A little ridiculous, student banned from parts of campus for looking like a rapist

Parents Forum
561

“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.”

That’s what I meant. The large majority of student assaults go unreported. Reasonable to conclude that most of those could never be proven. Of the stronger cases being brought, 50% wind up being unproven. That’s not a strong record – no prosecutor with a 50% conviction rate remains employed.

So pouring more and more and more resources into tweeks of the college adjudication system (which is OCR’s focus) is pretty much a waste of time. Litigation reform is not going to move the needle on this. Even if you force colleges to be way better at running an adjudication system (which I doubt will ever happen – that’s not what colleges are set up to do) your net impact on the problem is still minimal. You literally can’t get there from here.

562

This comparison doesn’t make any sense to me. Prosecutors don’t try cases they don’t think they’ll win. The right comparison is the ratio of complaints to convictions in a justice system. It might well be less than 50%, probably is considerably less than 50% for rape accusations. But the prosecutors do what they can, and so should college disciplinary systems.

“Rape is hard to prove so we shouldn’t bother to even handle rape cases in the criminal justice system” would be a ridiculous assertion. “Rape is hard to prove so we shouldn’t bother to even handle rape cases in the college disciplinary system” is equally ridiculous.

563

@Consolation, The question I posed was whether people could bring examples of he said/she said cases where there was no evidence other than the accusation, and where the accused person was convicted. Hanna said she knew of two such cases, but then elaborated that in fact there was other evidence: contemporaneous or near-contemporaneous texts and conversations.

I say, evidence from another person about the state of mind of the accuser right after the alleged event is evidence apart from the accusation. For example: I walk into a room with a guy. Twenty minutes later I walk out.

Scenario 1: I walk out, pick up the phone and call 911 to report a sexual assault. There’s no physical evidence. You see me, and talk to me, and you can see I’m upset and crying.

Scenario 2: I walk out. Three weeks later I accuse the person of assaulting me.

Are you saying that in Scenario 1, I have no corroborating evidence? Your evidence is worth nothing?

564

“Rape is hard to prove so we shouldn’t bother to even handle rape cases in the criminal justice system” would be a ridiculous assertion. “Rape is hard to prove so we shouldn’t bother to even handle rape cases in the college disciplinary system” is equally ridiculous."

I’d say “drunken college rape is extremely hard to prove no matter what we do procedurally. So our highest/best effort would be to prevent the drunken college rapes in the first place. Spending significant incremental effort and focus in an effort to prove more drunken rapes (while also being fair) is not very smart or impactful. But it does provide good business to the plaintiffs lawyers.”

In the same way that there’s not a military solution to defeating ISIS, there’s not a litigation solution to reducing the incidence of drunken college rape.

565

People respond to incentives, and that includes drunk college students. As more students get punished for nonconsensual sex, students are going to get more wary about drunken college sex.

I’d also agree with trying to reduce the incidence of binge drinking, because I believe binge drinking is harmful-- but colleges have been trying to do that for a while without much success.

566

What makes you think they will be able to reduce drunken college sex if they couldn’t reduce binge drinking?

567

Because they’re not expelling students for binge drinking, but they are (correctly in my view) suspending and expelling kids for nonconsensual drunken sex.

568

Why don’t they start expelling students for binge drinking then? What’s preventing them? And how many women has been expelled for nonconsensual drunken sex again? Why say kids when you mean men?

569

“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”

Well, it’s my job to try and fix the educational problem. It’s the parents’ job to be emotionally invested. I don’t know how pediatric oncologists can maintain the detachment they need to focus on the problem, but I’m glad they can.

“then elaborated that in fact there was other evidence: contemporaneous or near-contemporaneous texts and conversations.”

Do you see a distinction between this sort of evidence, which affects how much weight you give to the accuser’s story, and evidence that is extrinsic to the accuser’s story? Like a third party witnessing her level of drunkenness, or high-five text messages between the accused and his friends, or genital bruising? I guess we have a different definition of a he-said/she-said.

570

I think the issue is more nuanced than evidence vs no evidence. I’m not talking about procedural violations but a subtle manipulation of the way evidence is or is not presented that affects the outcome of the case. This could include the introduction of bad evidence, like hearsay or quotes from anonymous sources, the type of evidence that probably wouldn’t be allowed in a courtroom setting.

Then there sins of omission: Evidence that might have proved exculpatory for the accused has often been ignored or disallowed by the adjudicator who has control over what is introduced and how witnesses are examined.
Or evidence that never sees daylight because witnesses cannot be cross examined by the accused.

These are just a few examples, culled from news articles summarizing the cases in which accused students have brought suit against their colleges. When razor thin decisions are being made on incapacitation or consent, these kind of irregularities loom large and can make or break the outcome.

Duke / McLeod
http://www.indyweek.com/indyweek/a-duke-senior-sues-the-university-after-being-expelled-over-allegations-of-sexual-misconduct/Content?oid=4171302

http://www.mindingthecampus.com/2015/01/duke-a-fat-target-for-due-process-lawsuits/

Auburn / Joshua Strange
http://www.wsj.com/articles/SB10001424052702303615304579157900127017212

Vassar / Peter Yu

http://www.mindingthecampus.com/2013/08/the_dubious_rape_trial_at_vass/

571

Do you see the distinction between no other evidence and some other evidence? Can you see how a case with supporting evidence is not the same as “bare accusations with no supporting evidence,” which is what I asked about?

I agree these are cases with scant (but not no) evidence other than the accusation. Perhaps you and I would not have found your two guys guilty based on the evidence presented. On the other hand, you say that the reports were cursory, so you have no idea what your clients said in the hearings-- they may have inculpated themselves. Maybe they asked one of your guys if she consented, and he said, “Yes, she did X,” and you and I would have been thinking, dude, doing X is not consenting.

572

I think that if you don’t let both sides tell their story, if you don’t let both sides present their evidence, if you don’t let both sides present their witnesses you do not have a fair and impartial process. The examples in the previous post are just 3 that illustrate what has sometimes happened. At worse you are creating a new discrimination in adjudicating a different discrimination.The minute any college excludes anything and takes it off the table and makes arbitrary and capricious decisions they have failed. And I truly believe they have failed the original intent of expanding Title IX, which in and of itself was questionable politics. But I would bet my bottom dollar that whomever was part of the decision making to expand Title IX never envisioned some colleges and universities violating civil rights and making capricious and unsubstantiated decisions by ignoring investigative discoveries. Period. But there haven’t been any lawsuits filed since mid-last year so perhaps colleges and universities “got the memo.” If they didn’t the legal system will make sure they do. I do have faith in that.

Here’s a fourth example that is also in the courts right now and pending. The entire story made me queasy because it was too close to an experience my son’s good friend had in high school.

I’m not against colleges taking a strong position on sexual assault. Not at all. I think the police are totally equipped to investigate and help colleges make a decision as to guilt or innocent and that the forging of those partnerships is essential. I don’t have a problem if women don’t want to press charges, but then adjudication should be off the table and counseling should be mandatory for both parties. I am absolutely opposed to colleges being arbitrary and capricious when it comes to students rights.

573

As I said, I wasn’t at these hearings. In general, the accused doesn’t testify – they submit a written statement. But there may be something else that I don’t know about that seemed conclusive to the fact-finder. The upshot is that in both cases, they accepted one version of events over the other, and there wasn’t any physical evidence or third-party witnesses to support (or refute) any of the substance of the charges.

574

Let me return to this, Hanna (or anyone else) for a hypothetical:

Again, you see me walk into a room with a guy. You see me exit half an hour later, crying and upset. My clothes and hair don’t look any more disarranged than usual, but believe me, I’m no fashion plate so they started out fairly sloppy looking. I say to you, “He raped me.”

I call 911, and the police eventually refuse to press charges.

The college investigator interviews me, interviews the guy, and interviews you. You tell the truth; I tell a plausible story of assault; the guy tells a plausible story of no assault. They discover that I knew the guy, and didn’t have any known enmity. Should the college expel this guy? Some lesser discipline? Or would you say that this is just not enough evidence and they shouldn’t discipline him at all?

575

It would be a clear violation of the Dear Colleague letter for the accused not to be able to testify when the accuser could testify, I’m pretty sure.

Various cases that have been mentioned here have troubling-- OK, terrible-- due process violations. These colleges need to straighten up and fly right. They should not be expelling students without giving them a chance to testify on their own behalf (even if it’s not required by OCR).

And speaking of violations, apparently, inexplicably, it is legal for a college defending a lawsuit brought by a rape accuser to access her thought-to-be private counseling records, and use them in court. You thought that mental health therapy records were covered by HIPAA, didn’t you? Yeah, so did I, but not on campus.

http://chronicle.com/article/Raped-on-Campus-Don-t-Trust/228093/

576

"You see me exit half an hour later, crying and upset. "

Ah, but then I am a third-party witness to something else: your emotional state at the time. That’s not what I’m talking about. I’m talking about a witness repeating the victim’s ACCOUNT of the alleged attack, not offering independent observations of the impact on the victim.

Most criminal defendants do not choose to testify, even though they can. The core of the defense is more commonly cross-examination of prosecution witnesses. But that’s the part that isn’t allowed in most of these hearings.

577

OK, I understand, so that’s a different story. To me, that’s barely evidence at all. The only probative value in that witness’s account would be the timing. It’s like, yeah, she told you she was raped, but if she told you the same story she told us… well, we already heard that story. Hearing it from another person she told it to doesn’t make it more believable.

If there are hundreds of such cases-- that’s pretty bad. I already thought the standard should be changed from preponderance to clear and convincing, but I wasn’t sure that it would make much difference in practice. Now I think the standard should be changed from preponderance to clear and convincing today if not sooner.

578

OTOH, here’s an example of a case where the students were eventually suspended on the basis of her accusation and nothing much else: http://media.oregonlive.com/ducks_impact/other/14-04131.pdf

They weren’t prosecuted. You’re the judge. Do you keep these guys on campus? Do you do what Oregon did, which is keep them on campus until after March Madness, then later throw them out?

579

Here are two articles people might find interesting. The first is about how even a school like Grinnell, with no frats or big sports scene, has trouble dealing with this issue. How being small poses its own difficulties with punishments:

http://www.huffingtonpost.com/2015/03/03/grinnell-sexual-assault_n_6780632.html

"On paper, Grinnell was doing everything right: It received praise for putting an affirmative consent standard in place in 2012, and its annual stats for sex offenses were among the highest per capita for colleges – suggesting students there were comfortable coming forward to report their assaults. The school even includes gender-neutral pronouns in its student handbook. There are no rowdy frats or big-time Division I sports stars to blame for rape culture, as has happened elsewhere.

But in some cases, Grinnell forced students to attend class with men the school acknowledged to have sexually assaulted them. The college made offenders write short apology letters to victims as their punishment. When some women struggled in classes due to stress related to their assaults, they say, the college pushed them off campus. And when students confronted Grinnell over its failings, student magazine editors lost their jobs and administrators told activists they were being intimidating."

The other is about the new policies at Penn and the potential for abuse of due process:

http://www.philly.com/philly/business/20150304_Law_Review__Campus_sex-assault_trials_bypass_rights_to_pass_judgment.html

"Justin Dillon, former federal prosecutor and now a white collar defense lawyer, knows all too well the ways campus sexual abuse investigations can go wrong.

His litany of bizarrely skewed hearings is fraught with the potential for harm and tragic outcomes.

The college student brought up on charges of giving his girlfriend an unwanted kiss, more than a year after the relationship ended; an alleged rape victim who said friends had information the accused had raped others, but then declined to identify the friends; the hearing panel, composed of a librarian, a student dance major, and a professor of romance languages, whose job was to decide whether a sexual assault had occurred.

“It feels oftentimes that every new case I get is more absurd than the last. Sometimes you get people who are not old enough to drink, but are old enough to decide whether someone is a rapist,” says the Harvard-trained lawyer, based in Washington."

580

But here’s the problem: in a he said/she said case, you, as a jury member or decisionmaker, is entitled to make an entirely subjective evaluation of the credibility of the accuser and the accused. I don’t want to put words in your mouth that you haven’t said, but you have clearly stated that you think it is more likely than not in any given case that the accuser is telling the truth. I haven’t done a lot of jury work, but I think that might get you struck for cause from a jury.

Again, Cardinal Fang, you seem to be arguing that in true 50/50 he said/she said cases, a tribunal is unlikely to find responsibility without some other evidence. But there is no rule that requires such a result. I like rules to prevent unfair results; I don’t like the idea of relying on decisionmakers failure to apply the rules.

Note: an example of additional evidence that I think I would allow a college to use in deciding whether to discipline a student (but not a criminal court) would be multiple accusations, especially if they are independent.