Also, I can only agree with Ohiodad51 that “someone who actually rapes/assaults another should go to prison” if “actually” is interpreted to mean “proven beyond a reasonable doubt.”
(My entire theory of jurisprudence comes from A Man for All Seasons–not too far from the truth.)
And just to press a point, momofthreeboys, what about a woman who needs surgery for multiple stab wounds, all “accidental”? Still going with the idea that it is the woman’s decision whether she is a victim or not?
In your kingdom would this rule only exist for rape and SEXUAL assault? What if a student gets intoxicated and beats the heck out of a campus security guard? The college can’t do anything until the criminal case is completed, right? And if it will take at least a year for the case to go to trial and the student is a senior, he can continue to go to class and get his degree, right?
And, returning to the case which began this thread, the alleged victim who denies being a victim is complaining because she was allegedly admonished for contacting a friend who was supposed to testify before her testimony after being told not to while the investigation was pending. This is because the college views her as a “know nothing,” according to her attorney. Umm…I’d think it’s because the college didn’t want her to try to dissuade her friend from testifying or try to influence her testimony. You know, stuff that in the real world we might call “obstruction of justice.”
BTW, I googled Huguely. There’s an update. His mom has spoken out for the first time since the conviction. The legal system didn’t work. See, she knows her son did kill Yeardley Love, but she was “his best friend.” He never could have meant to hurt her. So, the second degree murder is a real travesty. He should have been found guilty of “involuntary manslaughter” because “her death was the result of a drunken accident.” So, it’s SO unfair that he’s supposed to spend 23 years in prison for an accident.
I’m sure you’ll be glad to know he’s completing his education through a prison program and will be a proud graduate of the University of Ohio.
If you are addressing me, I don’t think that anyone here has expressed that “guilt over racism” should outweigh the facts of the Rice case. But the black women I saw discussing this on TV clearly felt that it was a case in which race was an issue–basically in casting the victim as a hapless, powerless female who was wholly dependent on her meal ticket man-- and they expressed what I described. I doubt that they were suffering from guilt over racism either.
Hi Consolation–I was responding to a comment that you made, but I was really addressing the forum more broadly. I appreciate that the situation is complicated when marginalized racial groups are involved. I also understand that there has been a lot of inappropriate criminalization of young African-American men. I draw the line at adulthood, however.
I also think that a woman is pretty powerless when she is unconscious. By my comment, I meant that I don’t think my sympathy for the adverse situations that African-Americans still face in our society (and, yes, guilt over racism) means that Ray Rice gets a “pass” on his actions. The words “meal ticket,” “hapless” and “wholly dependent” are not related to the objective fact of the assault in this case. I don’t think they should be brought in when considering culpability.
Just to be clear, in my view, the terms “meal ticket,” “hapless,” and “wholly dependent” are objectionable per se. They are inappropriate to use about the woman in the case. However, anger over their use should not cloud the consideration of the circumstances of the case. It’s on video. One doesn’t need any characterization of the woman (other than “unconscious,” perhaps) to say what happened.
Also, I know that the article about Huguely’s mother’s statement refers to the “University of Ohio,” but as far as I know, there is no “University of Ohio.”
I think that he was clearly guilty of assault. Whether she chose to stay with him afterwards was her own business, but the assault was not up to her to define: it was a fact. The NFL and his team acted on that fact. The commentators I saw were discussing perceptions of her and her decisions more than his culpability. No one denied the assault.
As to whether people should be able to affect what happens when a crime is committed and they are the victim, I gather that the law allows people to decide whether or not to press charges, does it not? People apparently decide not to press charges all the time in varying circumstances. There are certainly cases when people are lauded for deciding not to place charges against a juvenile for petty theft, for example.
I have no idea what the actual law on this subject is, but I do understand that prosecutors have discretion in what cases to pursue and what charges to levy. @Ohiodad51 has described circumstances in which prosecutors are likely to decide one way or the other if they have a non-cooperating witness/victim. I should let him defend himself, but IMHO you talk about this as if he approves of people getting away with assault. I don’t think that is the case: I think he is simply giving us the benefit of his experience.
I definitely don’t think that Ohiodad51 approves of assault. Sorry if my words have given that impression. I think he has made it clear amy happens–or rather, doesn’t happen–when the victim/non-victim is not willing to bring charges. I dislike the reality. I don’t think this means that Ohiodad51 approves of it.
Where would you draw the line, for the “State” to bring charges when the victim does not want to have them brought–to Consolation, but more generally to the forum. In a murder case, the victim has no say (barring some odd feature of “dying declaration,” if applicable–which the lawyers on the forum could probably clarify for us). But short of that?
So anyone else who is on the receiving end of a regular assault can go to the university disciplinary committee for immediate inquiry and possible redress but those who were sexually assaulted cannot? They have to clear an additional hurdle before they have the option of university remedies that are available to everyone else? And meanwhile the person accused just continues on with campus life as usual and the university has no authority to act or investigate in real time? I don’t know of any university that operates this way.
I don’t understand why you would single out sexual assault from being actionable when regular assault and other crimes are clearly actionable under university disciplinary processes.
Even Andrew Miltenberg who defends the accused and who has two daughters is on record as stating:
@jonri & @HarvestMoon1, I don’t distinguish between sexual assault or “regular” assault. I think probably any felony conduct, but certainly any violent felony conduct, should be handled primarily by the police. I think I have been clear about that over these many threads. And not that it matters, but there is no way it takes a year to get a felony assault case from arraignment to trial. Even if it did, the court is certainly empowered to put restrictions on the accused after arraignment/indictment as part of the bail release process. It happens all the time.
@consolation & @QuantMech, I didn’t see where anyone said I was in favor of not prosecuting criminal sexual assault, but I do appreciate your comments. And you are both right by the way.
The first time I realized this was such a problem was shortly after I took my current job. A veteran courtroom criminal prosecutor got off the elevator from the courtrooms and kicked a garbage can about twenty feet down the hall. I brought him in my office and asked him what the heck was going on and he told me that he was supposed to start a felony domestic battery case that morning but the complaining witness got cold feet and would no longer cooperate, so he had to drop the case. Because of that and several other similar situations, I’ve always tried to push back against the idea that cops and prosecutors “don’t care” about these cases.
“I can think of many cases where everyone would not agree about the facts.”
Sure, you can come up with hypotheticals about nonsexual assaults, vandalism, etc. with disputed facts. But inpractice_, most such cases are pretty clear cut. The wording in the paper matches a published article. The RA saw a pound of marijuana in your room individually packaged into retail portions.
As an example, I’ve never heard of a college discipline case where one student accused another of punching him six months after the alleged punch took place. It’s theoretically possible, and maybe it’s even happened somewhere, but day to day, that’s not what these cases usually look like. You overwhelmingly see these proof problems in sexual misconduct cases and not elsewhere.
In your hypothetical, where there’s no physical evidence, no witnesses other than the accuser, and no video, what would you have the university do? It would seem a travesty in that case for the university to take any action besides arranging for the students to switch roommates.
Just for clarity: In my post #107, please replace “amy happens” with “what happens”
Not sure how that happened, and it’s too late to edit.
Also, Ohiodad51, post #110 is heartening in terms of the attitude of the prosecutor (though disheartening otherwise).
RE: #112 What would I have them do if such a report were made? I would have them follow the procedures set forth in their policy manual.
At most schools that would include the designated person looking further into the matter to see whether their inquiries led anywhere. What does each party say transpired? When and where? If the accused claims he was not even there at the time of the alleged punch, where was he and can someone vouch for him? Did anyone else hear anything? Did the accused have any prior reports of punching anyone else?
If these questions lead nowhere then it is unlikely that the matter would proceed to any sort of hearing. But meanwhile the allegation is taken seriously and addressed to the best of the college’s ability. And there is a record of the report in the event someone down the road makes a similar report. Further, such reporting may act as a deterrent if in fact the student was punched. Will the accused risk a repeat of that behavior and another report?
Every case is different and each deserves initial inquiry by a university.
Saying you would have them follow their policies is dodging the question. The real issue is what those policies should be. Let’s simplify the situation and assume the accused has already admitted to being in their room at the time in question. There’s no point in trying to hunt down alibis. If you’re the Dean, what punishment would you administer?
I am not dodging the question at all. If a report is made you go through the process. I have no issue with any of the policies I have read-- they all provide for initial inquiry and then adjudication if the investigation supports it. I think that should be the bare minimum for any assault on a college campus.
In this new hypothetical I don’t think a Dean would be deciding anything at most schools. There is a “fact-finder” or investigator assigned to look into the report. If that investigation does not uncover anything that supports going forward to a hearing then I assume it goes nowhere. If you look at schools that publish their summary reports they usually have a notation “insufficient evidence to support the allegations.”
Whether the parties then agree to some informal resolution on their own is an entirely different issue. But if there is a finding by the investigator of “insufficient evidence to support the allegations” then my reading is they could not force the accused to make any accommodation without his or her agreement.
^At Yale, the decision is made by the Dean and ultimately reviewable by the Provost: http://yaledailynews.com/blog/2016/03/10/mens-basketball-captain-expelled-for-sexual-misconduct/, but that’s an aside. Put yourself into the shoes of the fact finder: the investigation is complete, John says the shove happened, and Sam says it didn’t. With that as the totality of the evidence, do you recommend a hearing be convened? If there is a hearing and you were on the disciplinary committee, would you vote to convict and if so, what punishment would you assign? It sounds like you think if a physical assault allegation doesn’t have more evidence than the typical college sexual assault allegation, it shouldn’t even result in a hearing.
Lack of a victim might be a nice addition to an investigative report :-). Sort of hard to believe someone could create what amounts to a criminal felony offense assault, get themselves kicked off campus or expelled and there be no “victim” since the meaning assault generally involves at least two people…but it’s happened at least twice oh forgot about Yale.,three for sure, if not more… So that kind of blows the theory on what colleges in general are doing these days.
That’s a very difficult question. As with most things legal, I would expect there to be a significant body of opinion on the subject, opinion with which I am not familiar.
One could suggest that a situation in which the perpetrator is likely to cause severe harm to others might meet the criteria, but then one has to consider whether bodily harm is necessary, or whether financial harm is sufficient, and so forth.
Personally, in most confrontations between the government and the individual, I prefer to err on the side of the individual’s rights.
What do you think?