Fraternity Groups Push Bills To Limit College Rape Investigations

Parent Cafe
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“How can you ask a college to automatically, before any conviction, put a de facto restraining order or any other limitation on an accused student when outside of college, an accuser must spend the time and money to get a restraining order even after the accused is arrested and charged?”

Because colleges have codes of conduct that EVERY student must read and sign in order to attend.
US residents dont have to sign codes of conduct in order to live in a public community, city or state.
If a student wants the privilege of going to a college, then they have to play by that colleges’ rules.
its as simple as that.

42

This is incorrect. Most colleges have student conduct codes that directly regulate student behavior. Many are quite explicit in prohibiting sexual assault and sexual harassment. Here; for example, is what the University of Minnesota’s student conduct code says about sexual assault:

Sexual assault is one of 21 categories of student conduct code violations listed as “disciplinary offenses,” i.e., “misconduct . . . subject to appropriate disciplinary action under this policy.”

And the section on “Sanctions” expressly states that: “Separation from the University through suspension or expulsion is a serious sanction that may be appropriate for: repeated violations of the Code, for serious scholastic dishonesty, and for misconduct that constitutes a threat to community safety or well-being (including, but not limited to harm to person and sexual assault), or significantly disrupts the rights of others or the operations of the University.” In short, the student doesn’t need to be arrested or criminally convicted to be subject to sanctions up to and including suspension or expulsion in the case of severe or repeated violations of the Student Conduct Code, including sexual assault.

A student is subject not only to the laws of the state but also to the code of student conduct of the university, and the university may investigate and impose disciplinary sanctions, up to and including suspension or expulsion, for violations of its rules whether or not the state acts through a criminal proceeding. And the University of Minnesota policy is quite explicit about that. Under the section entitled “The Responsibilities of Dual Membership,” it states:

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For those of you arguing the college should give a free pass to the alleged student rapist pending the outcome of the criminal justice process, consider this: What if a professor raped your daughter (or your son, for that matter)? Or a janitor caught up with your student in the shower late at night when no one else was around, and forcibly raped her (or him)? Would you think it appropriate for the college to turn a blind eye and refuse to investigate or to discipline that employee pending the outcome of the criminal justice process, on grounds that rape is a felony and poor Professor X’s or Janitor Y’s reputation could be tainted by the college’s disciplinary action?

Or what if a high school or middle school teacher or coach sexually assaulted your minor child, not yet of the age of consent? Should the school turn a blind eye, refuse to investigate, and take no disciplinary action until the criminal justice process is resolved–something that in many cases takes years?

I think most parents would be outraged by such callous indifference on the part of the school. Yet that seems to be exactly what some of you are demanding a college should do when a student is accused of sexually assaulting another student. If you can draw a principled difference between the cases, be my guest. I see none. Sexual assault is a felony, yes. It is also a serious breach of the trust that is necessary to make any educational institution operate effectively, a serious and often traumatic and life-changing harm to the person against whom the act is committed, and an ongoing threat to the safety, well-being, and peace of the academic community as long as the rapist remains at large. It is the state’s responsibility to determine, beyond a reasonable doubt, whether a felony has been committed, and to apply appropriate criminal sanctions. It is the college’s responsibility to ensure the peace and well-being of the academic community and its members. Any college that would refuse to investigate and take appropriate disciplinary action in a sexual assault case, whether the assault is committed by a faculty member, staff, or a fellow student, is no place I want my children ever to be

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Eloquent and to the point.
Well said, as always. =D>

45

What @bclintonk said.

I mean, I’m college faculty, and if I were accused of, say, rape of a student I’d certainly expect to be quietly (quietly, because nothing would have been proven yet—public announcements of preliminary actions should be quite rare, IMO) placed on leave, or at least placed under some sort of heightened supervision, until it was investigated. This would be a reasonable initial step to protect other students, in case the accusation turned out to be substantiated.

Of course, if it turned out to be a false accusation I’d expect that I’d be restored to my previous standing (along with any missed raises being restored and such), with a note in my file that whatever job duties I wasn’t able to fulfill during the investigation wouldn’t be held against me in future performance reviews. But I certainly wouldn’t have found the initial just-in-case step to be unwarranted, you know?

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But what if the president of the U of Minn talked to the AD and the AD said “I didn’t do that at all. I did not touch employee A and I don’t even know employee B’s cell phone number.” Is the president to say “Okay, come to a hearing tomorrow. You have no right to be represented by an attorney because the only punishment I can give out is for you to lose your job, not go to jail. If anyone in the future asks you if you were convicted of assault, you can say no because all you’ll be convicted of is violating the honor code. No big deal. You can get another job.”

Of course if it is a student suspended or expelled, he’ll ‘only’ be throw out of this school. He can easily explain on any future applications that he did nothing wrong but the school was protecting some other students.

The examples of rapes by teachers or janitors are exactly when police should be called in. If the parent wants something done, call the police, have the person arrested, and that will cause the school’s inquiry into the employment. Yes, you want the alleged victims to be protected, but that doesn’t mean you jump to a non-criminal hearing without rights of the party to legal representation, to present evidence, to question the accuser. The school can’t write the rules (honor code), try the accused (with a less than impartial board of inquiry), and dispense the sentence. An INDEPENDENT party should try the case, not a board made up of school employees, students, and non-trained people.

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Well, they do, in other student conduct cases like cheating, vandalism, etc… But these types of cases are usually easier to prove or disprove with evidence that is more than one person’s claim versus counterclaim (which may be further clouded by intoxication at the time of the incident). Seems like the real problem is that it is much harder to reach the correct decision in a case of rape or sexual assault, whether it is a school dealing with it as a student conduct code violations, or the criminal justice system dealing with it as a crime.

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Even after a year of thinking about this I get caught on what constitutes a risk to the community of the university and what constitutes something so grievous a threat to the college community that it requires expulsion, which is a condemnation that follows a student into life outside of that particular college community. I can understand something so grievous that it follows the student into our criminal justice system - that exists to protect the greater society but I’m very conflicted about an accusation that an accuser deems not important enough to put that accusation into our criminal justice system yet could potentially result in a charge that does follow the student outside the college community or “brands” a student with language that for all practical purposes is perceived as illegal by society. That’s my stopping point about actions that are criminal. I can easily separate plagarism and cheating from harassment, assault, burglary, arson, rape and those things that are criminal in nature.

I think we can all talk about code of conduct and all this nice language but it falls apart for me when the accusation cannot be backed up with evidence or exculpatory evidence is neither sought out or ignored. A university simply wanting someone to go away, leave campus, is as identical to ignoring another’s accusation, something many claim colleges have done in the past, and is simply a different form of sweeping it under the rung. Saying you won’t allow harassment on campus and then allowing students to picket, write editorials and make public claims about other students or faculty is also hypocritical. In general I think there as been alot of hypocrisy going on.

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@twoinanddone, every college I am aware of has an internal appeals process. As a last resort, if basic rights were violated (which isn’t limited to a school simply not following its own procedures), the courts are available. Basically, you’ve built a convenient strawman.

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An appeals process to whom? Another level of the same university?

The NFL is going through this right now. The federal judge has hinted very strongly that the NFL can’t write the rules, hold hearings it requires the players (or others) to participate in, provide the investigation, provide the prosecution, provide the panel or decision maker, provide the appeals process and the next decision maker, and then enforce and benefit from the decision (fines paid to the NFL). The judge has hinted that there needs to be an independent decision maker (anyone can hire an arbitrator). And this is Tom Brady, who has enough money to hire lawyers and be represented. If he can’t get a fair hearing in such a system, no one can.

It is an unfair system that controls all the parties. A university should have an independent arbitrator for any charge where the result can unduly punish the accused. You can argue that the student didn’t have to pick that school, can still go to any other school, but the system doesn’t really work that way. Is anyone making a choice not to go to School A because the honor code is too harsh (other than a military school)? Is anyone not going to Columbia because of the way it handled the Mattress Girl case this year? Does the school refund the money paid to it already - No.

Any school honor board or investigation board is not independent. The stakes are too high to let these decisions be handled by a biased decision maker.

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I think the NFL lawsuit is about what’s permissible under the union’s collective bargaining agreement. In fact, most employers in the U.S. do just exactly what you describe: they make the rules for their employees, enforce those rules, investigate alleged violations of those rules, and hand down disciplinary sanctions, up to and including suspension or dismissal. In most cases there’s no appeals procedure at all, unless a union collective bargaining agreement provides for one, and even then it’s typically the employer that appoints the appellate body that makes the final decision. The stakes are pretty high for most employees, too. Losing your job cam be life-altering. Are you suggesting it is, or should be, unlawful for any employer to suspend or dismiss an employee without recourse to an independent arbitrator not appointed by the employer?

In principle, it’s possible that students could form a union and demand that no student ever be suspended or dismissed unless there’s a criminal conviction (this is apparently what the frats want, at least in cases of rape, though they seem less concerned with non-rape violations), or perhaps short of that, without appeal to a neutral arbitrator not appointed by the college or university. I’m skeptical that a majority of students would ever agree to that kind of protection for rapists. I’m also skeptical about the feasibility of devising a procedure in which the college or university didn’t have the last word in appointing the appellate arbitrator, because if the accused had veto power over such an appointment, he could simply stonewall until after he graduated, effectively guaranteeing that no disciplinary action could ever be taken. Is that what we want, a campus environment in which it’s just open season for rapists? Granted, some campuses have been not too far removed from that norm, but is that what we want? Really?

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It would hardly be open season for rapists, when the real criminal justice is always available to conduct real investigations and apply real punishments.

53

Some interesting stuff here. Although I was pretty adamant about keeping the schools out of it, some of the workplace analogies have swayed my opinion a bit. I still feel that the school administration should not be in the law enforcement business, but also acknowledge the need to maintain a community. So, if a student is charged with a serious crime, then put them on leave. Effectively tell the student - Here’s your tuition and fees for the current semester, please leave, and come back if there is no conviction.

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But, then how would that also comply and the meet the explicit requirements of title IX? In short, Title IX prohibits sex discrimination in educational institutions that receive federal funding. While Title IX is a very short statute, Supreme Court decisions and guidance from the U.S. Department of Education have given it a broad scope covering sexual harassment and sexual violencet. Under Title IX, schools are legally required to respond and remedy hostile educational environments and failure to do so is a violation that means a school could risk losing its federal funding…so that becomes the elephant in the room.

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I don’t have all the answers, and I’m not going to try to address harassment here because that is best dealt with by school administration through an honor process as part of upholding a community. But for addressing violence as required under Title IX, calling the cops should be sufficient, and then once charges are filed, put the student on leave.

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I would never want to be found standing up in support of anyone who has raped or otherwise violated another person. I want anyone who has to be fully accountable for what they have done.

In the same way and in the same strong terms, I always want to be found standing up for someone who has been falsely accused. No one who is innocent should have their life ruined because any institution wants be on a certain side of the political/social justice spectrum.

It is a mistake to equivocate rape to other more minor cases of misbehavior that occur routinely on college campuses. That is actually a terrible thing to do in my opinion, because it diminishes a very serious crime. Rape is much closer to murder (to me and I think to most people) than it is underage drinking. Of course colleges need to be able to handle regulate behavior at some level. But rape and sexual assault is something entirely different.

Because rape and sexual assault are serious crimes, it is a very reasonable protection for anyone who may be falsely accused to require that the matter be reported to proper authorities before any investigation, discipline, etc. is undertaken. This is hardly open season for rapists. It is treating rape and sexual assault as the serious crime that it is.

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Again, this is how this works in the real world. When you’re an employee of a company, the company could fire you for any reason because you’re an at-will employee - you don’t have to be found criminally guilty and you certainly don’t have the right to an attorney. The president could determine/assume/guess that the AD is lying. Or the president could think he’s telling the truth, but not want to court the possibility of a lawsuit and bad publicity from the two young women he allegedly harassed. So he decides to fire the AD either way.

Honestly, this is an easy thing to prove/disprove in the case of employee B - the text message would be on her phone, and cell phone records could be provided from the AD’s phone company to show whether he’d sent the message or not.

I do think that colleges and universities should be trying to adjudicate criminal charges, but they do also have the right and responsibility to protect their students and employees and affiliates, and should have the ability to preserve their culture and code of conduct whatever way they see fit without falling afoul of laws.

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Except that by some estimates, only about 3% of rapes ever result in a criminal conviction. I wouldn’t vouch for that exact figure, but people who study these things would agree the percentage is extremely low. Half or more are never even reported to the police, either because of fear of retaliation by the rapist, or the victim is (or has been) in some kind of relationship with the rapist and doesn’t want to see the rapist prosecuted on felony charges, or doesn’t want to go through the usual “blame the victim” interrogation by disbelieving police and prosecutors, or doesn’t want to re-live the trauma of the rape before police investigators, prosecutors, and an open court, or feels there’s too much stigma attached to being raped and just wants to keep it quiet, or simply doesn’t believe it would do any good to report the rape to police because so few rapes ever get prosecuted and even fewer get successfully prosecuted. Consider all the women who have recently stepped forward.and said Bill Cosby drugged and sexually assaulted them. How many of them reported those incidents to the police? Precious dew, if any, and so far as I know, none ever resulted in a criminal prosecution. And so, if the allegations are true, Cosby apparently believed to continue to drug and sexually assault women with impunity. Why didn’t they report these incidents to the police? They all say they thought no one would believe them, there were no witnesses, and/or they were at vulnerable points in their careers and thought someone as powerful as Cosby could retaliate and destroy their careers and reputations.

Even when sexual assaults are reported to the police, in many cases the prosecutor won’t bring criminal charges because without eyewitnesses it becomes largely a “he said v. she said” situation, not a winnable case when the standard of proof for a criminal conviction is “beyond reasonable doubt.” DNA evidence only establishes that there was sexual contact, which most rapists won’t deny (most rapes are committed by someone known to the victim), and even bruising or other evidence of physical abuse isn’t conclusive because the defendant can claim it was just consensual “rough sex”; moreover, rape isn’t always violent. Consider the college student who drinks at a party until she passes out and then is sexually assaulted. Or the Cosby-type situation. For similar reasons, even when rape cases are prosecuted, all it takes is one skeptical juror who might even think it’s more probable than not that the accused is guilty, but thinks the prosecutor hasn’t proved it “beyond reasonable doubt,” and the jury will fail to reach a guilty verdict insofar as unanimity is required.

I know some people will say that it’s precisely because rape is so difficult to definitively prove that we should leave it to the criminal justice system, so people falsely accused are not punished for offenses they didn’t commit. That’s why we have such a high burden of proof in criminal cases; we don’t want people to suffer criminal sanctions for things they didn’t do. By setting the bar high, we avoid those “false positives,” at least most of the time. But we also pay a heavy price for that, especially in the context of rape, because it means the vast majority of actual rapists go completely unpunished. I’m not suggesting lowering the bar for criminal convictions. I am suggesting that for lesser sanctions, like suspension or even expulsion from an educational institution, or “no contact” orders on campus, setting the bar at “beyond reasonable doubt” and only after the full criminal justice process has played out will effectively guarantee that most campus rapists pay no penalty at all. Another or additional alternative, I suppose, would be to encourage more victims of sexual assault to bring civil lawsuits against their attackers because then the standard of proof would be “preponderance of the evidence,” i.e., “more probable than not,” rather than “beyond reasonable doubt” as in a criminal prosecution.

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Title IX doesn’t just require addressing issues of violence, it also requires addressing issues of harassment. Thus, trying to split them apart in this way (saying the one should be dealt with under Title IX but the other shouldn’t) doesn’t actually work, unless I’m totally misreading what you’re recommending.

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I think you understand me. My understanding of Title IX, is that the schools have to deal with this issue. How can a schools that says “For rape we call the cops, and place the student on leave” be seen as not dealing with the issue? Similarly for harassment, the policy is to use the honor system.

Perhaps I don’t really grasp title IX.