"Affirmative Consent" Law to Address Campus Assaults

Parents Forum
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<p>The big difference though is, at least, one can litigate in the tort system, resolve things and receive renumeration. Impossible to litigate a person who is allowed to write guidelines by fiat and then on the drop of hat could say, “Oh, never mind,” and then can act like he did nothing. </p>

<p>Another difference is tort law is rather specific, even if extremely complex, mainly because it (usually) requires more debate and actual voting, which, in theory, gives higher accountability. That specificity is much easier to deal with than regulatory guidelines, which often are just someone’s opinion how to look at an issue. </p>

<p>This is why, unlike others, I do not see this college issue even clearing up in 10 years if attempted via regulation. It is impossible to clear up something in a way, which can be universally acceptable, when the basis is not grounded in defined standards, but in opinions where it does not even matter if the opinions are wrong or right. Currently, it is set up to be an unstable process. In contrast, the tort system may not be perfect (nothing is), but at least if someone steals, murders, i.e., felonies, they have good clue what type of trouble they are in, and there are defined processes, not based on opinion, but based on tested tort standards for the accused and accusers to present their sides. There are no such standards in the regulatory state and by political construct there cannot be. Thus everything re the colleges is and will continue to be all over the map until accountability of the process goes beyond and above the regulatory state…</p>

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<p>It won’t impact the deep pocketed colleges as much as the shallow pocketed colleges. If this is to be believed, one of the lacrosse players at Duke settled for $20 million. Duke might be able to take it on the chin and that case was a horrific example of society run amuck, but even a million dollars would hurt a shallow pocketed college. Which means shallow pocketed colleges have more pressure to be fair so as not to be hit with a civil suit and to follow the minimum procedural guidelines recommended in my opinion. Most likely the decision for a lawyer to tackle a Title IX case for a wrongly accused student might tilt toward the colleges with deep pockets. Colleges also have pressure to settle…for the very same reason they fail to report actual rapes and sexual assaults - it’s negative publicity when they wreck a young student’s life either the accuser or the accused. Colleges would be smart to report rape and sexual assault as it fits their state law simply to protect themselves. If the accuser fails to support the prosecutor at a minimum the colleges has checked one box on due diligence. This article is old, but is the source for the $20 million. I agree with awcntdb that it will be all over the map for quite awhile and adding state legislators into the mix really muddies the waters even more.</p>

<p><a href=“Duke Lacrosse Tax Lien Highlights How Lawsuits Are Taxed”>http://www.forbes.com/sites/robertwood/2011/02/28/duke-lacrosse-players-tax-deal/&lt;/a&gt;&lt;/p&gt;

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<p>Just a word on the idea that sexual assault allegations should be taken to the actual police: this may result in fewer college predators being punished, not more. The criminal courts are bound by the “beyond a reasonable doubt” standard, and police and courts are busy. Prosecutors will not bring cases to court if they don’t think they can get a conviction, and sexual assault cases are full of proof problems. A prosecutor is highly unlikely to bring forward any “he said, she said” case without some pretty strong additional evidence.</p>

<p>Colleges, on the other hand, do have an interest in regulating the behavior of students, and they can enforce rules that are different from the law–that is, they can prohibit and punish behavior that isn’t illegal. And most of us probably think they should, although we might disagree on what behavior in particular they should address. For example, the frat boys who engaged in a hateful and sexist chant on the Yale campus probably didn’t violate any law–but Yale did (and rightly, in my mind) punish them. I also don’t object to colleges punishing students for other sexual behavior that is short of rape–and I also want them to expel the rapists when they’ve been convicted in criminal court.</p>

<p>What I don’t want, however, is for the college disciplinary tribunal to be used as a workaround for the problem that the criminal courts have trouble getting rape convictions due to the proof problems. That’s what’s wrong, in my mind, with using the preponderance of the evidence for cases that are really criminal cases.</p>

<p>But, to keep this a little bit on topic, the question of an “affirmative consent” law is really a different question. It would, as I understand it, shift the burden of proof in lack of consent cases to the person who is asserting that there was consent. If you couple that with a preponderance of the evidence standard, then you really have a pretty weak protection for the accused, which is not supposed to be how we do things in America.</p>

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<p>Wow, that article is rather shocking.</p>

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<p>Preponderance is not a difficult standard of proof to meet- it means “more likely than not,” or 50.01%. Thus if the disciplinary panel thinks the accuser is “probably” telling the truth, the accused will be found guilty. I have seen the process. </p>

<p>Also, preponderance is used in civil matters that involve money or property. These proceedings involve the good name and reputation of the accused- which the Supreme Court has said requires more due process. </p>

<p>Along with the inappropriate use of the lower standard of proof is the absence of most, if not all due process protections which normally accompany the lower standard of proof and offset the likelihood of errors. In private colleges there is no due process required whatsoever. </p>

<p>Furthermore, these young men cannot transfer to another school or complete their education- it is nothing like being disciplined for plagiarism or even drug possession- it affects their futures. </p>

<p>To make matters worse, the Department of Education threatens to take away funding if the colleges do not report enough sexual assaults- so the adjudicators are college employees with the incentive to err on the side of guilt. </p>

<p>I am not going to discuss in detail the one-in-five figure here, but it has been discredited over and over.</p>

<p>Add in definitions of sexual assault which include “unwanted touching” and the difficult to decide “he said, she said” cases, and this is a disaster waiting to happen. </p>

<p>I have been working in this area and am familiar with several families of these young men claiming to be falsely accused, and the stories are heartbreaking. Many involve ex-girlfriends who claim sexual assault after the end of the relationship. </p>

<p>Bottom line: you are right to be concerned about your sons, because most of these young me knew the rules. Unfortunately when the “victim” is given what is, in effect, a presumption of innocence, it is very, very difficult to prove consent. </p>

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<p>You probably cannot find anyone who would disagree with this or the right of the college to punish what they deem inappropriate behavior for that college, e.g., BYU and muslim schools that ban homosexuality. One may not agree with the rules, but if those rules are upfront and clear, not much with which to argue.</p>

<p>Punishment, however, is not the issue people have here. You are a bit kind by calling the tribunals a workaround. A more vernacular way of saying it is there is a difference between metering out punishment and doing stupid stuff. In my view, tribunals that do not allow the accused to even show up or for the accused’ lawyer to attend and speak have crossed squarely into stupid stuff territory. And this but a couple examples of the myriad of inexplicable behavior from the same college administrators who would hire a lawyer to fight their kid’s jay-walking ticket if that ticket might affect the kid’s college admission prospects (Do not laugh; I know one).</p>

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<p>I don’t think the intent of either the California legislature nor the DOJ is simply to induce colleges to report more sexual assaults, but to lower the standard for determining guilt. In theory I don’t have a huge issue with this even if I don’t agree and think clear and convincing is a “better” level to protect individual rights of both males and females. The issue that I see is that procedurally some of the colleges are rushing to judgement, stomping on civil rights and in some cases not even following the procedures that the college, itself, has set perhaps, as you say, because they “think” this is what they are supposed to do. A problem with having lay people managing criminal adjudication. The idea behind Title ix has at its heart equal opportunity to an education, in practice what is happening is that finding the balance between protecting women’s rights without harming male rights is becoming imbalanced, tilting toward the opposite of the intent as evidenced by the increased lawsuits by males. As Poet mentions these current lawsuits, if allowed to continue with or without out of court settlements should help shape the application of the intent of the expanded Title IX. The consent benchmark for California’s law is so vague that it changes really nothing for the colleges or universities with regard to how they administer student rights and responsibilities except to add more murky language.</p>

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<p>The irony, of course, is that the “tribunals,” as they are being called here, were originally designed as a way to keep the students from having to face the justice system. Schools used them as a way to keep the rapists out of the legal system and to keep the punishments minimal. For years, women have been complaining about these systems, which have afforded extremely wide protections for sex offenders on college campus. </p>

<p>This is the reason for the DOJ investigation into the way schools have been handling rape cases.</p>

<p>If we started posting law suits about this issue as it currently exists, we would see quite quickly that this action is long overdue.</p>

<p>Obviously this is all new and it is due to the fact that the schools can no longer keep the survivors quiet. That’s all. It’s like anything else, it’s not a “new” problem, but the perspective has changed. Schools will figure out what works and what doesn’t. </p>

<p>But, suggesting that schools don’t need to address this issue on some level is a nonstarter at this point. They have to do something. They will do this, that, the other, and then it will get standardized. The rape and harrassment policies on most campuses are just incredibly antiquated.</p>

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poetgrl, I agree with every word of your post except for the second appearance of the word “this” in the sentence above. There is no question that we are moving from a situation of totally unacceptable failure to address the problem of sexual assault on campus. The challenge is to not just do something, but to do the right thing. While perhaps pendulum swings are inevitable (that’s how we do it in America, I guess), real people do get hurt if the pendulum swings too far. </p>

<p>Just in passing, I’ll mention again that if we, as a nation, really wanted to address this problem, we’d also be a lot more serious about dealing with binge drinking.</p>

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I couldn’t agree more. Not only does it need to be addressed, it needs to be clear to everyone that it is being addressed and how it is being addressed.</p>

<p>Hunt, I am applauding your post #228. It says everything that I have been thinking in the manner of an actually articulate person. Thank you.</p>

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<p>Yes, we mentioned the drinking issue upthread, @‌Hunt </p>

<p>I think the issue is to do the right thing. I also don’t think the commentary we find on this particular board is all that representative of the conversations being had in most of the places where policy is attempting to be made.</p>

<p>Look, this time last year a lot of universities were denying there even WAS a problem. We had schools in which student honor boards were dealing with rape charges!!! </p>

<p>I don’t know how far you think we can go and how fast, but given how long it took and how much force was needed to get colleges to even discuss their rape and harrassment policies, I wouldn’t hold your breath waiting for speed. On the other hand, the history of how the process has been handled has fallen so strongly on the side of letting the sex offenders go free on campus, and even now, we are hearing about very recent cases of the same, it is reasonable to assume that mostly this will still continue to be the case.</p>

<p>The best policies that could be put into place would be very strong record keeping around accusations, given that if many girls begin to report (which really very few do, even now), the likelihood of repeat reports arising about the same sex offender is high. But, the same people who are worried about tribunals don’t want to keep records of accusations, either. So… </p>

<p>Look at what happened with the case the DOJ is bringing against Columbia right now. Three reports about the same perpetrator. Nothing done. </p>

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<p>What Hunt said. I can’t do it better.</p>

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<p>@Hunt</p>

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<p>My second “this” references the DOJ investigating the way colleges are implementing or not implementing policies which either did or did not exist on college campuses.</p>

<p>I disagree with you if you mean it wasn’t time for an investigation into this situation. It was wayyyy past time.</p>

<p>Until the DOJ got involved, nothing was being done at all. Do you think it would be better to go back to the way it was before we started to discuss this as a culture? Because I don’t. Clearly we have not arrived at any kind of reasonable solution to the issue, at this early date, but the investigations are really necessary if we want any kind of change at all.</p>

<p>If you believe my “this” references something else, then I apologize for my lack of clarity.</p>

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<p>Then maybe I agree with everything you said. What I don’t agree with is the idea that the way to address the problem is by reducing procedural protections for the accused–something the DOJ has done by requiring a weak standard of proof, and something that would result from changing who has the burden of proof on lack of consent.</p>

<p>I have to say that I’m not too optimistic that the DOJ will focus on the right parts of the problem. Are they, for example, going to require robust bystander intervention training programs? I kind of doubt it. I think they will focus on ways to make convictions easier–some of which may be appropriate (i.e., not discouraging reporting, taking evidence properly), but others, less so.</p>

<p>Let me put it this way: in my opinion, colleges are more likely to be successful in reducing the incidence of sexual assault on campus than they are likely to be in developing fair procedures that will punish more perpetrators. I just don’t think they are ever going to be very good at investigating and prosecuting serious criminal offenses. Already, we’re reading horror stories both of victims who get no justice despite plenty of evidence and people being severely punished based on really flimsy evidence. I suspect that these can be found at the same college, because the procedures just aren’t rigorous enough.</p>

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<p>You are so right!</p>

<p>Ideally, what I would like to see is schools encouraging police reports, mandatory reporting, as Momthree advocates, and a strong record keeping system in which reports are tracked so as to be aware of multiple reports.</p>

<p>I’d like to see this explained: that reporting might not lead to immediate action, but over time, multiple reports would be seen as evidence.</p>

<p>I’d like to see schools actually support rape victims, not spin right into damage control the way they do.</p>

<p>I’d like to see us reduce the drinking age for beer and wine to 19 (which would reduce the targets for these predators for sure).</p>

<p>And, I’d like to see schools implement strong educational programs including the information that very few students are perpetrating most of these crimes (information I think boys really need to have), and bystander intervention education.</p>

<p>But, also, the protections we see over and over again for athletes, schools failing to encourage reports to law enforcement? We need to sanction this strongly.</p>

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<p>I’d like to see colleges and universities operate on a presumption of innocence from the beginning and make Title IX resources equally available to men and women up to and through the proceedings. Most handbooks are quite clear of the process for other honor code violations like plagarism. If they are going to treat sexual abuse as an honor code violation, then they need to make procedures known, fair and equitable. </p>

<p>Many of the current civil cases involve instances where the accused had no idea what they were required to do OR could do. Accusers were given the right to push appeals forward or back depending on the university schedule while the accused were not given the right to ask for a change of date. Supporting evidence and questions posed to the committees by the accusers were not always investigated, and questions possed by the accused not always asked but simply set aside. College and universities don’t have the civil right to avoid witnesses or testimony simply because it doesn’t fit their agenda. Sometimes accusers were given the opportunity to have support at the hearings, and the accused were not allowed support at the hearings. What support was available was sometimes communicated to the accuser but not the accused. They are sometimes not applying the resources in a fair and equitable manner. If colleges are going to do this they cannot play favorites…just as they do not play favorites for plagarism or any other honor code violation or they will get sued. If they HAVE written policies and procedures, they need to follow them and if they do not have written policies and procedures they cannot make them up on the fly. </p>

<p>I very much think they need a statute of limitations also for accusers - one year or more is too much time. I understand the concept of shock and trauma, but frankly there needs to be a reasonable time frame to make accusations and months and months and months after the supposed assault took place is way to much distance from the evidence and witness memory. There are numerous studies about memory contamination that the courts are now cautioning juries about.</p>

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<p>I didn’t know this, and it’s awful, but I’m not entirely surprised. </p>

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<p>Not to worry Vlad, in the handful of lawsuits that have been settled this year and are publically available without confidentiality agreements, several have returned decisions so far like: "Judge ordered a new campus administrative hearing for xxxx, on grounds that the previous one was “arbitrary and capricious.” or “” or "xxx was acquitted, the school’s “finding” (judgment) against him was overturned, and he was reinstated.’ (note including 1.1 million in damages). No matter what colleges or universities do, it has to pass the ‘smell’ test or they will loose in court. I’m not concerned because if colleges and universities do not act ethically and within their stated procedures or do violate equal rights under Title IX they will be sued and they will lose. And it goes both ways, plenty of women filing Title IX suits also. So to be honest, men and women are just going to sue the heck over each other and colleges until it all washes out. Sad but true. Just like in the criminal justice system, colleges and universities must be clear with their use of words like “consent”, “incapacitated”, and other words that have murky meaning. If colleges have procedurally published a process that is fair and impartial, they must act in a fair and impartial manner. To follow their own written rules and processes that on surface appear fair and impartial benefits all students.</p>

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I think you’re right, and this is actually a bit reassuring. It’s part of how we get the pendulum to hover in the middle.</p>

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<p>yep. Also the attorneys are a natural selection process, since all the women’s cases are winning as well. I imagine the attorneys have a good understanding of what they can and cannot win. So, as each side wins, and the women are winning quite a bit, it allows the schools to arrive at a set of guidelines.</p>

<p>I’m imagining that they will all have a pretty uniform policy in a bit.</p>