Athens County's prosecutor said this afternoon that he won't file charges against the man accused of raping a student on the street during Ohio University's homecoming festivities. Neither the male accused of rape nor the 20-year-old female student who accused him have any memory of the incident, the Columbus Dispatch's Alex Felser reports. A grand jury did not find probable cause of a crime.
The 20-year-old female student came forward the next day to file a rape complaint after she saw a video on Instagram.
The police report notes that alcohol was involved in the incident. The woman did not know the man performing the sex act on her, according to the police report, but witnesses said the two appeared to be a couple.
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.’”
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."
But, of course, the usual pundits know better than bystanders, the district attorney, and the grand jury. Caitlin Flanagan deigned to tell her readers "what was up: The young woman was out of her gourd on booze, and the young man was taking advantage of her drunkenness to assault her." This despite all her outward manifestations of being able to walk and talk and actively participate in the sex act and pose for pictures with onlookers. Why let the facts get in the way of a good male-bashing narrative?
This is the new battleground: for years the usual suspects narrowed the definition of consent so that it is barely recognizable to attorneys. Now they are trying to do the same with the word "incapacitated."