As I understand it, the federal government uses the Department of Justice definition to collect statistics on rape. States and the U.S. government have their own laws related to rape. Under some conditions, rape is chargeable as a federal offense. I have not studied the laws of the various states, nor the U.S. code. I think it would not be unreasonable for a university to start from the Department of Justice definition.
I think there are very few federal cases of rape unless they are on federal property - military bases, national parks, federal buildings, etc. I doubt a federal prosecutor would bring criminal charges against someone because the act violated a Title IX or other federal regulation.
I just read that both members of the OP couple have hired lawyers. They are still together and fighting his suspension. And yes i do think adult women are perfectly capable of determining if they were sexually assaulted and if they say no they weren’t assaulted then it is nobody’s business to reframe the situation…the situation belongs to the couple alone.
Correct.
And there is no one legal definition of rape, each state is pretty much going to have their own definition set out in their respective statutes. There are also federal statute that cover special circumstances, the military, maritime territory, reservations, prisons, etc. All are going to be similar, but will also differ in some respects (affirmative consent states, etc). Courts in the federal system and the various states would not look at a college definition and decide that is controlling law.
I don’t want to get to technical, but remember that rape is a crime, “sexual misconduct” is an agency created definition of conduct violative of a non criminal statute (Title IX). They are two different things.
@alh’s link is from today and is an op-ed piece written by Jon Krakauer and Laura Dunn. I found it interesting and thoughtful.
Ohiodad: This thread, your thread, is about Title IX. So it would seem to me the quote from today’s NYtimes article is on point.
I’ve been thinking today about Christian Colleges that have strict rules about dating. We may not agree with those rules, but our kids have to follow them if they attend, unless they want to risk punishment. So the NYtimes article certainly caught my eye.
Krakauer wrote Missoula, which some of us read on a book thread here at Dstark’s recommendation.
A viewpoint on the legality of the Title IX guidance.
Here is the Department of Education in front of the Senate discussing Title IX guidance and if it the law.
https://www.youtube.com/watch?v=dIiXuv-Oirw
A partial transcript:
Ms.McIntosh: Let me assure you, I tried to be very clear in my opening statement that guidance that the Department issues does not have the force of law.
Senator Alexander: But this is the assistant secretary of the department, with Title IX, which affects 6,000 institutions, 100,000 public schools. And she apparently hadn’t gotten the word. Who’s going to tell her?
Ms. McIntosh: So…
Senator Alexander: Are you?
Ms. McIntosh: As she knows and as I know, Title IX is the binding law that applies in the cases that you are describing…
Senator Alexander: So guidance under Title IX is not binding—is that correct?
Ms. McIntosh: Guidance under Title IX is not binding. Guidance helps the many people who are subject to Title IX understand what they need to do to comply with the law.
Senator Alexander: Right. But who is going to tell Ms. Lhamon this?
…
Let’s take the Grant Neal case. According to his complaint, the four named witnesses were the complainant, Ms. Doe, Dr. Roger Clark, and his wife Laura Clark. Apparently, the complainant reported what she heard from Ms. Doe to Dr. Roger Clark, who then reported what he heard from the complainant to both the Title IX coordinator and his wife. Based on that description, it appears any reporting from two of the witnesses Roger Clark and Laura Clark would be circular reporting, as it all originates with statements made by the complainant. The lawyers may have a more informed opinion than I do, but it seems statements from the complainant might be considered hearsay. So the procedural problems I see in the Grant Neal case are criminal and even civil trials have very well defined rules of evidence that are lacking in Title IX cases.
If Ms. Doe was a witness in that case, then the others are just supplemental.
I would think the colleges have to follow the Department of Justice definition of rape in their reporting. Is that not the case? So in my view, it is not unreasonable for the colleges to use it in their hearings. At least, it is not patently outrageous for them to do so.
According to the wikipedia article on the topic, in the Federal Code, “rape is grouped with all forms non-consensual sexual acts.” The definitions in the federal code and the state codes would govern in criminal cases. Federal jurisdiction in rape cases is a little broader than indicated above. The wikipedia article says:
"If the victim is a federal official, an ambassador, consul, or other foreign official under the protection of the United States, or if the crime took place on federal property or involved crossing state borders, or in a manner that substantially affects interstate commerce or national security, then the federal government also has jurisdiction.
If a crime is not committed within any state, such as in the District of Columbia or on a naval or U.S.-flagged merchant vessel in international waters, then federal jurisdiction is exclusive. In cases where the rape involves both state and federal jurisdictions, the offender can be tried and punished separately for each crime without raising issues of double jeopardy."
This is consistent with what I have heard earlier. Crossing state borders and then raping someone becomes is a federal crime under the Mann Act, as amended.
I support free speech. In my opinion, colleges should require “clear and convincing” proof, rather than “preponderance of the evidence,” in determining the outcomes of college cases. I would tend to agree that letters of guidance may circumvent the normal regulatory process, which allows for a period of public comment, and I do not support them across the board, due to that fact.
None of this means that I have changed my opinion on the Grant Neal case.
Another factual update: The state laws are quite varied. An Illinois site says of rape: “The crime is committed when an individual commits a penetrative sexual act against another without their consent or ability to give consent.”
A number of other states still require the use of force, threat of force, or fraud for a nonconsensual act to be considered criminal sexual conduct. This follows the old Department of Justice definition, but I think it is wrong.
There is an “Affirmative Consent” website that you can locate easily, that gives a state-by-state breakdown on the laws in particular states. I think it is overly broad in what is represented as an Affirmative Consent law.
Addendum to #151: The pair may have to cross the state border together for the Mann Act to apply.
I’d like some assistance from the lawyers on this thread again. As I read several state’s laws, if a person explicitly states that he/she does not agree to intercourse, and intercourse occurs despite that, it looks as though it’s not criminal in some states, unless force was used. This is troubling. But I am not sure what constitutes “force.” My layperson’s understanding of it may not be the legal understanding.
The Yale frat boys who were chanting "No means yes . . . " seemed thoughtless to me–actually, horrible. But perhaps they were stating the law as it is technically written in some states? If so, that’s appalling.
@roethlisburger as I recall the amended complaint stated there were 4 individuals that came forward to report the encounter to the Title IX office. Who appeared at the hearing as a witness or who the investigator interviewed is something different.
Are you now saying that the woman who had the counter with Grant Neal (Jane Doe) made a report to the Title IX office that she was assaulted by him? If so, that may explain a lot of things.
My recollection is that the person referred to in the amended complaint as “complainant” was the friend who sought the counsel of Dr. Clark. He then asked his wife who also worked in the athletic training department to meet with Jane Doe in person – she did so (the friend was also present). After that meeting I believe Dr Clark and his wife as mandatory reporters then made reports to the Title IX office. So that’s 2 of 4 reporters.
I do not recall reading anywhere in the complaint that Jane Doe herself or the friend made a direct report to the Title IX office. But if you provide me with the page numbers in the amended complaint I will be happy to dig it up and take a look.
@alh, you are using the term rape and discussing definitions promulgated by colleges under the guidance of the OCR, which is interpreting Title IX. That’s the point.
And let’s not forget that the kid who was the subject of Mizzoua ended being acquitted and collecting a six figure check from the school for the way it handled the investigation. How Krakauer has even a shred of remaining credibility on this topic is inexplicable to me.
@alh – great article in your #144 – it frames the issues in these Title IX threads quite nicely. There is no doubt this administration is going to pull back on enforcement of Title IX and attempt to withdraw the DCL guidance.
But don’t forget that prior to the DCL the vast majority of these schools were already using the preponderance standard by choice and were adjudicating sexual misconduct on their campuses as provided for in their conduct codes. So while we may lose a few schools who might be predisposed to take a lax view toward these issues, my view is that the majority of schools will continue on doing what they have been doing all along. And if some schools change to a “clear and convincing” standard, I don’t really think you will see all that much difference in the outcomes of the panel findings.
Here’s the judge’s ruling on a motion to dismiss: https://www.courthousenews.com/wp-content/uploads/2017/02/Neal-recommendation.pdf.
From the ruling on page 5:
Then, on page 6:
So yes, I believe Ms. Doe, the “friend”, Dr. Clark, and his wife were the four who reported the incident to the Title IX office.