Are you keeping the Oregon basketball players on campus, Hunt? If you say he-said/she-said cases must be dismissed, those basketball players are still going to be around. Is that the result you want?
“Clear and convincing” would help that, wouldn’t it? But I’m still wondering about the Oregon basketball case. I don’t like the idea of keeping those guys on campus.
At best, you guys are talking about a very small percentage of the incidents that occur. Regardless of the adjudicatory outcome, each incident is a disaster with no winners. It is a car crash where both sides lose regardless of whether fault is found or not or whether the tribunal gets the determination right.
Roughly 80% of incidents go unreported and/or unpurused for a variety of reasons. Many perhaps because they simply could never be proved no matter what the evidentiary standard or procedures. Let’s assume the brought cases turn out 50/50. If you screw the guys on due process (like the OCR commands) maybe you can get the convictions to go 60/40 instead.
So all this federal oversight and due process unfairness gets you an incremental conviction in exactly TWO PERCENT of the incidents. Even if it could be achieved (doubtful) that ROI sucks and mostly comes at the expense of the guy’s civil rights. By the nature of the offense, rape is always going to go largely unproven. That cannot ever be changed. Never.
The needle cannot be moved by litigation and adjudication process tweeks. Prevention/mitigation/intervention that would apply to all potential incidents is the far better play.
Drunk driving was much more alleviated by preventing people from driving drunk than it was by harsher and more unfair prosecution of alleged drunk drivers.
It’s an interesting case. I think one’s feelings about it may turn on whether you think it is likely that a young woman would consent to this kind of sexual activity with multiple men. Does it matter that they are cool basketball players?
I also worry about bias when race may be involved in an incident.
I will note, just in passing, that in this case there is the testimony of the accuser, and the contrary–but consistent–testimony of the three accuseds. How do you weigh that?
By the way, don’t put words in my mouth, either. What I’ve been saying is that you shouldn’t use a preponderance of the evidence standard, and that it’s particularly likely to lead to unjust results if you use it in he said/she said cases.
I’m bothered by your analysis, though, @northwesty, in that you seem to be saying it isn’t worth trying to enforce the law because it won’t result in a lot of convictions. This seems wrong on two levels:* First, one can easily see that letting enforcement slide would create an environment where those predisposed to perpetrate crime would recognize that they could get away with it, and so lose any deterrent effect. Second, 2% is 2%—even if you’re right on the numbers (and I don’t think you are, but I’ll let that go), you may only have improved things incrementally, but you have improved things.
I agree with you that we need to focus way on the prevention side than we do—but I don’t agree that we need to not improve the intervention side. A balanced approach, that’s where I think the best future lies.
Dear Colleague was four years ago. All agree it has been a disaster, although for different reasons – goes too far, doesn’t go far enough, doesn’t protect guys, doesn’t protect girls, etc.
We currently have an extremely unbalanced and ineffective policy coming down from OCR. It is entirely focused on litigation procedures. Which is pretty pointless.
What colleges and law enforcement were doing with the tiny number of adjudicated cases before OCR stuck their nose in was adequate – not great, not terrible. On balance, about what we have now with OCR’s help.
Not smart. Not effective. Stop trying the same thing (litigation process tweeks) and expecting a different result. Especially since litigation touches such a small number of cases.
OCR’s policy has been effective, though, in increasing the sums paid out by colleges to the plaintiffs lawyers representing the guys and gals claiming the colleges violate their civil rights. Is that the goal?
Cardinal Fang,
"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? "
The witness can only verify you were crying.
There isn’t enough evidence to indicate rape.
We don’t know his story. For example, if the guy says, “I called her by one of her friends name while we were intimate and this is why she left the room crying.”
His story would be as believable as yours.
Who could honestly decide in favor of one or the other? This is why these cases are so difficult to decide who is telling the truth.
No reasonable person could come to a judgement without inherent bias.
I am biased.
I think the sexual assaults on campus issue is real.
Most sexual assaults are not reported. By definition, with most of these crimes, the guys are getting away with it.
If a case is really 50/50, The accused should win that case. Since most accusations are not lies, this stinks for the accuser.
Multiple independent accusations should be looked at when a school is trying to decide what to do with the accused.
There might be two independent 50/50 cases with the same person accused but the odds of that are so low…
Because most accusers don’t lie, I want these cases investigated. One, the sexual assault victim may have some brain trauma. Give the victim a chance to recover. Two, the accused may say something or do something that collaborates the accuser’s story. There may be witnesses. The investigator doesn’t know this unless he investigates.
I want due process. I want both sides to have a fair hearing. There are exceptions…like when the guy is caught in the act like the recent Stanford case.
I don’t want the investigations contamintated, hindered, or evidence destroyed. For example, in the FSU case, the accused were told what was happening during the investigation before the DA even knew there was a case. That is ridiculous.
I don’t know how you quantify a case so that you can say a person is 66 percent more probable to be telling the truth but not 75 percent.
A school has a duty to handle sexaul assault cases. A school can suspend somebody before a guilty finding.
And…I don’t want to read crap from the Manhattan Institutute. If I read one more time about Stanford’s policies that don’t exist… 
If you mean two cases in which the only real evidence is the testimony of the people involved, I don’t think the odds of that are low at all, especially if it’s really true that most assaults are perpetrated by serial offenders. Indeed, a serial offender will know how to make sure that there’s no other evidence–it’s not that difficult.
I think we need to think a lot harder about how to make it more difficult for that predator in the first place. At my church, we were obliged (by denomination policy) to make it more difficult for sex abuse to be perpetrated by church leaders–this included background checks, adding windows to doors into classrooms, setting up procedures to make sure that children aren’t alone with leaders, etc. There were similar rules in place in my son’s Boy Scout troop. Following those rules would make it very difficult for a predator to successfully assault anybody in those settings–not impossible, but much more difficult. What can be done on college campuses to make it more difficult? I still think bystander involvement is key.
Hunt, the odds are very low that there will be two separate accusations. Most people don’t report these assaults once.
Should there be background checks on high school kids when are they accepted to colleges? Med schools do this, don’t they?
Again, I’m not sure this is really true if, in fact, most assaults are carried out by serial predators.
I don’t think background checks on high school students would help much.
The odds of somebody being guilty of at least one accusation when there are multiple accusations are extremely high.
CF has worked on this…
As I said, I tend to agree with this, although the independence of the accusations can be a pesky detail, as in the Columbia case.
That’s right, Hunt. That independence factor is an issue.
“I think we need to think a lot harder about how to make it more difficult for that predator in the first place. What can be done on college campuses to make it more difficult? I still think bystander involvement is key.”
In my opinion, BINGO!
You’ll always be stuck adjudicating the incidents that happen. Like the poor, some amount of victims and perps will always be with us.
Seems to me like you could have more impact focusing incremental resources and effort on the folks who are not the assaulter and who would seem to be more motivated to keep the incident from happening in the first place. Encouraging gals to stay more sober, stay with a buddy and make noise (which in tribunal proceedings is referred to as “evidence”) if things go wrong. Encouraging bystanders to do/say something if they see something.
For the perps, the best ROI would be to keep them more sober. Many/most of these college guys who are assaulters at a high BAC are not going to be assaulters at a lower BAC level. The now convicted Vandy football player (14 to 22 drinks!!!) is the poster boy for this. I shudder to think of what I might be capable of (and therefore legally responsible for) at that level of intoxication.
dstark - Apologies for jumping in here but I think that overstates the conclusions we came to. Suppose there are two completely independent accusations made against the same guy, and they each could either be a rape accusation or a non-rape sexual assault accusation.
Also, suppose you go in not favoring either side (so you assume each accusation has a 50/50 chance of being true) and there is no objective evidence to help you decide.
Then using the same statistics as Yale published, the odds that the guy is guilty of both offenses is only 56%.
25% of the time the accused didn’t commit a rape, but might have committed a non-rape sexual assault.
15% of the time the accused is completely innocent of all charges.
I wouldn’t call this “extremely high”.
But if you believe that 90% of accusations are true, then of course having two independent accusations means that the guy is very likely guilty. But you’ve pretty much baked that into the cake with your assumption that 90% of the accusations are true. One accusation is all you need.
I think reasonable people could disagree on whether that constitutes a “fair trial”.
I think a lot of people would argue with that.
@dstark, even if someone is apparently caught in the act they still should get due process. There cannot be exceptions to due process.
They can get due process in court.
Stanford can get rid of the guy.
Alsimon2, I don’t remember the probability number being in the 80’s.
I was thinking 50/50 on each case. I wasn’t thinking 90 percent.
I have to go back now. 