Sunday Commentary: Reminded Once Again of the Difficulties Prosecuting Rape



This week a UC Davis sexual assault trial came to an end without a resolution. The jury hung 8-4 for acquittal and, while there has been no announcement about whether to retry the case, I would have to think that, given the jury split and the trauma to the alleged victim, that outcome would be unlikely but not unprecedented.

In a way, it is surprising that more of the local and regional media did not pick up on this case. It is a sexual assault trial. The elements of a drunk student passed out certainly add to intrigue. There are not only consent issues, but ultimately the case was unprovable – with “he said – she said” problems and a lack of physical evidence that he ever penetrated the alleged victim.

If I had been on the jury I am not sure I would have been among the eight to acquit. Reading through the accounts from the court watch interns, my sense is that it is more likely than not that he did it, though I’m not sure whether that takes me all the way for proof beyond a reasonable doubt.

On the other hand, the incident appears to have traumatized her enough that she broke down in front of her classmates – and you can’t imagine that happening absent some form of violation.

Another of the reasons I am surprised by the lack of coverage is that the issue remains a hot topic nationally and statewide. Frankly, it is an issue that I have a great deal of ambivalence on, personally. On the one hand, locally, I have seen a number of very questionable prosecutions on sexual assaults. There is a legitimate concern that we may go too far in the other direction after years where prosecutors would refuse to take even very legitimate rape cases for fear of the lack of proof issue.

On the other hand, sexual assault, especially for young women and especially on college campuses, is hugely under-reported by most estimates. Why? For one thing there is a private and ambiguous nature of the crime. Alcohol is usually involved, which brings in all sorts of issues not only with consent but also with physical evidence. Finally, it is very personal. An examination is a violation in a lot of ways of a woman’s body. The defense puts the victim squarely on trial and, as I have heard from a number of victims – it is as if they have been raped again and again.

Given the low probability of success and the high degree of trauma during the endless hours of examination and cross-examination – who would want to do that?

Part of the problem is prosecuting what I call the gray areas. It is fairly easy to prove rape with the woman is beaten up, as there is trauma to her vagina and the perpetrator leaves his DNA in the woman’s body. Perhaps you also have the clear-cut counter example of the woman who is cheating on her boyfriend, gets caught in bed, and cries rape.

But most of these cases are not that way, and so there are questions about consent, about alcohol, and indeed, in the case that was just tried, about whether or not they actually had sex.

I think where a lot of people start worrying is whether or not regret becomes an accusation of rape. There are all sorts of scenarios that then can play out there. We have taught a generation of people that “no means no” but in this trial, the claim was that she never said no and the obvious answer that the prosecutor gave for that was that she was not conscious enough to say no.

That, of course, leads to the thought that perhaps, when you have had so much alcohol as to render yourself unable to make conscious decisions, you are in fact responsible for that condition. It is not like she was secretly fed date rape drugs here.

On the other hand, is one signing away any rights to bodily privacy when one drinks too much alcohol?

This is not a simple problem and the reason we have so much trouble prosecuting rape cases is that we have this problem. Again, on the one hand, if we do not prosecute we have potentially kept a predator free and allowed an already victimized woman to believe that the system has abandoned her – which, of course, reinforces the stigma of rape and reinforces the belief by many that they should simply not report the crime.

On the other hand, if we do prosecute and we end up convicting the man, we are essentially and potentially criminalizing a drunken, ambiguous situation, where the man, perhaps intoxicated himself, may well have believed that she sincerely wanted the sexual encounter. And we have put this young man in a position, convicted or acquitted, where his life will never be the same.

This is neither a small problem nor as easy one to resolve. The fact that while we have made a lot of progress in the 20 years since I was an undergraduate in school, but have not yet figured this one out, underscores that point.

So, we have situations where you have Emma Sulkowicz who carried a mattress around Columbia University in protest of what she saw as the refusal of authorities to prosecute the classmate who raped her. She recently went through her commencement address with the mattress and the President “literally turned his back on her, appearing to refuse to shake her hand.”

The one-person protest has ignited an ugly debate as captured in the article earlier this week in the Washington Post. The paper reported, “Hours after the graduation ceremony, posters featuring a photo of Sulkowicz alongside the words ‘pretty little liar’ and the Twitter hashtag #RapeHoax appeared around Columbia’s campus. The large black and white posters were plastered on subway signs and on boarded up buildings, street lights and newspaper kiosks.”

Ms. Sulkowicz says that during her sophomore year she was raped by a fellow student, whom she didn’t name but has since been identified as Paul Nungesser.

“I will be carrying this dorm room mattress with me everywhere I go for as long as I attend the same school as my rapist,” she told the Columbia Daily Spectator last fall. “The piece could potentially take a day or it could go on until I graduate.”

Her gesture gained national attention, but also drew criticism. He was cleared by the campus and the police. He not only denied raping Ms. Sulkowicz “but said he had been victimized by a smear campaign falsely labeling him a rapist.”

As the Post notes, “Conservative writer Heather Wilhelm slammed Sulkowicz for protesting but not initially referring the case to police.” “The result, sadly, is mattress feminism: a squishy, no-backbone ideology that eschews female agency, rejects critical thinking, and encourages women to be helpless doormats — or downright delusional — when it comes to the topic of sexual assault,” Ms. Wilhelm wrote.

But of course, as we all know, that kind of reaction is quite frequent.

The family of the male student blasted her for her “false narrative.”

“Our son’s graduation should have been a joyous moment for our whole family. We are extremely proud of Paul for graduating, even more so because of the harassment campaign he was subjected to. For over two years, he had to fight false accusations and a public witch-hunt, even though Columbia and the NYPD exonerated him,” a statement from the alleged perpetrator’s family said. “Responsible for this nightmare is not just the woman, who received an academic degree for the attempt to shame Paul away from campus, but even more at fault is the University that conferred this degree. A university that bows to a public witch-hunt no longer deserves to be called a place of enlightenment, of intellectual and academic freedom.”

But that is exactly the problem. We have two victims and no overriding truth, so we are left to pick sides – not knowing the facts of what really happened. In times like this, we tend to pick ideology – which is probably why I end up torn here, longing for a better solution but not knowing what one is.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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13 thoughts on “Sunday Commentary: Reminded Once Again of the Difficulties Prosecuting Rape”

  1. Tia Will

    On the other hand, the incident appears to have traumatized her enough that she broke down in front of her classmates – and you can’t imagine that happening absent some form of violation.”

    I think that you have perhaps accidentally hit upon the primary problem when you write “you can’t imagine that happening….”.  Because of my career, I don’t have to imagine. I know from direct experience that women can be extremely traumatized and “feel” violated enough to breakdown in public without any one having broken any laws. If there is some consensual sexual activity occurring, but the woman perceives that things are going further than she would like, says no, and the man stops in accordance with her “no” this may or may not be before there is some exchange of bodily fluids. It is not unusual for women in this situation to replay the event in their mind as having been less consensual than it really was, or to “feel violated” simply because they truly do not recall their actions due to alcohol induced memory impairment.  One of the expressions that I have heard most commonly in these situations is “I don’t know what happened”.

    But what we tend to do as you said is to choose sides. If we take the side of women as our default position, we are likely to take “I don’t know what happened” to mean that she had lost her ability to give consent since in our minds, if she was so drunk that she cannot remember the event, surely she must have been so drunk as to have been able to give consent. However, an honest evaluation of our own memory lapses, alcohol, emotional, fatigue, or distraction related will demonstrate to us what a tricky thing memory actually is. We all have the capacity to construct memories after the fact that are very real to us, and by which we will swear, but which turn out not to be what objectively occurred.

    Those who chose to defend men blindly because “they cannot imagine ” that their good friend or family member “would do such a thing” are making just as great an error. Again, one does not have to “imagine”. We know from previous cases, some notorious such as Ted Bundy, that people who no one could “imagine” as anything other than a model citizen may be capable of horrendous acts, much less capable of a judgement impaired, inhibitions lowered, alcohol fueled sexual violation which we have classified as rape.

    Since there is obviously no clarity possible about the degree of culpability in these he said-she said cases, I would recommend that we focus our efforts on two parts of the process that we can control.

    1. I would recommend that we focus on primary prevention as I put forth in my previous article on this topic. These are concrete steps that we could take to ensure that all of our entering students have been exposed to the same information. It would ensure that all students entering our senior high and college level schools would have a level playing field of knowledge about the risks as well as the pleasures of engaging in sexual activity as well as the risks as well as the pleasures of alcohol and recreational drugs.

    2. When a charge is made of non consensual sexual activity, could there not be some alternative processing mechanism devised which does acknowledges the seriousness of the charge rather than burying it,  but which protects the identities of both the accuser and the accused until a resolution has been reached ?  In the relatively small world of college and university campuses, both sides take up arms thus “unlearning” through experience the concept of innocent until proven guilty and the idea that authorities can be trusted to protect the innocent accuser and the potentially innocent accused.

    Cases in which there is strong evidence should of course be rigorously pursued. However, I see no reason that we could not adopt some “special circumstance” exception to releasing both individuals names just as we do for accused juvenile offenders.

    Another alternative might be that instead of expecting campus authorities or the local police and prosecutor to handle these cases, a better way might be a system of independent investigation to prevent pressure from the “big man on campus” crowd or from family or friends of either the accused or the accuser tipping the scales of justice through ties of friendship or endowment or the like.

    While I am well versed professionally in the first end of this two pronged approach, I have no expertise on the judicial side. I would like to hear people’s thoughts on construct alternatives to fighting out the “he said-she said” in our usual adversarial fashion which seems to frequently leave us only with further adversarial feelings and no movement towards a more just system.

    1. Alan Miller

      It would ensure that all students entering our senior high and college level schools would have a level playing field of knowledge about the risks as well as the pleasures of engaging in sexual activity as well as the risks as well as the pleasures of alcohol and recreational drugs.

      Such crazy talk . . . everyone knows the mushroom method (being kept in the dark and being fed shit) is the way to grow sexual knowledge and wisdom.

      But seriously, Tia, your views on this subject are spot-on, based on experience with dealing directly with multiple persons in such situations on an intimate level, and, most-impressively, you don’t automatically place the blame on one party or the other, but allow for the very real vague duality of potential responsibility in such situations.

      Before I said you should write an article on the subject.  I now hope that you write a book.

  2. zaqzaq

    The problem in these situations is alcohol and the conflicted messages we give our youth over its use.  Unless you have an independent witness or a video tape with the victim clearly passed out these cases will continue to be problematic.  Now many universities including the UC system have an affirmative consent policy.  There was a Saturday Night Live skit that drove home the absurdity of applying the policy to real life, and the skit did not involve alcohol or intoxication.  Our criminal justice system looks at whether a law was broken and then determines the punishment.  The universities are under extreme pressure to protect their students from sexual assault.  They have student codes of conduct and look for violations.  Their systems do not have the protections for the accused that exist in criminal courts.  Our society glorifies the consumption of alcohol in movies and TV shows.  Animal House, if not starting this trend, magnified it.  Never having seen a hangover movie I suspect it focuses on what the characters did while blacked out drunk.  The message, counter to our existing laws, for our youth is that it is ok to go and get wasted.  That is part of the maturation process.  College is a place to party, have fun, experiment, try new things,  experience life and by the way go get an education.  Our high school students see the college kids partying coupled with the previously mentioned entertainment industry and want to grow up faster and abuse alcohol and other substances.  Look how mature we are.  And since Picnic Day was last month the biggest problem with that event is alcohol and the party downtown or in residential neighborhoods.

    So the problem is alcohol and what to do about it when someone who has abused alcohol claims they were a victim of crime.  Because after all someone has to be right and the other party the one at fault.  What do you do in a situation where two 19 year old college students meet at a party playing beer pong and both get wasted.  There is a mutual attraction and they start making out ending up in someone’s room and then both black out.  She comes to and realizes that she had sex with this individual and does not believe she consented and calls UCDPD.  Neither claim to remember the details of the sex other than vague memories that it occurred.  The investigation begins and the case is referred to both student judicial affairs and the DA.  Was there a crime or a violation of the student code of conduct requiring affirmative consent?  Who violated the law and code?  Could they both have violated the law and/or code of conduct?  Can both be punished by the UCD?  After all, neither can recall consenting to the sex. Someone has to be the victim making the other the perptetrator.  There is no place in this process for the participants to enter into a discussion about what happened and their feelings and emotions.  There is not place for healing for either of the participants.  It is all about right and wrong and who was wrong.

    We as a society need to do a better job educating our youth about the dangers of alcohol and other substances.  We also need to do a better job at treating those youth who abuse these substances.  We need to do a better job eliminating the culture that promotes the getting wasted is ok for college students.  The criminal justice system is not well suited for these issues.  The universities are failing.  The message has to come from the community as a whole as to what is appropriate behavior concerning alcohol.  There is no free substance counseling available for the 18 to 24 year age group in our community that I am aware of .  There is no way to address the problem early.

    1. Alan Miller

      And since Picnic Day was last month

      May I point out to those who have never been to downtown Davis on “little Friday”, that Little Picnic Day occurs in Davis every Thursday night, at tremendous profit to a half-dozen-plus venue owners and at the additional cost of supplmental police resources who must be present to keep things under control and nab a percentage of those attempting to drive home wasted.  Do those profiting from the profit-fueled enabling of mass student and outsider inebriation also pay for the additional resource costs?

  3. ryankelly

    With all of the confidential resources available to students at UCD, this student choose to reveal her allegation of rape in a public venue – in front of a class of strangers.  She didn’t go to an advisor, a counselor, contact the police, a medical doctor or even her girlfriends or fellow club members.  I find this really unusual.

  4. Frankly

    On the other hand, the incident appears to have traumatized her enough that she broke down in front of her classmates – and you can’t imagine that happening absent some form of violation.

    Short of other mental or emotional or psychological challenges, maybe.  Or maybe the overwhelming weight of regret over her poor decisions caused her to breakdown, and then afterwards a misplaced remedy to seek relief in false accusation?  There has been a lot of that type of thing documented to have occurred.

    For the victim of true rape, it is a big deal because of the potential mental, emotional and possibly physical damage caused.   For someone convicted of rape it is big deal because of the impact to their freedom and future prospects.   The former can be healed over time.  The latter really cannot.  So, we better get it right if we are going do do the latter.

    1. Napoleon Pig IV

      I may often disagree with Frankly, but in this case, I find it difficult to conclude that he is a misogynist.

      “Justice” administered under “the law” is pretty much a fantasy in a large proportion of cases. I hope, not in the majority of cases, but certainly in these types of situations in which the “truth” is unknowable except possibly to the direct participants in the events.

      The Cleveland judge’s decision to let a murderer loose on society just because he carried a badge, is a particularly egregious example of why I don’t trust “the law” to get it right very often. Thus my refusal to accept that there is anything immoral about “taking the law” into ones own hands. We really “don’t need no stinking badges” in some situations.  Oink!

      1. zaqzaq

        Yo Pig,

        The Cleveland cop didn’t get away with murder as he was never charged with murder.  Get your fact right.  This is another example of how running or shall we say leading officers on a 20 mile pursuit can go badly for all involved to include the officers and is just one more lesson on how the best course of action when a cop attempts to detain you is the SMART thing to do is stop. You can always go to court to challenge the stop later. Trying to get away is a crime and has many more significant adverse consequences. Maybe you might want to relocate to Baltimore where the animals have gone wild over the last month.

        1. Napoleon Pig IV

          On the contrary, Zaqzaq. The Cleveland cop got away with murder for several reasons, including the fact that he was never charged with murder. On top of that, the judge is clearly a brainwashed fool who has no ability to look beyond “the badge.”

          I’ll agree with you that running from corrupt, power-mongering, mollycoddled Cleveland cops is probably not the SMART thing to do, but that doesn’t change the fact that these two people were murdered, plain and simple.

          As for “trying to get away is a crime,” a lot of things are crimes that are not wrong, thanks to the idiot politicians who are more concerned about power than either freedom or justice. Oink!


  5. Tia Will

    Misogyny, thy name is Frankly”

    I know that Frankly needs no defense from me. However, I would like to point out that unwanted sexual encounters are not a one way street just because we have traditionally seen them in that light and the preponderance of aggressive behavior is still statistically on the part of the male. However, there is male on male sexual aggression, rare cases of female on male and probably some female on female although I have not yet encountered that.

    The former can be healed over time.  The latter really cannot.”

    I believe that Frankly’s statement is in error, since not every rape victim will ever succeed in healing. But that is true regardless of the gender of the victim and therefore is not an inherently misogynistic comment.


  6. Alan Miller

    We have two victims and no overriding truth, so we are left to pick sides – not knowing the facts of what really happened. In times like this, we tend to pick ideology – which is probably why I end up torn here, longing for a better solution but not knowing what one is.

    Well said.  Although I would replace “we” with “most people hearing the story” or similar.

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