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The Atlantic "Rape on Campus" Articles

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Replies to: The Atlantic "Rape on Campus" Articles

  • HarvestMoon1HarvestMoon1 Registered User Posts: 5,811 Senior Member
    So efforts to make the process better then? Something we all agree upon but the specifics of which we never discuss for very long.

    I don't think changing the standard of proof will change the results much in these cases -- which by the way do not result in a finding against the accused in the majority of cases. This forum is very slanted in that regard because we only talk about the cases where there is a finding against the accused. But from the data we do have there are many, many more findings of "insufficient evidence to support the allegation" or informal resolutions of these cases that do not involve suspension or expulsion. That is something consistently ignored by many.
  • ProudpatriotProudpatriot Registered User Posts: 1,471 Senior Member
    Yes I think that changing the process will make it better. Everyone who believes they are sexually assaulted deserves to have their allegations taken seriously. Everyone who is accused of sexual assault deserves to be able to adequately defend themselves.

    Personally, I think that if a university believes sexual assault may have occurred the matter should be referred to law enforcement.
  • turtle17turtle17 Registered User Posts: 63 Junior Member
    My own view is the now fairly long string of lost court cases on the part of universities (or settlements before losing) will end up being a factor in changing policies.
  • momofthreeboysmomofthreeboys Registered User Posts: 15,099 Senior Member
    Sure it will. Not only legal cases from accused but the number of complaints filed with the OCR. Accusers think the unis do a poor job and made sure the OCR heard it and accused think the unis do a poor job and made sure the courts heard it. Not terrible difficult to understand the status quo isn't working.
  • momofthreeboysmomofthreeboys Registered User Posts: 15,099 Senior Member
    Yes plus the number of complaints that got filed with the OCR. When both sides are complaining it isn't a stretch to see the system as it is doesn't work optimally.
  • Ohiodad51Ohiodad51 Registered User Posts: 2,055 Senior Member
    So efforts to make the process better then? Something we all agree upon but the specifics of which we never discuss for very long.

    If you look at DeVos' recent comments, she has indicated pretty directly that they will send regulations on this issue through the adminstrative rule making process, which will provide quite a bit of time for people to be heard and a variety of ideas to be vetted. It will hopefully result in more balanced requirements and guidance from the OCR, which I think is in everyone's interest.
  • JHSJHS Registered User Posts: 16,800 Senior Member
    While I agree with much of the article, and also agree that it was reasonably balanced, I note that almost all of its power derives from its presentation of the fact of the case with which the article begins. And we have no way of knowing how balanced that is. It reads like it was written by the accused's lawyer; it's deeply frightening if the accuser is as clueless as the article makes her out to be.
  • HarvestMoon1HarvestMoon1 Registered User Posts: 5,811 Senior Member
    Yet many will accept that account as gospel, conclude every case follows that pattern and proceed from there.
  • CorinthianCorinthian Registered User Posts: 1,339 Senior Member
    edited September 14
    Rather than focusing on anecdotal evidence one way or another, I think it's helpful to step back and look at the entire disciplinary process, which leaves a lot to be desired for both the accused and accuser. FIRE recently issued a report about the procedural protections (or lack thereof) given to students accused of serious misconduct (not just sexual assault) in college disciplinary proceedings.The report doesn't look anecdotally at individual cases but rather at the specific official policies in place. https://www.thefire.org/due-process-report-2017/. In analyzing each set of disciplinary procedures, FIRE looked for 10 critically important procedural safeguards. No school got an A, some schools got B's, but most got C, D or F.

    The rated safeguards are as follows:

    1. A clearly stated presumption of innocence, including a statement that a person’s silence shall not be held against them.

    2. Adequate written notice of the allegations. Adequate notice should include the time and place of alleged policy violations, a specific statement of which policies were allegedly violated and by what actions, and a list of people allegedly involved in and affected by those actions.

    3. Adequate time to prepare for all phases of the disciplinary process, including notice of the hearing date at least seven business days in advance, and access to all evidence to be considered at the hearing five business days in advance. If the accused student is required to respond to the allegations before the hearing, he or she must receive notice at least five business days in advance.

    4. A prohibition on conflicts of interest that could compromise the integrity of the process (i.e., advocates cannot serve as investigators or fact-finders, and fact-finders must not hear the appeal).

    5. The right to impartial fact-finders, including the right to challenge fact-finders’ impartiality.

    6. Access to and the right to present all relevant inculpatory and exculpatory evidence at hearing.

    7. The ability to pose relevant questions to witnesses, including the complainant, in real time, and respond to another party’s version of events. If questions are relayed through a panel or chairperson, there must be clear guidelines setting forth when questions will be rejected, and the reason for refusing to pose any rejected question should be documented.

    8. The active participation of an advisor of choice, including an attorney (at the student’s sole discretion), during the investigation and at all proceedings, formal or informal.

    9. The meaningful right of the accused to appeal a finding or sanction. Grounds for appeal must include (1) new information, (2) procedural errors, and (3) findings not supported by the record. Appeals must not be decided by the investigator or original fact-finding panel.

    10. Unanimity of panel must be required for expulsion.

    Step away for a moment from the highly charged issue of sexual assault on campus, and ask yourself: if I or my child were accused of serious misconduct and facing expulsion -- including possibly some lifelong notation on the college transcript -- wouldn't I want and expect to have these procedural safeguards?
  • momofthreeboysmomofthreeboys Registered User Posts: 15,099 Senior Member
    I thought FIRE's proposal was entirely acceptable but I am one of those that think sexual assault should be reported to the police when criminally applicable and I am one who also thinks expulsion should require unanimity in response to a hearing in the absence of criminal prosecution.
  • JHSJHS Registered User Posts: 16,800 Senior Member
    It's easy to react with horror to stories such as the one in the article, to pick apart phony statistics good only for advocacy, and to cluck about procedural protections. It's much harder to do all that and to acknowledge that, one way or another, thousands and thousands of women (and some men) have been traumatized and bullied out of educational opportunities by aggressive sexual predators. In raw mathematical terms, "procedural protections" means victims -- not just phony victims, but real victims -- lose. At the level of constitutional law, when the issue is imprisoning someone, the constitution says "tough nougies" to the victims (although they are allowed to sue for damages with considerably fewer procedural hurdles to overcome).

    The current regime instituted by the Dear Colleague letter is an overreaction to that, something of a Reign of Terror or Cultural Revolution. I also agree with the author that sitting behind a lot of it is a notion that any heterosexual sex that is less than perfect sex -- which is to say, any heterosexual sex -- is rape of the female involved. There are people who believe that in good faith. But not a whole lot of them, even in universities.
  • CorinthianCorinthian Registered User Posts: 1,339 Senior Member
    I heard a story on NPR about some experiments with a more "restorative justice" approach to complaints of campus assaults. Obviously it's not for every case, but seems worthy of consideration in certain situations. http://www.npr.org/2017/07/25/539334346/restorative-justice-an-alternative-to-the-process-campuses-use-for-sexual-assaul. Note that the NPR article says that the DCL has made some colleges fearful of exploring the possibility of restorative justice.
  • HarvestMoon1HarvestMoon1 Registered User Posts: 5,811 Senior Member
    edited September 14
    I think we all would want the procedural safeguards listed in #24 if we or our children were facing expulsion. But under current law we should not have that expectation. The courts have already defined what "process is due" in administrative hearings. You can look up the cases and be as surprised as I was at what standards have been established by the courts -- they are bare bones for administrative proceedings. I think you will find that the DCL goes beyond what is actually required by that case law. The bottom line is that the courts draw a sharp distinction between proceedings where incarceration is a possibility and those where it is not. Many contend that the stakes are similar but the courts have not yet taken that view.

    I think an idea similar to "restorative justice" is already in play on campuses -- some schools have gotten around the DCL's "no mediation" rule by setting up two tracks for complaints -- an informal one and a formal one. There is no possibility of a hearing with the informal track and other measures which satisfy both parties are undertaken to resolve the complaint. I think this approach is very useful in the cases that involve excessive amounts of alcohol on both sides.
  • roethlisburgerroethlisburger Registered User Posts: 1,448 Senior Member
    The courts have already defined what "process is due" in administrative hearings.

    Such standards can change and not all courts are in agreement with each other. Does anyone know the outcome of the case where Columbia lost the motion to dismiss before the 2nd circuit?
  • HarvestMoon1HarvestMoon1 Registered User Posts: 5,811 Senior Member
    edited September 14
    Sure standards can change but we haven't seen the legal standards change relative to due process in administrative hearings in many years. The courts pretty much are in agreement and the requirements set forth in the DCL do not seem to run afoul of any of those decisions. When you compare the DCL to the case law you can see quite clearly that the attorneys who drafted that letter quite purposefully hit every requirement articulated in those cases.
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