Due Process

Arizona Court Reverses Expulsion of ASU Student for Threesome with Allegedly Too-Drunk Classmate

"Other statements by Complainant ... along with undisputed other evidence, entirely disprove her bare assertions that she was incapacitated."

|The Volokh Conspiracy |

An excerpt from Tuesday's Arizona Court of Appeals opinion, written by Judge Diane M. Johnsen and joined by Judges Kenton D. Jones and James B. Morse Jr:

[T]he issue of incapacitation is not whether, in hindsight, the person made a smart decision. Instead, it is whether the person had the cognitive ability at the time to make the decision for herself or himself. Put differently, a "rational judgment" in this context is not one that an observer would deem a "good judgment" but instead is one made by a person who is able to comprehend the nature and consequences of the matter….

In sum, the undisputed evidence of what happened in the bedroom is that Complainant was not too intoxicated to actively participate in at least 20 minutes of strenuous sex. The same evidence also disproves her contention that she was too intoxicated to decline to participate in the sex at the outset.

Nor does the evidence support Rund's conclusion that Complainant lacked the capacity to say no. At the hearing, Complainant testified she was not able to say the words, "I don't want to have sex." To the contrary, the evidence is undisputed that at some point during the sexual encounter, she did tell Respondent and Participant to stop—and they did. Complainant also noticed that Participant was taking pictures with his cellphone and told him to stop doing so. Further, Complainant testified she was "more drunk going out of the room than [she] was going in." The only reasonable conclusion to be drawn from that admission is that if she was able to say she wanted to stop after some 20-25 minutes of sex, even though she was "more drunk" at the end than when the sex began, she had the capacity to say no in the beginning….

At oral argument, ASU argued evidence that Complainant may have made rational, informed judgments at the end of the encounter does not undermine the conclusion that, at a minimum, she was incapacitated at the outset. But the record belies any contention Complainant was incapacitated when the sex began. First, Complainant herself told police she was "coherent" at the time she entered the bedroom. In addition, as noted, after the fact she was quite capable of reporting specific details about the beginning of the encounter ….

[ASU Senior Vice President for Educational Outreach and Student Services, James] Rund found it compelling that, by Complainant's account, she had rejected an earlier attempt by Respondent to have sex with her that evening. As Rund put it, "I do not find it plausible that the Complainant would tell the Respondent she did not want to sleep with him and then subsequently and with no explanation agree to participate in intercourse with not just Respondent, but also with [Participant]. The only variable in circumstances was Complainant's consumption of seven shots of [v]odka."

Nothing in the evidence, however, shows that the vodka rendered Complainant incapable of deciding to change her mind. As Complainant acknowledged, when she and respondent first spent time together a couple of days before the gathering, she initially declared to him that they would not have sex, but then—free of any influence of alcohol—she willingly engaged in oral sex with him. [Footnote: … If she exercised her independent judgment to change her mind and engage in sexual conduct on the earlier occasion, it can hardly be said to be "[im]plausible" that she could not exercise her independent judgment to change her mind on the later occasion.]

Finally, Rund characterized the three-way encounter in the bedroom on the night in question as "outrageous behavior," and from that concluded Complainant would have participated only if she was incapacitated. But [Kendra] Hunter, the witness ASU called to testify about its investigation, testified that a reasonable person exercising free will could decide to participate in a "threesome."

In sum, a handful of statements by Complainant are the only evidence in the record supporting the conclusion that she was so drunk that she was incapacitated on the night in question. But other statements by Complainant—statements she made to police and under oath at the hearing—along with undisputed other evidence, entirely disprove her bare assertions that she was incapacitated.

On appeal, Respondent vigorously contests Rund's findings, pointing to his own testimony and that of other witnesses who saw Complainant that night. We reach our conclusion without weighing the testimony of other witnesses against that of Complainant.

The accused student had also sued ASU in federal district court, arguing that the investigation discriminated against him because of his sex, in violation of Title IX; that case is pending, but there is a tentative decision from that court that would allow this claim to go forward. Among other things, the court reasons,

As an initial matter, the FAC [First Amended Complaint]—like many of the complaints in other recent Title IX cases brought by male university students who contend they were subjected to gender-biased disciplinary proceedings—contains an extensive discussion of the "Dear Colleague" letter that was issued by OCR in 2011. Most courts have concluded this letter does not, standing alone, create a plausible basis for alleging that a university disciplinary process was infected with gender bias. For example, in Purdue University, the Seventh Circuit stated that although "[o]ther circuits have treated the Dear Colleague letter as relevant in evaluating the plausibility of a Title IX claim … the letter, standing alone, is obviously not enough to get [a Title IX plaintiff] over the plausibility line." Similarly, in Doe v. Baum, the Sixth Circuit concluded that "all of this external pressure alone is not enough to state a claim that the university acted with bias in this particular case. Rather, it provides a backdrop that," if combined with other evidence, may "give[] rise to a plausible claim." The Court agrees with these decisions and concludes that the letter does not, on its own, get Doe over the plausibility line.

Nevertheless, the FAC contains other allegations that provide additional support for Doe's claim. First, the FAC alleges that, following the issuance of the letter, OCR specifically identified ASU as one of the universities whose Title IX processes were under investigation and sent investigators to the ASU campus to "gather information" about those processes. Although such school-specific allegations aren't alone sufficient in the Ninth Circuit to render a Title IX claim plausible, courts have suggested they may render a Title IX claim more plausible than a claim premised solely on the "Dear Colleague" letter. Doe v. Cummins (6th Cir. 2016) ("Nor do appellants allege that UC [University of Cincinnati] … was being investigated by the federal government for potential Title IX violations. Instead, appellants allege more generally that the Department of Education's 'Dear Colleague Letter' induced UC to discriminate against males in sexual-assault investigations in order to preserve federal funding. This conclusory allegation, without more, is insufficient to create a plausible claim of gender bias under Title IX.").

Second, … the FAC alleges that an ASU representative specifically referred to Doe's male gender when explaining why prompt action was needed: "When this case first came to the attention of ASU, [Hunter] indicated that action had to be taken quickly because [Doe] was a male athlete—a collegiate wrestler." (But see supra footnote 1 [noting that paragraph 144 of the FAC contains a different characterization of this statement].) …

Doe also contends paragraph 195 of the FAC identifies another instance where an ASU official made statements that reflect gender bias—this time, implicit bias. Paragraph 195 alleges that Rund based his finding that Roe was "incapacitated" during the sexual encounter in part on the nature of the encounter (a "threesome"), which Rund characterized as "outrageous behavior" that could not be the product of a rational,
informed decision by an adult. This characterization, according to the FAC, reflects implicit gender bias and antiquated "sexual mores" because Rund "did not characterize the men's decision to engage in three-way sex as 'outrageous.'" …

Third, and most important, the FAC alleges an array of irregularities during the disciplinary proceedings, including (1) the lead investigator promised Roe she would attempt to bring charges against Doe at the very outset of the investigation, before even interviewing Doe or obtaining corroborating information, (2) the lead investigator made conflicting statements to Doe and Roe about the investigator's role, (3) the lead investigator falsely told Doe that one of Roe's written submissions did not contain any new evidence, (4) the Committee violated its own procedural rules by issuing the expulsion letter without considering Doe's response to the new evidence discussed in Roe's final written submission, (5) ASU representatives failed during various stages of the proceedings to take steps to obtain key evidence, (6) the UHB refused to consider Doe's proffer of the testimony his alcohol expert would have provided, and (7) the UHB sustained the sexual misconduct finding under an "impermissible force" theory, but this theory wasn't properly disclosed to Doe before the hearing and conflicted with Roe's statements to the police and with the uncontradicted testimony of Doe's expert.

Thanks to reader James D. Smith for the pointer.

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  1. [T]he issue of incapacitation is not whether, in hindsight, the person made a smart decision.

    Ouch.

    1. hindsight“, which is arguably subtle, elicits an “ouch” from you? Does “her bare assertions” get a double “ouch”?

      1. That’s evidence. They’re just saying being drunk does not imply making a bad choice is evidence of incapacity to make that choice.

        It is the incapacity that makes the choice invalid, regardless if the choice is yes or no.

  2. It is “gender bias” to think that a woman considering a threesome with two men might be taking more of a risk than the men are?

    I don’t think that is bias. I think that is biology.

    The idea that equality means treating people identically is incorrect in general. To treat people equally means to take into consideration their circumstances in a way that respects their autonomy. So, if you make an accommodation for a female that is pregnant that you don’t make for a male that is not pregnant, that is not gender bias. Urinals in restrooms designed for men are not gender bias.

    People who are against equality often mock the concept by equating it with identical treatment. So, for example, there should be no social norm against hitting a woman anymore than hitting a man. But this social norm makes sense, since women are typically (not always) physically smaller, more easily injured, and have much less ability to defend themselves. Equality is about respecting a person’s equal ability to make choices, not about withdrawing accommodations based on biological differences.

    1. “more of a risk than the men are” Risk of what? Reputation? An STD? Regrets? Pregnancy? Embarrassment? How should putative “risk” of whatever sort bear on the decision in this case?

      1. Let’s start with STD risk. Yes, more of a risk of an STD. More of pregnancy risk. And more of a risk of embarrassment.

        So, if A is taking more risk from participating in X than B, then participating in X might be “more outrageous” for A, even though the event X is the same event.

        That is not gender bias.

        1. It’s not only gender bias, but also sexuality bias. You’re assuming that threesomes are inherently heterosexual and that there is no risk involved with multiple men sharing the same woman. Matter of fact, even pregnancy risk is greater for men. We need to stop using misandrist language about men and pregnancies. Men can’t carry children, but pregnancy is just as much a risk to men because of child support and harmful sex stereotypes about men needing to provide for women. In this case of a threesome, the risk is potentially greater for the men because of difficulty in ascertaining paternity.

          All this notwithstanding, it is extremely out of touch to even suggest women face a greater risk when the men are the ones who experienced real harm (cost of litigation, wrongful expulsion) and the woman did not.

          1. “You’re assuming that threesomes are inherently heterosexual and that there is no risk involved with multiple men sharing the same woman.”

            This is not a sexuality bias at all. Instead, the assumption is based on the fact that gays are a small percentage of the population and bi-sexual men an even smaller subset still. The probability is that the men are heterosexual and the woman is heterosexual as well. And making that assumption is not a bias. What would be a bias is assuming that they were equally likely to be bi-sexual, because then you would be massively overestimating the probability that they were bi-sexual. (And hence would have a biased probability estimate that systematically deviated from the truth.)

            “Men can’t carry children, but pregnancy is just as much a risk to men because of child support and harmful sex stereotypes about men needing to provide for women.”

            I don’t disagree that men experience a financial risk from pregnancy. However, the physical risks of pregnancy (including the risk of pain and unwanted symptoms and death) exist only for women but not for men. Furthermore, women have a higher financial risk as well, because they are unlikely to be emotionally capable of abandoning the child, whereas men are much more likely to be emotionally capable of doing so. So, on the contrary, a woman is physically, emotionally, and financially more at risk from a pregnancy than a man, in the usual case. (Surely there are exceptions, but not to the physical risk, which is always higher in a woman.)

            “the men are the ones who experienced real harm (cost of litigation, wrongful expulsion) and the woman did not.”

            Your division of harms into “real” and, I suppose, “imaginary,” is wholly arbitrary and seems to be based on nothing more than which party you feel the most sympathy for.

            1. Sexual identification and proclivity are two very different things. Many people, far greater a percentage than self-reported homo and bisexuals, have engaged in incidental homosexuality. If it isn’t bias to assume that the two men wouldn’t have done this, what else do we call it? We can all speak for ourselves, but who are you (or the courts) to say they don’t have the potential to swing that way?

              That statement about men being more capable of abandoning children is explicit sexism. Just because men don’t experience carrying the child, rooting, or other physical phenomena associated with pregnancy does not mean that they are more or less detached from their children. Also, the financial risk has always been greater for men because they’re the ones paying. The lifetime cost of alimony is a very cruel and unusual punishment.

              The harms are not arbitrary. All the accuser will get is a slap on the wrist and some loss of reputation. The legal cost she will incur is entirely her own fault for filing a frivolous suit and is not a damage. That’s why the men are seeking restoration of past status.

              1. I am not talking about potentials. I will concede potentials.

                We are talking about probabilities. What is likely to be true.

                Of course, what is better than assumptions is actual knowledge of the facts in the particular case. But gathering such knowledge is costly, and a court (through the parties advocacy, of course, since this is America) should of course be interested in the facts of the case rather than making assumptions.

                I am not a court. Therefore, I will make assumptions. My purpose is not to adjudicate this particular case, but to discuss ideas that the case brings to mind. The assumption that they are heterosexual could be wrong. It also (1) is not biased because overwhelmingly likely to be true and (2) because I am happy to discuss other scenarios. Discussion of the most likely hypothetical does not foreclose discussions of others.

                The statement that men are more capable of abandoning children is not sexism but instead empirical fact. The facts about the world are not here to please you nor I. Most people, whether a man or a woman, would not be willing to abandon their children. But when abandonment does occur, it is more likely to be the man. There are many possible theories for why. For example, one theory goes that since women do invest so much more physically, they tend not to be as willing to abandon that physical investment. Another theory is evolutionary. Regardless of the theory, the empirical fact remains. That obviously does not mean that there are not many millions of instances where the mother abandons the child and the man does not. In fact, that is not an uncommon situation. It just isn’t the more common situation. When we are generalizing, it is important to remember that counterexamples.

                “All the accuser will get is a slap on the wrist and some loss of reputation. The legal cost she will incur is entirely her own fault for filing a frivolous suit and is not a damage.”

                First of all, I would not underestimate the psychological costs here. Loss of reputation is merely one aspect of that psychological cost. (It seems less likely that the loss of reputation will have a financial cost, though it very well could. but it could have seriously relationship costs, depending on the belief systems of those she associates with.) You are assuming there was no STD or pregnancy, but she certainly did undergo the risk of the above.

                Did she file a lawsuit? I thought the court was reviewing a disciplinary proceeding by ASU.

                1. By your logic, all sex is always riskier for a woman, therefore it is always an outrageous decision for a woman to consent to having sex. That’s an incredibly sexist way to look at it. I can make decisions on whether, how, and with whom to have sex with for myself, thanks, even if you might not agree with them.

                  1. Biologically and evolutionarily speaking, sex (which naturally leads to reproduction) is always riskier for a woman, making it so the female in most, if not all, high order species is the more selective of whom they mate with. This is true for humans still today, regardless of the pill and/or condoms and/or legal abortion.

                    For an analogy, we are using the firmware on our system of millions of years of evolution such that a man can hit it and quit it, and a woman can’t. Historically, the institution of marriage, common across all cultures and going back to the first recorded history, was to both protect the woman from being abandoned, but to also protect a man in that he would know that that (in an era before DNA tests) that the kid he would work like a mule to support, was genetically his own. Again, evolutionary biology at work shaping human culture.

                  2. First of all, I don’t like words like “outrageous.” Instead, I think we should deal with probabilities.

                    The question is this. All other things being equal, is participation in a threesome evidence (a fact that makes it more likely to be true) that supports a claim that a person was highly intoxicated at the time.

                    Well, for the fact that it was a threesome to be relevant, a threesome need not be an “outrageous” decision. It only has to be an unusual sort of decision for that particular person. In other words, a decision that they would have been less likely to make in a less intoxicated state.

                    Saying that it is “outrageous” is not the best way to express why it is relevant. It wasn’t my choice to use that language. On the other hand, I don’t think use of the language is that “outrageous.”

                    Second, it is a fact that heterosexual sex is riskier for a woman, ceteris paribus. For one, they are more likely to get an STD. (That is, a man is more likely to pass an STD on to a woman than vice-versa, though the risks are very significant in both directions.) And the woman will, on average, incur more costs from a pregnancy. (Again, ceteris paribus.)

                    That does not imply that sex is an outrageous decision, nor would I characterize it as one. And although I think the risks for men and women are different, they aren’t like, orders of magnitude different or something like that.

                    1. But it’s immaterial whether she would have consented but for the alcohol. What matters is whether she was capable of understanding the decision.

                      If she could understand that yes, she was agreeing to simultaneous intercourse with these two different men then she has no complaint – she was legally capable of consenting and did so.

                      That’s what the court pointed out – the line is understanding and agreement at the time, not thinking it was a good idea in retrospect. Any other standard would mean that women should be prohibited from drinking alcohol at all, because they’re unable to determine when to stop when they’re sober, and not responsible for their actions when they’re drunk. All they’d have to do is stay in their cups such that most people couldn’t tell, and then every time they disliked the result of something they’d get to undo it. Bought a new car and crashed it on the way out? Do-over. Shoot someone? Do-over.

                      This pseudo-feminist infantilization of women is absurd.

                2. “But when abandonment does occur, it is more likely to be the man.”

                  Replace man with black and abandonment with crime and I think you’ll see the problem with using empirical data as a basis for evaluating what someone is likely to do. You’re drawing conclusions about someone based on prejudice. More black people commit crime, but that doesn’t mean being black makes you predisposed to crime. That’s why profiling has been so ineffective. It’s the tired and true causation != correlation. Ice cream consumption doesn’t cause shootings just because summer is generally more violent.

                  Any risk the woman took was voluntary. That’s the nuance I was trying to point out with my examples. She doesn’t have to have sex. She can ask that men use contraceptives. She can use her own contraceptives. She can ask that men test themselves. But all of these woes have been meted upon her due to her initial action, which was having sex, regretting it, and trying to ruin her partners by lying. The harm she has received is deserved. It is not a risk inherent to sex. It is inherent to lying and being a generally horrible human being.

                  1. In saying the woman is to “blame” and “deserves” harm, you are making what I think is a freakish moral judgment.

                    And you are forgetting the question of intoxication.

                    1. Are you suggesting that what she did after the fact is acceptable conduct that does not deserve criticism? We’re not talking about judging her sexual acts. We’re talking about how she lied and tried to ruin two other people because she had a drunk threesome and regrets it. I don’t want her to regret that. I want her to regret her deplorable behavior after the fact. Intoxication wasn’t even in the picture at that point. She’s completely sober as she drags these men through legal hell.

        2. Did we calculate in financial risk? If we did, it’s much higher for the man. ~$71,000 on average.

          1. Please elaborate.

            1. That’s one value given for average lifetime child support, age 0-18.

              Women have multiple choices in their financial commitment to children through multiple options to opt out. Men…typically do not have those choices

              1. Yes. But the woman has to pay child support too. Either through her physical labor in raising the child or to the man in case he is awarded custody.

                If a woman wants to “opt out” of caring for the child, she can’t put it up for adoption without the father’s consent. If she gives custody (or he is awarded custody) to the father to raise, she will be on the hook for child support.

                1. Statistically, men far more often end up paying child support, when compared with women. Roughly 9 men pay child support for every one woman paying legal child support.

                  In addition, when either party (men or women) is required by law to pay child support, on average, men end up with legal agreements which require them to pay more. On average, men owe $4,800 annually, while women only owe on average $4,160. In addition, of that amount, not all of the child support is actually paid. Men actually pay ~52% of the money they owe, while women only pay ~40% of the money they owe)

                  So, men clearly have a higher fiscal risk.

                  As for opting out, either through abortion (which the man has “no” choice) or adoption (in which the man can say “no” and in many cases, the child can be put up for adoption anyway), the woman has multiple options to alleviate the fiscal risk. The man, meanwhile, may be on the hook for whatever the woman decides.

        3. It is not a function of “more” (or less) outrageous. It’s whether a Senior VP for Educational Outreach and Student Services’s testimony that three-ways are “outrageous behavior” is of any probative value to whether or not Roe was intoxicated to the point of incapacity. That it is not sufficiently outrageous behavior to imply (to any degree) intoxication was essentially undisputed. Kendra Hunter was ASU’s witness. Of course she was right; sober women have three-ways all the time. Sober men engage in wildly risky three-ways all the time, too.

          1. Disregard above comment. I misinterpreted David Welker’s point.

          2. On the contrary, it is completely relevant to the inquiry, especially under a preponderance of the evidence standard.

            First, let’s start with a basic point. The best evidence we could have is the ability to witness the alleged victim at the time of the incident. But lacking that best evidence, what circumstantial evidence is there that would allow us to make the best guess that we can about their level of intoxication?

            Clearly, a person who makes a highly unusual decision, relative to the decisions they usually make, has a higher probability of being highly impaired than a person who makes decisions similar to those they make when sober.

            Is the decision to engage in a threesome an unusual decision? I think we can safely say that it is for people in general, whether they are men or women. (Although, perhaps, less unusual than it used to be. And obviously, we can say what is most relevant is how usual it is for a particular person.)

            Would a decision by a woman to engage in a MMF threesome be more unusual than the same decision for a man? I think we can already say it must be, since there are twice as many men (by definition) engaging in such threesomes as there are women, assuming that this is one-off behavior, which it usually is. Are the costs higher for woman of engaging in this behavior higher than for men. (Set aside, for a moment, whether we think that SHOULD be true. It is, in fact, true.)

            I think that a decision to engage in a threesome ought to be considered highly unusual for people of all genders. And it is relevant to a claim by that person to be excessively intoxicated. (In other words, it is evidence that tends in probability to make the assertion of fact that they were excessively intoxicated true). And I think even more so for a woman, because on average the risk-adjusted costs to her for engaging in this behavior are likely higher and known to her to be higher (which, to be clear, I don’t think is fair, but we are talking about probability of intoxication, not fairness).

            1. “On the contrary, it is completely relevant to the inquiry, especially under a preponderance of the evidence standard.”

              You’re conflating two inquiries. The first is in Arizona state court and is whether the University’s decision to suspend Doe is supported by substantial evidence (not preponderance). The second inquiry, in federal court, is whether ASU engaged in gender discrimination against Doe.

              For the first inquiry, what matters is whether substantial evidence demonstrates that Roe was incapacitated. The statements by an ASU witness that this was “outrageous behavior” is no evidence of incapacity. That’s true especially where, as here, ASU has already conceded (through a separate witness) that three-way sex is no t evidence of incapacity.

              Your original argument about “gender bias” relates to the second inquiry in federal court. Gender bias is not at issue in the Arizona state court proceeding.

              “(In other words, it is evidence that tends in probability to make the assertion of fact that they were excessively intoxicated true).”

              But ASU didn’t expel Doe for having sex with an “excessively intoxicated” person. They expelled him for having sex with an “incapacitated” person. ASU conceded that “there is a difference between being under the influence of alcohol and being incapacitated.” (It is basically undisputed that Roe was intoxicated.)

              1. The witness for ASU did not concede it wasn’t evidence. The question was, would a reasonable person choose to engage in a threesome when sober. If the answer is yes, that doesn’t mean that engaging in a threesome isn’t evidence of intoxication. Because the question isn’t whether a reasonable person who wasn’t intoxicated would EVER engage in a threesome, but whether the fact that they engaged in a threesome makes intoxication more likely.

                To put this in symbolic probability terms, let X be intoxication and T be engaging in a threesome. The question is:

                P(X|T) > P(X)

                Or in English, P(X) is the probability that a person is intoxicated. P(X|T) is the probability that a person is intoxicated GIVEN, that they engaged in a threesome. Since P(X|T) > P(X) is true, the fact that they engaged in a threesome is relevant. Under any standard (preponderance, substantial evidence, or beyond a reasonable doubt).

                And I would say that this is true, regardless of the gender. But the bigger the difference between P(X|T) and P(X), the more relevant T is. And I think the difference between P(X|T) and P(X) is probably not identical, regardless of gender. Because the risks and rewards of T are not the same, regardless of gender.

                To put it another way, to say there exists reasonable people who engage in T does not imply that T isn’t, overall, an indicator of intoxication.

                1. “The question was, would a reasonable person choose to engage in a threesome when sober.”

                  That wasn’t the question. The question was could a ” reasonable person exercising free will” choose to participate in a threesome. And the answer is, “of course.”

                  So given that someone participated in a threesome, is it more likely that they were incapacitated than sober or merely intoxicated? I don’t know, and I doubt there’s evidence in the record to make an inference.

                  1. Or to put it more clearly, the question is that, given that she was intoxicated and that she engaged in a threesome, does that make it more likely that she was incapacitated. And we don’t have enough information to answer that question.

                  2. First of all, there is no real difference between “incapacitated” and “excessively intoxicated.” Incapacitated is just a state of being so intoxicated that you cannot meaningfully consent.

                    We might say that there is a spectrum between “intoxicated” –> “excessively intoxicated” (which means what, more intoxicated than is desirable?) –> “incapacitated” (so intoxicated that you cannot meaningfully consent.

                    This is all on a spectrum, obviously. But the law puts it into binary form. But I would put it this way. Let X be intoxicated, E be excessively intoxicated, and C be incapacitated due to intoxication. What is the relationship between these things?

                    Well E is a strict subset of X (since all people who are excessively intoxicated are also intoxicated) and C is a strict subset of both E and X (since all people who are incapacitated due to their intoxication are also intoxicated and excessively intoxicated).

                    Alright. So what can we say. Well, one thing we can say is this. P(X) + P(~X) = 1. (At any given time, a person is either intoxicated or not.) We can also say P(X) > P(E) > P(C). And finally, and most importantly, we can say that anything that increases the P(X) increases P(C). Why? Because P(C) is equal to P(C|X) P(X) + P(C|~X) P(~X) but that really is P(C) = P(C|X) P(X) since P(C|~X) is 0 (since no one is incapacitated due to intoxication unless they are intoxicated).

                    The fact that P(C) increases when P(X) increases can be seen from the equation. Since both P(C|X) and P(X) are positive non-zero real numbers, an increase in P(X) will increase P(C).

                    In English, any evidence that tends to prove intoxication makes incapacitation more likely (since it makes makes sobriety less likely).

                    Now, this only goes to a point. When we reach a point of 100% certainty of intoxication, P(X) = 1, additional evidence of intoxication does not prove incapacitation, but merely confirms what we already know to be true with certainty. However, at this point, I think we can use the same argument for incapacitation as we did for intoxication. Namely, that an incapacitated person is more likely to make unusual decisions. After all, the difference between someone who is intoxicated and incapacitated is that the person who is “merely” intoxicated has reduced capacity to exercise good judgment consistent with their self-interest, whereas a person who had greatly reduced or no capacity to exercise such judgment.

                    If decisions are divided between G and B, where G decisions are decisions that a person would make when sober and B decisions are ones they wouldn’t make, we might say that P(G) decreases as one moves from X (intoxicated), to E (extremely intoxicated), to C (incapacitated) while P(B) increases.

                    So, B is actually evidence for all three propositions. P(X|B) > P(X), P(E|B) > P(E), and P(C|B) > P(C). And this is true whether or not we are sure the person is intoxicated. After all, P(B) unlike P(X) is not 100% just because a person is intoxicated. In fact, we systematically think that P(B) increases as the person moves along the spectrum of intoxication.

                    Thus, as long as we think that P(B) increases as a person moves along the spectrum from X to E to C (intoxicated, excessively intoxicated, incapacitated due to intoxication), then B is evidence of C even if we know X to be true.

                    In English, if B is having a threesome, and we think that having a threesome is more likely if you intoxicated, more likely still if you are excessively intoxicated, and most likely if you are incapacitated, then having a threesome is evidence of incapacitation even if we know for sure you are intoxicated. That is just math. To put it another way.

                    We want to prove:
                    P(C|X and B) > P(C|X)
                    (In English, that the probability of someone being incapacitated given that they are intoxicated AND have engaged in behavior B is greater than the probability that they are incapacitated given that they are intoxicated.)

                    We know:
                    P(B|C) > P(B|X) — That is, we are assuming that the probability of the behavior that goes against interest is greater when incapacitated than merely intoxicated, since an incapacitated person has a lower probability of behaving according to their interest.

                    But what we want to prove can be simplified
                    P(C|X and B) > P(C|X) is equivalent to P(C|B) > P(C) since X is always true.

                    You can show this with total probability (TP).
                    P(C|X and B) = P(C and X and B) / P(X and B)
                    P(C and X and B) = P(C and B) – P(C and ~X and B) (by TP)
                    But P(C and ~X and B) = 0 since P(~X) = 0. So:
                    P(C and X and B) = P(C and B)

                    By the same argument, P(X and B) = P(B)
                    So P(C and X and B) / P(X and B) = P(C and B) / P(B) = P(C|B)

                    By a similar argument, P(C|X) = P(C).
                    So, we have shown that what we want to prove can be simplified to:
                    P(C|B) > P(C)

                    What we know can, by the same argument be simplified.
                    P(B|C) > P(B|X) becomes
                    P(B|C) > P(B)

                    Using Bayes’ Theorem:
                    P(B|C) = ( P(C|B)*P(B) ) / P(C)
                    Substituting that into the equation we know:
                    ( P(C|B)*P(B) ) / P(C) > P(B)
                    Multiplying both sides by P(C)
                    P(C|B)*P(B) > P(B)*P(C)
                    Dividing both sides by P(B)
                    P(C|B) > P(C)

                    That is, what we wanted to prove, namely, that evidence of B increases the probability of C being true.

                    1. You’re overthinking it. Your argument assumes that an intoxicated woman who engages in a threesome is probably incapacitated. But there’s no evidence for this. You assert that someone who is incapacitated is more likely to make unusual decisions, but someone who is incapacitated can’t make decisions.

                      We have no idea what sexual contact with two men indicated about her capacity, or lack of capacity.

                    2. You are under-thinking it.

                      No, I do not assume that at all. The ONLY assumption that I make is that the probability of a threesome is higher when incapacitated compared to when the person is merely intoxicated.

                      When you say probably, you are implying a probability greater than 50%, which is not anything like what I am assuming. If the P(T|intoxication) is 2%, then P(T|incapacitation) being 2.000001% is sufficient for my argument.

                      Someone who is incapacitated can’t make “decisions” that the law recognizes as consent. They do, however, “do things.” They aren’t “unconscious.” So, when I say “decisions” you should “do things.”

                      We do have an idea about what her contact with the two men say about her capacity. As long as her tendency to engage in a threesome is higher when she is incapacitated than when she is merely intoxicated, the threesome is evidence of incapacity. That is MATH. What I have presented to you is a mathematical proof.

                    3. “The ONLY assumption that I make is that the probability of a threesome is higher when incapacitated compared to when the person is merely intoxicated.”

                      Which, all other things being equal, implies what I said.

                      But there’s still no evidence to support you assumption.

                    4. I have a great argument in support of my assumption.

                      Let’s say that a person who is incapacitated takes actions (they aren’t unconscious, but they do things).

                      Do we believe that the probability of that person doing a thing that is against their interest is higher than someone who is merely intoxicated?

                      I think the answer is pretty obviously yes. A person who is intoxicated is less likely to do things that go against their interests than someone who is sober. But, they are in a better position to protect their interests than someone who is incapacitated. Thus, a person who is incapacitated, is more likely to take actions contrary to their interests than someone that is merely intoxicated.

                      And, in fact, that point is really the only reason we would have to distinguish between those who are merely intoxicated and those who are impaired. I would argue that, by definition, incapacitation IMPLIES a lower probability of being able to successfully protect your interests, which is exactly why we do not accept “consent” as a defense in that context. If a person who was incapacitated had the same probability of protecting themselves as someone who was merely intoxicated, we wouldn’t have any reason to distinguish the two states. Which, by the way, really are on just different areas in a continuous spectrum if we are going to discuss biological reality. (There does not exist a magical biological point in reality where someone transitions from merely intoxicated to excessively intoxicated to incapacitated due to intoxication… these are crude discrete checkpoint on what is really and fundamentally a continuous spectrum).

                      Overall, you doth protest too much. We are only talking about the logical relevance of the behavior to prove incapacitation. If it increases the probability of incapacitation by any amount, it is logically relevant. That you are arguing irrelevance is an extreme and wholly unsupportable position. But, that one I would expect from a lawyer.

                      Many lawyers simply are not very good at determining what constitutes evidence from a logical standpoint. Too often, they argue anything that they think benefits their client, whether logically defensible or not. Since they often lack even a basic understanding of probability and lack basic mathematical skill, they often misidentify very weak arguments as strong ones. As you are doing here.

                    5. “Do we believe that the probability of that person doing a thing that is against their interest is higher than someone who is merely intoxicated? I think the answer is pretty obviously yes.”

                      “obviously”

                      Not so much. I’d say it depends. An intoxicated person is more likely to understand the benefit of a threesome (sex with two people) than a person who is unable to understand the nature and consequences of their actions, even if they don’t weigh the risks and benefits the way they would when they are sober. Also, people are less likely to engage in sex with an incapacitated person due to the risk of punishment.

                      But of course we can sit here and try to guess they answer, but there is no evidence to support either assertion. You murdered a lot of words and symbols to make a fairly trivial point about probability, but you haven’t proved anything unless you can justify your assumption.

                    6. By the way, those symbols are called math. Something that you apparently don’t appreciate, as evidenced by your initial obviously false assertion that my argument required that a threesome make incapacitation probable. That you did not “get” this on your own indicates your lack of proficiency in basic probability.

                      Let’s break it down and you can be VERY SPECIFIC about what you want to take issue with.

                      (1) The alleged victim claims that threesomes are contrary to their normal behavior and contrary to their interest. We must take this claim as true.

                      (2) A person who is less intoxicated has more capacity to act in accordance with their interest than a more intoxicated person.

                      (3) A person who is so intoxicated that they lack legal capacity are more intoxicated than those who are merely intoxicated or extremely intoxicated.

                      Your counterargument appears to go against (2), that actually, a person who is less intoxicated actually has less capacity to protect their interest. Because they, unlike the more intoxicated person, can recognize the benefits of behavior. But your ridiculous argument totally ignores the point that they are also more likely to recognize the costs as well, which based on (1) we must assume the person takes to be higher than the benefits.

                      If your assertion were true, we would have to conclude that actually, those who lack capacity to protect their interest are those who are less intoxicated, rather than those who are more so. Which is a completely absurd argument. To accept your premise, we have to think that those who lack actual capacity have legal capacity while those who have actual capacity lack legal capacity.

                      Since we should reject your absurd argument, we go back to my assumption, which is established by both common sense and the absurdity of your counter example.

                      By the way, EVERY SINGLE ARGUMENT must eventually rely on reasonable assumptions. And by definition, assumptions are not something that are proven. If you want to go against my assumption, you must furnish a better assumption of your own or show why there are more fundamental premises that the argument should be built from, such that the point should be proven with respect to those more fundamental premises (which will have to be eventually built on some sort of assumptions of their own) rather than assumed. Here, you have failed to identify any more fundamental premises and the alternative assumption you have identified is inferior due to its absurdity.

                      Your argument is both annoying and desperate.

                    7. “Also, people are less likely to engage in sex with an incapacitated person due to the risk of punishment.”

                      This is pure speculation. They may be more likely to engage in sex with an incapacitated person based on the belief that they are unlikely to remember the event or due to the lack of a clear and coherent rejection.

                      Since we can’t say anything sensible which is non-speculative about this variable concerning the behavior of other people, we ought to take it out of the equation for now. Here, we are talking about the separate question of whether the woman’s behavior is relevant to her state of mind. Here you are actually talking about the separate question of whether the behavior of the other parties is relevant to her state of mind. But that is a separate relevance question. That is a question about whether their behavior is relevant evidence of her state of mind. But here, so far, we are talking about whether her behavior is relevant evidence of her state of mind.

                      So far, you have tried to argue, I believe unsuccessfully, that a persons behavior (or at least some of their behavior) is not relevant evidence concerning their state of mind.

                      I do have a related question. If a person’s behavior isn’t relevant evidence of their state of mind, what is??? Your requirements for the admission of evidence can’t, as a practical matter, be so stringent as to eliminate all circumstantial evidence of a person’s state of mind, which, after all, isn’t directly observable.

                      Please provide clear guidelines for the behaviors (if any) you think are relevant to a person’s state of mind and which behavior (if any) aren’t relevant to their state of mind.

                    8. “By the way, those symbols are called math. Something that you apparently don’t appreciate, as evidenced by your initial obviously false assertion that my argument required that a threesome make incapacitation probable.”

                      Sigh. The math is not necessary to your claim, and is a wast of time, serving only to make it appear that you’re trying to show everyone that you’ve taken a sophomore-level math class.

                      First, you made the assumption in an earlier thread, “All other things being equal, is participation in a threesome evidence (a fact that makes it more likely to be true) that supports a claim that a person was highly intoxicated at the time.” You later adjusted that claim to “incapacitated at the time” If we hold all other things equal, i.e. if we assume it’s equally likely that the woman was incapacitated or not, then P(C|B) > P(C) means that the woman was probably incapacitated in that situation.

                      But if don’t want to assume that, fine. Your argument still depends on the claim that P(B|C) > P(B|X), which you’ve made a lot of assertions about, but still haven shown.

                      “By the way, EVERY SINGLE ARGUMENT must eventually rely on reasonable assumptions. And by definition, assumptions are not something that are proven. If you want to go against my assumption, you must furnish a better assumption…”

                      No I don’t. I can just point out that you conclusion is unsupported because your premises are unsupported, which is what I have done. You didn’t need the big, circular proof, it is obvious that your conclusion follows from your premise.

                      But your premise is unsupported, so despite everything you typed, the fact that she had a threesome while intoxicated is still not evidence that she was incapacitated.

                      And stop calling me a lawyer.

                    9. “First of all, there is no real difference between “incapacitated” and “excessively intoxicated.” Incapacitated is just a state of being so intoxicated that you cannot meaningfully consent.”

                      The court disagreed. “Moreover, as Hunter also acknowledged, there is a difference between being under the influence of alcohol and being incapacitated.”

                2. “If the answer is yes, that doesn’t mean that engaging in a threesome isn’t evidence of intoxication.”

                  Of course it could be some evidence of intoxication. But everyone agrees Roe was intoxicated. Nobody disputes that. It isn’t against ASU’s code of conduct to have sex with an intoxicated person.

    2. I would presume that it would be a different case if the university had a rule against “taking advantage of a woman even if she says yes.” Then of course the courts would probably strike down the rule by invoking the sex-equality component of the Fourteenth Amendment (which I don’t think exists, but the courts don’t care about retrograde thinkers like me).

      But as I understand it this was a charge of sexual abuse by taking advantage of someone who was incapable of consent. There needs to be some evidence of such a charge before finding someone guilty of it.

      1. Apparently there was also a charge of plying the woman (a minor) with alcohol.

        1. Let me correct myself – a minor for *drinking* purposes, that is, under 21.

    3. No, that’s exactly what equality means.

      Perhaps you need a different word such as “equitably” to describe what you mean.

      1. Maybe you should think more about the word equality and its history. If equality meant “identical” as in its mathematical sense, then the words “all men are created equal” would be nonsense, since all men certainly are not created such that they are identical.

    4. re: “It is “gender bias” to think that a woman considering a threesome with two men might be taking more of a risk than the men are?”

      1. It’s irrelevant. The investigator said that the decision was “‘outrageous behavior’ that could not be the product of a rational, informed decision by an adult”. Making a decision that accepts risk is not inherently “outrageous”.

      2. It’s wrong. A threesome is no more risky with regard to pregnancy, STD or any of the other factors you list than having two partners at separated times. This is true regardless of gender.

      3. Your basic presumption about risk is refuted by the many, many people throughout history who have consented to threesomes in, well, every combination of sexes possible.

      You are correct in your philosophical stance that “equality” means taking consideration of circumstances but your application of that principle to this fact pattern does not make sense.

      1. 1. It is not irrelevant. As long as the probability of engaging in a threesome is higher when incapacitated than when merely intoxicated, a threesome is evidence of incapacitation. This can be shown by Bayes’ Theorem, which I used in my mathematical proof above.

        2. The probability of an STD is not higher? I seriously doubt that. The risk profile of the sort of people who engage in threesomes is probably higher than for those who only have one partner at a time.

        3. People engage in behavior that is less risky and more risky all the time. People engaging in less risky or more risky behavior throughout history has zero relevance to the riskiness of a particular behavior, unless you think the risk is so high that people who take that risk would be eliminated from the gene pool. There is a range of more risky behavior that is more risky, but not eliminate all people who desire to take that risk out of the gene pool entirely risky.

        1. 1) threesome is weak evidence for intoxication, but only weak evidence. So while you’re right in making this point you’re not right in then applying it to the case at hand.

          She’s asserted to be intoxicated – so we can’t use the bootstrapping you did above. We also know a threesome occurred. Ignoring the capacity of the men (what if all of them were incapacitated?) we then need to know the probable outcomes of two men and one intoxicated woman in their situation.

          Do most outings with two men and one woman end in sex? No.
          What if the woman is drunk? Still no.
          What if the woman is drunk and one of the men wants to have sex? Still no.

          Remember that this isn’t alleged to be forcible rape – it’s either that she was drunk and now regrets her decision, or that she consented to get so drunk that she would lose her ability to consent to anything else.

          So why do you think it so likely that, knowing she was already drunk, decided to get more drunk to the point where she had to become a legal child?

          All your attempts at proofs above just demonstrate that the set of incapacitated drunks is part of the set of all drunks, but we already know she’s in the set of all drunks. Why do you think that being in a threesome makes it more likely that she’s incapacitated than that she’s merely drunk?

          If it were: woman had a threesome, and evidence only allows two options, she was either a) stone cold sober, or b) blackout drunk? And you were to guess drunk that would seem like a reasonable bet. But that’s not this scenario – we know she was drunk. The onto question your Bayesian model needs to address is: is a woman who engages in a threesome more likely to be incapacitated drunk, or at any level of drunk up to that point?

          Your math above doesn’t address that at all.

        2. 1. No, it is not “evidence” of intoxication. It doesn’t even support an inference of intoxication. You are abusing Bayes Theorum to reach conclusions that Theorum does not and cannot support.

          2. By exactly what biological mechanism, are you more likely to contract an STD by having two partners at the same time than by having the same two partners one after the other? The only support for your inference is your hidden assumption that people who choose to participate in threesomes will also choose risky (and perhaps unprotected) sex. But that puts the inference backwards. It’s the tendency toward risky sex that increases the likelihood of STDs, not the choice of threesomes. Again, you’re abusing the math.

          3. Say what? That has nothing to do with either your original premise or my criticism of it.

          1. ” By exactly what biological mechanism, are you more likely to contract an STD by having two partners at the same time than by having the same two partners one after the other?”

            Friction is physics, not biology, but it applies. Bloodborne pathogens transfer from one individual to another through tiny breaks in the skin, and repeated sex is likelier to create more of these than is a singular encounter. The closer in time they occur, the less time there is to heal. So, two encounters that happen at the same time will produce a higher likelihood of transferring bloodborne pathogens, if present.*

            The biggest single variable, of course, is the number of partners; having sex with more people increases the likelihood of encountering someone carrying a bloodborne pathogen, as does having sex with someone who has sex with more people. So, obviously, having sex with two people instead of one increases the odds of having sex with someone carrying an STD.

            Makes a number of assumptions.

  3. A woman engaged in a threesome with two men engages in heterosexual sex. A man engaged in a threesome with another man and a woman, engages in sex, in a way, with another man. Insofar as there is still a stigma attached to homosexuality in many circles, many men may well be less willing to participate in a one woman, two man threesome than a woman.

    1. This is an interesting point.

      What do you think though? For which would the stigma be highest in our society as it is right now?

      1. It depends on what subgroup you’re a part of.

        If homophobia (it’s not really fear, merely dislike, but I’ll use that term) is prevalent in your social group then it’s worse for the man (stereotypical Christian, most high schools, jocks, etc).
        If being a slut is a terrible shame then it’s worse for the woman (stereotypical Christian, high school, Republican). If being a slut is a status symbol then it’s a benefit (some feminist groups, many colleges).

        So it really depends on their subcultures. Will the boys be viewed as achieving a great sexual accomplishment? Will they be regarded as possible homosexuals requiring stoning? Will the girl be viewed as an ultimate progressive? A victim (that’s a positive in some groups)? A whore of satan? Or a turncoat, a traitor, snitch?

  4. Engaging in a 3-some with two guys seems like a very stupidly dangerous thing for a girl to do – but sex play is funny that way. Hindsight often is 20/20 and personally I don’t see any reason for a lawsuit or expulsion from college if nobody was injured – as in beaten up.

    Presumably all these people are classified as adults. How about acting adult, all of you. Geez.

    I would have been ashamed to go to the authorities with this sad story. Some things just don’t look very good in the daylight.

    1. It was all about consent, that is the ability to give it, in the face of alcohol consumption.

      1. Relevant to this is Eddy’s point above:

        “Apparently there was also a charge of plying the woman (a minor) with alcohol.”

        I don’t know about the factual application of this point to this particular case. But, purely for the sake of argument, assuming someone did ply someone with alcohol in order to get “consent” that would not otherwise be forthcoming, I would view the level of inebriation necessary to “cancel” consent as being less.

        It is one thing if a person, through their own choices, puts themselves into an inebriated state. It is another if another plys them with alcohol with the purpose of making them change their mind in a state of lesser cognitive judgment and ability.

        The difference is analogous to the duty to rescue. If, through your actions, you cause someone to be in a perilous situation, you owe them a greater duty of care, and perhaps even a duty to rescue, whereas if you merely come across them in that perilous situation, you have no duty to rescue.

        1. I don’t know if they plyed her with alcohol thinking she’d be less inhibited as a result. It could have been that they handed around their alcohol to everyone, including this under-21 woman who couldn’t legally have it, which I presume would be enough to convict.

        2. Unless we’re talking about secretly spiking her drink, I don’t know how “plying” someone with alcohol differs from serving alcohol to them, or drinking with them, or the like.

          1. “Serving” alcohol implies providing it so someone who is experienced and familiar with the effects of consuming alcohol. “Plying”, on the other hand, suggests attempting to overserve, or to provide it to someone inexperienced with drinking.
            YMMV.

            Put another way, it’s the difference between cutting off someone who’s had enough, or continuing to provide more booze. Legal drinking establishments might try raising a defense that they only provided alcohol to people who asked for it, but they can still lose a lawsuit based on overserving.

  5. It today’s environment of the youth being raised with easy& free access to hard-core porn of all flavors and varieties, it’s hard to make the case that a 3 some is “outrageous” in people’s minds.

    1. From the legal perspective, it would have mattered little or not at all if rather than a threesome, it had been a conventional twosome, or any sexual variant, maybe even bestiality. (It think there are specific prohibitions on necrophilia, and certainly on pedophilia, so that wouldn’t have been countenanced.) But a threesome is “zestier” than a twosome, and EV takes some fun opportunities when he sees them, plus there is click-bait in this one.

      1. Can’t say I disagree.

      2. neurodoc: I think the threesome point is substantively important here. I take it that if ASU banned threesomes altogether, that would raise important sexual autonomy questions, both constitutional ones (under Lawrence v. Texas and perhaps the Arizona Constitution’s protection of “private affairs”) and ethical ones. Likewise, I think, if ASU imposed lesser restrictions on threesomes (e.g., a requirement of written consent for threesomes but not twosomes).

        Now it may well be that here ASU’s theory is subtly distinct — that, as has been mentioned in the comments, women are so unlikely to consent to threesomes (as opposed to other kinds of sex) that the complainant’s decision here was more likely the product of drunken inability to consent. But it’s not clear that this distinction should make a difference; at the very least, this case presents an interesting opportunity to consider the matter.

        One could imagine similar questions arising as to other sexual practices, e.g., if a school stressed the fact that the parties engaged in anal sex rather than genital sex. But the fact that the school seems to be disfavoring a particular sexual practice (whatever it may be) seems to me to be important.

        1. “I take it that if ASU banned threesomes altogether, that would raise important sexual autonomy questions, both constitutional ones (under Lawrence v. Texas and perhaps the Arizona Constitution’s protection of “private affairs”) and ethical ones.”

          Then the next target: Art. 20, Sec. 2 of Arizona’s Constitution:

          “Polygamous or plural marriages, or polygamous co-habitation, are forever prohibited within this state.”

          https://www.azleg.gov/viewDocument/?docName=http://www.azleg.gov/const/20/2.htm

          1. From the perspective of understanding what cultural change is next up for the sexual revolution, you are correct that plural marriage is a low hanging fruit, legally speaking. However, I’m fairly sure that polygamy will be not accepted by the left, because it would be seen by them as exploitative of the women involved.

          2. A relic of a bigoted past, and one that even Kennedy couldn’t bring himself to overcome in Obergefell.

            Although, that doesn’t actually seem to prevent threesomes of any combination, as long as they don’t live together or call themselves married.

            1. “A relic of a bigoted past”

              If guilt-by-association with the past is a good argument, how about those patriarchal societies of the past which had plural marriage (of the 1 husband + multiple wives variety)?

              Or maybe modern Saudi Arabia is less mired in the bigoted past than Arizona?

              1. It’s not as much “guilt by association” here; many of these laws were written in order to make Mormons’ lives harder, since they weren’t “real” Christians. It was already disfavored by common law, but territories had to play into it to make admission easier.

                1. If you think the history of bans against plural marriage only go back to the Mormans, I would say you’re not going back far enough.

                  1. The federal ban didn’t come until decades after the ban in territories, which was explicitly implemented to punish Utah Territory and the LDS; it was not banned before. Utah and other territories wanting to become states with Mormon populations (Arizona and Colorado) were refused admission until they banned bigamy in their constitutions and the LDS banned it for members. Common law already disfavored bigamy outside of the territories but the clause in the Arizona constitution is undoubtedly the product of official discrimination of Mormons, which is what we’re talking about here.

                    1. Correct me if I’m wrong, but I understand that when the New Mexico territory included what is now Arizona, they passed a statute receiving the English Common law so far as it was consistent with American law. This statute remained in force when Arizona was made a territory in 1863. Then when Arizona became a state, Art. 22, Sec. 2 of the Constitution provided:

                      “All laws of the Territory of Arizona now in force, not repugnant to this Constitution, shall remain in force as laws of the State of Arizona until they expire by their own limitations or are altered or repealed by law;….”

                      And thanks to the polygamy provision in the state constitution, the common-law ban on bigamy cannot be replaced with a right to bigamy.

                    2. “Correct me if I’m wrong”

                      Doesn’t work.

                    3. You wouldn’t know, the only things you’ve discovered don’t don’t work with me are projection, lies and insults.

                    4. However, if you prefer to keep the Volokh sandbox to yourself, and don’t wish to engage with anyone in good faith, I might simply ignore you.

                      But no promises!

                    5. “the only things you’ve discovered don’t don’t work with me are projection, lies and insults.”

                      Plus facts you find inconvenient, which magically transform themselves into projection, lies, and insults. Your inability to handle being corrected is as much a consistent trend with you as are your tendency to comment on your own comments, and your tendency to misquote other people.

                    6. I really don’t know what your problem is, but pointing out that *you’re* wrong, and have no proof of your position, isn’t the same as refusal to be corrected.

                    7. But since I’d far rather reply to myself than to you, here’s a challenge: Find an example where I misquote anyone.

                      And of course an example where I actually put quotation marks around something somebody didn’t say, and attributed it to them. That’s what you have to prove to substantiate your accusation.

                      Good luck.

                    8. “But since I’d far rather reply to myself than to you, here’s a challenge: Find an example where I misquote anyone.”

                      Not much of a challenge. I don’t even have to leave this article to find a place where you misquote me.

                      https://reason.com/2019/12/26/arizona-court-reverses-expulsion-of-asu-student-for-threesome-with-allegedly-too-drunk-classmate/#comment-8065976

                    9. I look forward to your weaseling about how this obvious example totally doesn’t count.

                    10. So, just to be clear, you *didn’t* actually say

                      “If they set a rule against cheating, they’re within their rights to hold whatever process they like before assigning an F grade to the student.”

                      Because that’s what you’re claiming when you say I misquoted you.

                    11. ..and wait, what’s this?

                      Someone made a post under your name, a post containing the phrase “If they set a rule against cheating, they’re within their rights to hold whatever process they like before assigning an F grade to the student.”

                      https://reason.com/2019/12/26/arizona-court-reverses-expulsion-of-asu-student-for-threesome-with-allegedly-too-drunk-classmate/#comment-8065821

                      …but maybe you’ll claim that was your evil twin brother making mischief and making it look like you made the quoted statement.

                    12. Weaseling.about how this obvious example totally doesn’t count. Who could have possibly predicted THAT would be your response? Or that there’d be TWO of them?

                    13. To sum up: I challenged you to find an example of me misquoting anyone, and you gave an example where I quoted you word for word, with complete accuracy.

                      It’s too late for you to weasel out of your original accusation, which was that I “misquote other people” (another direct quote).

                      You probably wish at this juncture to sputter and struggle to redefine the word “misquote” so that you can bring a new accusation in place of the actual one. But such a bait and switch won’t work. Your accusation is proven false, and from that we me judge the quality of your other accusations.

                    14. More weaseling? Didn’t see THAT coming.

                      Oh, wait, yes I did.

                    15. “To sum up: I challenged you to find an example of me misquoting anyone, and you gave an example where I quoted you word for word, with complete accuracy.”

                      You said I think assigning an “F” grade is the only possible punishment for cheating. Now, I’d love to know where you quoted me saying this “word for word, with complete accuracy”, but since I didn’t say anything of the sort, I suppose you’ll just have to keep lying about it.

        2. EV:

          Set aside any legal reasoning whatsoever for a second.

          As a factual matter, if some evidence E makes X more likely to be true (i.e. P(X|E) > P(X)), then E is something we should consider in judging what P(X) in the particular case, right?

          Why should it be any different in a legal context?

          I generally don’t favor too many evidence rules that cause us to disregard logically relevant evidence. And I am not seeing the justification here. Are we worried about stigmatizing E so that we are going to ignore its logical relevance? I think that would be an unlikely outcome because I don’t think people make decisions about E (in this case) very much with the outcomes of court cases in mind. We might want to avoid mentioning E because it is embarrassing and because of privacy concerns. But this is a case of alleged sexual assault, so embarrassment and privacy about what happened are kind of out the window. The facts, including E, have to be explored to adjudicate the case at all.

          1. “I generally don’t favor too many evidence rules that cause us to disregard logically relevant evidence.”

            This isn’t an evidentiary ruling excluding evidence. It’s a legal sufficiency challenge to evidence. E can make it more likely that X but it is still the case that E is legally insufficient evidence of X.

  6. “[Kendra] Hunter, the witness ASU called to testify about its investigation, testified that a reasonable person exercising free will could decide to participate in a “threesome.”

    How was Hunter qualified to testify as to whether “a reasonable person exercising free will could decide to participate in a ‘threesome.'” Did she have personal experience of such undertakings or relevant education or training? Was there testimony from anyone maintaining it was “unreasonable” to exercise and participate in a “threesome?” Local or national standards? A “reasonable” man or a “reasonable” woman”?

    The Arizona Court of Appeals can be cited for the proposition that it is “reasonable” for a woman to agree to participate in such sexual conduct? Anyway, it’s not as though they had no support for that conclusion since they had Hunter’s expert opinion to rely on.

    1. Hunter was ASU’s witness, so it amounts to a concession by ASU.

      The court can now be cited for the proposition that one university staff’s testimony that three-ways are “outrageous behavior” is no evidence of intoxicated incapacity, at least when another university witness contradicts the incapacity part.

  7. I wonder if the university administrators who adjudicate these things have ever had sex before. Their treatment of these cases would suggest the answer is no.

  8. If you’re in a car drunk and collide with someone its your fault. If you’re on foot or in a bed drunk and you’re a woman and the other person is male, its their fault.

  9. I was trying to work in a tasteful joke about the Doublemint Twins, but I realized there is no tasteful joke which would apply to the subject.

  10. James Rund might not be cut out for Arizona State University if he thinks that threesomes are outrageous behavior. He might want to think about applying to work at BYU.

  11. The more I read these kinds of decisions, the more I have to conclude that the colleges have no business whatsoever conducting these types of proceedings. That they are not competent to do so seems readily apparent. But, moreover, these college administrators are effectively corrupting a (potential) criminal investigation by influencing witness testimony (most often, the accuser’s). If upon receiving such a complaint, there is reason to belive a crime may have been committed, they should immediately report it to the appropriate law enforcement authorities. Even if the police determin that there is no probable cause to arrest or charge, the college may still wish to take certain actions for the safety of its students. That may include, for example, where or when alcohol may be served on campus, or whether these types of complaints arise more often out of certain campus events such that those events are to be discontinued. The colleges may have a legal obligation to take some action in resposne to these complaints, but I don’t believe that having these types of proceedings or allowing its administrators or employees to serve in a quasi-judicial manner is called for by any such obligation.

    1. Certainly, so long as the college retains “quasi-judicial” proceedings for certain campus offenses which are not covered by outside-world laws (or if they are covered, which the real-world cops deem to trivial to enforce). For example, plagiarism, violating the campus events policy, or for the can’t-keep-up backwards campuses, limits on cohabitation.

      1. The university is entitled to conduct whatever process they see fit for those actions they are permitted to take. If they set a rule against cheating, they’re within their rights to hold whatever process they like before assigning an F grade to the student. If they set a rule that all library fines and tuition have to be paid in full in order for the registrar to release transcripts, they can’t hold your transcript until you return that volume of 18th-century American poetry you checked out back in your sophomore year, and pay your overdue fees. Disciplinary hearings are NOT criminal cases, so the rules are different.

        1. “Disciplinary hearings are NOT criminal cases”

          Thank you so much for that information; I had assumed disciplinary hearings *were* criminal cases.

          /sarc

          1. based upon history, you probably did.

            /not sarc

        2. “If they set a rule against cheating, they’re within their rights to hold whatever process they like before assigning an F grade to the student.”

          Yes, the only punishment for cheating should be flunking the course, not throwing the student out of school altogether. It all makes sense now.

          1. And if someone gets caught shoplifting, he should be sternly warned to put the item back on the shelf, and then be allowed to go on his way.

            1. You sure like to argue against yourself. Well, at least you win almost half of those arguments!

              1. I’m still absorbing the news that college disciplinary proceedings aren’t criminal cases. And that you think of an “F” in the course as sufficient punishment for a student who cheats.

                1. “you think of an ‘F’ in the course as sufficient punishment for a student who cheats.”

                  Why do you insist on substituting what you think for what I said?

                  1. What you actually said was

                    “If they set a rule against cheating, they’re within their rights to hold whatever process they like before assigning an F grade to the student.”

                    https://reason.com/2019/12/26/arizona-court-reverses-expulsion-of-asu-student-for-threesome-with-allegedly-too-drunk-classmate/#comment-8065821

                    It seems like you’re trying to wiggle out of the most plausible and natural interpretation of your own words.

                    On previous occasions, I tried to be charitable and allow you a face-saving retreat from the logical implications of your own statements, but I’ve discovered that you prefer to seize on this proffered charity and throw my generosity in my face.

                    So I’ll leave you to contemplate your own statements and think up your own excuses about how they don’t imply what the seem to imply.

                  2. “It seems like you’re trying to wiggle out of the most plausible and natural interpretation of your own words.”

                    No, what it seems like is you trying to weasel your way out of having been caught misquoting (again).

                    1. What new and creative definition of “misquoting” are you going to come up with to justify your accusation, given that everything I put in quotations marks was something you actually said?

                      Your problem is that you profess to believe that I followed up your quote with an incorrect paraphrase (ps, it was correct), but since the paraphrase wasn’t in quotation marks, then the term “misquote” doesn’t apply, and your accusation deflates and falls limp.

                    2. Here’s a correct use of the term “misquote.”

                      Pete Buttigieg referred to the “failures of the old normal,” and a reporter transcribed this as the “failures of the Obama era.”

                      Now that, as the headline indicates, is a misquote.

                      Moron.

                      https://www.usatoday.com/story/news/politics/elections/2019/11/11/pete-buttigieg-praises-barack-obama-after-misquote-went-viral/2560389001/

                    3. And from across the pond, another *correct* (as opposed to lying) use of the term “misquote” –

                      Politician Boris Johnson referred to “people of talent” and one media outlet *misquoted* this as “people of color.”

                      https://www.pressgazette.co.uk/channel-4-news-says-sorry-for-people-of-colour-misquote-on-viral-video-of-boris-johnson/

                      It’s something even you can understand. It’s a misquote if the part inside the quotation marks is different from what the person actually said.

                      You, on the other hand, gave a fake example of a misquote in which I put your own, actual, literal words within quotation marks.

                      I’d say this makes you a weasel, but I don’t want to insult that species.

                  3. Ooh! A bonus! THREE comments of weaseling, instead of just two. Way to change things up, Eddy. THAT’s the way to prove you’re not boringly predictable.

  12. I don’t have a problem with that. I would like to think that colleges are acting out of good faith in trying to create a safe environment for their students (and to avoid any civil liability). But I question whether the government officials who created these ridiculous proceedings for this kind of conduct or the people being hired to implement them are competent to do so or, in fact, are acting in good faith.

  13. I have read that if he’s drunk, it’s an aggravating factor, but if she’s drunk, she’s a victim. Is that in fact true? And if so, what’s the rationale for the double standard?

    1. The argument for that is detailed in ASU’s decision.

  14. If three people are drinking together, drink for drink, how can one be found to be incapacitated, and the other two responsible for their actions?

    1. Just because Wade Boggs once drank 64 Miller Lites on a cross-country flight doesn’t mean Kerri Strug could do the same.

  15. Maybe schools should just prohibit all sexual activity between students regardless of age. Institute strict curfews for male and female students. Maybe prohibit use of alcohol and other intoxicants.

    1. ASU is dry and prohibits other intoxicants, so it obviously doesn’t work that well.

      1. Were the parties on campus at the time of the relevant acts?

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