In the past I have tried to move the discussion to those issues in an effort to focus on how the system might be improved. Those discussions were always short-lived – posters seem much more interested in the facts of these cases or in just bashing the system.
But the courts have already defined what process is due in these hearings. If you haven’t already looked into it I think you will be very surprised at how minimal those requirements are – I was. From what I can tell the DCL guidance pretty much mirrors that case law. I think the campus hearings today operating under the DCL likely provide more due process than those operating pre 2011.
On the Grant Neal case, I think it is a waste of time to focus on the scenario that was put forward by the plaintiff and reported in the press. I do not believe for one second that was the basis for CSU-P’s suspension of Neal Grant, nor do I believe it was the original story told by Jane Doe. Once she stated to the Title IX office “whatever he said that’s my story too” they were free to advance any narrative that suited them. I think they chose one that endeavored to turn what may have been a forceful encounter into one that most people would look at as a mistake or accident.
@HarvestMoon1, my post was ambiguous; I’m talking about the national conversation, not here on CC.
“courts have already defined what process is due”
Even if this is true, people can disagree with the courts, and the Department of Education may be creating new regulations. But regardless, under the present framework, schools have a lot of leeway to create fair and professional processes, and some are choosing to do a lot better than the bare minimum. For example, Stanford’s assurance that both complainant and respondent have counsel is a step in the right direction.
I think most of the schools from what I can tell are doing much more than the bare minimum articulated by the courts. My issue is that they get no credit whatsoever on this forum for it.
Just to be clear @roethlisberger it was you who argued that Jane Doe reported the matter to the Title IX office in your #159. You quoted the sections of the Magistrate’s opinion that led you to that belief.
The complaint actually does makes reference to her reporting to someone but is vague – purposefully so in my view. It would not be “beyond bizarre” that they did not expound on that in the complaint because then they would have to divulge what her initial narrative on the encounter was. The press is going to have a lot more fun with “she said he didn’t assault her but CSU still says he did.” They skirt around the issue in the complaint and simply accuse Dr. Clark and his wife along with others of colluding to compel her to make statements she really didn’t mean to make.
I’ll credit the schools with doing a lot more than the bare minimum, in their processes. The kangaroo courts that run roughshod over men’s rights in their pursuit of a feminist perp-hunt bear no resemblance to the process locally. I would not claim that such “processes” exist nowhere, but they are atypical.
Often nothing happens as a result of a case that is heard within the university. This is because proof is hard to come by, when an encounter occurs in private, especially if the two people know each other.
Hanna, I am sure you are an effective advocate for college admissions for men who have been dismissed. You hear one side rather fully. Do you ever talk with the women in the cases? Some women suffer PTSD in the aftermath of rape, when they were mentally healthy before. Some women become suicidal in the aftermath of rape, when they were mentally healthy before.
I am not sure that everybody’s “lawyering up” in the university is the solution to the problem. As I understand it, lawyers are advocates, trained in an adversarial system. They believe in adversarial processes to get at the truth, for the most part. In science, the pursuit of truth often does not work that way. Good scientists try to figure out what the truth really is, and they are quite willing to abandon a hypothesis or a pet theory, if it’s not getting closer to the truth. A university should be in the business of the pursuit of the truth (no apologies for the “simplistic” dualism).
A couple of additional points in response to earlier comments:
First, I am not looking for a universal bright line where a case ought to be prosecuted, even though the woman is not willing for that to happen. I am interested in people’s individual lines, or even regions that are clearly across the line, since I realize that there could be unclear cases at the margin. The spread of opinion on these topics is also interesting to me. It seems to me that momofthreeboys has the answer “Never,” with regard to sexual encounters. But I don’t think she has ever posted an opinion on a case of domestic abuse, where the woman needed surgery.
Ohiodad51 has thrown a bracing, metaphorical bucket of cold water on the situation, with his realistic portrayal of the decisions prosecutors make. That’s separate from what people think “ought” to be the case.
Would that be sufficient to indicate continuous lack of consent?
Also, no one with legal knowledge has answered what “force” is, in the statutes. The force of gravity could make it impossible for a woman to escape a larger, stronger man, but that probably does not count as “force” in this context.
My position on a non-college woman who has been battered is it is still her right to cooperate or choose to not cooperate if the police investigate. You would have to ask a prosecutor whether they would take on a case like that. My guy says no they would probably not.
Maybe the woman was just looking for someone to seduce and then accuse of rape. Or maybe she cried rape when he didn’t send flowers the next day. Or Maybe she was blackout drunk, a scenario we discussed in depth on some of the earlier threads on rape and sexual assault. She reports that she doesn’t remember the encounter. We investigated and talked a lot about what a blackout state involves. We explored whether the fact someone was blackout drunk meant they were unable to consent, even if it looked to their partner they were consenting enthusiastically. There was discussion as to whether a partner should be expected to know someone in this condition was too drunk to consent, and there were many points of view and no consensus that I can recall. These scenarios changed how I feel about college partying. Since it is possible for someone to drink to the point of being blacked out and unable to know what they are doing, I think we have to educate our kids, in different ways than I had ever imagined, about having sex when your partner has been drinking, because you may be held responsible. Picking up partners in bars was just a norm in my college days. I no longer think that should be happening, unless one is willing to accept the risk of being accused of rape. I am approaching it from the position it will be impossible to know if we are taking advantage of someone too drunk to consent, not that I get too drunk to consent and someone unknowingly takes advantage of me. Although it will be a huge shift in some cultural norms, I don’t think anyone will be seriously disadvantaged by restraining from sex with partners who have been drinking, especially if they don’t know the partner very well. Someone who has sex while in a blackout state may suffer harm. I don’t really care that they bear some resonsibility. Their partner won’t be harmed by restraining from sex. They will be harmed if accused of rape. That is just what I think. I’m not interested in trying to convince anyone else of my view. I understand some think this deprives the drinker of agency. I have decided I’m okay with that. I don’t think a drunk person necessarily has a right to have sex.
I could not possibly judge this particular case, and understand the court dismissing the case. What is correct morally is not necessarily what is correct legally. Once one understands a blackout situation is possible, I believe there is a moral obligation not to take the chance.
Zinhead’s article seems to say USC is still investigating. HarvestMoon and Hanna, do you think that is likely? Do you think Title IX approaches this sort of case differently that the courts? Or anything else you want to say regarding Title IX here. Thanks in advance.
Sorry, I think you are still ducking the question, momofthreeboys. The question is this: Suppose a woman has been attacked with a knife, and her injuries are serious enough to require surgery. The hospital staff will testify. The woman will not (I agree with you that she could cooperate with the prosecutor, or not). Do you think charges should be filed in this situation, or not?
If it makes the situation clearer for you, you can assume multiple deep stab wounds.
Also, gee, alh, there you go injecting morality into the discussion!
Of course, I think that people should act morally.
I also would prefer if bars in college towns that serve underage people with phony ID’s were shut down, and if the laws against supplying liquor to people under 21 were enforced. That would reduce the incidence of problems.
Since I had the opportunity to participate on those earlier threads, I don’t feel the need to explore a lot of this all over again. However, I’m not trying to shut anyone down and stifle speech!! What I would like to get out of the thread, since you brought it up, is to read Hanna and HarvestMoon discuss Title IX.
HarvestMoon wrote:
^I am interested in this discussion.
Hanna wrote:
^And this one.
Would it be useful to have someone describe how these cases typically work, from the perspective of the accuser and from the accused? And then talk about how the process could be improved?
Frequently in these threads, several discussions are going on at a time. I don’t find that a problem myself.
"I also would prefer if bars in college towns that serve underage people with phony ID’s were shut down, and if the laws against supplying liquor to people under 21 were enforced. That would reduce the incidence of problems. "
I would prefer we didn’t have this thing going on with alcohol where it’s illegal for minors but we turn a blind eye. I would rather not have a drinking age if we aren’t serious about enforcing it. That is another thread entirely LOL
The reality seems to me we expect underage drinking and we expect it to be responsible. We don’t count on others to protect our kids from drinking. We have to teach them responsible behavior ourselves.
I don’t think I am ducking the question at all. Do I personally think that a prosecutor should prosecute a case if there is no cooperation by the injured person. Probably not. I think people’s private lives are well…private. Can a prosecutor take such a case? I assume they can but I think it would be likely not to happen. I am also not a huge fan of prosecutions of victimless crimes in general…but the laws are there for those that feel they are victims and that’s ok with me.
momofthreeboys, I posed the question about dying declarations for everyone, but it has some relevance to you. Suppose that someone is murdered in broad daylight, with witnesses around. In a dying declaration, the person says that he/she does not want the murderer to be prosecuted. Should this request be honored or not? I have to assume that you draw the line at murder.
Do you draw it anywhere short of that, if there is not cooperation by the injured person? Loss of a limb? Loss of an organ such as a kidney?
I really would like to know how extreme your views are.
More generally, for the forum: A person breaks into my locked house and takes the IKEA “Storp” desk (not a real item, used for illustration) out of my family room. It is not particularly valuable, although I spent 6 hours assembling it. Later, I find out that the person who took it is someone I know.
I do not feel that my house has been burglarized. (Now I don’t have to pay to have the desk hauled away!)
The answer provided in #194 as to whether a prosecutor should proceed with a case when the victim refuses to cooperate reflects an extremely surface understanding of the problem. Here’s an actual assistant district attorney who prosecutes cases in Texas answering the question:
It’s an enlightening article where the reasons a victim may not want to proceed are explored. http://www.tdcaa.com/node/7380
You have every right to feel victimized and call the police and say you were burglarzied and you have every right to shrug your shoulders because it isn’t a big deal to you and do nothing but ultimately it is your choice. Compelling arguments can be made for both sides.
The article above is a compelling reason just WHY police need to be involved supported by the statement in the article:
HarvestMoon: thank you for that very informative article. One thing it brought home to me, is that children in situations of domestic violence aren’t in a position to make their own decision on whether to stay or go. Someone makes that decision for them. I can’t find any justification for allowing them to remain in an abusive home. None.
Even if we feel it infantalizing to protect victims of domestic violence from themselves, we have an obligation to protect their children.
