's a very unpleasant feeling, but then it's meant to be. The pain of realizing you did not one, but several really dumb things - that you can't really take care of yourself after all - and are darned lucky you didn't accept a date with Ted Bundy is *meant* to hurt.

This is the problem with the "We've got to do more...." school of aggressive government intervention. It's like helicopter parenting on steroids - the more the government does, the less incentive people have to exert control over their own lives and find solutions to their own problems. As my Dad likes to say, "Pain is a wonderful motivator".

My biggest problem with the Obama administration is that they keep arguing that people shouldn't have to feel pain. Suffering is *unfair*. But pain is neither fair nor unfair - it's merely a signal. In many cases, it exists to motivate us to change our behavior, and when the expectation arises that government or the law must do something every time we suffer, we're subverting that natural signaling mechanism, to our own detriment.

Posted by: Cass at May 14, 2013 04:05 AM

In all this discussion, something I notice that has been missed is the one item that was likely the point of the article we're all quoting from:

Concerned about her mental well-being, Driessel’s mother called the drill sergeant regardless. Driessel was called into the sergeant’s office the next day and recounted what had happened. After formally reporting the incident (which at the very least involved the crime of providing alcohol to a minor), she heard nothing more. Driessel was not referred to the police or any counseling services. The whole experience was if it had never even been reported.

The article seems to want us to be outraged at the military's incompetence or indifference to a rape accusation. To me, that's the entire thrust of the article. But set aside your outrage at both their actions (as stated in her testimony) for a moment, and place yourself in the commander's shoes. You have the decision to refer this case to a Court Martial. Clearly, the senior servicemember is guilty of fraternization, a "crime" by virtue that all failures to follow orders are crimes, but one that is realistically only punished by counseling and poor rating on the next NCOER. We've seen her testimony, and there's some waffling back and forth as to whether this is rape (or sexual assault or even harrassment), based upon how drunk she was. If she was not incapacitated, then there's no other crime involved. However, the crux of the problem is she waited for DAYS to report this. If the NCO claims that she had only had not been intoxicated, or even that she hadn't even had any of his alcohol, there's literally no physical evidence to test this against. And regardless of outrage, there is still the legal standard of a presumption of innocence towards a defendant. If the whole case hangs on if she were incapacitated by drink or not, and he says he didn't let her have any of his drink, then the whole case falls apart.

Had she reported it the next day, they could have drawn blood, found alcohol in her system and (based on metabolization rates) figured out roughly how intoxicated she was. But literally, any physical evidence of her intoxication was completely gone. Given that, there is literally no court (that actually operates on the presumption of innocence) that could convict the male NCO. So back to the article. "The whole experience was if it had never even been reported." If he was counseled for fraternization, she would never know. If he was questioned about the incident, she would never know. Even if the commander had referred the issue to the JAG and was told "there's no evidence to work with, we can't win this case" she would never know! It would be as if it had never been reported as far as she could know.

Now, I will say, perhaps the commander should have directed her to counseling services. Honestly, I can't speak to if that's something commanders are instructed to do. I know as an NCO, if one of my soldiers had come to me with a story like this, I'd have been in the PSG's office immediately, but I would left it with him. Why? Because reporting it to higher command is what you do when one of your soldiers reports a crime. But you also have to trust your command to handle it.

And as for directing her to police, the real question becomes "why?" What possible reason would this ever be referred to civilian police? They can't charge him any more than the military could. Hell, they can't even charge him with fraternization, as it's not a crime in the civilian world. And in a case where both the perp and victim are military, why on earth would it be a matter for civilian authorities? Has anyone seriously asked why Hasan is not being tried in civilian court for the attack at Ft. Hood? Of course not.

Posted by: MikeD at May 14, 2013 08:53 AM

Wow, this topic has legs!

But do they go all the way up? :©)

Posted by: Yu-Ain Gonnano whose Oinking at May 14, 2013 09:00 AM

I can't see it as anything close to a crime. I will say that I see it as a disturbing piece of information about the character, maturity, and trustworthiness of the two actors in the play, something any sensible organization would take into account for future purposes.

I can recall a days-long out-of-control party at our old commune. I was semi-conscious on a couch but not firing on all cylinders late one night (or early the next morning) when some party guest I barely knew investigated to see if I might be fair game. I was too out of it to fight back effectively, and who knows how riled up I might have gotten if he'd had a chance to continue; I took sex pretty casually then. In any case, a male friend happened by, rousted the guy, and tossed him out of the house.

Three characters: me, not taking responsibility for myself, risking some pretty humiliating memories. The anonymous jerK: disqualified from any further social contact with me or anyone who knew me or my rescuing friend well enough to trust our judgment. My rescuing friend, now deceased, God rest him, a fellow who stood up for what was right. He didn't waste any time wondering how to define the jerk's behavior, he just stopped it.

If the jerk had been my boss, I'd have casually recounted the circumstances to anyone who would listen. If his peers didn't see anything wrong with it, I'd have left the organization and found one populated by human beings. If I got the reaction that I'd brought the situation on myself, I've have cheerfully agreed and continued to let people draw their own conclusions about whether they'd want to trust the guy with anything important, including at times when they might be distracted or incapacitated. Do you want someone in your organization who thinks that the rules change when they're dealing with someone temporarily unable to defend him/herself? Would you want him at your back in a fight? Would you want him to find your ATM passcode while you were in the hospital?

But a crime? Not seeing it.

I'm shaking my head over the thought process that goes like this: "Some guy's asking me out. I don't like him. But he won't stop asking. I can't think of anything else to do, so I'll say 'yes,' and get stinking drunk for no apparent reason, because, again, 'yes.' Hey, I feel dirty. Somebody rescue me." Do not give this child a gun and expect her to function in the armed forces or any other responsible position. She needs to step out of Princess-Dreamland first. Was she released directly from a convent into Basic Training, or had she possibly ever encountered a boy at some point? Where was super-involved "I'll call her boss just to be helpful" mom when young Cinderella was growing up?

I'm also shaking my head over the thought process that goes like this: "I want sex with something female, nominally human. This chick doesn't seem to like me at all. I'll badger her, hoping she'll be afraid to turn me down, since I'm senior to her in this organization. She may be more willing to tolerate being used as an anonymous receptacle if I get her nearly comatose with alcohol, which will also save me the trouble of getting to know her or listen to anything she says. Then I'll use her body for a few minutes and never give her another thought." I mean, we are talking about a human being with a responsible position in an important service, right? Because I might have mistaken him for an under-evolved slug.

Our culture is trying to treat sex simultaneously as completely meaningless and overwhelmingly important. We're getting some bizarre thinking as a result.

Posted by: Texan99 at May 14, 2013 09:53 AM

Our culture is trying to treat sex simultaneously as completely meaningless and overwhelmingly important. We're getting some bizarre thinking as a result.

Amen.

Posted by: Yu-Ain Gonnano whose Oinking at May 14, 2013 10:21 AM

...the crux of the problem is she waited for DAYS to report this. If the NCO claims that she had only had not been intoxicated, or even that she hadn't even had any of his alcohol, there's literally no physical evidence to test this against. And regardless of outrage, there is still the legal standard of a presumption of innocence towards a defendant. If the whole case hangs on if she were incapacitated by drink or not, and he says he didn't let her have any of his drink, then the whole case falls apart.

BINGO. That's the point I was trying to make here, if obliquely, with sarcasm:

When presented, weeks later, with an unsubstantiated charge of "rape" (for which there is no physical evidence), commanders should ignore the law and bring the "rapist" up on charges. Never mind that there's no evidence to prove the victim was incapacitated by the alcohol she chose to drink. Clearly, had this case been handed off to civilian authorities, arrest, trial and conviction would have swiftly ensued.

Remember, military rape is *skyrocketing*

Back to the narrative. Never mind that a civilian court would not have been able to do any better because there's no evidence to prove that the elements of rape are present in this case. Never mind the strict burden of proof in a criminal trial.

Someone must DO something!!!!

Posted by: Cassandra at May 14, 2013 10:41 AM

If the jerk had been my boss, I'd have casually recounted the circumstances to anyone who would listen. If his peers didn't see anything wrong with it, I'd have left the organization and found one populated by human beings. If I got the reaction that I'd brought the situation on myself, I've have cheerfully agreed and continued to let people draw their own conclusions about whether they'd want to trust the guy with anything important, including at times when they might be distracted or incapacitated.

This actually describes what used to be the solution to this problem: The society to which the under-developed slug and the naive Cinderella belong judged their behavior and either accepted it or ostracized one or both of them. We can discuss at length how unfair that process often was but it provided a means other than the law for handling misbehavior.

I once read a novel in which two of the characters remark on how, now that there is no societal consensus about appropriate behavior, we are relying solely on the law to tell us what is and is not acceptable. That doesn't work, of course. We can't pass laws about everything and in trying to do so we've gummed up the works terribly and, as Cassandra points out, given people less and less incentive to take responsibility for their own actions and suffer the consequences.

I'd argue further that we may well be giving people less and less incentive to even realize that there are decisions to be made about how they behave.

I think the piece Cassandra is writing about here makes an interesting companion to one Cassandra blogged about a while ago, the one about a young college woman who is falling apart. She got drunk, slept with a guy, and continued to see him to "hook up" even though they had no relationship outside of sex and he didn't even acknowledge her when he sees her on campus.

It's maddening to me that after, what, 40+ years of Third Wave Feminism we've gone from women who felt they had to say "No" when they wanted to say "Yes" to women who feel they have to say "Yes" when they want to say "No". Or, apparently, to women who don't even realize they can say "No" or that there's any reason to say "No". Or, worse, to women who think that it's up to someone else (everyone else) to take responsibility for them so they don't have to decide what to say.

Posted by: Elise at May 14, 2013 11:04 AM

Our culture is trying to treat sex simultaneously as completely meaningless and overwhelmingly important. We're getting some bizarre thinking as a result.

I think this is true and very insightful - but only for women. That is, we're trying to treat sex in both ways only when it comes to women.

Let's say an 18-year-old male recruit, out of religious or personal moral conviction, doesn't drink and doesn't have premarital sex. The older guys in his unit rag him about it. To get them off his back, he agrees to go out on the town with them. They take him to a dive bar and buy him alcohol. Once he's too drunk to think but not quite too drunk to perform, they take him to a bordello and send him off with a prostitute. It's not the most successful night in the history of the bordello but the prostitute can report the young man has now had intercourse - although she can't guarantee he'll remember it clearly.

I can't really see very many people thinking the young man has anything to complain about or be upset about or feel bad about or that anyone has taken advantage of him. The assumption, I think, would be that for him sex is completely meaningless - regardless of his beliefs, preferences, convictions, whatever.

Posted by: Elise at May 14, 2013 11:15 AM

I mean, we are talking about a human being with a responsible position in an important service, right?

That kind of goes for both of them when you stop to think about it. In the military, even junior enlisted are often given a lot of responsibility. That means we have to be able to rely on them to follow the rules, not break laws, etc. Kind of important when you hand someone a gun!

Posted by: Cassandra at May 14, 2013 11:21 AM

I can't really see very many people thinking the young man has anything to complain about or be upset about or feel bad about or that anyone has taken advantage of him. The assumption, I think, would be that for him sex is completely meaningless - regardless of his beliefs, preferences, convictions, whatever.

It's also pretty much divorced from morality.

We still haven't got past the idea that when we're talking about men, sex enhances their masculinity (scores them points). The sports metaphor is actually pretty perverse: the man "gets" something, something (virtue? innocence? purity?) is taken from the woman. No one talks of sexual virtue/innocence/purity in men because we all know it's just plain silly for men to connect sex and love. They're supposed to be enormous walking penises with no brains or (apparently) capacity for loyalty, self restraint, moral reasoning.

It makes sex adversarial and predatory - a zero sum game.

As much as I hate the feminist drive to sever sex from love or morality, I fail to see how they're any worse than the traditional view that it's normal/natural for unmarried men to sleep around but wrong/bad for ummarried women to do so.

The "screwed-upness" isn't really anything new. It's just wearing a new face.

Posted by: Cassandra at May 14, 2013 11:29 AM

As much as I hate the feminist drive to sever sex from love or morality, I fail to see how they're any worse than the traditional view that it's normal/natural for unmarried men to sleep around but wrong/bad for ummarried women to do so.

It isn't.

The problem, and forgive me for a horribly oversimplified analogy, is that where the traditional male view is a -1 and the traditional female view was a +1, instead of trying to get the men to adopt the +1 "to be equal" the feminists are adopting the -1 "to be equal".

Wonderful, we're equally crappy.

Posted by: Yu-Ain Gonnano at May 14, 2013 11:40 AM

The problem, and forgive me for a horribly oversimplified analogy, is that where the traditional male view is a -1 and the traditional female view was a +1, instead of trying to get the men to adopt the +1 "to be equal" the feminists are adopting the -1 "to be equal".

It's definitely a race to the bottom, but it's a real problem for conservatism (and traditional values) that our answer to the values-neutral sex paradigm usually consists of conservatives arguing that we should go back to an older set of standards that is just as morally bankrupt.

This is one of those areas that makes it easier for me to see why so many people reject conservatism. "But it's OK when *I* do it because.... BIOLOGY!!!" isn't a terribly compelling moral argument :p

Posted by: Cassandra at May 14, 2013 11:50 AM

Good points all. Hopefully some of our active duty commanders are reading them.

So CAPT Mike: What makes you think you're the eldest curmudgeon?

Posted by: CAPT Mongo at May 14, 2013 01:09 PM

Elise, you're spot on about how we'd view the young male recruit who's taken, drunk, to a prostitute. In that context, sex is considered equally neutral and meaningless for the recruit and for the prostitute. (But note, dehumanizing interactions are always meaningless for the participant that's marked out-of-bounds of normal society. Nobody cares what happens to her or how she feels about it.)

But in the context of sexual interactions between two people who both still have some kind of respected place in society--people still eligible for things like public respect, promotion, and a career--the sex is being treated as simultaneously all and nothing for both the man and the woman. For the woman, the pressure is to put out and quitting acting like a prude, or a golddigger, or an inexperienced child. And yet, if the sex was tainted somehow, it may be criminal even if the consent issues are murky; also, fraternization is a big deal no matter how sexually liberated you are. For the man, the cultural assumption is that you never turn down easy sex, but then, again, fraternization is a big deal, as is the coercion implicit in his superior rank (one reason fraternization is a big deal). So was this a casual, dehumanizing, but ultimately unimportant contact between two pieces of meat, or a great big court martial deal? People ostensibly viewing the same facts can come up with either extreme or anything in the middle, because our current mores are deeply confused.

Posted by: Texan99 at May 14, 2013 02:31 PM

CAPT Mike: I'm aware of that. If the facts were as described, though, I think it qualifies. Certainly if I were the one asked to rule on it, and her description of the events were not contested, I would consider that incapacitated for the purpose of consent -- and I would expect any man under my command to know it, and live by that standard.

Posted by: Grim at May 14, 2013 03:05 PM

Cass:

Before we condemn the traditional standard, whatever is meant by that, I'd like to say that I can remember listening to the news the night that the Monica Lewinsky story broke. There was a roundtable panel of journalists, the elder anchors of the day, and they were talking about what was at that time still an unproven story (but one with substantial details).

I can't remember which of them said it, but it was one of the big names: Sam Donaldson, maybe. He was asked what it would mean for the President if the story was true. He said, 'If it's true, he's finished.'

It was during the long and painful process of proving that instinct not to be true that the traditional American standard died. People like JFK had affairs that they kept secret, and the press connived, but there was a decent standard that everyone believed in for those cases that could no longer be kept quiet. That decency was strangled, in my lifetime, for Bill Clinton's personal and the Democratic Party's collective advantage.

Posted by: Grim at May 14, 2013 03:11 PM

I'm pulling down Capt. Mike's earlier comment for reference. Here's what he said:

BTW Grim, the UCMJ does not define anecdotal tales as evidence of any violation. Having completed more that one preliminary investigation, article 32 inquiry, and sitting on two Courts martial, I distinctly recall the Manual of Courts martial as specifically defining the elements of proof for each and every UCMJ article.

You replied:

I'm aware of that. If the facts were as described, though, I think it qualifies.

You don't know if the facts were as described though. You have no evidence, other than her uncorroborated statements, and they are not sufficient to establish what happened.

Certainly if I were the one asked to rule on it, and her description of the events were not contested, I would consider that incapacitated for the purpose of consent

You can't do that in court, Grim. You'd be violating the defendant's rights. The burden of proof in a criminal case is NOT, "Any story the defendant tells establishes proves a crime took place (or that events transpired as she says they did". People lie all the time.

Her word alone does exactly nothing to prove that she was incapacitated. You can't assume facts not in evidence, and she has no evidence (witnesses seeing her passed out, for instance, or pictures/video of him having sex with her as she is passed out). The burden of proof for a crime is steep - it's "beyond a reasonable doubt", not "hey, it *could* have happened the way she said it did!".

By the way, simply pleading 'not guilty' is contesting her version of events. If she can't come up with anything better than a totally uncorroborated story, she shouldn't be able to put a man in jail.

Posted by: Cassandra at May 14, 2013 04:40 PM

The issue is perhaps there were two standards, even for men.

There was the public and polite company standard that we were a good God Fearing Christian Society where pre-marital sex was sinful and extramarital affairs were right out.

Then there was the boots on the ground standard of the stud who all the girls wanted and the guys wanted to be and the bad girls with "a reputation".

Posted by: Yu-Ain Gonnano at May 14, 2013 04:59 PM

If it is true that we have only her word here, it's also true that we can discuss the question of whether what she describes would (or ought to) constitute rape assuming she was speaking the truth. This isn't a court of law, and no one is on trial; no one's reputation is even in jeopardy, since the man is entirely unnamed.

So, we could assume (as you are doing) that he would plead not guilty and/or otherwise contest the facts. But we could also assume (as I am doing) that the facts were not contested.

If the facts were not contested, or if she were otherwise proven to be speaking the truth, I would have no problem considering this rape.

Posted by: Grim at May 14, 2013 05:00 PM

"...the stud who all the girls wanted and the guys wanted to be..."

Did you want to be someone else? I never did.

Posted by: Grim at May 14, 2013 05:03 PM

...we could also assume (as I am doing) that the facts were not contested.

Well, in a court if the facts were not contested, she wouldn't have to prove anything because the parties agree on what happened. The question for the judge or jury would be, "Do the facts - as stipulated - satisfy the legal definition of rape?"

I'm not sure they do, because "barely conscious while thinking to yourself that this is not rape as you've ever understood it" isn't the same as "unconscious".

I understand that you disagree, though I can't for the life of me figure out why. I think we do agree that if her account is factually accurate, he's a cad. I don't think he's a rapist, though, because she consented to go out with him, drink herself into an impaired state, and this last is the most important -- as it was happening, she decided not to say anything or to resist. Now unless you require mind reading, that last thing is damning.

Do I still think he's a jerk? Yep. But there's no way he's a rapist unless "not raping" requires the man to affirmatively make certain she consents - maybe by having her sign a consent form, or possibly by repeatedly asking her, "Can I touch you here? Can I round first base and head to second? Is it OK with you if I...."

I would never expect a man I was with to do that. It's just kind of silly. I would also expect a man I dated to have the good sense and integrity to err on the right side of taking advantage, but then I would never have gone out with this guy in the first place.

I've seen many happy couples who regularly treat each other in ways I wouldn't tolerate for one second, so that can't be the standard for right and wrong.

Where I come down is that if every word she spoke was proven to be true, I very much doubt I'd say this was rape. I think in order for rape to occur, it must be *obvious* (i.e., not require interpretation, nor a perfection rarely observed in humans) that she was withholding her consent or could not consent.

I don't see that in these facts. If she was capable of comparing what was going on at the time to "real rape" and reaching a conclusion, she was both conscious and thinking. Which means she *could* have said no, but didn't.

Posted by: Cassandra at May 14, 2013 05:26 PM

That said, let me also say how very happy I am that you hold yourself to a higher standard.

So did my husband in all his dealings with me, and so did every guy I dated seriously. The ones who didn't, didn't get a second date but they were few and far between :)

Posted by: Cassandra at May 14, 2013 05:28 PM

I also want to address what Yu-Ain said here:

The issue is perhaps there were two standards, even for men. There was the public and polite company standard that we were a good God Fearing Christian Society where pre-marital sex was sinful and extramarital affairs were right out. Then there was the boots on the ground standard of the stud who all the girls wanted and the guys wanted to be and the bad girls with "a reputation".

Or just the standard I've seen argued innumerable times, which is that it's just "natural" for men to sleep with as many girls as possible, and that's just the way God made men. God also made men sinful, so that's a spectacularly crappy argument :p

My point was that too many conservative men talk out of both sides of their mouths on this topic. They wax all outragey about young women sleeping around and then segue with seemingly no self awareness whatever to blissful reminiscences of their own youthful days when they (to hear them talk) did exactly what they're criticizing young women of today for doing every chance they got.

I've also seen them attack any man who tries to uphold the traditional standard Grim talks about (in which premarital/extramarital sex is wrong no matter who does it), calling him gay, a wimp, etc.

To say that this is schizophrenic understates the matter considerably :p

To Grim's credit, he doesn't talk that way. But others do, and it damages their credibility.

Posted by: Cassandra at May 14, 2013 05:37 PM

As to why, the standard is just that the victim should be unable to resist because of lack of faculties. Now resistance can be as mild as saying "No," but the case as described is that she was so drunk as to be unable to come to a clear decision about whether this was 'real rape' or just something she didn't want. That is to say, she was too drunk to consent, because she was too drunk to consider even the more limited question of whether she was being raped or just didn't want the sex that was being done to her.

If her mind was that unclear, she lacked the faculty to resist, because she lacked the faculty to form a resolution to resist.

Maybe this seems like too hard a line to you, but I think it's the right line. Discipline is the soul of the army, and you're supposed to protect the soldier next to you. What she deserved from a fellow soldier -- even if she was foolish, as we all have been, and God knows I have been -- was his best effort to bring her back safe.

What he did instead wasn't just to betray that trust, it was to set her up so that he could betray that trust.

If we can't punish that, then we need to disband the co-ed Army. We can't have men and women serving together if we can't hold that line. She wasn't being treated as a fellow soldier.

Posted by: Grim at May 14, 2013 06:26 PM

You are putting far more interpretation on this than I think it warrants, possibly because you're assuming she thinks like a man.

Not being able to come to the decision you want her to have come to is NOT evidence of her drunkenness. It might be, but it might also be evidence that she was simply conflicted.

It's just not that hard to say no, Grim.

She went out on a date with the guy.
She accepted alcohol from him.
She went back to his room (this didn't happen all at once).
She spent the night at his place.

If we can't punish that, then we need to disband the co-ed Army. We can't have men and women serving together if we can't hold that line. She wasn't being treated as a fellow soldier.

Grim, that makes absolutely no sense. Fellow soldiers treat each other badly all the time. If you're going to demand a ridiculously high standard of human beings, you'd have to disband all human institutions.

Also, the civilian law isn't really any different, and the standard you advise isn't practical anywhere. It places far too much power in the hands of women who may very well by liars, or dishonorable, or actively malicious. Men rape each other, too.

Should we disband the Army because of that? If not, why?

Posted by: Cassandra at May 14, 2013 07:20 PM

There's no issue about people being liars here, Cass, because we're assuming the facts are stipulated.

We absolutely should disband the Army if we get to the point that we can't punish failures of this type. If a man were to get another man drunk for the purpose of raping him, I'd want that first man hung from an oak tree. Insofar as we can't accomplish that, we should work harder.

In general, though -- leaving the sex out of it -- if a soldier were to be cheating another by getting him similarly drunk and then talking him into signing one-sided contracts, I'd still want to punish the first soldier for fraud. On the same terms! The fact that he got his fellow soldier drunk is not a defense against fraud, because he got his fellow drunk for the express purpose of committing fraud.

Nor do I think it's an affront to the second soldier's dignity to hold that it was fraud. It's true that an adult shouldn't get so drunk that he can't reliably refuse to sign contracts, out of a recognition that he's too drunk to understand the terms. That's completely right. It's also true that a majority of soldiers are going to be between 18 and not-yet-quite-that-mature, and that nearly all of them will be so for a substantial part of their early service.

Posted by: Grim at May 14, 2013 07:41 PM

Howdy CAPT Mongo,
True to form, I'll offer a direct response to your inquiry: WAG.
BTW, I was a typical arrogant bubblehead jerk in mocking the SWO community until I rode a dozen or so 'skimmers' as a CSL safety officer (SAT or embarked safety liaison) for POM workups and Torpedo Exercises.
> I was shocked at the operational pace of the DESRON staff, and at the ability of the both the staff and ship's company SWOs to 'juggle balls in the air' and shift tasking w/o skipping a beat.

To all,
BTW, as a senior officer I'd volunteer that the problem was not that the incident wasn't referred to a Courts Martial for rape . . . it's fairly clear that dog won't hunt.
BUT, that's not the only offense . . .

That NCO's Commanding Officer *should* have pressed for an article 15 hearing (UCMJ Non-Judicial Punishment) for the eggregarious fraternization violation . . . that's a slam dunk, and sends a better message to everyone in the command. (while NCO has the right to decline NJP, the offense could still be referred to a Summary or Special Courts Martial).

I'm quite surprised at the level of knowledge about the military on this blog; looks to me like Cass was actually quoting 'elements of proof' out of the Manual for Courts Martial.

Best Regards,

Posted by: CAPT Mike at May 14, 2013 07:45 PM

Grim, there are plenty of ways a person can be punished under any system that don't involve such drastic (and irreversible) measures as killing them or putting them in jail.

You keep positing these fantasy scenarios where all the facts are known with certainty, but laws and societies have to deal with real life, where often the truth of a matter is not known. The reason we don't let people randomly hang each other from oak trees is precisely because in the real world, we rarely know the facts with certainty. We don't know the truth here. You have read a one sided account that could - for all you know - be complete fiction, and you're ready to throw a man in jail or hang him by the neck until he's dead. Or disband the Army. That seems a bit drastic.

Any set of standards that depends on something that rarely ever happens - perfect knowledge - is doomed to fail. All sorts of bad things have gone unpunished, both in military and civilian life, for eons. That didn't mean we'd all be better off with no military. People are flawed, Grim. Even people in otherwise good institutions. And institutions have to be able to operate with imperfect knowledge and flawed (but sometimes redeemable) people.

It's not as simple as you want it to be. The military has some very bad people in it, yet still manages to do good in a world that needs positive role models and people who are willing to adhere to a standard. Throwing the baby out with the bathwater doesn't help anyone.

Posted by: Cassandra at May 15, 2013 04:31 AM

Grim: this comment of yours is a perfect example of how difficult it is to get to the truth:

As to why, the standard is just that the victim should be unable to resist because of lack of faculties. Now resistance can be as mild as saying "No," but the case as described is that she was so drunk as to be unable to come to a clear decision about whether this was 'real rape' or just something she didn't want. That is to say, she was too drunk to consent, because she was too drunk to consider even the more limited question of whether she was being raped or just didn't want the sex that was being done to her.

That she did not resist because she was drunk is not a fact - it's your subjective interpretation/explanation of her assertion that she did not resist (and one, I might add, at considerable variance with the rest of the scenario as well as her account of it).

You're assuming causation (*if* she lacked the resolution to say no to something she didn't want to do, it MUST have been because she was too drunk). But she didn't even want to go out with this guy in the first place. She wasn't drunk when she agreed to the date and yet, she lacked the resolution to resist.

If her mind was that unclear, she lacked the faculty to resist, because she lacked the faculty to form a resolution to resist.

You're trying to force the facts to the conclusion you want. When sober, she couldn't even resist his request for a date. She literally chose the path of least resistance. That pattern runs through every part of her story, whether or not alcohol is involved: faced with a difficult choice she reacts passively, just going with the flow.

We've already stipulated that the guy (if her story is true, and we don't know that it is) is a low life creep. But I'm stunned that you think someone who can't even muster up the gumption to say no to a proposition made in open defiance of military regs... or to say, "OK, I had dinner with you, now please take me home" after dinner is in any way someone we should trust to stand up to armed adversaries?

In a just world, BOTH of these people would have been punished. Both of them fraternized. She broke the law by drinking illegally. He may (or may not) have broken a law by offering her alcohol - we don't know if he knew her age and that's difficult to prove unless we want to pass more intrusive laws that force individuals to card each other before having cocktails or sign and keep consent forms to make everything clear and unambiguous before having sex just in case someone regrets it in the morning.

Freedom requires responsibility.

Posted by: Cassandra at May 15, 2013 05:01 AM

Actually Cass, I will back Grim on this point:

If the facts were not contested, or if she were otherwise proven to be speaking the truth, I would have no problem considering this rape.

In this hypothetical, IF the male NCO said, "well, yeah... she drank about half that Big Gulp, and she seemed pretty wasted. But she never said no." I'd nail his ass to the wall with that confession. Her failure to say "no" does not constitute consent. And his admission that a slender woman of 18 years (I assume slender because she's in the Army, and in my day at least, even the "big girls" were still pretty darn slender) drank a large quantity of alcohol and "seemed pretty out of it" indicates to me that she was incapacitated.

So IF the facts as she presents them are not disputed (IOW, he concurs with the facts she presents), then I would have no trouble prosecuting him as a rapist.

Grim's not saying "this case as presented is rape." He's saying "if this case as presented is not disputed (he concurs with her version of events), or if her version is proven true (she had a blood-alcohol level test performed later that night), then this is rape." And I will heartily concur with that. Your objection, and mine earlier, was that this case, as presented and nothing more cannot be adjudged as a rape, because we've only got her side of the story. You and I are assuming that the man will present a positive defense of "she didn't drink anything/much and was not intoxicated." At that point, from a legal standpoint, the case falls apart. But if he admits he got her intoxicated, he's finished.

Posted by: MikeD at May 15, 2013 09:24 AM

Mike:

I can't agree. The way the law is written, this doesn't meet the test:

The lack of consent required, however, is more than mere lack of acquiescence.

Lack of consent requires more than establishing that she didn't say, "Yes".

If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent.

If the victim fails to make her lack of consent reasonably manifest (just saying "No" or "Stop" makes lack of consent reasonably manifest. The law doesn't require her to fight back.

By her own admission, she never even said, "No" or "Stop".

Consent, however, may not be inferred if resistance would have been futile, where resistance is over-come by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties.

Unable to say a single word? Unable to utter NO or STOP?

I'm not convinced. I grant that you may be, but I've been incredibly drunk and have never noted that I lost the power of speech. Unless I was passed out, which I've already stipulated is a game changer.

Being conscious enough to be thinking it over at the time is nothing like being passed out.

Posted by: Cassandra at May 15, 2013 10:16 AM

...if he admits he got her intoxicated, he's finished.

How do you "get someone else intoxicated"? Did he force her to drink?

Drugging her is getting her intoxicated. Offering her a drink she's free to refuse, however strong (and a drink that's half vodka would not only smell strong but taste strong - I know - vodka was my drink of choice in college) isn't "getting her drunk". A simple act, COMMITTED WHILE STILL SOBER AND IN FULL POSSESSION OF HER FACULTIES - limiting how much she drank or refusing it outright - makes it impossible to "get her drunk" unless he pours it down her throat or threatens her physically.

Neither of which the victim alleges.

Posted by: Cassandra at May 15, 2013 10:20 AM

How do you "get someone else intoxicated"? Did he force her to drink?

Well, let's address this. I will freely admit, at 18 years old (having never actually been drunk before) I had no concept whatsoever of my limits, or how much (or little) it would take to get me passed out drunk. And it was not something I discovered over the course of a single evening. Hell, to be honest, I think I was in my early twenties before I had figured it out with any kind of certainty. Add to that the fact that once one begins to become intoxicated, it's easy to convince them to keep drinking past their normal limits. I know, I've been there.

So to answer your question, yes, I think it's entirely possible to get an under-aged, inexperienced person more drunk than they either intended or wanted. Second, I think that legal incapacitation does not (and indeed should not) require the inability to speak or physically ward off a rapist. I think alcohol intoxication can reach the point where a combination of impaired judgement and lowered inhibitions places one in a state where they acquiesce to something they never would otherwise, but which does not require them to be unconscious. Now, you may disagree, and I can respect that. But to me, I can say with all sincerity that I believe it is possible to get another person drunk enough to where they will be conscious, but unable to make informed consent.

Please believe, I'm not saying this female soldier is an innocent flower, so devoid of personal volition or responsibility that we should keep her in a glass bubble (but don't you DARE question her equality!!!). What I am saying is that, if the man did indeed ply an underage woman with alcohol to the point of intoxication that she was mentally incapacitated, then yes, I would convict him of rape with a completely clear conscience. She does bear responsibility for her actions. And I wouldn't be adverse to charging her with fraternization and under age drinking. But I also don't think it absolves him of his actions either.

Posted by: MikeD at May 15, 2013 11:21 AM

"That is to say, she was too drunk to consent, because she was too drunk to consider even the more limited question of whether she was being raped or just didn't want the sex that was being done to her."

But she said she was trying to figure out if it was "really rape", so cognizance is apparent if common sense is not.

"Second, I think that legal incapacitation does not (and indeed should not) require the inability to speak or physically ward off a rapist."

Excuse me?!? If I am able to speak, how am I incapacitated wrt my ability to refuse consent to sex. If I am able to speak, am I not able to say, "NO!" or "Stop!" Thereby setting straight the question of consent - irregardless of physical capabilities at the time. As has been repeatedly pointed out, she states she was internally questioning whether or not it was rape, yet she never said a word. Not one.

"Now, you may disagree, and I can respect that. But to me, I can say with all sincerity that I believe it is possible to get another person drunk enough to where they will be conscious, but unable to make informed consent."

But, Mike, they made an informed decision to drink in the first place.

Posted by: DL Sly at May 15, 2013 11:40 AM

Well, we're agreed on that last item. I've never thought her foolishness absolves him of his actions just as I don't think his creepitude absolves her of the basic responsibilities that go with being an adult and holding a job.

What I'm concerned with here is practicality. Laws based on some ideal imaginary reality where we *know* exactly what happened are foolish laws. That lack of knowledge/certainty is why vigilantee-ism and mob justice are such bad ideas.

In the real world, commanders and other officials need to be able to make decisions about whether to proceed with a case or not. When the law starts to split hairs as opposed to being as clear and unambiguous as possible, it becomes impossibly subjective and decisions will be all over the map.

I've never suggested - even for a moment - that he should be absolved. Failure/inability to punish because you can't establish the truth with reasonable certainty isn't absolution. It's failure/inability to punish.

All the things you say about judging your own intoxication, by the way, apply to him. Why is intoxication an excuse in her case, but not in his? Is she the only one whose judgment is impaired by alcohol?

Let's not forget that the whole "women in the military" debate was premised on the assumption that there were no significant differences between men and women large enough to require all sorts of special accommodations. It was also argued that women are perfectly capable of taking care of themselves and fighting, thank-you-very-much and yet here we are, arguing that it's not reasonable to expect a female soldier NOT to go on dates with people she doesn't trust, NOT to violate the well known rules on fraternization, NOT to break the law against underaged drinking, NOT to wait a whole week before reporting a 'rape' to the command, NOT to expect even a very drunk person to utter a single word!!!

No one else can be in charge of our own judgment. That's a task left to each individual. Stress, exhaustion, sickness - all these things also impair judgment and self control.

In a he said/she said situation, I just don't think it's reasonable to set up a standard where accusations supported by no evidence whatsoever can put another person in jail or end a career.

The English jurist William Blackstone averred that it was preferable for ten guilty men to go free than for the state to unjustly punish one innocent man. Our whole legal system is predicated on the presumption of innocence, and not requiring proof of a crime tramples that presumption.

Posted by: Cassandra at May 15, 2013 11:42 AM

In a he said/she said situation, I just don't think it's reasonable to set up a standard where accusations supported by no evidence whatsoever can put another person in jail or end a career.

And I absolutely agree with you. I did up above too. Where I was agreeing with Grim is that if we could corroborate her story, or if the man voluntarily stated "she was wasted," then I would in fact consider him to be prosecutable. But that assumption (her testimony was corroborated or the man confessed) is the only way I see it possible to make this a prosecutable case.

But, Mike, they made an informed decision to drink in the first place.

My position was (and is) that I can accept the possibility that an 18 year old, especially one with limited drinking experience could have made the decision to drink, but that decision is not necessarily an informed one. As you and Cass say, even she does not allege that he slipped her a mickey, or kept handing her things to drink that she didn't think were non-alcoholic. But I still think it is possible to convince an already inebriated person to keep drinking long after they would have stopped. Actually, that's not 100% true, I KNOW it's possible. I've had others convince me to continue drinking long after I knew I was already too drunk (mind you, that was years ago, but it happened; luckily nothing seriously bad happened to me as a consequence).

Excuse me?!? If I am able to speak, how am I incapacitated wrt my ability to refuse consent to sex. If I am able to speak, am I not able to say, "NO!" or "Stop!" Thereby setting straight the question of consent - irregardless of physical capabilities at the time. As has been repeatedly pointed out, she states she was internally questioning whether or not it was rape, yet she never said a word. Not one.

Please believe me when I say that I really do not mean to upset you. If you're taking offense at things I'm saying, I will gladly stop rather than continue to give offense. But let me clarify. I'm not saying that anytime a woman does not affirm in the positive that she wants to have intercourse that it is rape. What I am saying is that plying a young woman with alcohol, and getting her intoxicated to the point where she cannot decide if you're raping her or she's just going along with something that she'd rather not do at the moment... that's rape. You're dealing with someone unable to form a coherent thought process because they're so soused... that's incapacitation. Sure, she's not in a coma, but I'm not so sure it's all that different.

And again, this is all predicated on the contra-factual assumption that everything this young lady says is 100% true, and not just remorse after the fact. We cannot make that assumption in the real world. But in the hypothetical case that Grim was referring to, I agree with him that it would constitute a rape.

((Sorry for jumping back and forth here... I'm trying to catch up))
All the things you say about judging your own intoxication, by the way, apply to him. Why is intoxication an excuse in her case, but not in his? Is she the only one whose judgment is impaired by alcohol?

And this troubles me as well. I fully believe a man can be intoxicated past the point of incapacitation, and be subjected to a rape as well. Does that absolve him of criminal intent? If so, we've got an awful lot of drunk driving cases we need to throw out. I think the assumption is that someone who chooses to get drunk and then performs a criminal act is still liable for that act. As a society, we may scorn a victim who incapacitates themselves, but as a rule, we do not absolve their attackers simply because their victim placed themselves at the attacker's mercy.

Let's assume a slightly different scenario. Let's say the woman's story was different in only one regard. Let's say she instead reports that she drank with him, vaguely recalls him undressing her, then waking in her own bed with evidence that he had intercourse with her. If that were the case (please do note the contra-factual predicate there), then we would all agree that even though she had voluntarily gone on an ill-advised and unwanted date with a creep, even though she had voluntarily drank his vodka past the point of consciousness, even though she made no effort to stop him from undressing her (not even just a faint "no"), we would ALL agree that this would constitute a rape.

So why would the fact that she was just on the other side of blacking out mean no rape occurred? Believe me, I would never want to be accused of rape based upon the fact that a woman came back a week later and said that in her head, she had been debating if I was raping her or just not wanting intercourse at that time. If I were the male NCO in question, I'd be horrified. But then again, I never attempted to have sex with a woman nearly half my age after getting her illegally intoxicated with alcohol. And yes, I am using that word "getting" again. She was no passive participant, it's true. But of the two of them, he was the only one judged by the law to be capable of responsibly drinking. I assume you know my position on the drinking age anyway (if not, it's that either 18 is the age of majority, or it's not; raise all "adult" responsibilities to 21, or lower them all to 18). The problem is, I operate in what is, not what I would like it to be.

Now, here's where I get in trouble with everyone. In the case of violent rape, I'm 100% in favor of applying the death penalty. In cases like this one (he got her drunk, she only later determines that she really didn't want to have intercourse, she calls rape and the evidence or testimony confirms she was intoxicated so as to render her judgement impared) I'd actually prefer a lesser crime with far less punishment. It'd still be jail time, but nothing NEAR what he'd get for a violent rape. Rape by fraud would be somewhere in between (e.g. a man pretends to be a sleeping woman's husband) still no death penalty, but more serious jail time. I know this goes against the concept of "rape is rape", but I guess I'm just flawed that way.

Posted by: MikeD at May 15, 2013 02:08 PM

Hi MikeD,
I quite agree w/ you that this guy kis a creep, and I think his behaviour, as described, is reprehensible.
BUT
As a retired senior officer that has had experience with the administration of the UCMJ (disclosure: never as a defendent or CO), I'm telling you that absent a confession thise case could not possibly hold up as rape.
and the creep has the same right to silence as a civilian in a Courts Martial proceeding.
Article 15 hearings (Captain's Mast) are a little different, and there's no easy way to explain the nuances to a civilian.

While it's not 'real justice,' I still believe a quick NJP hearing, followed by posting the results of that hearing (which is required) would have publicy shamed the creep, and effectively ended his career.

Best Regards,

Posted by: CAPT Mike at May 15, 2013 09:43 PM

"As a retired senior officer that has had experience with the administration of the UCMJ (disclosure: never as a defendent or CO), I'm telling you that absent a confession thise case could not possibly hold up as rape."

I don't think anyone here is arguing that the case as described could hold up in court, short of a confession. Seems to me there are really three questions being discussed here:

1) Under the UCMJ, if the situation happened 100% as the victim described it, would this event count as rape? Debate here seems centered mostly on whether her described level of intoxication is sufficient for this. For what it's worth, if I remember right, these days the "official" word from the Sexual Assault Response Coordinator office seems to be that ANY level of intoxication renders a person legally unable to give consent, even if he or she (in practice pretty much always she) says yes at the time!

2) If the situation happened 100% as the victim described it, should this event count as rape? Or does the law and its interpretation now lean too heavily towards absolving people of responsibility for their decisions?

3) Given the event as described, could this or a similar case actually hold up in court, whether military or civilian, short of a confession by the defendant. Everyone seems to agree "no" on this one.

Side note, from the comments in the original article: given the description of the man as 15 years her senior and prior enlisted, but not specifically mentioning him as her superior or an NCO, is it possible that he was actually a fellow student or otherwise close to the same rank, having left the service and returned via the Guard or Reserves? That would further complicate the fraternization question, if so.

Posted by: Matt at May 15, 2013 11:06 PM

Matt sums it up nicely. I started in this discussion saying that the woman destroyed any chance of a conviction by waiting until all possible corroborating evidence (her blood-alcohol level) was completely gone. So that all the man would need to do is say "I never let her drink, she was underage" and her case would fall apart.

Where I flipped it around was in saying IF the jackass was stupid (or honest) enough to admit, "oh yeah, she was trashed", I'd throw him to the wolves in a heartbeat. The discussion off of that seemed to center on if (given that she could debate mentally if she was being raped or not) she was actually incapacitated as the regulation requires. Oddly enough (for most discussions of this type, but not so much for the Company here) it was the ladies arguing that she could have and should have said "no" at some point, and thus was not incapacitated.

And I think Matt reminded me why I seemed to have this inkling that "intoxication IS incapacitation" in the military's view, and I think it's because I vaguely remember those Sexual Harassment classes we were required to attend bi-annually (twenty or so years ago). Now... I freely admit it's ENTIRELY possible those classes taught a lower standard of intoxication is necessary to fit the UCMJ's standard of "incapacitation" (in order to keep soldiers out of even approaching that line). And that would even make sense for them to do. But I honestly feel that assuming everything the female servicemember is 100% accurate as to the events (and only if that can be assumed because of corroborating evidence or other testimony that supports her) this is a rape.

Posted by: MikeD at May 16, 2013 08:45 AM

For what it's worth, if I remember right, these days the "official" word from the Sexual Assault Response Coordinator office seems to be that ANY level of intoxication renders a person legally unable to give consent, even if he or she (in practice pretty much always she) says yes at the time!

Now *that* is just plain insulting. And infuriating.

...from the comments in the original article: given the description of the man as 15 years her senior and prior enlisted, but not specifically mentioning him as her superior or an NCO, is it possible that he was actually a fellow student or otherwise close to the same rank, having left the service and returned via the Guard or Reserves? That would further complicate the fraternization question, if so.

That's a distinct possibility, though if she's fresh out of basic it seems less likely. I don't know as much about enlisted recruiting as I probably ought to - when someone has prior time in service, do they still bring them in as PFCs?

This also struck me as weird:

“Sharking” was a term used by the male recruits; when new females showed up, it was like a bucket of chum thrown into the ocean.

Male recruits? I wouldn't think there were *any* "recruits" at DLI. It just struck me as weird, but then my only knowledge of DLI comes from the spouse having applied to go to school there and the NPS as a junior officer. The Marines send a tiny number of officers each year, or at least they did in the early 1980s. He was selected as a runner up, so we were sticking pins in a voodoo doll with "#1" in it, hoping the guy would turn it down.

Didn't happen, so he went to the Postgrad school in Monterey instead.

Posted by: Cassandra at May 16, 2013 09:37 AM

These two comments sum the situation up for me:

"Believe me, I would never want to be accused of rape based upon the fact that a woman came back a week later and said that in her head, she had been debating if I was raping her or just not wanting intercourse at that time."

"While it's not 'real justice,' I still believe a quick NJP hearing, followed by posting the results of that hearing (which is required) would have publicy shamed the creep, and effectively ended his career."

Guys who will never understanding what's wrong with the first scenario can at least encounter the consequences of (many of) his colleagues understanding it very well indeed.

Posted by: Texan99 at May 16, 2013 09:42 AM

The discussion off of that seemed to center on if (given that she could debate mentally if she was being raped or not) she was actually incapacitated as the regulation requires. Oddly enough (for most discussions of this type, but not so much for the Company here) it was the ladies arguing that she could have and should have said "no" at some point, and thus was not incapacitated.

I accept that this is a fine line, Mike, and it doesn't particularly bother me that you and Grim disagree about where the line should be drawn. I was just arguing my point of view.

My point is simple: even if all we have to go on is her statements, where I come down is that she wasn't incapacitated. Her judgment was almost certainly impaired, but that's not the same as being incapacitated.

And having been in that position a few times over the years, I can't imagine lying there thinking, "Hmmm... is this rape?", thinking to myself that I didn't want to have sex with a man, and still not saying either of those easy-to-utter words: "Stop" or "No".

Rape, to me, has to involve some level of force or intimidation. Relationships between the sexes are just too vulnerable to misinterpretation and misunderstanding not to draw a line.

I don't have time to write about this right now, but a story I've been following is the DOE's new guidance on sexual assault/harassment that essentially throws away the 'reasonable man standard'. Now most people are not reasonable all the time, but abolishing this time tested legal standard scares the hell out of me.

The law can (and should) ask: what would a reasonable person of like age/education do in this situation? Her conduct fails that test miserably. So does his. So where I come down is, in a profoundly ambiguous situation not involving dire harm, don't come looking to the law for a remedy if your own behavior wasn't reasonable because you're just not credible.

A regretted one night stand with non-forcible sex just doesn't fit my definition of dire harm. I respect your opinion, but that's where I stand.

Posted by: Cassandra at May 16, 2013 09:47 AM

...and Tex's last comment feeds right into my point about the new DOE guidance. As some of you know, I wasn't ready to jump on the OMG THIS IS A TRAVESHAMOCKERY bandwagon about schools using the civilian burden of proof (preponderance of the evidence) to decide a non-criminal hearing on whether a student has violated a *civil* code of conduct.

It's the right standard, and I'll never be convinced otherwise. But abandoning the reasonable person standard truly shocks me, and should be fought tooth and nail.

Posted by: Cassandra at May 16, 2013 09:51 AM

You're dealing with someone unable to form a coherent thought

The problem is that, by her own account she was forming coherent thoughts: "By agreeing to have dinner with him and then drink his alcohol, she felt that whatever was happening may not have been something she wanted, yet did not jibe with the definition of rape she’d had in her mind". That's a pretty coherent thought, right there.

Posted by: Yu-Ain Gonnano at May 16, 2013 09:57 AM

Bingo.

Posted by: Cassandra at May 16, 2013 10:02 AM

Let's say she instead reports that she drank with him, vaguely recalls him undressing her, then waking in her own bed with evidence that he had intercourse with her.[...snip...] we would ALL agree that this would constitute a rape.

Um, no we wouldn't.

You assume that her lack of memory implies that she was unconsious. It is quite possible, in that scenario, that she was enthusiastically participatory in the act of sex, but simply does not remember it.

I do not agree that we should hold the other person accountable for judging what she would and would not remember in the morning.

Posted by: Yu-Ain Gonnano at May 16, 2013 10:11 AM

When I was in my freshman year, I woke up on at least one occasion with absolutely NO memory of at least part of the night before's escapades. That is one part of the reason I left school (there were many) - that's not a good sign and heavy drinking was extremely common at the school I went to. In fact, it was famous for that.

I did a lot of dumb things as a kid. I was overconfident and certainly overly trusting. I'm often amazed that nothing really bad happened to me.

So my assessment of this story is very much colored by my own experiences. Faced with the situation Yu-Ain addresses above, I can safely say that it would never in a million years have occurred to me to cry "rape" in that situation.

Never. Ever.

The most basic responsibility we have in life is over ourselves. When we choose to abdicate that responsibility, there are consequences. In some cases, we end up bearing those consequences.

In the worst case, other people are the ones who suffer.

I see very little daylight between the two scenarios - the responsibility still rests with the person who voluntarily chooses to cede control over their own actions and impairs their own judgment. We don't get a pass for doing that, ever. Because it could always be worse. It could always be someone else who pays the price with their life.

Posted by: Cassandra at May 16, 2013 10:21 AM

I’d like to leave aside the military angle and look just at the idea of consent. Here’s a quote from an article Cassandra blogged about in November of last year:

As [Nicole] explained to me over coffee that day, one night in the fall, she got drunk and ended up having sex with this guy in his dingy frat room, which was littered with empty cans of Keystone Light and pizza boxes. She woke up the next morning to find a used condom tangled up in the sheets. She couldn't remember exactly what had happened that night, but she put the pieces together. She smiled, looked at the frat brother, and lay back down. Eventually, she put her clothes on and walked back to her dorm. Mission accomplished: She was no longer a virgin.

The only difference between her story and the story in the current post is that Nicole didn’t have any regrets. Well, and Nicole seems to have been even drunker than the woman in the story we’re discussing currently. Nicole was no less able to give consent; Nicole didn’t know her partner any better than the young military woman (she may have known him less well). But Nicole wanted to get drunk and have sex. How is the man in each case supposed to know which woman wanted to get drunk and have sex and which woman wanted to get drunk and not have sex?

I also think that this may be what that the beleaguered Air Force General, Mark Welsh, was referring to when he blamed the problem on the hook-up culture. I cannot find a transcript of his remarks but Ruth Marcus quotes him as saying:

Roughly 20 percent of the young women who come into the Department of Defense and the Air Force report that they were sexually assaulted in some way before they came into the military. So they come in from a society where this occurs. Some of it is the hook-up mentality of junior high, even, and high school students now. . . . The same demographic group moves into the military.

We have got to change the culture once they arrive. The way they behave, the way they treat each other cannot be outside the bounds of what we consider inclusive and respectful.

(I’d love to know what was originally between “now” and “The same”.) This has been roundly criticized as blaming the victim. But the general is clearly not referring only to women and girls; he is referring to how men and women treat each other. If a high school guy gets used to girls getting drunk and having sex without objections, how is he supposed to know that one particular young woman who went on a date with him, got drunk with him, and came back to his room with him doesn’t want to have sex.

While looking for Cassandra’s post about Nicole, I found this post from 2010, which highlights part of why I’m so very uncomfortable with the insistence that this young military woman shouldn’t be held responsible for her bad judgment: Protecting women has far too often become an excuse for restricting women. Or as Cassandra put it so neatly:

Women cannot have it both ways here: either they are equally capable and intelligent (and therefore equally able to obey military regulations) or they are fragile combat flowers who must be followed around 24/7 by their employers on the off chance that they may voluntarily choose to render themselves helpless

And, finally (at least for this comment) I would like to point out that, just as in Nicole’s case and just as in the post about women having it both ways, alcohol is a (I believe “the”) big factor here. Perhaps we don’t need to teach anyone anything more about sexual assault. Instead, perhaps we should focus our efforts on teaching men and women not to drink too much in a situation where not having full command of their faculties can result in undesired consequences.

Posted by: Elise at May 16, 2013 12:56 PM

And one truly final thing. The young military woman's account says:

By agreeing to have dinner with him and then drink his alcohol, she felt that whatever was happening may not have been something she wanted, yet did not jibe with the definition of rape she’d had in her mind: gang rape, forcible rape, aggravated rape—in other words, “real” rape.

What the (insert general bad language here) difference does it make? Is this woman saying, well, if I don't want sex but it's not really rape, then I'll just lie here, close my eyes, and think of England? Unwanted sex is something I have to let happen, provided it isn't really rape? I can't say, "No" unless it's rape? Really?

I think this is the single most insane thing in this entire account.

Posted by: Elise at May 16, 2013 01:11 PM

I'd totally forgotten that old post, Elise! I could not agree more with your comments. Especially this one:

This has been roundly criticized as blaming the victim. But the general is clearly not referring only to women and girls; he is referring to how men and women treat each other. If a high school guy gets used to girls getting drunk and having sex without objections, how is he supposed to know that one particular young woman who went on a date with him, got drunk with him, and came back to his room with him doesn’t want to have sex.

That part of Marcus' article was absolutely infuriating. She unjustly condemned the general for what was actually an extremely astute observation.

Requiring men to hold to a far higher standard than women is poisonous and unjust. It's death to unit cohesion and morale. Yes, women face the risk of rape, but men face the risk of false rape charges that can destroy his career prospects and his reputation.

I get really tired of hearing people go on about how women have to be protected. The world is a dangerous place for BOTH men and women. Who we associate with matters.

Who we date or have sex with matters.

The way we comport ourselves matters.

Our values matter, as does our judgment.

These are the things reputations are built upon.

I wasn't a fan of full integration of women into the armed forces. My assessment of human nature is that it is weak and prone to errors of all sorts. But having gone there, I sure would like to see some REAL commitment to treating men and women equally and holding them to the same standards.

And yes, all too often I think that holding women to a lower standard is used as an excuse for treating us like foolish children who can't be trusted with adult tasks or responsibilities.

Good God - is that really how women are viewed? I hope not, but I often suspect I'm being hopelessly naive.

Posted by: Cassandra at May 16, 2013 02:11 PM

"The problem is that, by her own account she was forming coherent thoughts: 'By agreeing to have dinner with him and then drink his alcohol, she felt that whatever was happening may not have been something she wanted, yet did not jibe with the definition of rape she’d had in her mind'. That's a pretty coherent thought, right there."

YES!!!

"I did a lot of dumb things as a kid. I was overconfident and certainly overly trusting. I'm often amazed that nothing really bad happened to me.

I was able to say the same for many of my young adult years. Then, even though I had done everything *right*, I could no longer.
"Who we associate with matters.

Who we date or have sex with matters.

The way we comport ourselves matters.

Our values matter, as does our judgment.

Posted by: DL Sly at May 16, 2013 03:51 PM

[with regards to "any alcohol is too much to give consent]
Now *that* is just plain insulting. And infuriating.

Yeah, well, so was receiving twice yearly counseling to not sexually assault or rape someone else considering that we started having to do the training at all because of Tailhook (all naval aviator officers involved in that incident) and the second yearly training was instituted because of Drill Sergeants getting frisky with recruits. It struck me as insulting that I was being given corrective training for something I never did, never intended to do, and knew how not to do BEFORE sitting through such a waste of time. But that's the Big Green Machine for you. I hear solders are up to 4 per year now. And given the latest it might go to five?

Male recruits? I wouldn't think there were *any* "recruits" at DLI. It just struck me as weird, but then my only knowledge of DLI comes from the spouse having applied to go to school there and the NPS as a junior officer. The Marines send a tiny number of officers each year, or at least they did in the early 1980s. He was selected as a runner up, so we were sticking pins in a voodoo doll with "#1" in it, hoping the guy would turn it down.

I spent a year and a half there, so I can answer any questions you like. "Recruit" is a nebulous term. Most students at DLI are first time students, and while they've completed Basic Training (or Boot Camp as applicable) they have not yet been through Advanced Individual Training (or the Navy, Marine Corps, or Air Force equivalent). Some (mostly officers and NCOs) are switching MOSes or switching languages. I fell in the former category. As such can I be called a "recruit"? Eh, your call.

Posted by: MikeD at May 16, 2013 05:01 PM

I think you've acquitted yourself very well, Mike. We disagree perhaps in a small way about one point, which is punishment; but on reflection, I think perhaps I agree with you more than it might appear.

I think that violent, forcible rape should be punished by death. I also think that secretly drugging someone and then raping them should be punished by death. But it may be that this kind of case, when it is done by people who have both (while still sober) embarked upon a romantic date, could justly receive a lesser punishment even where there is severe and manipulative bad action by the aggressor. This is your point, I think.

I had written that an older man who makes a younger one drunk for the purpose of raping him should hang, which I really believe. The world is immeasurably improved by each such departure.

But I had failed to consider, as it does not usually enter my consciousness, that now we have a military in which at least some young men will be homosexuals who might have undertaken a date willingly. Now for most men, such a secret rape would be devastating to a degree that nothing but death could be a just and equal punishment for the violation. As being raped forcibly demands nothing less in the case of women, I think this kind of thing can only be punished by death and nothing less, or we are ourselves violating all basic norms of right. Further, leaving such men alive is a positive harm to the rest of humankind, for they will continue to rape even in prison.

But in cases where a kind of romance was at least considered, even tacitly, death may not be warranted. It is difficult for me to imagine that there are men who feel that way toward other men, even though I have known some of them. It's as hard to imagine as a square circle. Still, if they are going to be admitted into the service, we must arrange the laws accordingly.

Posted by: Grim at May 16, 2013 05:40 PM

Last couple comments made excellent points Elise!

I'm w/ you Cass that 'rape' is a different kind of crime, depending on circumstances. violent (of/by any gender), and some of the more vile things like the hidden drugs . . . hell, we should them suffer *after* we kill them.

Sadly, all to often these more subtle gray issues arise (exactly what constitutes assent, and the crummy near certainty that there are raely objective third pary witnesses).

I share the views that decry the idea that we have to treat our people like children, to prevent a recurrence of crimes by bad actors.

Best Regards,

Posted by: CAPT Mike at May 16, 2013 07:22 PM