Tuesday, October 29, 2013

Ohio University should drop its investigation into the sex act between consenting students caught on video

A grand jury has determined that it will not file charges against a 20-year-old male student who engaged in a public sex act with a 20-year-old female student that was caught on videotape near Ohio University.

The district attorney has revealed information about the case that makes clear it is grossly unjust to say that a sexual assault occurred.

In reaching its determination, the grand jury used the same standard of evidence that the Department of Education mandates American colleges must use in their own internal disciplinary proceedings involving claims of sexual assault (probable cause -- the same as the preponderance of evidence standard used at colleges).

The prosecutor, Keller Blackburn, stated that the main issue the grand jury faced was whether the man knew the woman had no ability to consent. “A reasonable person would think that she was not intoxicated beyond the ability to consent,” Blackburn said. (This standard mirrors the one the university uses: OU's sexual misconduct policy states that consent cannot be obtained from someone who is "asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs or some other condition.")

Investigators determined that the couple, both 20-year-old students, had alcohol from a bar before the sex act, the prosecutor said yesterday. The prosecutor said the man asked the woman whether to stop the act when a crowd formed, and she said no. (That is exactly what we tell young men they are supposed to do: ask. He asked, and she verbally manifested her assent.) The prosecutor also said that the young man has cooperated with police, and the woman didn’t remember what happened. Testing showed no sign of any “date rape drug.”

The prosecutor also revealed the following: “Being able to walk down the hallway carrying her own burrito and into the apartment, she was able and not being escorted,” Blackburn said. “It didn’t appear to us or the grand jury that she was not able to give consent.” The couple can be seen on video voluntarily entering the man’s apartment. They arrived just after 3:30 a.m. and left at 6:30 a.m. The man then walked the woman home and provided her with his cell phone number.

The prosecutor also revealed that the man was attacked after the incident by a male bystander -- but not because of any belief that the woman had been raped. “The assault on him came from a citizen who appeared to be disgusted by that type of activity taking place in public, not because he was concerned about the safety of the female,” Blackburn said.

We don't have the benefit of the testimony to the grand jury, but in an email to Business Insider, a student who witnessed the public sex act and posted a photo of it on Twitter offered his perspective on why bystanders didn't intervene: "[It] did not seem like a rape or sexual assault, as the female was coherent enough to walk and talk. She was not passed out." A source cited by Gawker said that "the video shows both parties actively participating, and they both acknowledge that they are being filmed and observed." Another said "that the photo’s subjects ‘posed for pictures with each other and with several bystanders after they were finished.’”

Nevertheless, despite all of this, Ohio University is still thinking of punishing the young man.

“We have an internal process that we’re following and this kind of information — well much of this — may make it into our investigation,” said Vice President for Student Affairs Ryan Lombardi. President Roderick McDavis has previously said that the school would conduct its own investigation into the public sex act.

Ohio University should defer to the more capable law enforcement authorities who have reviewed the evidence, and the school should drop its investigation now. American universities are notoriously ill-equipped and untrained to mete out justice in sexual assault cases.

Prof. Mark A Godsey of the Innocence Project and the Wrongful Convictions Blog (we link to it on the left side of this page -- it is the greatest resource for the wrongly accused) has said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases." The subject of rape is politicized on American college campuses to the point that public outcries are becoming more and more common.

We hope that that Ohio University does not succumb to the public outcry swirling around this event, but the sex act is being talked about at OU, and around the nation, as if it were an actual sexual assault or something close, and that sort of atmosphere only enhances the prospect of injustice.

The school didn't wait for the district attorney to reach its conclusions before it held an event last Thursday titled “Campus Conversation: Sexual Assault, Consent, and Bystander Intervention” that top university administrators and students concerned with “sexual assault, consent, bystander intervention, victim blaming/slut shaming, university policy and community outreach.”

Moreover, the school's president issued a statement that branded the event an "unfortunate incident" and stated: "When we conclude our investigation, we will take appropriate action to hold those involved accountable, in keeping with Ohio University’s policies and Code of Conduct." Note the president did not say the school "would take appropriate action to hold those involved accountable if the evidence warrants it."

Moreover, numerous faculty signed a letter last week saying they were "deeply concerned about recent events involving alleged sexual assault, alcohol and social media on our campus and in our community." They said that "long-term solutions" were needed. "Don’t be a passive bystander: If you see something that’s not right, intervene directly if it’s safe to do so, or contact someone who can intervene safely." The implication seems clear: in the incident at issue, bystanders should have intervened to stop something improper. The faculty, at least, seems to have made up its mind (despite its use of the word "alleged") that something bad happened to the young woman.

Another letter appeared in the student newspaper that said "the news of a very public sexual assault that occurred last weekend has troubled me a great deal."

We fear that Ohio University is being being subjected to the sort of public outcry that breeds injustice. All persons of good will need to encourage the university to defer to the professionals who investigated the incident, and drop its investigation.