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<p>Please reference one – just ONE – post on this thread that supports your claim.</p>
<p>yes, with “so many people” arguing it is imaginary, please show us One that said so.</p>
<p>“I think one of the problems with this whole issue is that the processes and procedures are almost inherently unable to adequately address the problem while at the same time protecting important rights.”</p>
<p>Right. Also, as a society, we have something like a grudging consensus about the values and priorities the criminal judicial system ought to serve. The reasonable doubt standard, rules of evidence, etc. are pretty well accepted. We don’t have any hint of consensus about how universities ought to operate their quasi-judicial processes – not even about whether they should be in the business of operating those processes at all. I don’t know what the solution is. I can’t even name an institution that I think is getting this right.</p>
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<p>Yes, and how ironic that Title IX is NOT a criminal process and people, even if expelled are NOT criminals. It’s a honor code violation. I agree Hanna, I doubt anyone is getting it right. A dozen pages back I said I could not think of any other example where someone who committed a criminal act is not held accountable in a criminal court…and in the Title IX cases they aren’t even considered a “criminal” legally.</p>
<p>As is often the case for controversial issues, people at different extremes tend to overstate or even mischaracterize the position of the other extreme. Thus, while it is true that nobody has said that campus rape isn’t real, or that it isn’t a problem, some people have argued that it may not be nearly as frequent as some of the statistics suggest. Those aren’t the same thing, obviously. On the other hand, while I don’t think anybody has said that anybody who voluntarily has sex and then regrets it should be able to make an accusation of rape, there have been those who think this doesn’t happen often, if ever. This creates issues in terms of discussing the issue on common ground. Also, I’m not sure I fully understand why there seems to be a political divide over this issue–both liberals and conservatives presumably want people to be punished for rape, and presumably believe in civil liberties as well.</p>
<p>I think the debate over the use of Title IX is a result of the fact that campus rape is a situation that is very difficult for the regular criminal justice system to handle. The proof problems are very difficult, and as Hanna says, nobody really wants to tamper with reasonable doubt and the rules of evidence too much in criminal courts. So, as I’ve mentioned before, if colleges simply refer all of these complaints to the regular police, many of them will end up imposing no punishment on the accused, because there won’t be proof beyond a reasonable doubt of a crime. So what to do, when we reasonably believe that there is a lot of wrongdoing going unpunished? The solution that seems to be coming from the Justice Department is to reduce protections like the standard of proof, with the idea that this is OK because the punishments that colleges can impose are less weighty than imprisonment. That’s what makes me uncomfortable, because I think being expelled from college for sexual assault is a very weighty punishment indeed, given its long-term impact. What’s the alternative? That’s the hard part.</p>
<p>If it’s not criminal rape or criminal assault or criminal sexual behavior then what do you call it…and legally not defame or slander someone?</p>
<p>Don’t rely on this as legal advice, but…</p>
<p>In some areas of law we DO punish people who have not been convicted of a crime. If a stock broker is alleged to have committed securities fraud or a related crime, i.e., embezzling money from a client, the brokerage firm can fire him and state the reason why, even if the broker is never convicted criminally. Indeed, the law requires the brokerage firm to state why on a required form and a summary of that form is available to the public. The brokerage firm has a qualified immunity from defamation actions as long as it acted in good faith after reasonable investigation. If the complaint is bad enough, having this on his record makes it extremely unlikely any other brokerage firm or bank will ever hire him. In the old days, crooked brokers would resign as soon as a complaint surfaced. Now brokerage firms are required to say that when the broker resigned the firm was investigating, e.g., claims by 5 customers that he accepted cash from them and failed to deposit it into their accounts as promised. </p>
<p>The security industry itself has a regulatory body that “officially” is not governmental so there is no Fifth Amendment privilege. If a broker is asked a question as part of an investigation and refuses to answer it, that’s automatic grounds for being kicked out of the industry. </p>
<p>Our society made the decision that even though a broker may never have been tried, let alone convicted, of theft or fraud, if it’s probable he embezzled money, forged a signature, etc. he shouldn’t be given another chance to do it. He won’t be put in prison for it, but he loses his job. </p>
<p>Is it so unreasonable to say that we should be able to come up with some system comparable to this when there is compelling evidence that a student has committed rape and/or serious sexual assault, even though it’s not beyond a reasonable doubt? </p>
<p>I’ve posted before about my D’s college RA who warned her that 4 or 5 female students had complained that they were raped by the same male student. No complaints were filed. The RA knew that at least one of the victims had no knowledge of previous complaints when she made her claim. All of the alleged victims were alone with the male when the alleged rapes occurred; nobody was drunk, but some of the victims had had a couple of beers. All of the alleged female victims were a certain “type” and my D was that same type. So, the RA told my D about the allegations. </p>
<p>Now, I had mixed feelings about this, but…how likely is it that 4 or 5 young women would ALL independently claim that someone had raped them? I’m not going to put the guy in prison without a trial, but I’m darn glad someone warned my D. If it’s okay to let public customers know a stock broker probably embezzled money, why is it wrong to let a young female student know a young man probably raped someone? If we say that it’s just fine to fire someone from a job and effectively bar him from working in the same industry, why is it wrong to say that we can kick a guy out of college? </p>
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<p>I understand the analogy you are making, but do not see this as an apples-to-apples comparison.</p>
<p>I have fired people for impropriety, but would never fire someone just because someone else in the company accused a person of something. It must be beyond different recollections of events. If it is a seriously different recollection of events, with no proof otherwise, it most likely will turn out that they are both gone or they both stay.</p>
<p>As for the brokerage example, there is an investigation based on a paper trail, not two people giving different stories of events that no third person has knowledge of. That is a huge difference. And, in the brokerage case, there is the proverbial “third person,” and it is numbers are not adding up.</p>
<p>An inanimate brokerage account is not going to accuse someone of fraud because of different understandings of a situation; it is numbers, which do not add up that get the broker accused. One example, the brokerage account, is concrete; and, the other is much more fungible, as to what actually happened. </p>
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<p>Respectfully, it’s obvious you don’t have much experience with allegations of security fraud. That distinction doesn’t work. It’s “broker said” “customer said” all the time. The firm, an arbitration panel, or a hearing panel decides issues of credibility all the time. </p>
<p>It’s not an “inanimate brokerage account” which accuses someone. It’s a customer. </p>
<p>Note the example I gave, An elderly customer wants to deposit cash into his brokerage account. Broker tells him he’ll come out and get it. Customer is grateful that he doesn’t have to make the trip into the office. If the customer does ask for a receipt, the broker tells him that he can only get one after the $ is deposited into the account. It never is. It’s probable the firm has rules AGAINST the broker taking any cash from a customer… The broker says it never happened or the customer is confused. He wanted the broker to come out to his home to collect the $ but the broker told him he couldn’t. Now, usually in this situation, the firm will believe the broker–but if 4 other elderly customers suddenly complain with similar stories, that changes. It’s unlikely anyone will ever pursue the broker on criminal charges. Nevertheless, it can fire the broker and say it did so because it believed he was stealing cash from elderly customers. There is NO paper trail.</p>
<p>Or the customer buys a “high yield” corporate bond–not in the initial offering. The customer says the broker said his principal was not at risk. For a couple years, the customer collects high interest and is quite happy. Then the company goes bankrupt and the bond is worthless. The customer sues saying the broker told him this couldn’t happen. </p>
<p>Believe me, it often boils down to issues of credibility.</p>
<p>I’m not suggesting a college kick a student out just because another student accuses him of rape. But, if there is a hearing, and the hearing panel thinks it’s probable there was a rape, yep, I’d kick him out. And if he asserted his 5th Amendment privilege, I certainly would. In a CIVIL case, it’s permissible to draw an adverse inference. </p>
<p>^^ Thanks for the more detailed examples, and I see how this happens. I initially was thinking of the type of accounts, which do not involve cash being handed over or word-of-mouth “no risk.” </p>
<p>However, these examples are misunderstandings of the expected endgame in a professional relationship between two people who clearly understood what was suppose to take place (an investment), yet had different understandings on the underlying terms of the trade. (Or, in the first case, maybe the person just stole the money) </p>
<p>That strikes me as very different than the conditions being discussed here, which is a dispute when two people are not sober and there is a misunderstanding as to what was suppose to take place, coupled with the fact that both parties have questionable acuity as to what they did and said. </p>
<p>A professional disagreement is one thing, but a non-sober he-said she-said automatically makes both positions suspect to accuracy and that is the problem here that I see colleges are trying to resolve. The elephants in the room here are alcohol and non-sobriety, not misunderstandings of a trade between sober parties. </p>
<p>“Is it so unreasonable to say that we should be able to come up with some system comparable to this when there is compelling evidence that a student has committed rape and/or serious sexual assault, even though it’s not beyond a reasonable doubt?”</p>
<p>This is what colleges are trying to do, and they’re finding that it’s very difficult in practice. For one thing, the conflicts are emotionally charged in a way that is perhaps unique to this accusation. Clients don’t usually feel that they are re-victimized when an allegedly fraudulent accountant is dining near them in a restaurant, but rape survivors do. For another, the school has a duty toward the accused student that has no parallel in the relationship between a professional licensing board and an accused practitioner.</p>
<p>The problem is just this difficult.</p>
<p>Hanna, </p>
<p>I agree with you that it’s difficult–very difficult. But at least some people on this thread have opined that colleges ought not to even TRY to do this–that all rape cases in college should be left to the police and the criminal justice system. Their position seems to be that a student can not be suspended or expelled for raping another student EXCEPT when he has been criminally convicted. </p>
<p>And I think awc is wrong when he writes in a way that suggests that most campus disciplinary actions involving rape are the result of “misunderstanding.” IMO, even when both parties have been drinking, it’s usually the case that the aggressor is well aware that if she–it’s usually a she, though not always–were sober, she would not consent. It seems as if a lot of people think it’s just her “tough luck” if she was dumb enough to drink too much. </p>
<p>@Flossy
"Nope. No-one on this thread or anywhere else is arguing that rape isn’t real. Rather, the unresolved questions seem to be, “What is rape?” And, “Should we require evidence before convicting someone of a crime?”</p>
<p>Reply
I am not saying that anyone said rape isn’t real. They are saying that campus rape is not a real problem that happens frequently. The issue is recharacterized as “drunk sex” or “regret sex”. Similarly the Will article also argues that women want “victim status”. The clear implication that the issue is largely manufactured. If the issue were limited to the two questions that you posed, then these types of comments would not be necessary. </p>
<p>@Flossy
“And, how the heck is a gynecologist supposed to know if a girl said yes, no, maybe, whatever, or was too drunk or tired to say anything? What?”</p>
<p>Reply
When a Gynecologist is involved it is likely to be in the immediate aftermath of an incident, when they complete the rape kit. They can see the physical bruising, vaginal bruising, and the emotional state of the victim. Perhaps these things can be faked in one case, but in aggregate, they are not being faked by thousands and thousands of victims. </p>
<p>@blue bayou and @young hoss
The arguments about “drunk sex” and “victim status” and “regret sex” are often put forward to imply that a significant number of these situations are not crimes at all. There was also the argument put forth earlier in the thread that the lack of successful prosecutions proves that there are not very many rapes, because if there were, they would have been convicted. </p>
<p>@Hunt
“That’s what makes me uncomfortable, because I think being expelled from college for sexual assault is a very weighty punishment indeed, given its long-term impact. What’s the alternative? That’s the hard part.”</p>
<p>Reply
Another excellent comment. I am not sure that I agree with the administration’s solution either, but this can not just go on happening with nothing being done. Opposing their solution requires a better solution. Our justice system strongly discourages family’s taking retribution for a criminal act.</p>
<p>@3Mom “If it’s not criminal rape or criminal assault or criminal sexual behavior then what do you call it…and legally not defame or slander someone?”</p>
<p>Reply
One point of confusion that has come up repeatedly in this thread relates to slander or libel. I do not think that there is a legal issue here very frequently. In this type of case, is is not sufficient to show that the statement harms your reputation and that you do not like it. To win a slander/libel suit, the burden of proof is on the accuser to prove that the statement that was made or written is actually false. Unless you can prove that you were never alone with the person who is alleging rape, or never met them, or are impotent, it will be almost impossible to prove to a legal standard that their statement that they were raped by you is false. </p>
<p>Hanna
“For another, the school has a duty toward the accused student”</p>
<p>Reply
I am sure they do, but I am not sure what that duty is. Colleges have expelled students for things like cheating or rules violations and I never hear anyone no oppose that. However, when a woman is raped, many people feel that deciding who to expel without a legal conviction is an unacceptable thing for a college to do. I am not sure whether their primary duty is to individual students, or to protect the entity and student body as a whole. </p>
<p>“I am sure they do, but I am not sure what that duty is.”</p>
<p>Honestly, it’s not clear if colleges know what their duty is either. I’m sure different schools come to different conclusions.</p>
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<p>I am not to sure what else to call a situation when no one else was present and both parties disagree. And, you are doing exactly what the police and legal authorities know they should not be doing, which is assuming what took place. It is not a fair system when certain things are assumed. And therein lies the legal problem for the colleges. They have been assuming, and now they are in a legal quandary. </p>
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<p>There is no such requirement and no such construct that exist in our society or system of government. Opposing a system is just fine on the grounds that it is doing something wrong. And that system could start being remedied first by simply stopping what is determined as wrong by said system. It is just fine to abolish some things and stop them outright, e.g., many laws get repealed with no replacement law at all. </p>
<p>I don’t think anybody ‘knows’ what the exact statistics are and that is another problem. The data that is quoted is just not substantiated in any way. No doubt there is some percentage of rapes and sexual assaults,but I’m wondering how different the percentage would be than in the larger population. No rape is ‘excusable’ but we, as a society, have a system in place for dealing with rape and criminal sexual assault so I’m not sure I agree that we HAVE to do something in the college/university setting other than make them mandatory reporters. </p>
<p>Violating a copyright law is criminal. Copying someone else’s test is not criminal because the student copied probably doesn’t have the force of copyright law behind his test. Because it is not criminal I don’t have a problem with how colleges craft their honor code violation process as long as it’s clear and published for all to read. </p>
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<p>I’m not assuming anything, but I think that you are. You’re assuming that there’s a real, honest disagreement as to whether the woman consented.</p>
<p>He may know she didn’t consent. He can lie. Happens all the time. He can say she wasn’t drunk, even though he knows darn well she was. Or he can say he didn’t use physical force when he did. Or that he didn’t block the door when he did. Or he can deny that she asked him to stop, even though he knows she did. </p>
<p>Moreover, if it goes to criminal court all he had to do is keep his mouth shut, i.e., assert his 5th Amendment privilege. It’s unlikely that the testimony of the woman alone, especially if she was intoxicated, will be enough to convict him. </p>
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<p>Except in a college or university it can ‘convict’ by expulsion a person, even if they are both drunk. Even if the roommate says they didn’t hear anything untoward it can convict by expulsion a person in the eyes of the university. Even if there are text messages implying consent it can convict by expulsion a person in the eyes of a university. I have the hardest time understanding why we as a society think it’s OK to dismiss our existing criminal system and come up with a separate but not equal system and then ironically use TitleIX which deals with equal treatment to justify it. It seems so obviously unjust and misguided to me even if the ‘intent’ was honorable. I have zero problems with moving the kids to different dorms, re-working course schedules, putting them both on probation with counseling, or anything a college or university can come up with short of expelling a student without due process and right to representation by a lawyer and a mandatory report to the local law enforcement.</p>
<p>“And I think awc is wrong when he writes in a way that suggests that most campus disciplinary actions involving rape are the result of “misunderstanding.””</p>
<p>@awcntdb “I am not to sure what else to call a situation when no one else was present and both parties disagree.”</p>
<p>Comment
This is an excellent example of what I see as rape denial. The suggestion that when a person is raped and the rapist denies it, it should be recharacterized as a “misunderstanding”. I have never heard this suggested solution for any other crime. Colleges avoid the word rape and call it Sexual Misconduct. I understand that. However, in my opinion, suggesting that rape is really just a “misunderstanding” is offensive. </p>