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<p>They almost have to call it sexual misconduct because rape is a criminal activity. How could a university call it rape when the accuser doesn’t want to call the police and call it rape? </p>
<p>@3Mom “They almost have to call it sexual misconduct because rape is a criminal activity. How could a university call it rape when the accuser doesn’t want to call the police and call it rape?”</p>
<ol>
<li>I was clear, that this does not bother me.<br></li>
<li> I do not think they have to rename things. Do they call theft “Procurement Misconduct?” Theft may be a legal term, but I would think that needing a euphemism for every possible act is confusing. Why not call it what it is?</li>
<li>I has often not been the case that it is the accuser that doesn’t want to call the police. Often they are discouraged by the college, and when they do call the police, they are discouraged by the police. It is not accurate to say that it is consistently the accuser does not want to call the police. </li>
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<p>Essentially alcohol is at the root of these problems, drunk women are easy prey for rapists (does not excuse the rapist’s actions, think of a robber stealing from a house without locked doors), and drunk men are also easier prey (less of a concern) and more likely to lose self-control.</p>
<p>It also seems that the universities do a poor job in handling sexual assault, why is this just not sent to the actual police?</p>
<p>Based on this conversation, it seems to me that the most rational solution is to do as Emily Bazelon suggested and adopt the clear and convincing evidence standard for college rape cases. </p>
<p>Using “beyond a reasonable doubt” is appropriate for criminal prosecution, but too high a bar to set in the case of a college with a compelling interest in not letting every college party turn into a hunting ground for predators. </p>
<p>Using “preponderance of the evidence,” on the other hand, shifts the burden too far the other way and allows severe, lasting consequences to be handed out based on an extremely weak standard of proof.</p>
<p>Clear and convincing sounds like a good compromise. </p>
<p>They have to call it sexual misconduct because it is not always rape. Sometimes, when you hear the details of the complaint it is very unclear Rape is clear. </p>
<p>“I didn’t want to really and maybe I mumbled no but I stayed in bed and didn’t try stop him but I didn’t say yes and participate enthusiastically so I was raped. Oh, and I was really drunk. He might have been, too. I can’t remember. Oh, and it was 2 months ago.”</p>
<p>I’m not so sure that even meets the preponderance standard. There is literally no evidence of anything.</p>
<p>@Much2learn wrote:</p>
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<p>We will just have to agree to disagree on this concept of rape denial, as I am not denying anything.</p>
<p>If I have not a clue what happened between two people, I am not intellectually or morally comfortable saying that a rape occurred. Something happened, yes, but it is for the authorities to figure out exactly what. </p>
<p>I agree with @Flossy that some actions are rape and some are not, but until proved one way or the other, I am not going to act like I know what happened. I am neutral, neither denying or confirming what occurred. </p>
<p>The fact is, no one has a clue, until an accusation is proved. And until an accusation is proved, then it is a classic he-said she said and the entire Title IX case revolves about what was understood between the parties.</p>
<p>And this points out the major problem and weakness with Title IX quasi-judicial boards - they deal only with non-criminal actions and non-criminal intent, and do not even try to determine criminal activity, which rape is, criminal.</p>
<p>Therefore, when one reads these Title IX cases, the boards do not look at actions, per se, but try to determine what the parties understood to be the situation between them. The cases I have read about so far focus mainly on whether there was a misunderstanding between the parties because of drunked-ness or just straight-forward miscommunication. She said no, but he heard yes. Or, she said yes, but really meant no because she was too drunk to consent according to Title IX, and all the variations in between, as @Flossy illustrates in the post above.</p>
<p>You may not like the characterization of misunderstanding, but welcome to the world brought to us by Title IX. Because Title IX is not criminal and does not even judge intent, all it relies on is what was understood between the parties. If different things are understood between the parties, even Title IX deems it not criminal and may punish for sexual misconduct based on the premise the male misunderstood that he did have consent.</p>
<p>Also, what you are experiencing is it is virtually impossible to have it both ways, and people are not ready to make the jump the way you have. You keep saying that rape is a crime (very true), and you said you have not heard this “misunderstanding” label used for any other crime (possibly true as well), but then you advocate for Title IX boards, which do not even determine or adjudicate crimes or rape for that matter. You cannot call something a crime, then want to treat it non-criminally and think people will just jump on board. Something seems intellectually inconsistent, and people are not going to just say go for it without thinking real long and hard, and then, they might just say no.</p>
<p>The preponderance of the evidence standard bothers me as well. Most (but not all colleges) do not use that standard for other infractions (such as cheating), but some more exacting standard, like clear and convincing, or sometimes their own more or less vague standard. I was troubled by the direction of the Justice Department that for sexual misconduct infractions specifically, colleges should use preponderance of the evidence. This means, in practice, in a case that depends on entirely on the credibility of two opposing parties, the accused should be punished if the triers of fact believe that the accuser is a little bit more credible than the accused–and some of these tribunals use a majority vote of a number of people. That’s cutting it a bit too fine for me, given the impact of a guilty verdict. I would feel differently, I think, if this were a case in which the college was dealing with a lesser infraction with a lesser penalty–but we are talking about actions that would be serious felonies if they could be proven.</p>
<p>But beyond this question, I’m not convinced that this is the right approach to the problem. Will these altered standards make it more likely to catch and punish the serial offenders who (I have become persuaded) should be the primary targets of action? I think there needs to be a multi-pronged approach: better education on drinking, consent, and bystander responsibility; encouragement of prompt reporting; and consistent disciplinary procedures.</p>
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<p>This is a charitable way of putting it, and I think it is worse than that given the biggest player now in the game, the DOJ. I cannot imagine the pressure that could be put on a Title IX board at a school, which is dependent on federal grant money for research etc. We have long left the getting justice path and are deep into the political, unfortunately.</p>
<p>The problem, awcntdb, is (I think) that we are not moving from a situation in which campus sexual assault was handled properly. The status quo was that it was not being handled properly at all, with many cases of weak punishment in pretty clear cases, favoritism for athletes, victim-blaming, and more. I think many people rightly believed, and still believe, that something needs to be done. The danger is a pendulum swing that goes to far and infringes too much on civil liberties by punishing people with inadequate proof.</p>
<p>^^ Good point. I was not thinking of it that way. </p>
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<p>I have no doubt that the DoJ considered that idea, but for whatever [fill-in-the-blank] reasons, rejected it, in favor of:</p>
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<p>The reason DOJ didn’t choose “clear and convincing” was because that was the standard most colleges were already using for all serious infractions, including sexual misconduct. DOJ needed to make them change something, and this is what they chose. I think it was a mistake, but it was probably a lot easier than developing a full-blown program.</p>
<p>And the question no one seems to want to answer is exactly why the</p>
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<p>I should be more specific. </p>
<p>I do understand that the cases initially were not being handled properly. But, that leads to the question of being handled properly in the view of whom? </p>
<p>And the answer to the above question leads to the question, did the DOJ change to accommodate a certain desired outcome, instead of trying to find a fair or fairer system? </p>
<p>"@Much2learn wrote:
This is an excellent example of what I see as rape denial."</p>
<p>@awcntdb "We will just have to agree to disagree on this concept of rape denial, as I am not denying anything.</p>
<p>If I have not a clue what happened between two people, I am not intellectually or morally comfortable saying that a rape occurred. Something happened, yes, but it is for the authorities to figure out exactly what.</p>
<p>I agree with @Flossy that some actions are rape and some are not, but until proved one way or the other, I am not going to act like I know what happened. I am neutral, neither denying or confirming what occurred.</p>
<p>The fact is, no one has a clue, until an accusation is proved. And until an accusation is proved, then it is a classic he-said she said and the entire Title IX case revolves about what was understood between the parties."</p>
<p>Comments</p>
<p>You continue to deny that it is an established fact that significant numbers of rapes are happening on college campuses. That is rape denial. </p>
<ol>
<li><p>In spite of available research and evidence, you continue to deny that there is clear evidence that significant numbers of rapes are happening on campuses. You ignore the studies and reports that are available because the results are inconvenient for your position. </p></li>
<li><p>You continue to attempt to defend broad statements with narrow ones. You say you don’t know whether rapes are occurring, then defend that position with a reasonable statement that is a non-sequitur. You say that in an individual specific case, you were not there. True, but healthy skepticism in individual cases is very different from the view that you can not tell whether campus rapes are occurring in significant numbers.</p></li>
<li><p>You only suggest that rape charges should be called “misunderstanding” if the accused denies the charge, but do not say that it should be true for any other crime. Should murders be called “misunderstandings” too? There seems to be a special standard for rape cases. </p></li>
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<p>@awcntdb How am I wrong about this?</p>
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<p>No the correct terminology in criminal cases already exists. Misunderstanding is called Manslaughter. Following is the generally accepted terminology:</p>
<p>1st degree - premeditated
2nd degree - unplanned but with malice
3rd -.manslaughter. and unplanned</p>
<p>awcntdb can stick up for himself, but in general it has been explained over and over to you that some people are not secure with the numbers being thrown about. The studies have suspect methodology and the reports for the most part cite the studies (with the suspect methadology). Everyone here believes that rapes occur, some do not trust the numbers - that is very, very different than saying rapes don’t occur - which no one has… yet it feels like you aren’t hearing that or aren’t reading the posts carefully. </p>
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<p>What is significant? In my mind 1 rape is significant and I’m sure awcntdb will add his thoughts but they probably aren’t too far off that one mark. </p>
<p>It can be argued that RAINN is one of the foremost anti-sexual violence organizations and as recent as March has been in the news:</p>
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<p>@Much2learn:</p>
<p>You are wrong simply because I am not doing anything of the sort that you state. </p>
<p>My argument is not a non-sequitor because the aggregate is nothing, but a total of singular cases. I make no judgment on any case because I was not present or know the facts in any case. Some are rape; some are not. Not sure what is difficult to understand there. </p>
<p>Specifically, what I am not doing is jumping on a bandwagon that because there is rape on campus that it means instituting a system without due process for the accused prior to punishment.</p>
<p>My belief that an accused is innocent until proven guilty and should be afforded due process is not denial that something exists; it is affirmation that adjudication for the accused should be fair. I do not deny rape on campus anymore than I deny murder happens in the general public. But, an accused murderer is innocent until proved guilty and should not be subject to a system without due process either. </p>
<p>And it is interesting that you completely disregard that Title IX is the one that judges these cases solely on whether there was a misunderstanding between the parties, not intent. Your problem is with Title IX , not me. There is not a person on the planet who does not know rape exists on campus. However, Title IX completely denies rape does exist and does not punish anyone for any rape, even forceable rape with intent to inflict harm. Your argument is misplaced on the wrong entity. It is Title IX that denies rape exists. </p>
<p>Again, I agree to disagree. No need to keep defending myself against something, which I am not doing. Let’s focus on an equitable solution instead.</p>
<p>“FYI- Many rapists are convicted.”</p>
<p>“It also seems that the universities do a poor job in handling sexual assault, why is this just not sent to the actual police?”</p>
<p><a href=“Prosecutors Rarely Bring Charges In College Rape Cases | HuffPost College”>Prosecutors Rarely Bring Charges In College Rape Cases | HuffPost College;
<p>awc,</p>
<p>In my example of a stockbroker taking cash from an elderly client and failing to deposit it into the client’s account, there’s no “professional misunderstanding” as you’ve claimed. The broker either took the cash or he didn’t. He knows that the client did not intend it to be a gift. (In any event, there are rules against brokers accepting more than nominal gifts.) So, if he took it and failed to deposit it, he’s a thief—even if he’s never convicted of a crime. In each individual case, I may be unwilling to conclude that the broker took the $ since it’s strictly “broker said” “client said.” But when 5 clients all say the same thing, I see a pattern and conclude it’s very likely the broker is a thief.</p>
<p>So it is in campus rape cases. IMO, very few of the cases involve a misunderstanding. The accused either raped the alleged victim or she is making false accusations. When one young woman says X raped her when they were alone in his room and he denies it, I’m not going to conclude anything. When 5 young women make similar allegations against the same person and there’s no evidence any of them knew about each other, I’m going to kick him out of school. I assume you wouldn’t. </p>
<p>If there’s just one rape but it’s obvious that it was a rape–victim badly beaten, etc- and there is semen evidence-and the college asks the alleged rapist to give a semen sample voluntarily–since it doesn’t have power to order one–and he refuses, I’m going to expel him too. Would you?</p>
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<p>Your argument is just fine, since you acknowledge it is your opinion. However, laws and processes, which judge and punish people should be based on agreed to facts and validated conditions, not opinions or conjecture.</p>