Warning For All College Men

Parents Forum
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<p>I may disagree with Hunt vehemently on other issues, but on this one, I find myself nodding my head vigorously to all of his points.</p>

<p>I may be stating the obvious, but I think one’s position on this issue depends on which situation one thinks is worse: penalizing the innocent or letting the guilty go free? </p>

<p>I think it’s worse to penalize the innocent. Rape is a crime. Therefore, accusations of rape should be dealt with under a standard befitting a crime: beyond a reasonable doubt.</p>

<p>Many parents here have said that such a standard is undesirable because it’s apparently almost impossible to prove rape under such a standard. The solution to that isn’t to lower the standard of evidence. Rather, the solution is to educate the student body about what to do if rape is suspected in terms of collecting evidence.</p>

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<p>When a university suspends a student from school, or expels them, it is not sending them to prison. It is NOT the same as a judicial process, so there is no necessary reason why it should have to use the same rules of evidence, or procedures.</p>

<p>The point is - it DOESN’T NOW. It didn’t before the letter, and it won’t after. So I think what a criminal proceeding requires is a red herring.</p>

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<p>This rings somewhat close to home to me. During my second year, one of the custodial staff knocked on my door as I was leaving for class. He informed me in a gruff tone that I and my roommates needed to clean up after ourselves; we couldn’t just leave our beer cans in front of our door.</p>

<p>You can imagine how surprised I was given that none of us drank any alcohol in our room; we were all underage at the time. It turned out that someone left empty beer cans in front of our door overnight, and another person decided to complain to the janitors about our “behavior.”</p>

<p>What irked me the most is how the janitor simply assumed that I was the one who did it. I told him that just because it was in front of my door didn’t mean I did it; I could just as easily have put them in front of someone else’s door, but that didn’t mean they did it.</p>

<p>He wasn’t buying any of it, but he only cared that we didn’t “dispose of them” properly. Still, I quite resented the way he treated me, and I see it as being exactly the same as Hunt’s hypothetical.</p>

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<p>I think I wrote sexual harassment when I meant assault. However, I think you are correct that a conviction would be needed. I also think there are different registries, for harassment and assault or rape.</p>

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<p>Why isn’t it the same? There’s an accuser and an accusee, no? A crime is alleged to have occurred, no? Punishments may be dealt, no? Seems substantively the same to me.</p>

<p>And why do universities suspend or expel students PRIOR to judicial processes? Did innocent until proven guilty ever mean anything?</p>

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<p>mini, rape is a crime. The location doesn’t matter. Why should it be handled differently just because it occurs on a college campus?</p>

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<p>I think part of what makes this discussion is the perception that rape is somehow essentially different from other crimes. If we were talking about theft, would we think that a college should expel a student who “probably” stole money from a classmate, but where there is insufficient evidence for a criminal conviction? And why would we think that? Is it because expulsion is a lesser punishment than imprisonment?</p>

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<p>I don’t know exactly how it works, but I’m guessing the accused (and possibly 49.9% likely innocent) party is going to be unable to transfer to another school. This will have a huge impact on what jobs they can get, and what they can do with their lives. Sure, it’s not as damaging as going to prison, but it’s not something to be shrugged off as no big deal. </p>

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<p>What you’re saying is nothing’s changing anyway?</p>

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<p>Hunt: </p>

<p>You are entitled to your beliefs but a sexual assault is a form of sexual harassment (it certainly meets the severe criteria for determining whether sexual harassment occurred) which is a form sex discrimination under Title IX. Title IX does not cover sexual harassment involving members of the same sex (as Congress intended it not to do) UNLESS the harassment is based on behavior that the alleged perpetrator believes is inappropriate for a member of that sex. For example, sexual harassment of an effeminate male because he appears to not act like what people think a male should act like could be a violation of Title IX since it is a form of discrimination on the basis of sex. This kind of stuff usually doesn’t occur at the college level but does occur in elementary and secondary schools.</p>

<p>Same sex harassment is a difficult issue and as with everything that OCR does is fact specific.</p>

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<p>Jonri, I agree with everything you say about taking steps to enable an accuser to testify without having to physically confront the accused. In the case of Elizabeth Smart, though, the prosecution–or her attorney, had it been a civil case–could question the accused, and vice versa. </p>

<p>But it is my understanding that students facing disciplinary hearings in college normally are NOT allowed to have legal representation in the hearings. If this is true, how can the accused question the accuser? How can s/he effectively mount a defense, especially if there were no witnesses to the alleged act?</p>

<p>In your later posts describing two situations, are you saying that it is your opinion that the man in the first case (the RA) was guilty of rape?</p>

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<p>So a case involving a drunk guy and a drunk girl is covered by Title IX, and one involving two drunk guys isn’t? To me, that really shows the problem with this. You can say that this kind of sexual violence is “discrimination,” but you can only do so by defining words in ways that don’t really make sense. In other words, for this one particular type of crime, OCR is going to dictate the standard of proof–but it’s going to do so by defining it not as a crime, but as sexual discrimination.</p>

<p>Let me just add that on this particular point of standard of proof, I think OCR should have said that the grievance procedure should apply the same standard of proof that the college applies to other accusations of serious misconduct.</p>

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<p>Not under Title IX, no, but sexual assault would generally be covered under the student judicial code, as well as under state criminal codes regardless of the sex of the individuals involved. Yes, I agree as to the standards, but the standards for proving sexual misconduct were generally higher than they were for other alleged violations of other portion of the student code.</p>

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<p>tsdad,
So great to have you here!! Very helpful to get your inside explanations.
Q’s:

  1. What caused this letter to be written/these changes to be made? a specific case? a certain college’s issues??
  2. How are these types of procedures enforced?
  3. What sort of an entity is a college or uni in terms of the legal system?
  4. Do you think there are “considerations” being made based on the younger age of college students, their presumed lack of judgment, etc. even though they are officially adults/of majority?
  5. Has the OCR acted vs a un/college to the point that their Title IX funds were discontinued? How much money is involved?
  6. Are there any new developments in the criminal system re rape and sexual violence?
  7. Does the OCR also handle other sorts of discrimination, such as to race, medical disabilities, etc??
    Thanks for all your input here.</p>
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This was my question upthread. I agree that you shouldn’t have a higher standard for one crime than another. I’m not sure I would insist on beyond a reasonable doubt, but I think something more like clear and convincing is a minimum for a charge of serious misconduct where the consequences are serious.</p>

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<p>I’m going to break up my responses into several parts. </p>

<p>First, as tsdad has said, there are lots of areas in which the law imposes civil penalties without having to meet the beyond reasonable doubt standard. The penalties imposed by the Securities and Exchange Commission are civil penalties. It isn’t necessary for the SEC to prove violation of the law beyond a reasonable doubt. Nor is it necessary for the SEC to await convictions of the participants before it can step in to stop an ongoing fraud. A securities broker who refuses to answer questions (s)he’s asked during an investigation by FINRA can be barred from the securities industry for that refusal–even though in a criminal trial no adverse inference could be drawn from that refusal. The IRS also imposes severe CIVIL penalties for non-payment of taxes. OSHA also imposes penalties in situations in which the “guilt” of the employer isn’t beyond a reasonable doubt. </p>

<p>In the real world, people lose jobs all the time when they refuse to answer questions. Say a pharmacy chain notices that the quantity of certain narcotics disappearing from one of its stores is greater than it should be based on the recorded prescriptions for the narcotics. It calls in each employee separately and starts asking questions. No forewarning is given and the employee sits there and has to answer questions without an attorney. If that employee refuses to answer questions, he will be fired. And if as a result of the investigation, the pharmacy chain decides it is probable that one or more of the employees are responsible for the thefts, then, at least in the absence of any union contract, it can fire them without awaiting a criminal trial which finds the employees guilty of the thefts beyond a reasonable doubt.</p>

<p>Or say an employee who is being questioned says “I want to talk to an attorney.” The employer’s rep says if he doesn’t answer the questions right now, he’ll be fired. So, the employee starts talking and when he does, he makes some damaging admissions which establish his guilt. If the situation were an arrest, the statements made after the request for an attorney was made would be inadmissible. There’s no such rule for a non-governmental investigation. </p>

<p>So, using a lower standard of proof for civil penalties is nothing new. Are all of you arguing that if a pharmacy chain conducts a reasonable investigation and an employee refuses to answer questions about the number of narcotics (s)he’s dispensed, then the only choice the pharmacy chain has is to report its findings to the police and in the interim continue to employ the employee who would not co-operate in the investigation in the same capacity with no added supervision?</p>

<p>If all of those situations are permitted under the law–and they are–why should it be so offensive for a college to do any of the following? Say a male college student is asked where he was at the time the rape was committed and he asserts his Fifth Amendment right not to testify. Is it unreasonable in that situation for the college to expel him, based on that refusal? It happens every day in the US in work situations–people who refuse to answer questions in an internal investigation and say they are invoking the Fifth Amendment get fired. Should the alleged rapist on a college campus be able to refuse to answer questions about an alleged rape ? </p>

<p>What if the student asks for an attorney and the college refuses to provide one. Then the student starts making damaging admissions. "Uh, yeah I went into the women’s restroom on the third floor of the dorm. Why? Well, I saw this pretty girl who was drunk go in there and I…thought…well, maybe she needed help. So, I followed her in. No I didn’t call for any help. We got talking and she agreed to have sex. So, yeah, we had it right there on the floor of the women’s restroom. Yeah, I just left afterwards. She was still there. Yeah…on the floor. See, well, she passed out again–but she was perfect lucid when she consented to have sex there in the toilet stall. " In a criminal proceeding those statements would be inadmissible because the student had asked for an attorney before he made them. Should a college be held to the same standard?</p>

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<p>Jonri-Very helpful
So, what about this example:
an employee goes to her supervisor and tells him that she was raped at the office by another employee.
what procedures apply? same as in the new letter to unis?</p>

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<p>In answer to question 170, if the college bars the accused from asking the alleged victim questions personally, it has to permit someone else acting on his behalf to ask those questions. This might not be an attorney.</p>

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<p>jonri, the scenario that troubles me is the following: a girl accuses a boy of having sex with her without her consent. He says she consented. The only other evidence is that they were at a party and both had alcohol. In a criminal proceeding, it would be very difficult to obtain a conviction with such a pattern, because of the reasonable doubt standard. If you are using the preponderance of the evidence standard, though, if the fact-finder deems her even a little more believable than him, he’s “convicted.” It’s enough that she’s “probably” telling the truth. I don’t think this is a good approach. Even if you believe that there are many more cases where she is telling the truth than cases where he is telling the truth, you are going to expel some innocent accused by using this standard.</p>

<p>Let me put my views this way: this is a situation where you have a crime that involves intractable proof problems. The crime looks very much like very common situations that aren’t crimes. It’s unfortunate, but I don’t think the solution to this is to relax the standard of proof. The solution, if there is one, is probably better prevention, by teaching both men and women what to do to avoid these situations, and by more strictly controlling drinking.</p>

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<p>performers mom:</p>

<p>I’ll answer your questions later.</p>

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<p>I don’ t know the legal requirements in the situation described in post #176. My response is what I personally think SHOULD happen, not what is legally required. </p>

<p>The employer should ask the employee whether the alleged crime has been reported. If not, the employer may encourage the employee to report it. Next, the er should check any collective bargaining agreement to see if there’s anything in it dealing with procedures for such accusations. Then the ER should follow the same steps it follows in a situation in which an employee alleges that another employee has assaulted him/her without an allegation of rape. If the employer would investigate such an allegation of assault and would take disciplinary action against an employee who assaulted another employee, it should do exactly the same thing in the rape case and use exactly the same standard of proof. If it would fire an employee who refused to answer questions as to whether (s)he assaulted another employee, then the employer should fire an employee who refuses to answer questions about a rape. If it allows the employee accused of assault to be represented by an attorney or union rep, then the accused rapist should get the same representation.</p>

<p>Again, this is just my personal opinion of what SHOULD happen. I DO NOT KNOW what is legally required.</p>