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Not Rape

Before it disappears from the web forever, it is worthwhile to review the Boston Globe article that publicized the most famous alleged sexual assault at Williams in the last 15 years. Previous coverage here. Comments:

1) I continue to believe that the College could do much more to decrease the (low) rate of sexual assault on campus. Unsurprisingly, my recommendation is unlike anything you would read elsewhere. Make every male student at Williams vividly aware of the Foster case by showing him a picture of Foster at his arraignment, perhaps even having the first years try on a pair of handcuffs. The lesson that every male Eph should have drilled deep into his bones is that having sex with a female Eph is a risk unless you are 100% certain that she is a full and eager participant. A credible accusation of rape — an accusation that will turn your life upside down for a decade or more even if you are (found) innocent — requires only a credible accuser. And all Eph women are credible. Foster didn’t think that it could happen to him. Foster was wrong. Don’t make the same mistake he did. If if Foster is not a rapist, he is most certainly not a gentleman. The punishment for caddish behavior at Williams is much higher than you think it is. Don’t be a cad.

2) Gensheimer graduated last spring and Foster is in his senior year. This has been a painful topic to discuss while they were current students. By next fall, it may be easier for the rest of us to get some perspective.

3) Is the transcript for the trial available somewhere? From the excerpts that we have seen, I suspect that it would make for compelling reading.

Article below:

It was a Saturday night, March 15, a week before spring break, when Maryl Gensheimer met up with a new boyfriend. They had both been drinking, and they went to his dorm room after she began to feel sick. There, Gensheimer said, she was raped.

The Williams College sophomore reported it the next Monday to the college health center. When she did, Gensheimer said, the college’s response was lacking. No one sent her to the hospital for a rape exam or suggested she call police; it was days before her counselor told the school’s head of security.

Two and a half months later, Williams officials are still looking into what happened that night. Frustrated by the college’s response, and by its handling of her case, Gensheimer asked Williamstown police to step in. They brought their case to a Berkshire County grand jury, which indicted Mark Foster, 19, of Concord on a rape charge May 23, according to the Superior Court clerk’s office. Foster’s lawyer said he will be exonerated.

More than a decade after new federal laws mandated the reporting of sex crimes on college campuses to the US Department of Education, Gensheimer’s experience at Williams shows how colleges can fall short when one student accuses another of date rape. Without sophisticated forensic equipment and subpoena power, often relying solely on the statements of the two parties, college officials struggle to resolve such complaints – and don’t always call in more capable authorities, said some police and lawyers.

”There are always concerns about colleges and sexual assault – whether they’re reporting it in a timely fashion and whether students are encouraged to avail themselves of the services outside the college” such as police, said Berkshire District Attorney Gerard Downing. ”We’re always concerned because colleges can have competing interests when they’re having that conversation” with alleged rape victims.

Nancy Roseman, dean of Williams College, said the college made mistakes in Gensheimer’s case, and said the investigation has taken longer than usual. With the accused student’s future at stake, however, she said she will not rush to judgment. The school has tightened some of its policies since the Gensheimer family took issue with them. But she also said that there is no deep, systemic problem to address at Williams and that complaints such as Gensheimer’s about how the case was handled are almost unheard of.

”It’s very rare that someone is angry about how they were supported. That gets my attention,” said Roseman, referring to the handful of sex assault reports the college investigates each year. Gensheimer and her family see a deeper problem, however. They said the delayed investigation is the latest in a series of missteps by Williams staff and administrators in her case.

”My focus should have been on surviving, not on making the college realize something had happened and getting them to do something about it,” said Gensheimer, a 19-year-old art history major from Maine. ”Once you report it, it should start a series of steps … They should take responsibility, keep records, tell you your options, and move things forward.”

Gensheimer’s case was, in many ways, typical of college date rape allegations. She had been drinking that night, and she said Foster was drinking, too. Dancing at a party in their dorm, she felt sick, and he helped her back to his room. She doesn’t remember everything, but she told police that he took off her clothes, physically restrained her, ignored her when she protested, and forced her to have sex. She said she had bruises the next morning. She went to her room, showered, then found a friend and told her what happened. The next day, another friend took her to the college health center.

That’s where the mistakes began, Gensheimer and her parents said. A staff member at the health center did not suggest she should go to a hospital and submit to a rape exam. The same staff member didn’t mention she could speak to local police, never offered to arrange counseling, and made no record of the visit. Then the health center did not report the allegations to campus security for several days. No one at Williams offered to move Foster out of the dorm they both lived in until Gensheimer’s mother asked. Gensheimer had to get a restraining order to remove him temporarily from the two small classes they shared; a judge later terminated the order after finding Gensheimer was not in immediate danger.

Williams administrators would have offered to move Foster out of the dorm eventually, said the dean, but removing him from classes while he is still a student would make the school vulnerable to a lawsuit. Roseman also said that Foster’s indictment would have no bearing on the school’s investigation and that he remains a student in good standing.

Northampton lawyer John Callahan, who represents Foster, declined to discuss details, but contends the college has handled the case properly. He said the judge dropped the restraining order against Foster after a court hearing in April, ruling she was not in immediate danger. At the hearing, students who were near Foster’s room that night testified that they heard no sounds of struggle, Callahan said. Gensheimer said she did protest.

Williams, with an endowment of about $1 billion, is one of the wealthiest colleges in Massachusetts. Like many small colleges, however, the 2,000-student campus has no dedicated sexual-assault officer and relies on volunteer staff members as a first line of response to assault complaints. All discipline is ultimately handled by one person, Roseman.

Frustrated by the way Williams responded to Gensheimer’s allegation, Williamstown Police Chief Arthur Parker said he wants a trained officer from his department to respond to every sexual assault report on campus.

”Everyone’s goal should be to better the process for the next victim,” he said.

He asked for a meeting with college officials two months ago, to review their policies and offer help, and said he never received a response. Asked by the Globe why the college had not responded to the police request, Roseman said on Friday that she plans to meet with Parker. She said she would consider having a police officer nearby when campus sex assaults are reported to the school, in case the victims want to talk.

Until recently, Roseman said, Williams’s sexual assault response team assessed on a case-by-case basis whether a student was ”ready” for information about medical exams and outside investigations. The school has now changed its procedures, she said, so that every student who even hints that a rape has occurred is asked whether she wants an exam and a police interview. The system for notifying security has been similarly streamlined, so a call is made immediately even if a student hesitates to call what happened rape.

Roseman said the college routinely reports all sexual assaults to police, though students almost never agree to cooperate with an investigation.

”Bad things happen on college campuses, and it’s incumbent on us to be open and honest about them,” she said. ”Not to do so is immoral and unfathomable to me. As dean, once you lose your integrity, you might as well resign.”

After Gensheimer reported being raped, the dean alerted the campus by e-mail. Several other women came forward as a result, she said, to say they had been assaulted. Concern grew on the rural campus, and a public forum to discuss the problem was held last month.

”People in general are now more willing to see this as a public, campus issue, one that they could potentially be affected by,” said Heather Foran, a leader of the school’s student-run rape hot line.

At other schools, frustrations similar to Gensheimer’s have led some victims to seek change through the US Department of Education, which can withhold federal funding from schools found to discriminate against women. At Harvard last year, administrators’ attempts to change the school’s sexual assault policy – making corroborating evidence a prerequisite for the university to fully investigate – drove students to file a discrimination complaint with the department’s Office for Civil Rights. A similar federal complaint was filed last year by two Boston University students who said the school’s policies have a ”chilling effect” on reporting by other victims.

In both cases, the government found no violation by the universities. According to the Department of Education, no college or university has ever lost funding because of school handling of sexual harassment, which includes assault. Last year, the Office of Civil Rights investigated 63 sexual harassment claims against colleges, in some cases working with the schools to revise their policies.

Stephen Hennessy, a Milton lawyer who filed civil rights complaint on behalf of the two BU students who alleged date rape, said schools tend to err on the side of the accused.

”A lot of institutions view it as such a serious allegation, they’re really reluctant to find a male student liable without imposing a criminal beyond-a-reasonable-doubt standard,” he said, noting that most schools use a lower standard of proof for other kinds of discipline. ”Behind closed doors, they think if they find someone liable, they have to discipline him severely, and they’re ruining his life – so they darn well better not get it wrong.”

Wendy Murphy, the Boston lawyer who filed the federal complaint on behalf of the Harvard students, said it’s a myth that only rape produces difficult ”he said, she said” cases. ”In almost every crime, it’s the credibility of one person that makes or breaks the case, whether it’s a cop watching a drug deal, or a woman who’s raped,” she said. ”You challenge their credibility, assess their demeanor, and render a judgment. That’s what the justice system is all about.”

Gensheimer gave up her plans to work at the college art museum this summer and went home to Maine instead. Her grades fell from straight A’s to B’s and C’s this spring. She said she has nightmares, and she isn’t sure whether she’ll study in England this fall as planned.

”Everything that happened reinforced the stigma of rape, that you should cover it up, go on with your life, and pretend nothing happened,” she said. ”The only way I could think of to get my life back was to fight hard enough that something has to change.”

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#1 Comment By Frank On September 28, 2005 @ 3:51 pm

If you do not have access to the trial transcript, and he was acquitted explain why he is not a gentleman and a cad? If eph women are credible shouldn’t eph men get the same benefit of the doubt? Just asking.

#2 Comment By M. Esa Seegulam On September 28, 2005 @ 4:02 pm

Make every male student at Williams vividly aware of the Foster case by showing him a picture of Foster at his arraignment, perhaps even having the first years try on a pair of handcuffs.

Please tell me you overdosed on something. I mean honestly, are you out of your mind? This is Williams College, not Saudi Arabian School for Infidels. Having first years try on a pair of handcuffs with a “this is what will happen to you if you are accused of rape” tag line will probably only increase the college’s psych services bill. Also, continuing to torment a man who was aquitted of charges in the way that you are doing just a few days after draining every last drop of intellectual self-respect any of our Xavier students may have had, only proves to me that you have no soul. Shame on you for reducing Mark Foster to a sub-human learning project. I don’t know him, but your ideas are more-than-offensive.

#3 Comment By Diana On September 28, 2005 @ 4:28 pm

I think David is saying he is a cad because he must have acted improperly in order to have rape charges brought against him. A woman would not bring charges against a guy who was engaged in entirely consentual and respectful activities with her.

#4 Comment By Diana On September 28, 2005 @ 4:36 pm

Answers.com defines “cad” as ” A man whose behavior is unprincipled or dishonorable.” The article above states that

she told police that he took off her clothes, physically restrained her, ignored her when she protested, and forced her to have sex. She said she had bruises the next morning.

Seems pretty unprincipled and dishonorable to me.

#5 Comment By M. Esa Seegulam On September 28, 2005 @ 4:43 pm

A woman would not bring charges against a guy who was engaged in entirely consentual (sic) and respectful activities with her.

I understand the idea behind that statement, but you’re wrong. Actually, women have done this in the past and admitted to having lied for one reason or another, whether it be money, defamation etc. I am not saying that this is the case here, I am simply saying that your statement is wrong and I hope you see why.

#6 Comment By Eislerman On September 28, 2005 @ 4:57 pm

Esa,

Thanks for saving me the trouble. Remind me to buy you a (non-alcoholic) drink next time I’m in Billsville.

J

#7 Comment By hwc On September 28, 2005 @ 5:49 pm

I probably wouldn’t agree with David’s handcuff suggestion, but I do think that this whole issue of “too drunk to remember what happened” date rape is a serious problem for both men and women on campus and something that they need to aware of and take personal responsbility for preventing.

These stories invariably start with, “First, I got so drunk I couldn’t walk, then the next thing I remember…..”

These situations are a lose-lose deal for EVERYONE involved: the guy, the girl, the college, the courts. A situation made even worse by the fact that the events typically take place in the middle of an alcoholic blackout.

In my opinion, both the guy and the girl have some responsibility to prevent these situations and it would help greatly if they would stop drinking short of the point where they lose the last vestiges of personal responsibility and decision-making.

For those who say, “kids will be kids, what’s the harm in an alcholic blackout every once in a while?”, these situations are a living testament to the harm. There are no winners in cases like these; only losers.

#8 Comment By hwc On September 28, 2005 @ 5:59 pm

Oh, BTW. For anyone who thinks these situations are infrequent, Williams College reported 11 forcible sex offenses in college dorms to the federal reporting agency over the three-year period from 2002 thru 2004.

This is not an unsual number. Amherst reported 17. Swarthmore reported 7. All of which are too many. Most of which are impossible to sort out.

#9 Comment By David On September 28, 2005 @ 6:04 pm

hwc claims that ‘These stories invariably start with, “First, I got so drunk I couldn’t walk, then the next thing I remember…..”‘

Untrue. Gensheimer had been drinking but she most emphatically was not in “in the middle of an alcoholic blackout”. She felt sick but was able to walk.

The first step in dealing with the problem of sexual assault is to understand the facts.

Do you have a link for the “11 forcible sex offenses” claim? It would be good to have some context for just what the definitions used there are.

#10 Comment By Shamus On September 28, 2005 @ 6:26 pm

David, great post. I agree.

99.9% of rape accusations are 100% true. If you get accused most likely you were a lot worse than a cad.

False accusation is extremely low. So low it is statistically insignificant. I picked this up in my 4 years as a counselor on the Rape and Sexual assault hotline at Williams.

As an aside any current Eph men reading this should consider joining the hotline, it was the best thing I did in my time at Williams.

#11 Comment By hwc On September 28, 2005 @ 6:53 pm

David:

You can find the federally reported statistics in many areas at this National Center for Education Statistics website:

http://nces.ed.gov/ipeds/cool/Index.asp

Enter the college name in the Name of Institution search box. Then, click search.

Click on the school’s name from the list that pops up. On the school’s page, click the Campus Security link at the top to go to the crime stats. These include sex offenses to murders to theft to alcohol, drug, and weapons charges.

I may be thinking of a different rape case, but I read a much longer story in the Globe about a Williams rape case where the impact of signficant alcohol impairment on memory made it impossible to determine what really happened.

The crux of the matter is consent and that becomes a blurry line as blood alcohol levels increase. I should emphasize that I am NOT taking the side of the guy in these cases. IMO, a guy who is not a cad should not assume consent in cases of extreme intoxication. IMO, a guy has the responsibility to know, beyond a shadow of doubt, that the woman is capable of giving consent and is, indeed, giving consent. Otherwise, you act like a gentleman and walk away.

BTW, an alcohol blackout is defined as not having memory of events afterwards. This is very often the case in these charges.

I’m just saying that these cases are complete mess for everyone involved and they almost never occur without extreme intoxication. I should have written that these stories almost always start with, “I was too drunk to walk back to my dorm, so I went upstairs to his room….”

#12 Comment By Diana On September 28, 2005 @ 7:34 pm

By the way, during First Days for the Class of 2007, we had a lecture — all 550 of us, in Chapin — by a woman who had gotten raped in college and now tours the country telling her compelling, tearful story.

Then the entries all went back and talked about it, including telling girls to go get a “rape kit” before taking a shower after getting raped. The hospital stores it anonymously with a number, and you are never compelled to do anything with it. (My JAs were actually concerned that the girls in my entry would become too paranoid and think everything was rape and go get rape kits every time they had a “weird hookup” or something.) The men appeared to get the point, that they had better not do anything even remotely resembling rape. I don’t know how long this has been going on.

#13 Comment By frank uible On September 28, 2005 @ 7:50 pm

The day’s (but applicable to all times) sage advice is — “when in doubt, do NOT whip it out”!

#14 Comment By Frank On September 28, 2005 @ 9:07 pm

This is a question regarding Shamus post. Explain 99.9% rape accusations are 100% true. Says who?

#15 Comment By Loweeel On September 28, 2005 @ 10:17 pm

Diana and Esa,

A “fake rape” story actually happened during my sophomore year (IIRC, maybe it was my junior year). This girl STABBED herself in the thigh, and claimed that her off-campus boyfriend came in, raped her, and stabbed her.

Needless to say, the frantic and denunciatory emails flew from Hopkins as fast as a bullet from a mishandled firearm. Needless to say, they were about as accurate as well.

It turns out that (again, IIRC) she wanted attention from him after he broke up with her (and there was nothing about him doing it in any bad ways). Hopkins eventually admitted that it was a false alarm, and the girl withdrew for psychiatric reasons. Despite the fact that campus was turned upside down on this unsubstantiated accusation, there was never going to be any disciplinary proceeding initiated against her.

However, given the gravity and the burden placed on the recipients of rape accusations, I’d say that especially in a college environment, “Chicken Little” rape reporters (especially the vindictive ones), should be punished by the school as severely as those who are found to have committed rape on campus, and should have only the same quasilegal protections that a guy accused of rape does.

#16 Comment By Shamus On September 28, 2005 @ 11:51 pm

Frank, 90% of statistics are made up on the spot.

I was just trying to get my point across with hyperbole(we taught this concept today in English class). I have no idea of exact percentages but they should be readily available on various websites. I have concluded from all the literature I’ve read that almost all accusations are true. But of course not all, just like in any other kind of criminal accusation.

I’m also biased because I always see it from the victims point of view.

I know, I know, the dishes…

#17 Comment By Julia On September 29, 2005 @ 4:16 pm

To elaborate on Shamus’ 99.9% comments, I think what he was trying to convey (please correct me if I’m wrong, Shamus) is that reporting/disclosing a rape or sexual assault is, no matter how accepting and liberal an environment you are in, a difficult and traumatic experience, so it is unlikely that people would report a fake experience just for kicks. Most survivors are concerned (and often rightfully so) that they will be treated differently by almost everyone as a result of their disclosure. Therefore, it is very rare for people to make up a story since it takes so much courage to disclose in the first place. While I don’t have any statistics on this, in my experience working at RASAN at Williams and on the crisis line in the county where I currently live, much of the time when someone reports and “takes it back” it is because they have disclosed a TRUE situation and then decides not to pursue action because there are so many trying emotional and legal obstacles, especially people doubting their story. If you have an incredibly traumatic experience and half the people you run into think that you’re making it up in order to get revenge or to get attention, that would make one revoke one’s story pretty quickly. Can you imagine talking to a natural disaster victim and saying to them “no, that didn’t really happen, you just want attention?” In fact, many survivors are VERY reluctant to call what happened to them rape, and many people who end up in gray area situations or bad hook-ups will never reveal to anyone that they felt uncomfortable.
I agree that most situations are not black and white, often both parties could be communicating better, and some assailants may not even be aware that what they are are doing is wrong or do not plan in advance intend to hurt their partner. However, none of these conditions means that someone is “making something up.”

Bottom line: if someone discloses to you, believe them.

#18 Comment By Eislerman On October 1, 2005 @ 7:54 pm

I can’t believe I’m actually falling close to Lowell on the distribution curve on this one, but I have to say I think what Kane is advocating is atrocious for a very simple reason: it attempts to produce order through sheer fear and lack of trust. Having dumb young 18 year olds try on handcuffs seems to be such a grim view of the world that it barely seems worth sustaining- if you have such high views of Ephs (see the Joy James post), Kane, it seems as though a thorough discussion on consent, morality, and agency would be more in order (and not the guilt-fest I found the Katie Koestner talk to be; the primary message of her story seemed to be ‘don’t trust people’).

More to the point, your denigration of Foster seems…atrocious. I ask you- what right do you have to judge him? It seems as though the rape vs. not-rape issue seems incredibly hard to discern in this case. If the strongest case that can be made for the reliability of her claim is that she was sober enough to walk, that does not seem an especially ringing endorsement.

Now, I’m neither trying to impugn her or exonerate Foster; I’m in a position to do neither of those things, nor is anyone. I’m just saying your weird fixation with using Foster as a poster boy for bad aggressive men is invasive, judgmental, and inappropriate.

Strangely, though, it’s exactly what I would come to expect from this particular Ephblog poster. And, of course, Kane, if you want 100% safety, we can always just abort all male babies- that would take care of the rape issue quite neatly. Seems like a tactic someone I would expect to be one of your heros might conceive of (even if I’m invoking it out of context).

#19 Comment By David Kane On October 1, 2005 @ 9:48 pm

Eisler,

Did you read the Eagle article on the trial excerpted in the previous post? Although I agree that it would be better to have the full trial transcript and that no one can ever know the full truth of what happened that night, I know enough to make a moral jdugment. I believe that the following facts are not in dispute:

1) The night of the incident was the first time these two Ephs had had sexual intercourse.

2) They were dating and had been “intimate” before.

3) The young women had been drinking and was felling ill.

I infer, but do not know, that Foster had wanted to have sex on previous occasions but had been turned down. If this is the case, then he had a moral obligation to be especially certain that he was acting in accordance with the young lady’s wishes. It should not require a degree in philosophy from Oxford to draw this conclusion.

Perhaps, in your world, a not-guilty verdict means that moral judgment is impossible, that we must just let it all go. If so, say Hello to OJ Simpson the next time you have him over for dinner. In my world, we use the evidence we have to make the judgments that we should. Foster was, at minimum, a cad. I do not think that Williams College can or should punish him for his behavior, but I for one won’t be keeping silent.

PS. I believe that Shamus dramatically underestimates the frequency of false accusations of rape. I think that Lowell’s example of a Williams woman who made precisely such a false claim is important to recall. But, from everything that I have read about this case, there can be little doubt that Foster had sex with someone that a) Had told him before that she was not ready for sex and b) Was in no condition to provide genuine consent. If these facts are true, is there anyone who would deny that Foster acted caddishly that night?

#20 Comment By Eislerman On October 2, 2005 @ 1:05 am

“I infer, but do not know, that Foster had wanted to have sex on previous occasions but had been turned down.”

In the words of KSB, emeritus ‘Hold on there, let’s take about 10 steps backward…’; or, as people often say to me, ‘I feel there was a line, and we blew straight past it.’

First, you can’t make this assumption- which plays an absolutely crucial causal role in your argument- with any degree of certainty. To compare this to the OJ trial is…absurd. To demonstrate this I’m going to refute both the specifics of the case and engage in a little more general anthropology.

Your case is contingent on demonstrating that Foster a) intended to get sex; b) realized he could only get it through coercion; c) was willing to follow through on it; d) and had a high degree of cognizance of all of his conduct (example- wasn’t smashed out of his mind and proceeding with what he thought was consent). From what I can understand of this version is contingent on both accepting Gensheimer’s story completely AND ascribing the most calculating, duplicit possible motives to Foster. In particular, I find the absence of struggle noises of protest as reported by others- if I remember correctly, the room was close to a public area- very significant.

All I’m doing with this is establishing that the situation is blurry enough such that using Foster as a sexual assault poster boy is unjustified.

Secondly, your notion of ‘cad’ seems…outmoded? Excessively judgmental? Bourgeois? For a guy whose notion of a good time is a 10 mile run followed by a kilogram of pasta, this might smack of talking of that of which I know not, but I’ve paid enough attention to the human condition to make the following observations:

1) With the exception of the extraordinarily devout and disciplined, most guys who are interacting with girls romantically are shooting for sex- or something close to it. So that Foster wanted sex doesn’t make him a cad. It makes him- how shall we say- human.

2) A lot of stuff that happens sexually happens when both parties get impaired by alcohol and lose their ‘inhibitions.’ Maybe not in Kaneworld, but in the Realworld. Especially in England, I don’t know how many relationships start when two parties get drunk and go at it. As one girl in a longterm relationship told me, ‘Yeah, I don’t know what would have happened if [her boyfriend] hadn’t gotten drunk and snogged [Brit slang- made out with me] that night [the first night something happened between them].’ Indeed, in discourse with my friends- including people you respect- there seems to be the suggestion that using verbal rather than physical communication is a huge drawback in romantic escapades.

Now, there’s a big jump from ‘physical communication’ to ‘sex.’ The problem, though, is that, in the Foster-Gensheimer case, we know there was prior consensual romantic interaction- which in this fallen world, may mean as far as oral sex, or ‘third base’ as these kids call it- so the jump to sex may not have been as bad as it seems. There’s evidence for both sides- Gensheimer claims she was bruised, which would indicate non-consensual sex, but people heard no sounds of struggle, which would indicate she didn’t struggle vociferously (and if she had enough capacity to put together the events as well as she claimed, wouldn’t she have sufficient capacity to put up more of a fight?). So who knows- speculation would be idle and inappropriate, *as would judgment*.

Again, I’m not saying I know, or that things happened optimally. I guess all I’m saying is that the world is messy, and in this case is extremely clouded- clouded enough to preclude judgment.

Now, maybe in your moral system, every moral guy always gains explicit consent from a girl who is definitively sober before proceeding with *any* sexual or physically romantic act, and those who fail to do so are ‘cads.’ All I know is that many people do not adhere to this moral system- and if they did and also avoided acting caddishly, there would be a lot less fraternization at Williams. That could well be good- frankly, I care a lot more about other things that worrying about shit like this.

What does bother me is that you are willing to brand Foster a ‘cad’ through a rigid moral system that, if universally applied, would render a substantial minority of guys at Williams cads (given the looseness of the term which is entailed in the ambiguities and lack of information in the pertinent case). If so, you’re unjustly singling out Foster as the cad-poster boy despite no evidence he’s more or less caddish than many guys at Williams, and doing expressing this view in a public forum. Utterly inappropriate.

But what I really find bothersome is the total lack of empathy on your part. Granted, what Gensheimer went through was horrible. That sort of powerlessness, that sort of violation…ugh. But think of it from Foster’s point of view- one night, you and your girlfriend get really smashed, maybe you remember having sex- neither of you was in great shape, you don’t remember anything going wrong- you wake up with a hangover, and three days later you’re in the Dean’s office being told you raped somebody.

My problem with this isn’t your condemnation of the dynamic, or condemnation of rape. It is the extraction of a judgment based on your personal moral standards, and then your prominent promulgation of this judgment.

I’ve known people who have done bad things- things I’m sure you would consider ‘caddish’ and thus would perhaps brand the people ‘cads’ but I’m not about to jump up and condemn them, or hold them up as posters boys for sin. Many of them I- and I think you- would consider good people, or at least worthy of respect. I know nothing truly meaningful about this Foster-Gensheimer case- I know neither of those involved- and the *particulars* of the case are of little relevance to me. Passing judgment *on the individuals* seems a fundamental over-reach.

I think you should judge not, Kane, lest you be judged yourself.

#21 Comment By David On October 3, 2005 @ 11:05 pm

Eisler,

You would be a lot more fun to argue with if you actually did the assigned reading. The Eagle reports that

Foster testified that Gensheimer had said that she wanted to have intercourse with him, but not that night.

Which part of this is unclear to you? You claim:

Your case is contingent on demonstrating that Foster a) intended to get sex; b) realized he could only get it through coercion; c) was willing to follow through on it; d) and had a high degree of cognizance of all of his conduct (example- wasn’t smashed out of his mind and proceeding with what he thought was consent).

Listing your argument does not make it more plausible. a) is true. b), c) and d) are irrelevant. To demonstrate that Foster acted caddishly, I only need to show that he sought sex, had been turned down before, and having been turned down on previous occasions had sex in a situation in which Gensheimer was not a fully willing participant. If such actions do not meet your definition of “cad”, then what would?

Now, it is true that I do not know what happened behind that closed door. Moreover, I also agree with the ruling in the case. It is tough for me to believe, beyond a reasonable doubt, that Foster is guilty of rape. But the weight of the evidence would suggest that Foster is guilty of caddishness. As best I can tell, he did not testify that Gensheimer sought sex with him that night. He testified that she did not protest. But, given that she had told him No on previous occasions, the standard that a gentleman would need to meet is not No Protestation.

I agree that having-sex-in-the-absence-of-Yes is not caddish behavior, but this rule does not apply if a) the young women has said No before and b) the young women is ill/drunk. Is that standard too high in your view? I like to think that the vast majority of Williams men would meet it.

#22 Comment By Anonymous On October 5, 2005 @ 12:52 am

Dear all,

Some many years ago, when I was a freshman, Professor Kassin pointed all that was necessary to make rape unprosecutable was a woman on the jury. I’m sure Saul has some very to-the-point commentary on this case.

Prosecutors may or may not be overly agressive; they may or may not delude themselves into believing that the innocent are guilty, and they may or may not convict individuals under such circumstances.

They do not, in general, take on rape cases (period). Rape is incredibly hard to prosecute, especially when between two individuals who know each other.

As with so many other legal terms, there is a large difference between the legal definition of innocence and a moral one. Given that a prosecutor was brave enough to bring this guy up on charges of rape, given that the Eagle reported that he tied down and forced himself upon a woman, this guy raped someone and someone on the jury got it wrong. Unfortunately, that’s reality.

Therefor while I would not entirely support David Kane’s standards of behavior, I would think that calling this guy a “cad” is rather minor. He’s a rapist. At some other time I will try to take some of you some cases of rapists I have know– men and women– and even make the point that a little bit of understanding and sympathy is necessary to solve these problems. Regardless, Foster has a serious psychological and behaviorial problem.

Now, on that note, 99% of accusations are not true. These are very complex issues; and indeed it is hard for someone who has lived through sexual or psychological abuse to go through the process of accusation and judicial inquiry. It is, however, not necessarily so hard for someone who has not been abused (by the person they are accusing) to go through that process and system, and it is not necessarily so hard for an abuser to use or abuse that system.

Things are complex, they may not be what they seem, and I openly invite anyone who has more substantive knowledge of these events to share them privately or publically as they feel appropriate. In this case, given what I have seen, I am likely to judge that this was what it seems– rape.

To take the final turn, male or female, abusers are likely also to have been objects of abuse; victims are likely to perpetuate patterns of abuse. Williams guys and guys everywhere make mistakes and do things they shouldn’t, especially under the influence of alcohol or drugs, and I think that often clouds our judgements– but tying someone down and forcably conducting a sex act seems to me to cross a very different line.

The reality is that if you are accused of rape, you are very very unlikely to be placed in handcuffs. I’m all for the rights of the accused, but if you are arrested for rape, and the public reports are what they are here, we’re not talking about drunken kids being kids.

You may find Williams’ rape reporting by typing in “Cleary Act” in Williams’ search box. As I have pointed out before, Williams reports the same numbers as schools ten times its size. While I wish such events were rare, Williams is probably reporting less than a tenth of the rapes on campus, given my personal experience and the number of reports to the Rape Crisis Hotline while I was at Williams.

As to the comment that seeking sexual intercourse as the result of a relatively random encounter is “human,” I would have to point out that from the perspective of someone who grew up in a Southern Methodist environment where something like courtship was a value, I’ve spent a good thirty or so years trying to understand this perspective without much success. The perspective is hardly universally human.

Finally, as to Diana’s comments, the last time I spoke to people at Williams’ Rape Crisis Hotline– over five years ago I’m sorry to say– Elizabeth Loftus’ work on false and implanted memories had just become well known, and Hotline members were crucially aware of the damage that unquestioned belief and standard interview techniques could do. In blunt and simple terms, it is all-to-possible for someone under psychological duress to project or construct a story that never happened; it is also all-too-easy for a naive counselor to aid and enable such “memories.”

Back to David’s points, Williams could do much more, as could every institution in this country. I appreciate all the storytelling that had gone on above– what I did not hear above (in entry discussions) was that rape is a violent crime, and ultimately about violence, not misunderstandings.

To return to my standard lines, this requires solving the problem by assembling expert knowledge and applying competences in the right places.

#23 Comment By Ken Thomas ’93 On October 5, 2005 @ 12:53 am

The above was me.