Hanna, can you share more details? Were these rape accusations? What are the guys going to do?
How do you want colleges to handle sexual assaults?
And the evidence of this actually occurring in practice, in the case of sexual assault, is where?
Don’t put words in my mouth. Especially don’t put words in my mouth that I have just disavowed. I said “(2) The accused person should not be found responsible, because a bare assertion isn’t enough evidence;” and I meant it.
When we consider a case, we cannot take into account the fact that the accusation was made as part of the evidence. This is true for all cases, not just rape cases. I believe that in drunk driving cases that make it to a jury, the accused is overwhelming likely to be guilty. But if I’m sitting on a jury for a particular drunk driving case, I cannot use that as evidence to convict the guy. I have to be convinced that the evidence demonstrates that this particular defendant is guilty. Otherwise, I wouldn’t need a trial, and I wouldn’t need to listen to evidence-- I’d just convict, on the spot.
Exactly the same is true for the sexual assault accusations. Even though I think the majority of sexual assault accusations are true, I can’t use that fact to determine that this particular guy in this particular case is guilty of the accusation. I need to see preponderance (or clear and convincing) evidence that this particular guy committed this particular offense. I can’t use the mere fact that an accusation has occurred to decide the accusation is true.
Fang – many/most rapes will go unpunished under all adjudicatory processes. So long as those processes require proof. That’s the nature of rape – not the fault of the college or the criminal justice system. Two people, closed door, no witnesses, he said/she said, no other facts.
OCR will never be able to change that. That’s why their policy is dumb and ineffective. That’s why the correct focus should be on prevention and risk minimization. You can’t litigate your way out of certain problems. Rape is one of them. Watering down fairness doesn’t solve this problem; it just creates other problems.
To combat the harm of drunk driving , we tried (with some success) to lower the amount of drunk driving that was occurring. It wasn’t primarily helped by convicting more drunk drivers (although prosecuting drunk drivers is necessary). We should deal with drunken campus sex the same way. That would help.
@northwesty, I read every mention of Dean Eramo in the page you linked to and didn’t find what you claim is there. I then went back and read the context surrounding each mention, and didn’t find it there.
I mean, unless you count the one case where there’s a complaint that Dean Eramo, being the one in charge of the hearing panel, was also present during deliberations—the analogy to a judge being present during jury deliberations was in there. I think that’s a patently false analogy, though—it’s more like the chief judge being present during judicial deliberations of an appellate court, and I don’t think anyone would argue that that’s out of line.
(The multiple roles played by the nurse, though? That’s a real problem, IMO.)
It doesn’t seem like that’s happening at Yale. Looks like somewhere around 50% of accusations of sexual assault result in some sort of discipline. Now, maybe you’re right that innocent guys are getting disciplined, but my guess is you are underestimating what evidence is available in such cases, if one looks for it.
If you mean that rapes that go unreported will also go unpunished, that is certainly true, but it’s hardly a reason to stop investigating accusations that do come forward.
dstark, in my present practice, both are rape/sexual assault accusations. Both involve top tier private schools. All four students were drinking underage. In both cases, the accused and accuser knew each other well and spent the night together. From there, the stories differ. No physical evidence in either case. No criminal prosecution in either case.
We’re working on long-term record rehabilitation and transfer plans for the expelled students. In one case, I’ve been working with the family for over a year now. Students in this position who play their cards right are eventually able to go to college elsewhere and complete their degrees, but there’s usually an interruption of 1-4 semesters, they sometimes have to go to community college for a while, and there’s often a drastic drop in the caliber of school they were attending vs. where they can transfer. This is a situation where expert advice is critical.
I also have worked on cases where I know the student is guilty of a felony (they pleaded guilty or were convicted at trial) and those where the student was expelled for cheating. Comebacks are possible there, too.
Hanna, thanks. Are these sexual assault findings on the guys’ records forever? You are just one person and you are working on the results of two cases. How many cases do you think are out there like this? Do lawyers talk about these cases?
Why do you think the punishments were so harsh?
I’m not involved with them directly, but I do know that there are ongoing discussions among the professional organizations for deans of students, counselors, and those in similar positions on what exactly the policies should be on record-keeping and record-sharing for things like this. It’s very much an unsettled area, but one that’s intensely high-stakes and urgent because of the realization of the potential liability involved.
I’m sorry, I don’t understand here: the text messages supported his view? The text messages merely established that a sexual encounter occurred, but did not bear on whether it was consensual? How were they not inculpatory evidence?
In effect, yes, they’ll be on their records forever. If grad schools or employers want their college transcripts down the road, they’ll see the first expulsion. The transcript doesn’t give a reason, but the schools/employers will surely ask, and my clients will have to tell the truth.
I have also seen situations where someone (presumably the alleged victims or their parents) sent anonymous letters to institutions about this sort of history, so it’s unwise to try to hide it.
I wasn’t at these hearings, so it’s possible the accusers were incredibly convincing and my clients came across badly. If my clients really did commit rape, then expulsion is not harsh, IMHO; it’s a good start. It’s only harsh in light of uncertainty about what happened. I don’t agree with the outcome, but I also get where the schools are coming from. They’re in a terrible position when one student accuses another of an unprovable heinous crime. It makes a lot of sense that they would err on the side of getting rid of the possibly dangerous student. If I’m corporation counsel to a university, a wrongful expulsion lawsuit scares me less than the lawsuit holding me responsible for future rapes when I failed to act after the first accusation. From where I stand, it looks like the pendulum is swinging toward default expulsions in the last couple of years.
I have no idea how many cases are out there, but I have to assume hundreds, because I have a long way to go in building a national brand as the go-to specialist for admissions crises, and they’re already finding me. One of my long-term business plans is to try and collaborate with the attorneys who handle these matters.
I know what you trying to say, but people often do not matter in a specific process and administrative structure; they rarely do actually. Companies and other institutions fail mainly because of flawed processes that are carried out by often stellar people. The issue invariably turns out that the stellar people are stellar, but the flawed process makes a stellar outcome all but impossible.
This is why whenever someone in an interview tells me he can make something work by doing it better and they never get to nuts and bolts that it is the process that is the problem, well, instant no-hire. You would be surprised how many Ivy leaguers mess that up; they think personal action, personal skills, and personal efficacy, not realizing that the process insures their effort is for naught. I have several “trick” interview questions / scenarios to scope that out.
I bet you Jack Welsh could not take the OCR rules and Title IX and get better results. The statue and system are not designed to specifically get good results; just results, good or bad. And worse, the system has nothing to review and ferret out the difference.
@Hanna, the schools are required to give the students a report on the hearing. I assume you’ve seen these reports, and they reflect your claim that there was no evidence other the accuser’s claim? Your clients didn’t make damaging admissions (admitting that the alleged victim was falling-down drunk, for example)? They didn’t tell six different contradictory stories?
I’m trying to understand the exact circumstances where an unsupported accusation is enough for an expulsion.
And many victims strongly supported Eramo, according to some articles. Not every victim wants the guy expelled and were glad to have the mediation option or just someone to listen. Some also were happy she presented them with options and that it was ultimately their decision on how to proceed. But she clearly wore several hats: counselor, mediator, and the adjudicator. The story linked to sounds very traumatic, but hard to know what evidence was presented and thus whether this was a bad decision. She complained information was excluded that he was previously accused of drugging others, but if that was only hearsay, Eramo was correct to exclude it. It sounds like the UVA system could be improved, but it also seems like some would find any questioning of the victim to be too tough. I still can’t see a clear way to support the victim, but still ensure that her version of the events is true, without some uncomfortable questions.
CF: If the school uses the preponderance standard and thinks the woman is more believable than the man or believe he should have known she was too drunk to consent, then they could find him responsible and expel him.
You stated above that he is probably guilty. Why don’t you think the college tribunal would make the same finding in at least some cases?
Yes, after the fact I may see the reports, which are often cursory. Inadequate notice to the accused and little opportunity to gather/present mitigating evidence are not unusual. I can’t give much more detail. In my cases, there were no damaging admissions or changing stories. The supporting evidence was stuff like teenage angst in text messages with roommates, or witnesses saying things like, “She told me on April 12 that this happened to her on April 10.” In other words, the evidence corroborates the accuser’s ongoing belief that she was assaulted, not the assault.
“I’m trying to understand the exact circumstances where an unsupported accusation is enough for an expulsion.”
But there is no general rule to learn here, except the general rule that each group of human administrators makes a judgment call. They don’t have to follow precedent, even from their own institution, never mind others. So what went on in my cases tells you what’s possible, but these “exact circumstances” might have led to different results at a different college, or at the same college 5 years ago.
In fact, there was other evidence in the cases you cite, although you think it wasn’t good evidence.
If a woman said she had been raped on April 10, and a man denied it, and that was all, I’d say there was not enough evidence. If, however, another person came forward and said that the woman had walked out of the guy’s room on April 10 or the morning of April 11 and said, “He just raped me,” I would consider that additional evidence. If it’s a matter of consent, and she walks out of the room where the rape allegedly occurred and texts, “I didn’t consent,” that’s evidence. At least, to me it is.
The witness saying “She told me April 12 that this happened April 10,” that I wouldn’t place much reliance on.
When deciding an individual case, we can’t look to aggregate statistics of cases. We have to consider this case on its own merits. How many times do I have to say this before you will believe that it’s what I think?
It’s evidence that she believed she was assaulted. But it’s still her word against his. If she says it ten times to ten different people, and they all repeat what she said, it’s still one voice against one voice. All those people testifying to what she said doesn’t change that it’s a he-said/she-said. In court, it would not be admissible to prove the assault, just to prove her state of mind. If it makes you find her more credible, that’s fine. But then it’s a credible he-said/she-said. There isn’t any evidence other than the statements of the parties.
You can’t image how upset that statement makes me. Good thing I’ll probably never be on the other side of one of these episodes ‘cause I’d be h - e - double hockey sticks on wheels if $100,000 of my money went down the drain because of a kangaroo court and lack of presumption of innocence 
and two kids who were drinking. Honestly it would not be pleasant for anyone near me. I don’t know how you can sound so blase Hanna, I really can’t understand how those kids’ parents aren’t just tearing down the walls of the university to get those records expunged and holding the college liable if their kids can’t get a comparable education and in lickety split time.
You don’t think her state of mind is a fact I am entitled to consider?
CF, she didn’t say that.