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When my husband was stationed in Japan from 94-2001, Pacific Stars and Stripes was our newspaper (it was that or U.S.A. Today) . Their coverage of rape and sexual harassment  in the military  was extremely good and very objective, as was their coverage of some rapes of Japanese women by servicemen.  There were no excuses made, no attempt to downplay the facts, and no rush to justice (they covered those cases far better the MSM did the Duke  rape case.  They also covered Japanese handling of rape, and one case in particular shocked me.

The Japanese-American wife of a service member was sleeping quietly next to her husband when she heard a noise. A stranger was entering their 4th floor apartment through the unlocked screen door from their balcony.  In Japan, electricity is so expensive that most people do without it a tonight, and rely on the screen door, which has no lock,  for keeping cool. The man crossed the room, and before she could do more than nudge her husband, was on top of her, pulling down her nightgown and fondling her.  Her husband woke up, yanked the Japanese assailant off her, and sat on him while she called base security, who sent over two people and a translator.  In the course of the investigation, the would-be rapist, who was rather drunk, admitted that he had climbed down three levels from his balcony, and across two other apartments to get to her home. He also admitted he’d tried to enter once before, and that he had stalked her for several months.  Moreover, this wasn’t the first time he had been caught in such behavior—he’d been arrested previously for similar behavior.  

He was found guilty of attempted sexual assault. The judge responded sternly by giving him a long talking to about drinking and attacking women.  That was it. No jail time. NOTHING. He was drunk, and that seems to have excused everything. In Japan, at least, it appears that if you’re drunk you can get away with attempted rape—and probably an actual rape.

Think that doesn’t happen here?  The next case I will describe occurred right here in America, in Santa Clara County, California. As of yet (this happened in March, 2007), the D.A. has declined to press charges because of insufficient evidence—yet there were three credible witnesses to what happened.

The alleged attack took place at a college party off the De Anza college campus.  Here is what the witnesses saw:

Lauren Chief Elk and April Grolle are 20-year old De Anza College students and teammates on the school's soccer squad. They were leaving a party at a house when they realized something wrong was going on in a back room where the doors were closed and the lights were off.
"We heard and saw a girl tapping on this door in the kitchen saying 'There is a girl in there with eight guys," explains Chief Elk.

They say they tried to get into the room, but were confronted by a baseball player.
"[He said] 'Mind your own business; she wants to be in here' and slams the door," says Grolle.
What they saw through a crack in the door horrified them.

"When I looked in, I saw about ten pairs of legs surrounding a girl, lying on the mattress on the floor and a guy on top of her with his pants down and his hips thrusting on top of her," recall Chief Elk. "And when I saw that I knew immediately something wasn't right. It just didn't look right."

"I saw that this young girl did not want to be in there, and that's when we just went 'We're getting this girl out of there,'" says Grolle.

April and Lauren -- along with a third soccer player named Lauren Breayans -- broke down the door and were shocked with what they found.

"This poor girl was not moving. She had vomit dribbling down her face. We had to scoop vomit out of her mouth [and] lift her up. Her pants were completely off her body," says Chief Elk. "She had her one shoe one, her jeans were wrapped around one of her ankles and her underwear was left around her ankles. To the left of the bed there was some condom thrown on the ground."

"When they lifted her head up, her eyes moved and she said 'I'm sorry,'" says Grolle. "One of the guys who was in the room said 'This is her fault. She got drunk and she did this to herself.'"

Lauren Chief Elk didn't believe him: "You have to be conscious to consent to something, and that was not the case at all."
http://www.ktvu.com/...

While the D.A., a woman named Dolores Carr, declined to charge the baseball players with any crime, the sheriff’s department is keeping the investigation open. The biggest problem appears to be the fact that the witnesses could not identify the man who was between the girl’s legs when they walked in—though there is DNA evidence, it is said And both believe that a crime occurred—the D.D. just doesn’t think she can prove it beyond a reasonable doubt, which is a valid reason for not prosecuting. It doesn’t help that the victim cannot remember what happened, even though three other women can testify to her intoxication and to the fact that a man was having sex with her when they walked in, and that there were multiple condoms scattered on the floor. It’s pretty obvious a rape occurred.

SANTA CLARA County's sheriff says she believes "a crime occurred" on the night of March 3. The district attorney acknowledged "some bad things happened" in a room with a 17-year-old girl and eight or more De Anza College baseball players.

Sure it's difficult. Some of the facts are murky, as they always are when young people are drinking excessively, as many apparently were during a party at a baseball player's home.

There are also, however, strong indications -- compelling evidence -- that a rape occurred. Remember, the young woman was 17. Seventeen. An adult having sex with her would be committing a misdemeanor even if it was consensual, and even if she were in full control of her faculties.

The accounts of three female soccer players from De Anza, who happened upon the horrific scene, suggest the young woman was in no condition to consent to anything and the assault was more than a misdemeanor. The 17-year-old they "rescued" -- the district attorney's word -- was too intoxicated to speak or stand. There was vomit on her face and on the bed. The latter pool of vomit was not hers, tests concluded.
http://sfgate.com/...

Again, the prosecutor isn’t denying a rape happened.  Neither is the sheriff.  The issue isn’t what happened, but who did it.Without a positive I.D. you can’t charge someone. Without evidence , you can’t get a search warrant for a DNA sample, although   California law does permit the use of a search warrant to obtain DNA, if you can support it. In other words, they probably can’t test every male guest at the party—although there have been warrantless "DNA dragnets" in other cities, such as Omaha and Baton Rouge. Such searches may be in conflict with the   Fourth Amendment.]

Everyone acknowledges a rape occurred—but no one can come up with someone to test, and thus the rapists will very likely walk, unless someone breaks the code of silence.

What troubles me more than the inability of the D.A. to prosecute someone—her hands really are tied without a suspect-- is the attitude of the public and at least one expert.

"In California law, the notion of consent is tied up with the notion of force, and it's hard to analyze what constitutes force or consent if it's not verbalized," said  Robert Weisberg
a Stanford Law School professor who runs the Stanford Criminal Justice Center.

Actually, this professor, however eminent his reputation is wrong. According to the California penal Code,  Chapter 261, section 3

Rape is an act of sexual intercourse accomplished with a
person not the spouse of the perpetrator, under any of the following
circumstances:

(3) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the
accused.

  (4) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused.  As used in this paragraph,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
  (A) Was unconscious or asleep.

  (B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.

FORCE is not a required element when the victim is drunk or unconscious, which the girl was—and there are witnesses to testify to that fact, as well, I suspect as blood alcohol tests done at the hospital.

He does get this right:

"Then if there's alcohol involved, communication becomes even more blurry."

A lot of people seem to think that because alcohol was involved, that absolves the athletes of guilt—that because the girl was drunk, they are home free. Here is what one person who posted a comment on an article had to say  that ties in with that Japanese case:

The problem with the three soccer girls testimony is that they
only saw the very end of a situation that started hours before.
Furthermore their testimony falls apart, because they are saying the
girl was unconsconcis, but, they also said, the girl in question said "
I'm sorry", so how does and unconscious women say that, and what was she sorry for?

Additonally, several boys standing around people whom are having sex does not mean it was rape, they do not say anyone was holding this girl down, nor, is it clear if they too were drinking that night, and perhaps their recollection is a little clouded.

Additonally, other featured articles indicate that it is okay for girls to drink, but not be held accountable, but boys whom drink must. Perhaps ereryone was too drunk that night to fully know what took place.

All we read about this case is a little too brief, and a little misquoted. DA Carr should be applauded for making the correct decision.
The truth be, let this case go to trial, and then maybe everyone will see
not only the victim in a different light, but also the so called hero's that night. It is been said, one of the girls went into that room saying,"hey who's having sex in here without me", so, I ask is the whole truth coming out? And does this sound like a rape scene?.....

SHe will be destroyed in a court room. She has cried rape before, and it was thrown out because in that case to there was no evidence of rape. You would think a girl whom cried rape before would not get herself into such a situation.

Lastly, why is okay for girls to drink, and not be held accountable, but, boys who drink, are? why is it they need to be in control of their actions, and girls do not? Let's get real.

My son recently went to another De Anza party, with girls, laughing,
saying "I'm Drunk, it's okay", he said he heard this over and over ...
http://media.www.lavozdeanza.com/...

For the record, I’ve read multiple stories on this case, and NOWHERE, other than in this post, does anyone say that the two soccer players who rescued the victim said "Hey. Who’s having sex in here without me?" nor does it mention a prior accusation of rape by  victim.  This sounds a lot like campus rumor.  The rape accusation would very easy for the media to check, and with all the media attention and criticism of the D.A. in this case, it’s unlikely Ms. Carr would not have mentioned that when defending her decision not to prosecute—it’d be a very strong point in her favor, and, as an elected official, she has to think of her career. Secondly, the ONLY mention I’ve heard of the soccer players’ jaunty comment when they banged on the bedroom door is in this post.  Somehow I think that would have been used by defense attorney.

What Mr. Marshall doesn’t get is that there is a double standard about drinking.  MEN can drink with impunity, and, if they are mugged and beaten up on the way to their car, no one ever claims they got what they deserved because they were drunk.  The mugger won’t walk because the victim contributed the crime and must have somehow consented to the beating because he was drunk. If a woman drinks and becomes too intoxicated to consent (under the California Penal Code), she is immediately branded as causing her own rape.  I strongly suspect that men know that someone that drunk is not legally able to consent (most colleges have rape education sessions during orientation these days, and go over this—if they didn’t get the info in a sex ed class in high school, which they should). If she’s under age, then her drinking is a crime—but being drunk does not constitute an invitation for any and all males who want to pull a train (otherwise known as a gang rape) to have at her.  

In reality, what Mr. Marshall is saying is perilously close to what the Japanese judge said: that if a guy’s drunk, he is not accountable for his actions. Sorry, don’t buy that. I don’t care how drunk you are.  You STILL know that gang rape of a girl so drunk she can’t stand is morally and legally wrong.

To sum it up succinctly: Her bad judgment doesn’t give him a free pass. Rape is still a crime, even if he has been drinking, too.
Do I wish young women were more careful? Damned right I do.  I personally believe that when a group of women attend a frat or similar  party, they need to have a designated person who stays sober and makes sure they don’t get into trouble (sort of a sexual designated driver). But her bad judgment doesn’t excuse his criminal behavior. Any woman who goes out to a bar partying with friends should never leave a drink unattended at the table without someone watching over it.  It’s far too easy to slip a roofie into someone’s drink.  DO I wish that when a woman returns to her table from dancing or the ladies’ room, that she dump that drink and order a new one?  Sure. But her carelessness doesn’t negate his crime.

Are there gray areas? Sure. And this case may fall there—but even the D.A. thinks a crime occurred, even if she can’t prove it beyond a reasonable doubt. Most  girls don't agree to a gang bang even if they're drunk. Sex with one of the guys? Sure? But EIGHT? With everyone watching?

Having sex with someone too drunk to consent or who has passed out is rape, pure and simple. We need to teach our daughters to drink responsibly and legally (binge drinking is a serious problem on many campuses; people die of it every year). We need to teach them that getting drunk in a house filled with young men who are also drinking  or at a bar surrounded by strangers, isn’t safe without one person staying sober enough to not only drive them home, but to make sure they don’t end up as rape victims. But we also need to teach our sons that "no" means "no". If she meant "yes" and is a tease, you’re not missing anything—a girl like that is trouble from day one.  We also need to teach them that,  all too often, horny young men + alcohol =instant asshole.  That having sex with someone so drunk that she cannot legally consent is rape, and that if they don’t want to end up in what they think is a gray area but she thinks is rape, they need to drink responsibly.

I am sick and tired of people excusing away frat rats and athletes because they were also drinking when the sex occurred.  Yes, the girl was stupid. Yes, she was careless. Yes, we need to warn young women of the dangers of drinking too much and finding yourself in circumstances you  are horrified by.  But she is not gonna be charged with a crime if she has sex—he may very well be. Why not teach out SONS not to get so commode-hugging drunk that he don’t grasp that what they are doing with someone who has passed out is a crime?

I want both parties to behave responsibly about alcohol and sex. Currently, the only ones being castigated for getting drunk are women.

Crossposted at [hotflashreport.com Hot Flash Report]

Originally posted to irishwitch on Tue Aug 28, 2007 at 10:48 AM PDT.

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Comment Preferences

  •  I have always been told that (17+ / 0-)

    when you sober up a drunk bank robber you are left with a sober bank robber.

    "Parlimentary inquiry Mr. Speaker... does whining come out of my time?"

    by Andrew C White on Tue Aug 28, 2007 at 10:50:51 AM PDT

  •  Disgusting (17+ / 0-)

    Sadly, for many of the men who would take advantage of drunk women in this way, the alcohol isn't necessary to make them "instant assholes."

    I don't know that we need an Antioch College code for everyone, but we surely need laws stipulating that inability to consent due to drunkenness --> rape.

  •  Minor comment (9+ / 0-)

    horny young men + alcohol = instant asshole

    I resent this remark.

    But that's because I fall asleep after two or three drinks.

    ---

    It's all good points you make, but what it comes down to is, there's something in the air we breathe that says, "Women aren't quite the same level of human we are, so it's okay to assault them." You know the saying, I'm sure, that alcohol doesn't make people bad, it brings out what's already there?

    This stuff doesn't happen in a vacuum. It happens because of a combination of loosened inhibitions, amoral jerks and a socially reinforced belief that violence against women is permitted, or even desireable.

    Socialism: Aspirin for your social-welfare headaches. (Use in moderation.)

    by Shaviv on Tue Aug 28, 2007 at 11:02:08 AM PDT

  •  Hernandez on CBS this morning (11+ / 0-)

    Air Forceservice woman charged with indecent behavior after reporting rape.

    This story made me sick this morning.  I guess if a woman is drunk, she consents to anything that happens to her.

  •  Does this young women have no (6+ / 0-)
    Recommended by:
    Joy Busey, lgmcp, BachFan, CA Nana, 0wn, Allogenes

    friends or relatives to help her rectify this situation?
    If society fails to bring her justice, maybe she and some friends and family can go out in a mob and beat the crap out of some baseball players...

    They can get all boozed up beforehand so it will be okay.

    TFYQA - think For Yourself, Question Authority

    by Niniane on Tue Aug 28, 2007 at 11:08:11 AM PDT

  •  Apples and Oranges (8+ / 0-)

    This is a good diary, an important story, great lessons all around and some sharp observations. One point I pause at, however, is the suggestion that there's linkage between the Japanese approach to sexual assault and the US version.

    I was living in Japan during the Okinawa rape controversy and it was a great day when they handed those thugs over to the Japanese courts. But I also had friends who were subjected to varying levels of abuse, and acquired sufficient cultural fluency to grasp the Japanese legal perspective on this.

    In most cases, the criminal justice system in Japan is rarely going to impose the loss of liberty on a citizen as long as no harm was done. In the case you cite above, we have an attempted crime, but no victim. You'd expect a stern lecture and some finger wagging and that's how those usually turn out. And alcohol is a pretty standard excuse over there. Even DUIs are routinely tossed out because - har! - the perp was drunk at the time.

    The other case about the basketball players is very different. I don't think the sheriff would have been reticent to press charges if the perps were not college basketball players. I've seen this in several university towns I've lived in. There's a different standard that applies to the top football and basketball teams, the members of which can pretty much do whatever the hell they want and as long as nobody dies, they skate. Seen this a LOT here in the south, too.

    That's probably what went wrong here. The victim is being valued less than the varsity jocks. Makes me sick. The political component trumps the need to get these animals off the street and behind bars where they belong. And alcohol here is just an excuse to let them off with a lecture and a finger wag. Trust me, I'm with you in outrage over this, it's just different than the Japanese thing.

    Every day's another chance to stick it to The Man. - dls.

    by The Raven on Tue Aug 28, 2007 at 11:09:46 AM PDT

    •  Actually DUIa are taken VERY seriously. (12+ / 0-)

      You lose your license after ONE offense. And if you have an accident--the terms may seen short by our standards, but Japanese prisons make the one run by that idiot sheriff in Mariposa look palatial.

      DO you TRULY think the results would have been the same had the perp been an American, and the victim a Japanese national? Had an American broken into a Japanese woman's apt and fondled her, he'd have done hard time, even if the act wasn't completed and he was drunk (I STILL can't figure out how the drunk managed to navigate the balconies without killing himself). There IS a double standard.  The only possibility is that the woman might not have reported it out of shame.

      I was happy those thugs in Okinawa got what they deserved--but the same month a Japanese business man did the same thing and he walked. And he wasn't drunk.  Rape isn't taken seriously in Japan. I taught English to many Japanese women, and that's one thing they agreed on.  Most women don't report it because they know they'll get the same treatment women got here in the 50s and early 60s. If her skirt is fashionably short and her panties small, she'll face questioning about her manner of dress. If she spoke to the guy or knew him, she'll be accused of lying about consent. Most rapes aren't reported--any mroe than groping on trains isn't reported. In America, women handle groping with a sharp elbow to the ribs or a stomp on the instep.  The perp usually flees.   In Japan women endure this routinely because being the victim of such fondling is shameful. Everyone on the train ignores that this is happening because intervening will only make her shame mroe public. The VICTIM is the one who feels ashamed.  I got accosted by a drunk, and that's what happened to me.  I,being a bitchy American, stuck my finger in hsi face, and said, "Ie. Ie. Ie," (No, no no") at the top of my lungs. The train was only half full. No one helped me.  But he stopped and got off at the next stop. I went and sat next to Japanese woman who patted my arm sympathetically. I spent 7 years in Japan so I am pretty familiar with the culture myself. And I am female so I saw a side of it men don't. Japanese women will say things to a woman they won't to a male instructor--best classes ever were the ones on gender roles. The women were NOT happy with the current state of affairs.

      The rape at De Anza College occured in CA, not the South. But jocks walk everywhere. ANd they do follwo a Code of Silence.  But this wasn't the SOuth. I think the glorificationa ndprotection of athletes happens EVERYWHERE. SPorts are a money-maker for colleges.

      The last time we mixed religion and politics people got burned at the stake.

      by irishwitch on Tue Aug 28, 2007 at 11:26:57 AM PDT

      [ Parent ]

      •  The jocks at UCLA walked. (5+ / 0-)

        Members of the football team were using disabled placards to park in disabled parking spaces all over campus. They got a slap on the wrist.

        "A language is a dialect with an army and navy"

        by homogenius on Tue Aug 28, 2007 at 11:37:46 AM PDT

        [ Parent ]

      •  You're so right (5+ / 0-)
        Recommended by:
        Ahianne, TexDem, sbdenmon, lgmcp, mamamedusa

        Couple of responses:

        DO you TRULY think the results would have been the same had the perp been an American, and the victim a Japanese national?

        I didn't address that. But since you raise the matter, I agree with you - a gaijin would have been shipped off to Hokkaido for something like that. Japanese justice is not "fair," as we understand it, but more "case-by-case." And in all cases: the gaijin is wrong.

        "Ie. Ie. Ie,"

        That was good. I'd have gone with "nani suren da yo, kono chikan!" (what do you think you're doing, you perv!) but it's a matter of taste.

        About the college sports get out of jail free card, I've seen it around the country, and was just added that it's especially bad in the south, but certainly not unique to it. Best regards - R.

        Every day's another chance to stick it to The Man. - dls.

        by The Raven on Tue Aug 28, 2007 at 11:47:57 AM PDT

        [ Parent ]

    •  Then there's the recent Duke Lacrosse case. n/t (1+ / 0-)
      Recommended by:
      The Raven

      Satan himself had a 33% approval rating even as he was booted out of heaven.

      by Joy Busey on Tue Aug 28, 2007 at 03:02:28 PM PDT

      [ Parent ]

      •  Ah... there's the rub (2+ / 0-)
        Recommended by:
        TexDem, Joy Busey

        Lacrosse is like swim team - no protective element. Only football and basketball teams get the free pass.

        Every day's another chance to stick it to The Man. - dls.

        by The Raven on Tue Aug 28, 2007 at 03:47:22 PM PDT

        [ Parent ]

        •  Not really (2+ / 0-)
          Recommended by:
          The Raven, irishwitch

          Lacrosse in the ACC is a Primo sport. They're contending for National Championships every year. I attended UNC and during the eighties they were vying with Johns Hopkins for a National Championship yearly, Virginia and Duke are in that category now too. So, the Duke Lacrosse situation was very much like taking on the Basketball team from the local perspective that's part of the reason Nifong went after them so hard.
           
          The sad part about the Duke Lacrosse situation is that the accuser aided all those who claim that all/most claims of rape are false. Rape when it occurs should always be reported and pursued. And, false claims should be equally rebuffed by all organizations seeking to further the prosecutions of rape.

          -4.00 -5.44 "A man who chooses not to read, is just as ignorant as the man who cannot read" Mark Twain

          by TexDem on Wed Aug 29, 2007 at 07:43:53 AM PDT

          [ Parent ]

      •  No witnesse sin the Duke case, Joy. (0+ / 0-)

        THREE witnesses as to her intoxicated state in this case.  VERY different.

        The last time we mixed religion and politics people got burned at the stake.

        by irishwitch on Wed Aug 29, 2007 at 10:57:07 AM PDT

        [ Parent ]

  •  The DA (5+ / 0-)
    Recommended by:
    Elise, sbdenmon, BachFan, Allogenes, mamamedusa

    should do her job.  It would be easy to get a search warrant for the De Anza baseball team.  Test their DNA against the DNA found on the victim.  Find as match then prosecute.  She was underage and raped.  If the DA  drops the case the voters of Sta. Clara County should vote her out.

    "If you would persuade, you must appeal to interest rather than intellect." B. Franklin

    by Mas Gaviota on Tue Aug 28, 2007 at 11:15:32 AM PDT

  •  I went to a high school (9+ / 0-)

    where the male jocks ran the school.  During the big AIDS education assembly one of the P.E./Health teachers (who had married on of his former students) told all the girls that we shouldn't drink at parties because it would be our own fault if we were taken advantage of.  Instead of teaching the boys that it was a crime, he put the blame squarely on the girls giving all the guys a pass for their behavior.  I couldn't get away from that attitude fast enough, although after graduation I actually worked as an Americorps volunteer at the same school.

  •  asdf (9+ / 0-)

    In Japan, at least, it appears that if you’re drunk you can get away with attempted rape—and probably an actual rape.

    This, sadly, sounds like the Irish juduciary. Many men here seem to get away with murder (and rape) when the "drinking problem" raises its ugly head. Not many end up in jail, it's a joke. And don't get me started with the corrupt Garda, another joke.

    Progressive Dems should be reborn as Aggressive Dems and 1) get out of Iraq asap 2) impeach Cheney then Bush 3) elect Gore.

    by Asinus Asinum Fricat on Tue Aug 28, 2007 at 11:33:43 AM PDT

    •  I gather DV isn't taken very (6+ / 0-)

      seriously if they've had a few belts. Irish feminism has  long road to travel.

      Here, if a cop beats up his wife, it gets covered up many times--because in some states he loses his right to carry a gun (ditto the military) and is useless to them. There's a code of silence among the cops here too.  I know of cases where the woman had  TRO and the officer refused to enforce it.

      The last time we mixed religion and politics people got burned at the stake.

      by irishwitch on Tue Aug 28, 2007 at 11:36:57 AM PDT

      [ Parent ]

  •  Undercover officers (5+ / 0-)

    are deployed to catch prostitutes for soliciting and liquor vendors for selling to minors. Sometimes they pose as drug addicts.  

    Maybe undercover officers should occasionally be deployed to catch student athletes and frat boys having sex with unconsenting, apparently incapacitated party-goers.  

    Maybe if there was a little pre-emptive enforcement, young men would have an easier time learning that passed out =<> fuck me.  

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Tue Aug 28, 2007 at 11:40:10 AM PDT

  •  I watched (5+ / 0-)

    a guy feed drinks to a young woman . She drank them and he kept on giving her more . It wasn't his booze to give away . It was clear to me what he was doing . I watched , when he went to get her into his van , when he was not paying close attention , I put her in my car and drove her to her apt and held her hair as she puked in the sink .
    He told another guy after ,he only wanted to "feel her tits".

    The girl was sad and lonely about another guy who had done her wrong , had sex with her without any real feelings for her , just used her as a "cow".

    In Japan being drunk lets you tell your boss off .

    l'essentiel est invisible

    by indycam on Tue Aug 28, 2007 at 11:41:28 AM PDT

  •  Depends on the victim. (0+ / 0-)

    The DA may not have been able to prosecute it because the victim claimed (for whatever reason) she consented.

    •  She couldn't have legally. (8+ / 0-)

      The statute says if you're drunk you can't consent.  More to the point, in one of the articels I posted, she siad she couldn't remember what happened, and the other women didn't get a good look at the men's faces--theyw ere too busy getting her out safely amid some nasty remarks from the guys.

      The last time we mixed religion and politics people got burned at the stake.

      by irishwitch on Tue Aug 28, 2007 at 11:56:32 AM PDT

      [ Parent ]

      •  If she was uncooperative... (0+ / 0-)

        ...it's going to be almost impossible to prosecute.

        Was there a blood test afterwards?  I doubt it.  If the victim doesn't want to talk, it's going to be hard to establish her intoxication.

        An uncooperative victim will scuttle pretty much any rape case that doesn't have air-tight physical evidence.

        •  WITNESSES to her behavior. (0+ / 0-)

          The three rescuers can testify she couldn't stand or walk. SO can the medical starff. SO can the cops who interviewed her. FOrensic evidence isn't EVERYTHING<despite what CSI would ahve you beelive. THAT many witnesses would counter the defense's claim that she wasn't really that drunk.</p>

          The last time we mixed religion and politics people got burned at the stake.

          by irishwitch on Wed Aug 29, 2007 at 10:52:28 AM PDT

          [ Parent ]

        •  Not uncooperative. (0+ / 0-)

          Not remembering isn't lack of cooperation. Really drunk folks often DON'T recall what hehy did in that state.

          The last time we mixed religion and politics people got burned at the stake.

          by irishwitch on Wed Aug 29, 2007 at 10:53:16 AM PDT

          [ Parent ]

  •  Very well written diary, IMHO. (1+ / 0-)
    Recommended by:
    BachFan

    Thorough, documented, nuanced. Yes there are grey areas, and yes women could be taught to be more careful, but rape is still rape.
    (If you'll forgive a crude analogy - leaving the door to one's house unlocked does not justify burglary.)

    When civilizations clash, barbarism wins.

    by Allogenes on Tue Aug 28, 2007 at 11:51:18 AM PDT

    •  Women are taught to be careful. (3+ / 0-)
      Recommended by:
      DMiller, Pandoras Box, Allogenes

      But 18 year olds often do stupid things anyway., They're at the "young, dumb and bulletproof" stage where they believe nothing bad will happen to them.

      The last time we mixed religion and politics people got burned at the stake.

      by irishwitch on Tue Aug 28, 2007 at 11:57:36 AM PDT

      [ Parent ]

      •  I always hear that (5+ / 0-)

        but my own experience was one of hyper-vigilance. Wasn't coming from my parents, who quietly provided sex-ed books and never said a word.  It was coming from my own observations of my peers, a great many of whom had bad experiences.  

        I refused to ever ride in one of those "party vans" (remember them?) With the custom paint and the mattresses and the blacked-out windows? Frequently they even had that most obnoxious of bumper stickers "Gas, Grass, or Ass - No one rides for free".  Most of the kids at my school went to keggers down by the river, but I was afraid.

        Oh, I was plenty interested in sex, drugs, and rock-n-roll ... but only on my own terms. And I could see that intoxication + strangers was not going to give me control of the terms.  I could see that, in the eyes of much of society, my sexuality was a commodity and my personhood was irrelevant.  

        I'm glad I stayed safe, and lucky.  But I'm sorry the world has to be that way.  

        "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

        by lgmcp on Tue Aug 28, 2007 at 12:24:34 PM PDT

        [ Parent ]

        •  Me too. (5+ / 0-)

          But not everyone gets it. And being stupid doesn't mean that you're  asking for it.

          The last time we mixed religion and politics people got burned at the stake.

          by irishwitch on Tue Aug 28, 2007 at 12:35:21 PM PDT

          [ Parent ]

          •  Indeed. I guess my point is that (2+ / 0-)
            Recommended by:
            Joy Busey, Allogenes

            there are ripple effects that extend beyond the harms to the girls actually assaulted.  There is a climate of fear that permeates the lives of young women. It serves a useful function, of self-protection, yet it restricts their freedom of movement in the world compared to what their male peers enjoy.  Yet those who fail to observer its restrictions often pay an ugly price.  

            "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

            by lgmcp on Tue Aug 28, 2007 at 12:47:14 PM PDT

            [ Parent ]

            •  In complete agreement. (3+ / 0-)
              Recommended by:
              Joy Busey, lgmcp, Allogenes

              In a limited way,. Susan Brownmiller wasn't wrong when she said that rape is the way all men keep all women under control. The problem was her use of "all."  I remember a woman here on DKos who was working late and was raped by her boss. Her church members (fundies) basically told her she shouldn't have had a job, shouldn't have been working late --like she had a choice?--and it was her own fault for working outside the home.  I think it's the way AUTHORITARIAN  men keep authoritarian follower women under control--and they fight to extend it to the rest of us.

              One reason I left NYC after my husband's death was that I didn't much care for having to wait alone at a dark bus stop in an area where everything closed at 9--and I had to work till 9 at my library job. It was scary.

              The last time we mixed religion and politics people got burned at the stake.

              by irishwitch on Tue Aug 28, 2007 at 12:56:55 PM PDT

              [ Parent ]

              •  Right. Thanks again for the nuance. (1+ / 0-)
                Recommended by:
                irishwitch

                I am a man and I enjoy being around free independent confident women. I want none of that control stuff.

                When civilizations clash, barbarism wins.

                by Allogenes on Wed Aug 29, 2007 at 06:15:54 AM PDT

                [ Parent ]

                •  Rational intelligent men (0+ / 0-)

                  don't.  Hence the limitation. But a lot of angry or fundy men do, sadly. Talk to anyone who's worked in DV field. DV is ALWAYS about controlling her actions. Thank God for men like you--otherwise it'd be a lonely world for women who don't enjoy having their every move controlled.

                  The last time we mixed religion and politics people got burned at the stake.

                  by irishwitch on Wed Aug 29, 2007 at 10:51:15 AM PDT

                  [ Parent ]

  •  Kudos to the women who broke up that ugly scene (12+ / 0-)

    Most such incidents do have a significant number of fellow party-goers, male and female, who are aware when group sexual activity is going on in adjacent areas.

    Most choose to assume that consent is present.  But they could try checking. After all, it's not like there's a ton of privacy to be breached.  

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Tue Aug 28, 2007 at 11:54:41 AM PDT

  •  I think you might have misunderstoof the prof. (0+ / 0-)

    He did say

    "In California law, the notion of consent is tied up with the notion of force, and it's hard to analyze what constitutes force or consent if it's not verbalized,"

    That could very well mean that juries tend to only see force as a non-consensual act.

    The inherent vice of capitalism is the unequal sharing of blessings; the inherent virtue of socialism is the equal sharing of miseries.

    by deathsinger on Tue Aug 28, 2007 at 12:38:59 PM PDT

    •  No, I didn't. (0+ / 0-)

      The LAW states clearly that you need neither force nor lack of consent IF the victim is intoxicated.  A drunk girl cannot legally consent.  PERIOD. Even if she says "yes," her consent is not legal. I am a paralegal. I know how to read a statute.

      It's the DA's JOB to read the statue to them in his opening and explain what it means--and in this case, no matter how loudly she screamed "YES, Give it to me, Big Boy!" she is intoxicated and therefore her consent in NOT valid.

      The last time we mixed religion and politics people got burned at the stake.

      by irishwitch on Tue Aug 28, 2007 at 12:52:57 PM PDT

      [ Parent ]

      •  Did you read what I wrote????? (0+ / 0-)

        If the professor is commenting on the fact that juries don't convict without force, that would explain the fact that the law can say one thing and that the "notion of consent" is another.

        Was the victim's blood alcohol level checked after the incident?  If not, how is the DA to prove that she was drunk, and therefore unable to consent?

        The inherent vice of capitalism is the unequal sharing of blessings; the inherent virtue of socialism is the equal sharing of miseries.

        by deathsinger on Tue Aug 28, 2007 at 12:58:26 PM PDT

        [ Parent ]

        •  I gave the entire quote. (1+ / 0-)
          Recommended by:
          Mas Gaviota

          Juries were not mentioned AT ALL. Did YOU read what I wrote? He is factually incorrect. Rape is NOT contingent on proof of force. The statutes says clearly: someone ho is intoxicated or passed out cannot consent, and if you have sex with them, it's RAPE. PERIOD.

          I suspect her blood alcohol level was taken because this was rape. I  isn't in the articles, but I suspect they probably did because intoxication was gonna be a factor in the case because, routinely, defendants ALWAYS claim the victim consented.  More to the point, there are witnesses that she was so intoxicated as not to be able to stand or walk. I think MOST juries would accept the testimony of those three witnesses who helped her out as to her behavior.

          Frmer rape crisis counselor here, and I have dealt with DAs.  This prosecutor seems to have been mostly concerned by the fact there was no ID, and thus she couldn't do DNA work on suspects--though one poster here claims she could get warrants for DNA on all the guests (but still has yet to supply me with  a citation of th statute or a decision that shows this); I think the net might be too wide for that. I don't think she's a bad DA.  But I think this Stanford law prof was wrong on what the statute says about proof of force or lack of consent.  

          The last time we mixed religion and politics people got burned at the stake.

          by irishwitch on Tue Aug 28, 2007 at 01:18:59 PM PDT

          [ Parent ]

          •  According the DA (0+ / 0-)

            Is it sexual assault when a victim is too intoxicated to consent to sex?  Yes, but we must prove beyond a reasonable doubt that the victim was so impaired that she could not understand what she was doing.  We must also prove that the defendant should have known that she was incapable of consenting.  This can be very difficult when the defendant and witnesses offer competing versions of the victim’s condition.

            That sounds like there was no alcohol test performed.  The victim doesn't remember enough of the situation to give an account on whether or not she gave consent.

            The professor probably knew many of the details of the situation and is commenting on DA's refusal to press charges rather than just the law.

            The inherent vice of capitalism is the unequal sharing of blessings; the inherent virtue of socialism is the equal sharing of miseries.

            by deathsinger on Tue Aug 28, 2007 at 01:58:21 PM PDT

            [ Parent ]

            •  LINK, please. (1+ / 0-)
              Recommended by:
              Mas Gaviota

              I didn't read THIS bit.

              I STILL think that it's likely that testimony by witnesses would be enough. ALso, I vaguely recall (and may be wrong) but she's up for re-election.\DOn't count ont hat prof knowing more details .  He isn't involved with the case.  He's not part of the prosecution team.  He's talking about his opinion about what he read int he papers. There is NO indication that he has any inside info--and if it was leaked to him, then whoever did it needs to be disbarred.

              More and more this is sounding like a DA who won't prosecute unless she's guaranteed a slam dunk. I've run into them.   This isn't all that  iffy a case. There were witnesses. Much of the time, the ocnflciting testimony is he said/she said with NO witnesses.

              The last time we mixed religion and politics people got burned at the stake.

              by irishwitch on Tue Aug 28, 2007 at 02:16:37 PM PDT

              [ Parent ]

              •  I am not sure this link (0+ / 0-)

                will work, it is very long.  If not, google the santa clara county district attorney, go to news releases and check 5/29/2007.

                DNA was obtained:

                Investigators have questioned dozens of people and obtained DNA samples from at least 10 people who were at the party.

                I seriously doubt she is up for re-election.  She was elected last November.

                More and more this is sounding like a rush to judgment just like in the Duke case.

                You still think that it's likely that the men would be convicted.  The DA, who is much more familiar with the case disagrees.  The DA is so confident that she has asked the State Attorney General to review the case.  Does this sound like a DA trying to cover something up?

                The inherent vice of capitalism is the unequal sharing of blessings; the inherent virtue of socialism is the equal sharing of miseries.

                by deathsinger on Tue Aug 28, 2007 at 05:24:51 PM PDT

                [ Parent ]

                •  I hope she loses if she does run. (1+ / 0-)
                  Recommended by:
                  arlene

                  I think we disagree about the DA--I think she's the type who won't take a case unless there's a guaranteed win. I ran into those when I was a rape crisis counselor. Her statement was self-serving--and only made after a lot of public outcry She only referred it to the state AG AFTER the outcry.  I think she doesn't want to lose such a high profile case, and would prefer not to prosecute. There were WITNESSES to the major parts of the crime.And even if the girl consented,s he was in legal state to consent.

                  UNLIKE the Duke case, there were  two witnesses to the drunkenness of the girl And the fact they a man was having sex with her.  There were no witnesses in the Duke case--it was all based on he said/she said.

                  We disagree violently on this. Your comments haven't changed my opinion one iota. I think the BEST reason for her lack of prosecution was no ID. ANd I think the testimony of the two women who rescued her as to what they saw, when combined with that of the hospital staff who examined her and the polcie who talked to her, would ahve been neough to prove she was drunk without the   blodd test (but it wa damend poor police work if they didn't get one--THEIR fault, not hers).

                  Event he police and the DA who decliend to prosecute say rape happened. The DA just doesn't want to risk losing--which is typical of DA psychology.

                  The last time we mixed religion and politics people got burned at the stake.

                  by irishwitch on Tue Aug 28, 2007 at 09:05:03 PM PDT

                  [ Parent ]

                  •  It isn't my comments (0+ / 0-)

                    it is the facts that we know.  If you are unwilling to change your opinion one iota based on facts, oh well.

                    The inherent vice of capitalism is the unequal sharing of blessings; the inherent virtue of socialism is the equal sharing of miseries.

                    by deathsinger on Wed Aug 29, 2007 at 04:48:50 AM PDT

                    [ Parent ]

                    •  I am saying that YOU are speculating as well (0+ / 0-)

                      as to the DA's motives. I am saying that I have seen DAs refuse to bring cases that CAN and SHOULD be tried because they can't guarantee a win. It happens frequently. And she pretty much said that she won't try it because she doesn't think she can win.

                      It is NOT the Duke case at all.  Nor is there a rush to judgment. No witnesses there, and a DA ready to hang everybody. This one has witnesses to the ACT itself and to the girl's drunkenness. I happen to think a jury would consider the testimony of the three girls who rescued her, the medical staff who examined her, and the cops who inrerviewed her to be credible.H Yopu disagree. There is nothign to change my mind about.

                      The DA's statement was a typical cover-you-ass when pulbic outrage threatens your career self-serving statement.  That's all it was.  Personally I think she has some points--but the strongest one isn't witnesses contradicting each other--that happens in  all cases--but the lack of an ID--and THAT is a valid reason.

                      The last time we mixed religion and politics people got burned at the stake.

                      by irishwitch on Wed Aug 29, 2007 at 09:50:19 AM PDT

                      [ Parent ]

                      •  I am not speculating (0+ / 0-)

                        as to the DA's motives.  I have speculated as to the intent of the professor's comments.  

                        I have stated the facts about the DA: DNA has been obtained from at least ten people; the DA knows more about this case than you do; the DA did ask the SAG to review the case.  What part of this is speculation?  (I did speculate that the DA is not up for re-election since she elected last fall, that couldn't be construed as motive.)

                        There has been a rush to judgment.  If the SAG doesn't find that the DA made a mistake then the case is over unless new evidence is turned up.  You are convinced that the girl was raped.  You don't have all the facts in front of you.  You haven't heard the defense's argument.  And still you wrote:

                        It’s pretty obvious a rape occurred.

                        You wouldn't be fit to serve on the jury if this case ever sees a courtroom.

                        As for the witnesses, they can't identify the party(ies) involved.  They were there only at the end.  They state that she was unconscious and then she talked.  The big problem here is that they saw the vomit, probably assumed it was hers (meaning they took this to mean she was drunk enough to vomit).  However, since the vomit is not from the girl you can't really use that as evidence of intoxication.

                        Ultimately who in the hell is the DA going to prosecute?  She doesn't know who did what, and more importantly when.  Even if DNA netted a person, DNA doesn't tell you when it happened.  Did the girl (legally) consent to one guy and then later did the others do something in addition?

                        The inherent vice of capitalism is the unequal sharing of blessings; the inherent virtue of socialism is the equal sharing of miseries.

                        by deathsinger on Wed Aug 29, 2007 at 01:07:05 PM PDT

                        [ Parent ]

            •  If she was so drunk (1+ / 0-)
              Recommended by:
              phatass

              that she couldn't remember giving consent later, then that tells me she was drunk when she gave consent, or didn't give consent at all.

              Either way, it's rape.

              •  You don't have to be drunk (0+ / 0-)

                to forget the experience.  Besides that is not the only part of the law.

                and this condition was known, or reasonably should have been known by the accused.

                The inherent vice of capitalism is the unequal sharing of blessings; the inherent virtue of socialism is the equal sharing of miseries.

                by deathsinger on Wed Aug 29, 2007 at 04:06:58 AM PDT

                [ Parent ]

        •  He spoke PURELY about the LAW (1+ / 0-)
          Recommended by:
          Mas Gaviota

          without mentioning a jury anywhere.

          The last time we mixed religion and politics people got burned at the stake.

          by irishwitch on Tue Aug 28, 2007 at 01:19:54 PM PDT

          [ Parent ]

  •  Thank you for this very thorough diary. (0+ / 0-)

    Especially for not taking it out on the DA, who as you point out needs proof beyond a reasonable doubt to convict.  In that respect, however, the DNA is the bottleneck -- surely colleges could start requiring that all students supply some as a condition of getting an education?  Events like this are highly foreseeable, men being what we are, and that would seem to me to be a rational form of insurance.

  •  I'm going to throw this one back on the coach.... (4+ / 0-)
    Recommended by:
    phatass, als10, DMiller, irishwitch

    ...what the hell kind of coach does not IMMEDIATELY cancel the season until the rapist comes clean or another player gives him up. What the hell kind of a man is this coach? What the hell is he teaching these players by pretending nothing happened? "Whew guys....that was a close one"...

    Dispicable ALL the way around....

    "Immigration is the sincerest form of flattery." ---Jack Paar

    by bic momma on Tue Aug 28, 2007 at 04:54:20 PM PDT

    •  That was my immediate (2+ / 0-)
      Recommended by:
      phatass, irishwitch

      thought when I read that the DA had decided not to prosecute.  What the hell kind of man is this coach.

      Okay Kossacks, do we have any DeAnza alums here?  Call and write your school and complain loudly about the baseball team and coach and their lack of moral character.

      Economic Left/Right: -7.00 Social Libertarian/Authoritarian: -6.31

      by DMiller on Tue Aug 28, 2007 at 09:59:09 PM PDT

      [ Parent ]

    •  One who cares more about his job (0+ / 0-)

      than justice. Which is MOST coaches. Teams make MONEY for the school, and if he cancels the season, all those pre-sold season tickets may require a refund. How long do you think he'd be employed for big bucks after that?

      The last time we mixed religion and politics people got burned at the stake.

      by irishwitch on Wed Aug 29, 2007 at 10:55:09 AM PDT

      [ Parent ]

  •  If I were a donor to that college (1+ / 0-)
    Recommended by:
    irishwitch

    I would think I'd want some accountability from the coach the team and the athletic director.

    From the accounts it would seem that someone on that team knows what went on.

    Do they have regents or some other governing board? Cancel the baseball season until someone fesses up.

    If I were a team that played them I would almost consider forfeiting games to them until the truth came out.

    phat

    Economic Left/Right: -7.75 Social Libertarian/Authoritarian: -7.54

    by phatass on Wed Aug 29, 2007 at 02:34:22 AM PDT

  •  Furthermore (1+ / 0-)
    Recommended by:
    irishwitch

    if I were a college that might pick up a standout from this college on scholorship I'd think twice.

    Boycott.

    phat

    Economic Left/Right: -7.75 Social Libertarian/Authoritarian: -7.54

    by phatass on Wed Aug 29, 2007 at 02:38:46 AM PDT

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