Monday, May 16, 2016

I am having some problems with the way the Grant Neal college rape case is being reported

Colorado State University-Pueblo expelled a male student athlete named Grant Neal for an alleged rape, and there is a lot of outrage about the case on the part of people concerned about the academy's hostility to the due process rights of men accused of sexual assault. The problems with the university's handling of the case have been discussed by other writers, see, e.g., here, and I won't repeat them.

The principal outrage is over the fact that the alleged victim declared the accused did not commit rape, yet a friend of the alleged victim "noticed a hickey on the woman’s neck. When she learned the woman had sex with a prominent football player, she surmised her friend had been raped and reported that to university authorities." See here.

The case is being talked about as an absurd example of a university bent on expelling a male student even when the "victim" says she wasn't raped. Megyn Kelly of Fox News reportedly said this: "Tonight, we have the story of two college students who had consensual sex, a third student who decided it was really a case of rape and a campus system of so-called justice that kicked the young man out of school despite the fact that there is no evidence of any crime." One writer asked, "What responsibility does a college have to move ahead with a third-party complaint if the supposed victim says she consented?"

I am having some difficulty with this case, and I invite anyone with information about it to write to me to explain what I'm missing: I have no doubt that there were serious due process infirmities in the way the case was prosecuted, but the blanket assumption that this was consensual sex seems unwarranted.

The woman's conclusory characterization that she wasn't raped should not necessarily be the end of the case. Nor does it means, as Megyn Kelly of Fox News apparently said, there was no evidence of rape. What the pundits seem to gloss over is the following:
According to CSU-Pueblo’s internal investigation, obtained by CBS4, the woman told an investigator, “Grant was lying on top of me and I told him that I did not want to have sexual intercourse with him that is unprotected because I am not on any birth control. Although I told Grant no, Grant ended up penetrating me … and I told him to stop. He stopped and pulled out from me immediately. Grant then said to me that if he used a condom, would I be okay with that. I told Grant yes to the condom. Grant placed on the condom and we began to have protected sex at this point which I was okay with it.”
. . . .
. . . CSU-Pueblo’s Title IX investigation found the preponderance of evidence substantiated a finding of sexual misconduct on the part of Grant Neal for participating in non-consensual sexual intercourse on Oct. 25 for the moment when he didn’t have a condom on during that sexual encounter. The university suspended Neal from campus, ruling he could not return until the woman graduates.
See here. She claims she outright told him "no," but he penetrated anyway. That doesn't sound like an accident or a young couple exploring boundaries. If a woman says she doesn't want to have sex but the man proceeds to penetrate her--if that is what really happened--it is rape. A woman's conclusory characterization that no rape occurred should not override her specific account of the facts of the alleged incident.

Someone can say he did not enter into a contract, but if the facts show the legal elements of a contract were present, there was a contract.

Please understand, I am not suggesting that the woman's account of the alleged incident should be believed (nor am I suggesting she should be disbelieved). This appears to be a classic "he said, she said" case because the accused's account shows the sex was consensual. Add to that the woman's adamant (albeit conclusory) denial that he did anything wrong and the fact that immediately after the "rape," she consented to have sex with her "rapist," and we must wonder, yet again, how the scales tipped in favor of guilt.

But all that goes to the weight, not the sufficiency, of the evidence (there's a big difference in criminal law). Any suggestion that there was no evidence to find this student guilty of rape seems to be incorrect, if the news story quoted above is correct. Again, I invite anyone who knows better to write to me.

The academy's hostility to due process is blatant, chronic, and unjust. The Department of Education is fomenting witch hunts against young men on campus, and its motivating impulse is misandry. Few have written about it more than this blog. But all that should not give us license to ignore evidence in a given case. We ill-serve the community of the wrongly accused when we lose our objectivity.