I can’t fault a coach for not acting on a rumor. The alleged accusers didn’t bring the allegations forward.
I accept that there are always going to be hard cases, murky cases in which guilt/responsibility is not easily determined. In a court of law, protections are in place to mitigate – though not eliminate – the chance of a wrongful verdict. As @Hunt said,“If we have a somewhat hazy line, one protection is to apply a more demanding standard of proof, like beyond a reasonable doubt. Also, we do things like employ professional judges, who give carefully worded charges to a jury.”
In a college committee hearing, the decision often comes down to which party is more believable, the accused or the accuser, and it seems to me after reading about a dozen or more cases the accuser has the default position. Perhaps this is tied into the prevailing belief that a rape victim seldom lies. Perhaps it’s connected to the prevailing wisdom that in the case of two drunk (intoxicated or impaired, not incapacitated) participants, one of who is male, the person who does the inserting has to be the aggressor. Perhaps there’s a racial element, or an anti-fraternity or anti-athlete element.
None of these “perhaps” is provable or documentable, as the committee doesn’t have to explain justify the reasons behind its decision that the accuser is more credible than the accused. But for sure, from the preponderance of evidence to the influence of victim advocates, the murky cases, where no one but the two people involved can know what happened (and even they may not remember) the decisions tend to favor the accuser. And if they don’t, here comes the OCR to set them straight.
As @northwesty wrote “Impairment is the hard case because it is a sliding scale. . . It is a fool’s errand to expect colleges or kids to be able to navigate legalistic consent constructs in the common (and hard) cases of mutual (and voluntary) impairment. . . . That’s why I think the OCR’s adjudication focus is so ineffective and harmful.”
Many of these decisions pend on whether the accuser was incapacitated or merely intoxicated and in many cases considerable time has passed. Determining whether the accuser was incapacitated when she gave consent and whether the accused should have been aware of this incapacitation, is not just hard, it’s impossible. The decision comes down to a coin toss, a coin that has a cultural and governmental bias toward finding the accused responsible and the accuser believable.
In the Jameis Winston case Major Harding, the retired judge who was chosen by FSU to adjudicate, wrote
He thus decided that Winston was not responsible. Needless to say this decision didn’t go over too well. Harding and FSU were widely disparaged and the court of public opinion has found Winston guilty. The OCR is investigating.
The Winston case is probably not a good example, since there was so much baggage surrounding the proceedings. but I don’t disagree with the Judge’s conclusion. Basically I’d interpret @Cardinal Fang’s comment the same way (though I think she’d come to a different conclusion than Judge Harding) “But the most murky cases are those where most people would agree that we have no idea whether there was consent. That is, we’d agree that if it happened the way she said, then it was sexual assault, and if it happened the way he said, it wasn’t, but we are unable to determine the facts of the encounter.”
If the facts of the encounter can’t be determined, then I’d have to agree with Harding. If the evidence is unreconcilable, then the college committee shouldn’t have the power to make a decision that puts a life-altering penalty on the shoulders of the accused.
Momrath, Winston is going to be a top draft choice in the NFL.
The case was botched.
I would use another example. The FSU case is disgusting.
For sure? This is crap. It’s complete nonsense. You are just making this up. You might as well be typing random keystrokes with your elbow as writing something about which you have no knowledge. Your entire basis for this ridiculous assertion is imperfect knowledge about a few cases.
You don’t have a random sample of all cases, and you don’t have knowledge of all the cases for one particular college. You have no reason to believe that the decisions in murky cases tend to favor the accusers. You don’t have any statistics about the decisions in murky cases.
You can’t tell us how many cases are murky and how many are not, you can’t tell us in what percent of all cases are the accused found responsible, you can’t tell us in what percentage of murky cases are the accused found responsible. You can’t tell us how many cases there are nationwide, how many go through formal resolution, how many are handled informally. I would like to know those things, but you can’t tell us.
Maybe the decisions in murky cases do in fact tend to favor the accusers, although I doubt it. But you have not one tiny itsy bitsy scintilla of evidence to give us to make us believe it. You’ve got nothing. You’re theorizing so far in advance of the data you’re not even in the same zip code as the data. Stop wasting our time.
Okay, understand that Winston may not be a good example. I quoted Harding because I think the general point he makes is valid: in some cases there really is no way to determine who is telling the truth about consent or to determine if the accuser was too drunk to give consent. In other words, both parties are credible. In those cases I don’t think the accused should be found responsible, especially if the penalty is expulsion.
Whatever abuse Florida State is getting, they deserve it. And more. Maybe Winston is innocent and maybe he’s guilty, but the FSU athletic department made sure we’d never find out by making sure there would be no investigation.
Momrath, Find another case. I wouldn’t quote Harding.
That FSU case is a joke.
You live out of the country, right? In case you don’t know, Winston is going to be rich. He is going to be on tv. People are going to cheer him. Sportswriters are going to kiss his @@@. Young kids are going to ask for his autograph.
Your post #461 is so bad.
I expect better out of you. Really.
I contacted Prof Halley. She doesn’t owe me anything. She didn’t respond to me. It would have taken her two minutes. I asked for a simple clarification. People with a much bigger audience have responded to my questions. 
A liberal writer contacted 4 liberal arts schools in Oregon and said they don’t ban people from parts of a campus based on looks.
Which school would?
None! That is my speculation.
They would say that they didn’t “ban” the person, let alone upon “looks” alone.
Oh, hey, @Consolation! Check this out: the new report from Yale on sexual misconduct accusations for the second half of 2014. There were four formal complaints of sexual assault, one of them a male accusing a female (no disposition, case is pending).
http://provost.yale.edu/sites/default/files/files/Final_Jan2015_Report.pdf
CF, hopefully we will get some information about that female assaulting male case.
The Yale reports don’t give details. We’ll find out whether she is found responsible, and what the discipline (if any) is. That’s it. Although I’d love to know more details because I’m curious, Yale correctly releases no details.
@Cardinal Fang Interesting. I wonder if it is a counter-claim, or freestanding, so to speak.
I hadn’t thought that it might be a counterclaim, but that’s an interesting supposition. If it is a counterclaim, I wonder if they’ll discipline both. But we won’t know.
ETA: there doesn’t seem to be any “matching” accusation. But who knows.
@Cardinal Fang, Your response is a bit harsh. “This is crap” and “Stop wasting our time” hardly encourages discourse.
I didn’t claim to know the details of all cases at all colleges. It’s the murky, who knows? situations that we’ve been discussing and it’s those that I am referring to. I said " it seems to me after reading about a dozen or more cases the accuser has the default position." and that “the decisions tend to favor the accuser.” You don’t have to agree but it’s hardly a cause for a breakdown in civility.
For the reasons I listed (e.g, preponderance of the evidence standard, aggressive victim advocacy even within the adjudication committee, fuzzy criteria for point at which intoxication invalidates consent) I believe that college sexual misconduct committees as formulated and directed by the OCR are biased in favor of the accuser. How many times have we heard that victims seldom lie about rape? How can such a statement be substantiated and even if it were true what bearing does it have except to tilt the decision? When that type of information is provided to the committee, bias is inevitable.
I don’t particularly like Harding’s decision either, but I think the judge, perhaps inadvertently, made a succinct point. In murky cases where there is no way to verify who is telling the truth (i.e., “those where most people would agree that we have no idea whether there was consent”) I am not in favor of leaving the decision to expel the accuser in the hands of a college administrator, professor or a single appointee.
I should have ended the post at
@dstark, Don’t worry the internet and cable TV are alive and well in Asia.
DStark there are quite a few more than 4 small colleges in Oregon, some which are religious schools. I just don’t get why Halley would make this up. It Is a minor point in her article. I don’t think she will respond to you as she clearly did not want to provide more details on that case.
I was surprised at the vehement opposition to @momrath 's post. She makes a pretty simple point–if you push tribunals to a preponderance of the evidence standard, then you face a very strong risk of bias causing unjust results. In the current environment, how is that likely to fall? Remember, the whole purpose of OCR forcing colleges to move to this standard is to get more disciplinary results against the accused. As momrath also notes, there is also a strong push to believe accusers–simply because they are willing to accuse. If you go into a tribunal with the mindset that an accuser is more likely than not to be telling the truth, then what is the likely outcome in a he said/she said case?
"I say they’re entitled to have the rule, and they did an exhaustive investigation to discover that John Doe broke it.
I say that colleges can have rules that we don’t like. Just because we don’t like a rule doesn’t mean that colleges can’t have it. Some colleges have the rule that students can’t marry. Other colleges have the rule that students can’t be openly gay. I don’t like either of those rules, but I don’t dispute that colleges are allowed to have the rule."
Fang – I agree that schools should be entitled to define their own rules, whether I agree with them or not.
Problem is, OCR is not OK with that. They want all schools to have their “Dear Colleague” mandated rules. That’s the basic problem. Add to that that such policy was adopted in the face of highly misleading data (the gold old bogus one in five) and hysteria about the size of the problem. Also add to that that the “Dear Colleague” policy was not adopted with any of the usual requirements for administrative regulations – notice, hearings, public comments, etc. Instead, it was adopted unilaterally by the litigators at OCR and then enforced by the threat of witdrawing funding. So a bad policy adopted in a bad way.
The Feds should never have butted into this, and they really should now butt out. OCR’s efforts are making things worse not better.
Fundamentally, their policy idea is that this problem can best be solved by ramping up college adjudication processes and resources while simultaneously watering down due process protections. It seems to me that their policy is a complete failure. But OCR doesn’t see it that way. They are litigators, so they think that more/better litigation is the solution to every problem.
But you were able to read those cases because they had already been selected to be objectionable to you. It’s like reading Innocence Project cases and announcing that most people convicted of murder are innocent. It’s like going to a cancer ward and announcing that most people have cancer.
You don’t have access to the random sample of cases that would let you make conclusions. You have no basis to make a sweeping statement about all cases, because you don’t have information either on all cases, or on a representative set of cases.
Hunt, I am starting to worry about you. Why would anybody use the FSU case to make your points?
The guy won.
Prof Halley mentioned the Hobart and Smith case. A case where the accused lied. A witness, a football player, would not testify. A nurse, at the time she looked at the accuser, said she looked like she was assaulted. Then testified differently.
The guys won. This case is another bad example.
Professor Halley’s story in Oregon…There is just an anecdote. A bizarre anecdote that almost everybody would agree goes too far. However, there is nothing to show the anecdote happened. Not just in Oregon, but anywhere in the country.
Why would the professor do this? People exaggerate to make a point.
Find real cases to make the argument in post 475.
The Michigan case where a couple is having sex, they are keeping the guy’s roommate up and the accused lost is a case that may support the argument in post #475.
And yet California juries manage to do this “impossible” task every time they convict someone of Rape by Intoxication.