October 6 - My Case

Today in class, I presented the rape case that I am interested in researching, and for my post, I will discuss it a little bit here.

Here are some of the facts.

Allegedly, in 2014, a woman was gang-raped by three basketball players at the University of Oregon. The woman was not identified in reports, but one of the basketball players was identified as Brandon Austin. The woman claimed that she was cornered in a bathroom and raped by the three players. After the assault, the woman sought counseling from the University of Oregon health services. Additionally, the Lane County district attorney did not file charges, citing the always-popular "insufficient evidence." The University of Oregon did eventually find the players guilty of sexually assaulting the woman, and two of them were able to go play basketball at other colleges.

The victim filed a lawsuit against UO and the basketball coach, Dana Altman, for violating her Title IX rights. The reason Altman was included in the lawsuit is because it was alleged that he knew about Brandon Austin's past with sexual assault: he'd been accused before. This would be contributing to the claim that her Title IX rights had been violated. Altman was eventually taken off of the lawsuit, and it was settled for $800,000, free tuition, and housing and fees.

One of the biggest issues about this case is that the victims records were released to the university attorneys for the lawsuit. The assumption when a student goes to obtain counseling from the professionals is that the records will be protected, just like normal medical records. However, in her article, Diana Moscovitz notes that university counseling records are not considered medical records. So then, they would not be protected by HIPAA. Conversely, she notes that FERPA technically makes it legal for the university to release the student's records to the lawyers because there is a clause that allows a university to disclose such records when the university is being sued. This is a defense for their actions.

Despite the fact that this is technically legal, the action has received some backlash. One such opponent is one of the counselors at the school. She says this sort of action violates her "ethical and professional standards" (Moscovitz). Others have found this action objectionable even if it is technically legal. I would have to say I am one of those people, which is why I chose to research this case. Even before I fully read the articles that described this case, I found myself thinking the same things as Moscovitz writes about FERPA:

             FERPA is the same law that schools routinely use to block public records requests. So                     now, not only can schools keep their scandals in the dark, they also can use it to fight                 off lawsuits in court related to those scandals. For American universities, FERPA really is               the gift that keeps on giving.

I find this to describe exactly what was going through my mind, and it is one reason I want to research this case. There seems to be a disconnect in the ways in which universities will use different regulations and laws. I seem to remember in Krakauer's book how it was not permitted (supposedly under FERPA) for Jordan Johnson's previous disciplinary actions to be used in the proceedings. However, when there are records on a woman who was allegedly raped, a university will use the very same law to disclose records about her that probably should not be released. I see many issues with this, so with this paper, I hope to examine them.

Sources:

Moskovitz, Diana. "Oregon: We Have the Right To Access a Rape Victim's Medical Records." March 3, 2015. Deadspin. http://deadspin.com/oregon-we-have-the-right-to-access-a-rape-victims-medi-1689196041.

Read, Richard. "Student Who Sued UO, Claiming She Was Gang-Raped by Basketball Players, Settles for $800,000." August 4, 2015. Oregon Live. http://www.oregonlive.com/education/index.ssf/2015/08/student_receives_800000_settle.html

September 20 Sources -- Chapter 25

"Bell v. Wolfish." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Sep 19, 2016. https://www.oyez.org/cases/1978/77-1829

Oyez, a Chicago-Kent School of Law website says that the facts of the case were:

A class action lawsuit challenged the legality of conditions facing pretrial detainees in a New York City correctional facility. Petitioners claimed that double-bunking, restrictions on reading materials that inmates were allowed to receive, and required cavity searches and shakedowns amounted to punishment before conviction.

The website then states that in the decision:

As long as administrative practices are implemented in the genuine interest of "safeguarding institutional security" then they do not warrant judicial scrutiny and are consistent with the Constitution.

The other court case that was mentioned (the military case U.S. v. Dickey 1994) I actually had a hard time finding information on, so I do not have a source. The other “U.S. v. Dickey” cases I found were not from 1994, so I doubted they were the same one.

“Canons of Police Ethics.” Illinois Institute of Technology. October, 24, 2011. http://ethics.iit.edu/ecodes/node/3352

“Article 10. Presentation of Evidence

        The law enforcement officer shall be concerned equally in the prosecution of the wrong-doer               and the defense of the innocent. He shall ascertain what constitutes evidence and shall present             such evidence impartially and without malice. In so doing, he will ignore social, political, and all         other distinctions among the persons involved, strengthening the tradition of the reliability and           integrity of an officer's word.

        The law enforcement officer shall take special pains to increase his perception and skill of                   observation, mindful that in many situations his is the sole impartial testimony to the facts of a             case.”

This is pretty self-explanatory. It is what police are supposed to be committed to. Article 10 was discussed in the cross-examination of Detective Connie Brueckner, and it refers to evidence collection

International Association of Chiefs of Police. N.d. http://www.iacp.org/

This is the website that Adam Duerk references when he is allowed to address Brueckner once more in the trial, and discusses the language in the guidelines on this site. Their tagline on the home page says they are “Serving the Leaders of Today, Developing the Leaders of Tomorrow.” The IACP is a “professional association for law enforcement worldwide” (from the About Us page). It puts together programs and services, and also conducts research. It is an extensive website with many resources. The page on “Police Response to Violence Against Women” is particularly interesting.

Sommers, Marilyn Sawyer. “Defining Patterns of Genital Injury from Sexual Assault: A Review.” Trauma, Violence & Abuse 8.3 (2007): 270–280. PMC. Web. 20 Sept. 2016.http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3142744/

This article is from the journal Trauma, Violence & Abuse. It is actually a really helpful source when it comes to the literature regarding injury from sexual assault. I decided to look up this information because of the exchange in the courtroom between Francoeur (the nurse) and Paoli (the defense attorney). Paoli continually questioned the evidence, and I wanted to see what I could find about it. The above article is one that essentially questions the validity of previous studies’ work on this topic. It is also helpful because it looks at the legal implications of the evidence.

U.S Department of Justice. Office on Violence Against Women. A National Protocol for Sexual Assault Medical Forensic Examinations. April 2013. Second Edition. https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf

https://www.ncjrs.gov/pdffiles1/nij/206554.pdf

This is the second edition of the medical protocol that is discussed in court. This one was released in 2013, while the one in Missoula was released in 2004. I cannot even pretend that I read the entire resource, as the document is extensive at 144 pages. However, in the foreword, the document lists a myriad of possible reasons that a sexual assault victim may not want to seek medical attention. Because of this, the authors write that it is all the more important to make sure that medical attentions are aware of this. On page iii, the document states: “It is our hope that this protocol will help jurisdictions in their efforts to respond to sexual assault victims in the most competent, compassionate, and understanding manner possible.” The second link above is the 2004 version.

Also notable, is that in the 2004 version, the document talks about gaining consent throughout the exam process and what different answers could mean for the legal process. It also discusses different roles for the examiner in regards to the legal process.

September 8

We discussed parts 3 and 4 of the book today. In this post, I will talk about the Cecilia Washburn case. The way this was described, the case was treated like Washburn was lying about what happened.

In the incident, Cecilia Washburn and Jordan Johnson were friends and she had been a little interested in him, romantically. He was not particularly interested in her, but he was under the assumption that they would probably have sex at some point. However, he was not interested in dating her. The night of the rape, Washburn did not do any of the things that a girl pursuing a guy would do. She didn't shower, put on nice clothing, do her makeup, but even though she didn't do any of this, an earlier quotation about her intentions was included in her questioning. When both people were at a dance and were drunk, Washburn had told Johnson: "Jordy, I would do you anytime." That comment would put her into question later, which would be a detraction for her case. However, she just didn't want to have sex that night. And she told him so, but as we have seen in a couple other cases, this case became a "he said," "she said" case.

One part I found interesting about this case was the fact that she had acknowledged along the way what was consensual. She said that the kissing was consensual and other activities, but firmly acknowledged that she did not want to sleep with him. She firmly said "no" and "let's just watch the movie." This case is like the other one with Kerry Barrett. Both women knew exactly when they gave consent and where they didn't.

The other part that would be brought up was why Washburn did not scream to her roommate in the other room that she was being harmed. The assumption there was that he would come and stop the assault from happening. However, I think it is reasonable that she would not have yelled anything, as she was likely in shock of what was happening. We know that victims of trauma don't often believe what is happening to them; they are in denial. So that might have been what was going through her head. Another part of her case that was brought up as a way to diminish her case was the fact that Washburn sent a smiley face to another friend afterwards, who had asked her to pick him up and drive him home. The argument there is that someone who has had a violent encounter would not respond with a smiley face. They argued that is acting like nothing had happened. Yet again, she might have been in denial. If someone just got raped, they might have intuitively known it (shown by her text to her roommate Stephen), but they might still be in shock. Furthermore--and I know this could be considered a stretch but I think it is still valid--most people that text frequently use smiley faces. Some do it without realizing it. If she was processing her assault, then she might have just gone through the motions without taking an additional look at it. Additionally, she said that she didn't want this other friend to know what had just happened. This is reasonable because that is an intensely personal assault. If she had texted in a manner that was different than she usually would, then the receiver might know she was not acting normally and might ask her how she was doing. She probably wasn't ready to answer an inquiry like that. To me, her actions made some sense.

Chapter 10 Sources

One of the pieces of research that Krakauer uses heavily in the first part of chapter 10 is the study by Lisak and Miller titled “Repeat Rape and Multiple Offending Among Undetected Rapists.” The study uses a survey approach to look at if rapists not in jail were repeat offenders like the ones incarcerated. In their words, “The goal of the present study was to determine the proportion of self-reported rapists who commit multiple acts of rape undetected by the criminal justice system and to examine whether some proportion of rapists also admit to other forms of interpersonal violence” (75). The study did indeed show that most of the acts in their survey that counted as rapes were committed by a small number of men. Basically, the men that raped once, usually raped again. Despite the fact that the study was conducted at a university, the authors wrote that the recidivism of the participants was in contrast to the “prevalent image of a male college student who, under the influence of alcohol, mistakenly crosses the line between sexual pressure and rape” (81).

Krakauer uses this study to underscore the UM victims’ concerns of their attackers committing the same crime later. For those who were attacked and decided to report it, this reasoning was part of their final decision to report it. By presenting this scientific study that looked at actual college students, Krakauer strengthens his and the women’s arguments.

The other research that Krakauer presents in the first few pages of chapter 10 is the 2009 study that supports the 2002 study by Lisak and Miller. This study is titled “Reports of Rape Reperpetration by Newly Enlisted Male Navy Personnel.” The study corroborates the findings of the previous one. It concludes that “Regardless of time period, participants reported primarily perpetrating completed rape rather than attempted rape, perpetrating multiple ACR [attempted or completed rape] incidents rather than single ACR incidents, using substances more frequently than force, and knowing their victim rather than targeting a stranger” (213). In a single sentence, the study sums up everything that Krakauer has been asserting. The fact that the study found the same occurrences as the previous one is a support to the arguments being made because it is more recent and the more data is collected, the more reliable the findings are. He uses this study like the earlier one: to support what the victims have reported.

The journal that both of these studies were published in is Violence and Victims and is interdisciplinary. It covers "interpersonal violence and victimization" among the different disciplines.

Lisak, David, and Paul M. Miller. “Repeat Rape and Multiple Offending Among Undetected Rapists.” Violence and Victims, 17, no. 1, 2002.

McWhorter, Stephanie K., Valerie A. Stander, Lex L. Merrill, Cynthia J. Thomsen, and Joel S. Milner. “Reports of Rape Reperpetration by Newly Enlisted Male Navy Personnel.” Violence and Victims, 24, no. 2, 2009. 

September 1

One question I had after reading chapter two had to do with the quote/excerpt that Krakauer had chosen for the beginning of the part. On the first page of chapter two he includes a quote from an article in the Atlantic where a woman writer shared her thoughts about female sexuality.
Krakauer includes the part that says that women are finally agreed to want sex, but then the author asks "But does that mean we experience desire in the same way that men do? [Her] lust tells her we don't." At the end of the excerpt, it says that the dialogue that occurs in her brain is "Not I want this, but Do I want this? What exactly do I want? How about now? And now?" I thought this excerpt was an interesting one to include. So much so that I looked up the article and read the whole thing. Ir is about eight pages, and it covers what women authors have said about women and sex.

Rhetorically speaking, I wondered why Krakauer chose to include it in this section, especially since the main topic is on Kerry Barrett and Zeke Adams. The nature of their encounter (and her subsequent assault) began in a friendly manner at a bar. They ran into each other while drinking, began talking to each other and headed towards his house. She made it clear she was not going to sleep with him, and he said that was ok, he just did not want her to go home for fear that her walk would be unsafe. (Already, that statement by him plays on a dominant trope that her chances of being attacked are higher in the dark at night, by a stranger.) So she stayed with him. They fell asleep on his bed, with her being fully-clothed. She woke up to her pants at her ankles and him attempting to assault her.

When the police questioned her, she made sure to indicate along the way, the points at which Adams had her consent, and where he didn't. She made clear to them what she had wanted and what she had not wanted. Here is where I am confused, or at least interested in why Krakauer chose to include the above excerpt. The way that Kerry Barrett described their encounter is that she knew how far she wanted to go and when she wanted to stop. The above excerpt might throw some rhetorical confusion into the mix. This is just because that woman is saying that she is not always sure if she wants something or why she wants something. That is not the way it was described in part two. Does Krakauer intend to use that piece as a way to characterize the police's understandings of the situation? Is it meant to be a characterization of the way many people would understand the situation?

I thought it added an interesting layer to the beginning of part two, but the excerpts like that can be really important to a reader's understanding of a chapter. Those excerpts can frame the view of the chapter because they act as a preface of sorts. I may be missing Krakauer's point with this one, but I thought it was important to discuss. That excerpt may make it seem like women are just confused in sexual encounters. It may make it seem like if a woman were to allege assault or misconduct, that someone could respond saying, "well are you sure you didn't want it?" And that is exactly what some of the people did.