@momofthreeboys the cases described in the opening paragraph of that article bear no resemblance to the campus sexual assault cases that we discuss here on this forum. With actual physical injuries and photos a campus assault victim would also have a good chance of a prosecution. The vast, vast majority of campus cases simply don’t have those things, so they can and do go nowhere in the criminal justice system.
All of which is far, far afield from a tribunal with a couple profs and a librarian deciding some kid is a rapist when the girlfriend is saying no he’s not. I get that many college cases go “unproven” and life goes on. I’m sure there are a few cases where the accused really did sexually assault another student and they were expelled and slunk off into the sunset never to be heard from again and what a shame, because they committed a crime and should be in jail. Plus we’re talking about a small percentage of total reports that even make it to the tribunals but the sheer fact that the process is so loosy goosy and lacking in protections for the accused and 50+ cases have already been settled or found in favor of the accused is reason enough to take the time to revise the Dear College recommendations on “how unis” handle these things. A limit on time to report, mandatory report to the police, ability to have legal representation, ability to bring evidence in your favor would all benefit both parties despite what the vocal advocates want you to believe.
…
@momofthreeboys I am not sure what any of that has to do with the issue we were just discussing – which were cases that a prosecutor did want to take forward but the victim refused to proceed. They are usually not campus assault cases.
Momofthreeboys: you quoted only part, so I’m posting the entire paragraph:
I understand HarvestMoon was snipping quotes according to the rules of this board, which prohibits quoting large excerpts.
I understand what one has the right to do in the burglary case, momofthreeboys. I am asking a simpler, preceding question: Was the house burglarized or not, in the scenario I described? There is an underlying reality here, regardless on how the person represents it to him/herself.
This is not a ‘dying declaration.’
To understand dying declaration, you have to understand the ‘hearsay rule.’ Generally, one cannot testify about something not heard, seen, witness directly if the point of the testimony is to prove a fact. I saw Jane kill Joe, but not "Jane told Mary who told me that Jane killed Joe. Mary could testify that Jane told her directly that she (Jane) killed Joe. If Mary is dying and shouts out “Jane told me she killed Joe” anyone who heard that could testify that Mary said that.
The hearsay rule is not for wants or last wishes, but for proving facts in court. The prosecutor doesn’t care the Mary doesn’t want Jane prosecuted. The question is whether the statement was made when death was imminent.
Victims of crimes are not allowed to decide when or if to bring charges or not to bring them. They are allowed to express their opinions on sentencing, but it is only an opinion and the judge can still give any sentence or fine or requirements he wants. If we let victims decide, there would be many more death penalty sentences than there are. In the recent case of the girl encouraging her boyfriend to commit suicide, his family wanted her to serve many many years in prison.
The reason there are cases that can’t be brought because the victim (wife, friend, boss) won’t cooperate is that the prosecutor doesn’t have any evidence. It’s still the prosecutor’s decision. If your friend stole your IKEA desk and you don’t want to cooperate, the prosecutor has to decide if he can find a way to make you and if it is worth it to society to go ahead with the case. Yes, it was still a crime.
Thank you for that clarification – my own practice is as far as one can get from criminal law, but the implications upthread that a victim has the power to decide was never my understanding of how it worked. With federal criminal offenses the prosecutor brings the case on behalf of the government representing the people of the United States. With state crimes the state’s prosecuting attorney does the same on behalf of the people of the state. The case is never brought on behalf of the victim.
The governments interests in the matter include preserving social order and deterrence of crime.
ETA: While entirely different systems a university has the same interests in maintaining campus safety, thus they reserve the right in their policies to bring a complaint without the cooperation of the alleged victim.
Okay, so actual dying declaration, “X did not kill me.” An entire collection of witnesses saw X gun the victim down. The victim was walking normally and there is no trace of poison in the victim’s system . . . any other qualifiers you want.
Also, my take on the desk situation is that the house was burglarized, whether I cooperate in a case against the person who took the desk or not. The person who took the desk can’t be called a “burglar” if not convicted of burglary, but there was a burglary nevertheless. The parallels are obvious.
@Ohiodad51 In NYC it often takes more than a year from arraignment to trial for a felony trial, particularly in the Bronx. I’m not a criminal attorney, but that’s my understanding. An accused who wants to stall the proceedings usually can.
I think that a college should be able to suspend or expel a student for conduct short of being a convicted felon and that the standard of proof should NOT be “beyond a reasonable doubt.”
Colleges discipline students for all sorts of things–in some places that still includes violating curfews. I don’t know why some people seem to think it’s okay for a college to expell someone for plagiarism, but the same people think a college has no right to discipline someone for assault or presumably embezzlement or theft of a bicycle.
I don’t think we should leave it up to the victim whether to press “charges,” especially on college campuses and especially when the alleged perp is a student athlete. And, yes, I think the college has the right to bar contact between two students while an investigation is pending–whether or not the conduct at issue is sexual.
In at least some cases the victim is subjected to enormous pressure not to go against the alleged abuser. Sometimes, that pressure doesn’t come only from the accused. At some schools, where football or other sports are a huge deal and the loss of a key player may mean the potential loss of a championship or a post-season bowl game, a sizeable portion of the student body may harrass the victim. In other cases, the victim and the accused are in the same social circles–both are student athletes on a campus where athletes are a social group; they belong to sister sorority/brother frat. They live in the same small, themed housing. They may be in the same classes. And often “everyone knows” or thinks (s)he knows what “really” happened.
In many of the cases discussed on this board, the names of the victims were “outed.” Chessy Prout–the victim in the Owen Labrie case–went public eventually, but her name was out there publicly with pictures of her, her sister and the family home shortly after Labrie was arraigned. The name of the accuser in the Steubenville case was publicly available although it was never officially released. The cousin of one of the defendants was charged with threatening the victim.
Watching a case like Labrie’s go forward–and there it was clear that the victim was too young to consent to sex and the accused knew it–how many of us with daughters can truthfully say we’d want our daughters to go through that ordeal? And what about what Chessy experienced when she went back to St. Paul’s? They way Labre’s teammates harrassed her?
I agree with @Hanna that the procedures used are an important issue. At least it’s the perception of the procedures used. I’m sure that in some cases it is a “kangaroo court.” However, I think almost every student who is expelled for sexual misconduct alleges the procedures were unfair, even when they weren’t.
However, it’s also the case that we don’t agree on what SHOULD constitute rape and how it should be punished. There are a fair number of people who genuinely believe that it’s NOT rape if both parties were drunk.Others think that if you consented to intercourse, then you shouldn’t be able to complain that you didn’t agree to condom-less sex or anal sex or oral sex. Or conversely, if you agreed to oral sex, you have no right to complain about intercourse. We don’t agree on whether you have to agree to sex or whether failure to protest it is consent. We don’t agree on whether force is necessary to make something an assault. We disagree on basic questions. That too is a serious problem.
Interestingly, I listened to a podcast on this whole thing fairly recently that included advocates from both sides. One of the women’s advocates, who had apparently attended hundreds of hearings nationwide, said pretty much the same thing. She said that the problem was not the DCL and the standard of proof, but the lack of competence in conducting hearings. I’ll see if I can find it. It was interesting listening.
“I have to interpret Hanna’s posts as saying that in effect, a woman must say “I do not consent,” continuously,”
That’s absurd. I said that a refusal could be withdrawn non-verbally. I guess I have to be a lot more explicit.
If you say “I do not consent,” and then you get on top of your partner, pull off their underwear, and begin performing a sex act on them, you have nonverbally withdrawn your refusal.
“Do you ever talk with the women in the cases?”
- Why do you assume the accusers are women? Many men accuse other men. Have you ever spoken to anyone involved in that kind of case?
- When I advise a student who has been accused or disciplined, I read accusers' written statements. I read transcripts of their testimony. I read decisions rendered in the complainants' favor. I've read such files from more than twenty different U.S. colleges and universities. And I have also worked directly with abuse survivors on their college applications.
Do you ever speak to the alleged abusers of the women who have disclosed attacks to you? Read their testimony? Even at the single university where you work? Is it possible that I am actually exposed to different sides of this problem more than you are?
It sounds so reasonable. I really do agree. But then we can open up a can of worms like this dreadful Maine case in which a child was removed from a mother’s custody because she refused to jettison an abusive boyfriend. The foster parent killed the child.
@QuantMech wants everyone to agree to a bright line 10-second rule for consent using a set phrase. Kind of like name, rank, and serial number, one would gather. But life, human interactions, human communications, and human sexual relations are messy.
There are far too many rapes and sexual assaults. No one would argue otherwise. But is the answer applying a rigid legal standard that would sweep up people like Neal and Boermeester? I don’t think so.
The case that @Zinhead posted a link to reminds me forcibly of the Occidental case, which I think was a miscarriage of justice, and a clear case of an advocate out to convince a young woman that she was a victim and to collect a scalp.
In such “2 drunk kids” cases people frequently say things like, “If you commit a crime when you are drunk, it is no defense.” Yet it is always assumed that because SHE was drunk she couldn’t consent, yet the fact that HE was drunk has no bearing on his consent. Moreover, he is considered responsible for ascertaining her state of drunkenness, yet she has no responsibility for ascertaining his.
Personally, I would like to see more sexuality education and human interaction that stressed the innate worth and dignity of every human being, and equality, democracy, and love in human interactions. That is the only thing that I think will bring the best in us to bear on this issue.
HarvestMoom wrote:
This made absolute sense to me when you said it a little differently a few days ago. Especially when considering a person who assaults, rapes, or steals may not target only one individual. Even if impossible to prove a Title IX case, it creates a record. It may be possible then to see a pattern if one exists. Is that one positive of Title IX? Or does the risk of false accusations offset the potential positive result?
Hanna, do you want to improve the system or to abolish it? Do you think it does or can serve any purpose?
I think I really would have to have more information about those cases, than the media reports, to have an intelligent opinion as to what happened. Just based on the comments by HarvestMoon about the documents available in the Neal case, which I have not read myself, it doesn’t seem really clear cut at all to me.
Consolation: I would rather just change campus culture so that no one is injured. That may happen over time. Right now we have a rape problem. It seems Title IX could be a solution. I think something has to be done. Dstark convinced me police reporting is not going to solve the problem on campuses.
The dying declaration is just an exception to the hearsay rule. Hearsay rule is that second hand statements can’t come in. Exceptions (and there are many) let the second hand statements come in. The declaration “John did not shoot me” is a piece of evidence. It can be admitted - as proof of the facts asserted - as if that witness was still alive, as if she could testify that John did not shoot her. The prosecutor can have all the people who witnessed the shooting testify that they saw John do it, the police can testify that they arrested John with the gun, that it was smoking, that it was registered to John, etc. The jury then weighs the testimony of the people who saw the shooting, the gun, the smoke, the video, the fingerprints, the blood, etc. against the evidence that John didn’t do it. Part of John’s defense is the dying declaration of the dead person whose last words can be entered into evidence. Let’s hope he has more evidence than just that one declaration or he’s toast.
Without the dying declaration exception to the hearsay rules, the statements could not even be entered into evidence. As it is, it is only one (small) piece of evidence.
Hanna, you may consider the statement that a woman would have to say “I do not consent” continuously to be absurd. I would consider that to be absurd if it were necessary. But I don’t consider it absurd based on the exchanges we have had on this forum. Here are the relevant excerpts:
QM: As a matter of logic, I would say that the statement “I do not consent” should be sufficient to indicate a lack of consent.
[I was not sure whether this is true in states that enumerate circumstances indicating lack of consent and do not list verbal statements to that effect.]
Hanna: Sure, but a person can change their mind and indicate that change non-verbally. I’m using a neutral pronoun intentionally.
QM: In practice how long would “I do not consent” be considered to apply (absent spoken retraction)? Could it be argued to apply for less than 10 seconds?
Hanna: No idea. All your questions are over my head legally.
QM: Hanna could not even tell me that the flat statement was good to indicate lack of consent for 10 seconds. At least, that is how I read Hanna’s recent post. I understand that part of this is professional carry-over from Hanna’s work.
Hanna: As Title IX is currently enforced, consent can be withdrawn at any time. If you’re in the middle of a consensual encounter and the other person says “stop,” you’re supposed to stop all activity instantly; in a millisecond, you are transformed from lover to rapist. I have students who’ve been expelled for (allegedly) taking 10 seconds. So why would “no” have some legally mandated period of time attached to it, when “yes” doesn’t?
**New comment: So tell me that the woman does not have to say no continuously.
Also, heavens, no I wasn’t suggesting a bright-line 10 second rule! I thought 10 seconds was absurdly short.
With the “dying declaration” question, I am really trying to get momofthreeboys to set an outer bound on the kind of violence that it is okay to for victim/non-victim to excuse.
Murder cases proceed without the victim, by their very definition. I’d like to know if momofthreeboys thinks the victim should be allowed to prevent even that. Presumably not. But then, for her, where is the line?