More College Title IX weirdness

Parents Forum
121

I would draw the line for sure at bodily harm requiring surgery. Then I would not “respect” the victim’s request that charges not be brought. I might draw it somewhere short of that, depending on the severity of the injury. A closed-head injury would cause me to ignore the wishes of the victim, even though surgery could not be performed and would not be helpful.

Note: I am just saying what I think, and not what the legal reality is. Ohiodad51 can speak to that. I am not assuming that he approves of the legal reality–he’s just saying it is what it is.

122

@roethisberger --I have no idea what metric college investigators use to decide whether to proceed to a hearing – those are reports that are rarely if ever made available to the public. Nor do I intend to pretend to be a trained investigator and opine on whether I would send any hypothetical case to a hearing. Clearly many cases do proceed to hearings but the evidence they proceed on is confidential. That leads many to advance the idea as you did in your hypothetical that they proceed on absolutely nothing. I am not on board with that supposition. And there are many cases that do not fit your hypothetical – we have discussed many on this forum where texts, previous complaints and statements by witnesses have added to an otherwise conflicting narrative.

I don’t know how schools arrive at punishments for individual offenses if the panel finds responsibility. My supposition is there is a lot that goes into that calculation including whether or not it is a first violation. It would make sense to look at other cases involving a punch in the stomach and see what punitive measures were levied in the past. Some codes of conduct specify what the punishment will be for certain offenses. So in some cases there is guidance.

In the case of Yale, the Dean and Provost are only involved in reviewing cases of sexual assault. In the hypothetical you proposed the Executive Committee’s decision is final. They can appeal to the Review Committee which consists of 2 faculty members and a Yale student.

123

To add to my recent post: In a university setting, I personally would proceed against the wishes of the victim at a much lower level than severe bodily injury. A university corporately has the responsibility to provide an environment in which students can learn, and the operating assumption is that they will take a lot of classes in person, on site.

To give two concrete examples unrelated to assault: We occasionally have students who (drunk or not) decide that it would be fun to discharge one or more fire extinguishers in the dorm. We occasionally have students who (drunk or not) think that it would be fun to shoot water-filled balloons from a high dorm room into traffic. In the first case, generally no one is directly harmed. In the second case–fortunately–no one has been harmed. The university still takes action against these students.

124

@HarvestMoon1

In the cases, discussed here, the so-called evidence often comes down to hearsay(from people who didn’t witness the event), circular reporting(ex. the accuser’s friends report what the accuser said, so there’s only one underlying source), or witnesses that can attest to only a small subset of facts relevant to a case(ex. they saw Sam and Susy go into a room together, but can’t testify as to what they did in there or whether it was consensual). Cases where the victim is drugged, has a rape kit performed, the accused texts he performed an act without consent, or there’s witnesses to the act itself(ex. Brock Turner) are a small subset of Title IX proceedings. In the one case I can think of where the act itself was filmed, and in the view of the police department exculpatory, the Title IX tribunal in a Kafkaesque and catch-22 fashion found while the video cast substantial doubt on the underlying accusation of rape, they would still punish the accused student for inappropriate filming.

125

Well then let’s take a case we just discussed here – the Grant Neal case. 4 separate individuals made a report to the Title IX office. Do you know what it was they actually reported? I do not know so I would not be inclined to reach conclusions about that evidence until I learned more.

Let’s take another – the Boermeester case. At present in view of Ms. Katz’s statements what we know appears thin – the tennis coach’s son who apparently lives next door to Ms. Katz, reported to his father he pushed her against a wall. Do you know that was the extent of the evidence that was relied on in reaching the finding? Personally I don’t know what it was they actually relied upon. But based on USC’s response there is a distinct possibility in my mind that there is more. I found their response provocative as if they would welcome the opportunity to make the evidence public.

126

Agree with HarvestMoon1: USC seemed to be egging the students on to waive confidentiality. Probably not a good idea for them.

For the people who think that the victim should decide whether someone is prosecuted or not: How do you fit speeding tickets into your philosophy? Suppose that someone is clocked going 20+ miles per hour over the speed limit on a highway. I know that in congested traffic near cities, this would be practically impossible, but out here it can be done, and I’ve seen it. Traffic is comparatively sparse and the person is a reasonably good driver. So he/she hurts no one, and no other cars crash due to the speeder. I mention this since sometimes the driver who is the root cause of an accident gets away, while others crash. No one else is drawn into speeding by the speeder’s slipstream. So there has been no harm at all, unless perhaps there is extra wear to the roadway caused by going very fast (somewhat doubtful). In your view, should the person still get a ticket?

For the lawyers: Is there such a thing as a “dying declaration” that is admissible in court anymore and is treated as having special force? If so, could a person absolve his/her murderer via a dying declaration? Would it still work if there were multiple witnesses to the murder?

127

A dying declaration is still a thing, although it is not nearly as common of a situation as most believe from watching TV. Also, dying declarations (as an exception to the hearsay rule) are generally limited to prosecutions for homicide or civil actions involving a wrongful death.

Also, when you guys are talking about the alleged victim’s perception of whether a criminal act occured and the effect of that perception on whether a crime should be charged, you need to realize that some acts are criminal no matter what, and some are criminal only if done against someone’s will.

Boxing is the obvious example. Two kids sparring in a parking lot after school is likely not criminal, until one of the kids beats the other so bloody that he ends up in the hospital, because society impliedly understands that reasonable people do not want to end up in the hospital, even if they may enjoy the “sweet science”. On the other hand, one kid punching another without consent is potentially criminal, even if no “serious bodily injury” occurs. Way over simplifying, the mental state of the purported victim matters sometimes, particularly where conduct is only criminal based on degree.

The reason this is often an issue with domestic abuse type situations is that we all have variable definitions of acceptable conduct, from @quantmech’s aversion to tickling to people who enjoy physical horsing around. At least to me, it is not hard to imagine that a female college tennis player and her college kicker boyfriend will have a more “physically expressive” relationship than say the relationship between my decidedly non athletic wife and my own broken down self. Using a personal example, if my college age son and his college age girlfriend are horsing around in my back yard and he picks her up and tosses her in the pool they laugh about it. If I did that to my wife she would kill me (not that she would be chasing me around the backyard with a squirt gun in the first place). What could be perceived to be abusive in one context, particularly when observed by a third party, may not be abusive in another. That’s why the victim’s mental state matters.

128

@QuantMech, I don’t think anyone has declared that they think the “victim” should be the one who decides whether someone is prosecuted for a crime, period, full stop.

129

I’m not the one who had the post about tickling. That was alh. Tickling is okay with me. (Apologies to alh.)

@Consolation: I thought that was momofthreeboys whole point, that the “victim” gets to decide whether the assailant should be prosecuted or not. Also, Ohiodad51 has posted that the victim in domestic abuse gets to decide de facto, because the prosecutor generally will not go forward with a case if the victim will not testify. I think Ohiodad51 extended this to a case where the injury requires surgery and the hospital staff will testify.

I don’t think I am mis-remembering.

130

Ohiodad51’s post makes me think about the First Rule of Fight Club. How do you see that, Ohiodad51?

Fraternity hazing poses another interesting case, where a surviving victim of something fairly serious may decline to testify.

131

I just reviewed her last few posts, and I don’t see a clearly stated philosophy on the subject, just speculations about different scenarios, and a statement that she wouldn’t like other people to define her relationships. (Actually, one of the posts, the one that mentions Yale, I really don’t understand. :slight_smile: ) So I think perhaps quoting the text in question would help.

132

The difference is that if a person is clocked at a particular speed, that’s proof. If there is video of an assault, that’s proof. If a woman said “he hit me but I don’t want to press charges” that’s proof of hitting.

But in the USC case, the “victim” says she wasn’t hit. I can see circumstances, including but not limited to tickling, where someone was saying “no” but absolutely not meaning it or meaning it but it not being an assault. Don’t most couples play and goof around in different physical ways? I think it should require a lot before officials call someone a liar and upend her life over something she says didn’t happen as others perceived.

133

My bad! And sorry, but I can’t talk about Fight Club!

I know this is kind of confusing because I am sort of injecting practical, nuts and bolts considerations into a more theoretical discussion, but I think the overall point is that there is a sliding scale. The more serious the injury/harm, the less likely that the cooperation of the alleged victim is absolutely necessary. So yeah, a woman gets put in the hospital and then refuses to testify, the prosecutor may think about it and maybe try a particular case, especially if he has some good physical evidence, can show a pattern of abuse or other bad conduct, etc. Generally, you would be hoping the jury would see that something is going on, and the woman is troubled/scared, whatever. I still think it is a tough one, but I could see it happening given the right circumstances. Then way over on the other end of the spectrum you have a situation like what we believe is the case here, where there are apparently no injuries and simply third parties reporting a push or other minor contact. No prosecutor would touch a case like that.

So I guess that my opinion is yes, the alleged victim of domestic abuse gets to determine whether a crime has been committed up until the point where the harm is so severe that the vast majority of normal people would say that no reasonable, rational person would seriously consent to that level of violence. Once that point is reached, it becomes a matter of prosecutorial discretion and the prosecutor has to go through the normal process of weighing all the factors to decide if a conviction is possible/likely and whether it is worth the expenditure of resources necessary to try the case. And before the sexist police jump in, I think the same applies to other acts which are primarily personal - things like general assault, battery, even some types of unlawful entry/theft (if my neighbor takes my lawnmower from my garage without my consent the police may do something about it if I complain, but are unlikely to intervene if my neighbor calls and complains about it).

134

Thanks, Ohiodad51, that is very clearly put. Although it is more nuanced than my statement that the woman gets to decide de facto, it seems to me to boil down to that except in a case where the “harm is so severe . . .”

Consolation, here is momofthreeboy’s post, 7-23-2017 #243 on the “Columbia settles with Nungesser” thread:

“I absolutely disagree and think if she doesn’t feel she was assaulted end of story. IMO the college had zero business getting involved other than to inquire as to her wellbeing and listen to what she says and lay out the options…even then in my mind it is questionable to do even that on hearsay. Sounds to me like they had a pretty healthy situation and navigated it to conclusion that was amenable to both only for the uni to attempt to reframe it for her after the fact.”

This was referring to the Grant Neal case, where the woman told the investigator that she said that she “told him [Grant] that she did not want to have sexual intercourse with him that is unprotected because I am [she was] not on any birth control.” According to her statement, he then penetrated her anyway, without a condom. Then she said that he needed to use a condom a second time, so he used a condom, and they went on to have consensual sex. This comes from http://denver.cbslocal.com/2016/04/19/csu-pueblo-grant-neal-suspension-consensual-sex/

I assume that the woman’s statement was true as she stated it, because she did not want charges to be filed, and did not want consequences for Grant within the university–or certainly not suspension, anyway. I wrote that (assuming that the woman’s statement was true) this was technically rape nevertheless, according to the definition of rape. alh got my point about this. It is conceivable to me that the woman misrepresented the interaction for her own reasons. But as it stands, to me it is clear.

Consolation, momofthreeboys, and others thought that if the woman did not have a problem with the interaction afterwards, the university should have done nothing. Instead they suspended Grant. Consolation’s post #240 on the Nungesser thread and other posts were quite adamant.

Ohiodad51 said that no prosecutor would bring a charge in this case. This sounds to me like a situation where the woman gets to decide, in the legal system (although perhaps no case would have been brought even with a victim who was willing to testify). Several posters thought that the woman should get to decide within the university. There were a lot of statements to the effect that I was denying the woman agency, and infantilizing her.

I don’t quite know what momofthreeboys thinks about the Ray Rice case, of knocking a woman unconscious, and dragging her limp body out of an elevator–all on video. She noted with apparent satisfaction that the woman is still with Ray and that Ray had received a settlement from the NFL team.

Only a few people have explicitly weighed in on what they think should happen if a woman has injuries requiring surgery, but is not willing to testify against the man.

135

For clarity, I should have written that it appears that the woman gets to decide de facto that a case should not go forward, in the absence of quite severe injury. I don’t believe that the woman gets to decide that a case should go forward.

136

@QuantMech , I think you are reaching when you attempt to transform those comments into a broad-reaching statement of philosophy. I’ve been reading momofthreeboys’ posts on these subjects for years at this point, and while I think a have a fairly good grasp of how she is likely to respond, I couldn’t go so far as to state her philosophy. So far, I think I may be the only person who freely answered your question in that manner.

As for the Grant Neal case, I vehemently disagree with you that that was a rape, and should ever have been prosecuted. I’m sure alh “gets” your POV about that case, by which you mean she agrees with you. I “get” your POV also, but I don’t agree. After years of talking about these things, when I see that someone has “liked” certain posts, I say to myself, “I bet that’s alh.” And I’m usually right, LOL. And of course, quite often I agree with her on a variety of topics.

137

Maybe momofthreeboys will return to the thread and make a flat statement about her philosophy: When should the wishes of a victim/non-victim be respected, not to have charges brought and when (if ever) should they be overridden?

In my personal view, momofthreeboys has made her general opinion quite clear.

I know you vehemently disagree about the Grant Neal case, Consolation. I could understand someone saying that charges should not have been brought. I could even see an argument for that. But I don’t agree that it is a complete travesty that a case against Neal was brought within the university. momofthreeboys seemed to believe that everyone would agree to that.

I do not understand how someone could look at the statement made by the woman, and the legal definition of rape, and say that the two do not fit, on the objective face of it (assuming that the woman told the truth in the statement I quoted). Ohiodad51 said no prosecutor would bring charges. That is not the same as saying that the circumstances do not fit the technical definition of rape. The definition does not have “nice guy” exclusions, or “afterwards it was fine” exclusions.

138

Consolation: I will not speak for QuantMech, but I never said I thought the Grant Neal case was rape. I have not formed an opinion on that and I really don’t care to. What I thought QuantMech demonstrated was that it met the definition the university had for rape.

Two arguments are going on here. 1) Does the case meet the university definition for rape? 2) Do we agree with the university definition? It is possible to agree with #1 and not #2.

A completely different argument, imho, is whether alleged victims have the right to define what has happened to them as rape, and whether any punishment should be up to them.

In a university setting, if someone reports rape or assault, it is not up to the alleged victim to make the decision that they were not a victim and the case should be dropped, as far as I can tell from HarvestMoon’s posts. Regardless of what we think about it, the judgement will be according to university rules. I hope Harvest:Moon will please correct me if I am still confused here.

crossposted

139

I meant the Department of Justice definition of rape (https://en.wikipedia.org/wiki/Rape_in_the_United_States), not the university’s definition.

140

Thank you for the clarifcation. I am sorry to misrepresent your posts. When is the Dept of Justice definition of rape used? In all rape cases?

On much earlier threads we had exhaustive discussions on the changing definitions of rape. We can debate the definition but there is a legal definition, being used on university campuses, whether we agree with the definition or not.

" I have no idea whether the tribunals are arbitrary when judging sexual assault and rape cases, or any other cases. QuantMech seemed to me to demonstrate very persuasively in the Grant Neal case that the tribunal had no choice given the definition of rape." my quote