<p>Consolatin, if you could help me identify this as well. We have had problem at our high school this year, but roofies were ruled out.</p>
<p>I suggested that smilemaker PM a CC poster whom I believe is a professional in the area of sexual assault/counselling women who have been assaulted. I have no expertise in the area myself.</p>
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<p>I’m all for the presumption of innocence, but let’s understand what it is and what it isn’t. The presumption of innocence is a technical presumption in a criminal prosecution; it means the burden is on the prosecution to prove the criminal defendant’s guilt. That doesn’t mean the prosecutor, or the police, or witnesses, or casual observers need to assume the defendant is innocent. That’s not required; and really, the prosecutor couldn’t in good conscience prosecute the case unless she believes the accused is guilty, and witnesses for the prosecution would be perjuring themselves if they believed the accused is innocent. The job of the trier of fact (normally the jury) is to keep an open mind and see what proof the prosecution puts on. Failure of proof “beyond reasonable doubt” and the defendant needs to be set free. That’s a very high bar; a lot of guilty people go free under that standard, because it’s sometimes difficult for the prosecution to prove up every element of the crime after-the-fact. A “not guilty” verdict is not a finding of innocence; it’s more like “case not proved.” The police, the prosecutor, witnesses, and even jurors may continue to believe that the freed defendant is in fact guilty; but if the prosecution can’t prove every element of the crime “beyond reasonable doubt,” the defendant walks, guilty or not. We’re willing to accept that in our criminal justice system because we’re more concerned about “false positive” that might imprison a few innocent people than we are about “false negatives” that let a lot of criminals free to roam the streets. I, personally, have no problem with that standard in the criminal justice system, where I think it’s appropriate.</p>
<p>But I think a lot of people on this thread are confusing criminal law and criminal procedure with school disciplinary matters. There is no formal presumption of innocence in the latter context. Never has been, and I would argue, never should be, even where the underlying offense of which a student is accused resembles, or even could be prosecuted as, a criminal offense. Being tossed out of school for sexual harassment is just not the same thing as being convicted of rape, and the same legal standards and procedures need not apply. Nor is it appropriate to say the only way to deal with sexual misconduct is through criminal prosecution. Frankly, I suspect there are a lot of parents of boys out there who did commit offenses that could be prosecuted as rape but instead were handled through more informal disciplinary proceedings by their college, who are awfully grateful that the criminal justice system isn’t the only avenue by which a victim of sexual misconduct can seek redress.</p>
<p>Let me relate a story I once heard involving a male professor who went to a bar where he randomly met one of his former students (at the time still a student at the school, but no longer in his classes). They “had a few drinks,” he walked her home to her apartment. What happened then is disputed, but she said she passed out and woke up to find him on top of her in bed; she screamed at him to get off, and got herself to a hospital which treated it as a rape case. He said they had consensual sex but admitted they had “had a few drinks.” Lots of issues here. In a criminal trial he could defend claiming it was consensual; it’s going to be hard for the prosecution to prove after the fact that she actually passed out (that’s a “he said/she said”), or that her judgment was so impaired by alcohol that she was incapable of giving consent (the hospital may have gotten blood alcohol readings after the fact, but there’s still a lot to dispute there). The prosecutor would have prosecuted, but she didn’t want to send the professor—someone she actually liked—to the slammer with a felony conviction, so she didn’t press criminal charges. But she did want the school to take disciplinary action, and under their policies they were in a position to do so, up to and including dismissal of the professor. The accused wouldn’t be entitled to a formal presumption of innocence at that level. But because he was a tenured professor at a public university, he was entitled to due process protection, in the form of pre-deprivation notice and opportunity to be heard, no doubt under procedures spelled out in advance in the university’s sexual harassment and faculty disciplinary policies. (Just for the record, tenured faculty at public universities are entitled to due process; untenured faculty at public universities, any faculty at private universities, and students at public or private schools do not have constitutional due process rights because they do not have a constitutionally protected property interest in their positions, and/or because in the case of private universities there’s no “state action”). This was an easy case at the university level, because even on his version of the facts, he had committed serious breaches of the university’s sexual harassment policy just by virtue of having sexual relations (consensual or otherwise) with a student he was in a position to supervise (he held an administrative post in addition to his normal professorial duties). In fact, at that level the case was so cut-and-dried that the professor simply resigned. He resigned in disgrace, I might add, but without a criminal conviction. If the criminal justice system had been the only recourse available to this young woman, I suspect she very well might have pursued it. Then, who knows, maybe the ex-professor is still in prison; or not, the criminal justice system being what it is.</p>
<p>Personally, I’m glad there are less formal ways to address serious sexual misconduct in the college or university context, short of felony criminal prosecution. It benefits the accused as well as the accuser.</p>
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<p>My intuition is that there are far more cases of serious sexual harassment short of outright rape that go unreported or, if reported, undisciplined, than there are false accusations. Yes, the latter can happen and we need to take precautions against it, and impose heavy sanctions for false accusations. But I, for one, am not prepared (as some people on this thread apparently are) to say that in order to protect against false positives we need to be willing to accept an extraordinarily large number of false negatives. That’s what the criminal justice system does. Colleges don’t need to do that. And to argue that they should is effectively to say you’re willing to tolerate an awful lot of sexual harassment. I’m not.</p>
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I agree with this, to a point. Being tossed out of school for rape, on the other hand, seems to me a lot like being convicted of rape.</p>
<p>bclintock’s example is more cut and dried because in fact the professor violated his employment agreement and there was a process in place to deal with that employment agreement. It is not easy to compare two college kids that go to a party and start drinking and end up in bed together and in that respect I tend to agree with Hunt that it is better to move cautiously than rigorously. I would argue that if a prosecutor declines to prosecute a case, which is yes where I think these things belong, why should the college have precedence to meet judgement or “justice” against one of the parties in a he said/she said situation? Code of conduct between men and women of college age went by the wayside many decades ago. If colleges want to start writing codes of conduct for students again… I know when I was a freshman we didn’t have co-ed dorms until the summer between freshman and sophomore year and during my freshman year we had the door open if a member of the opposite sex was in the room, one foot on the floor kinds of rules. And then what about off campus in this day and age…</p>