If you look at the FBI’s 2015 UCR, 36-38% of rapes are cleared by law enforcement, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/offenses-known-to-law-enforcement/clearances. Cleared, unless by exception means, is defined for the UCR as:
Since law enforcement agencies should be reporting much of the same data through the UCR and NIBRS, it’s still not clear where the 4% number comes from?
No indication of how the 5 are picked from the pool. Randomly? Like a jury with both parties getting to ask the questions about their lives and prejudices? Male, female, minorities represented?
And yet we don’t find it an uncommonly high bar that most jurisdictions require a unanimous decision by a jury of 6-12 people, especially for criminal acts or when the penalty is severe (expulsion, ruined reputation, sexual assault label)?
There are reasons courts have rules of evidence and procedure, reasons why different levels of courts handle different levels of crimes. Every traffic ticket doesn’t need to be argued in front of a panel of 5 highly trained lawyers, but there is a reason why a rape accusation does need to be heard by a judge or jury of 12, why some evidence is allow in and some is excluded, why the accused has a right to present witnesses and face the accuser.
The student made a choice by going the Title IX route and not the criminal one but then she has to live by the ruling. I think the accused should get the right to ‘remove’ the matter to the courts if he wants.
@twoinanddone, are you saying that the student has to choose between Title IX and criminal courts? I didn’t think that was true (see my recollections below). Or are you asserting that the student should have to choose between Title IX and criminal courts?
Some of the people on here like @Hanna seem to be experts in these matters. I’m not. And I’m not a lawyer. With those caveats of ignorance, I recall in a previous thread that some (and probably not all) of the college tribunals require the accused to make disclosures that would be admissible later in a criminal case, even though the accused student is not represented by counsel in the tribunals. My recollection is that if the accused chooses not to disclose much, he (she) is more likely to get an unfavorable ruling, like expulsion, from the tribunal.
In such a system, if I were a parent looking for justice for a daughter (which is not necessarily the same thing as what might be best for the daughter), wouldn’t it be optimal to pursue the case first in a college tribunal and seek as much non-confidential disclosure as possible? Then, I’d evaluate the evidence and decide whether pursuing a criminal claim would be a good choice. Perhaps the disclosures in the tribunal could materially strengthen some cases such that they were attractive to prosecutors from a legal standpoint.
No, she didn’t have to choose, but she did. She did not pursue a criminal complaint. I don’t know what the evidence showed, so she may not have ‘won’ in criminal court (it wouldn’t be her bringing the action, she’d only be a witness, and it would be unlikely there would be any restitution to her, so ‘winning’ is not the same as it would be in a civil suit).
Title IX puts a duty on the school to keep the students safe. It is not about punishing the accused, but making campus safe. It’s reasonable to think that one way to keep female students safe is to remove a student who has assaulted female students. The issue is whether the Title IX hearing is the best way to insure the safety of students, and is it fair to the accused.
I do believe that Title IX hearings, as currently being run, are not fair. Once the accusation is a crime with a student accused at a felony level, the investigation and hearings should be at a level where protections are available. If the penalty can be expulsion, loss of financial aid, being removed from student housing, I think students need to be advised of their rights, have legal representation (not a coach or RA or friend). Internal hearings can handle petty theft or bullying or cheating, but we don’t let a group of 3-5 staff, faculty, and students to decide murder on campus, or kidnapping, or physical assault. Why should we let these boards decide sexual assaults?
This is likely the larger issue. If the alleged victim is of legal age, not incapacitated by drugs or alcohol, and there’s no evidence of a physical struggle or battery, it’s doubtful in most cases either a jury or a college panel will be able to determine what really happened with even a 60% level of certainty.
“I recall in a previous thread that some (and probably not all) of the college tribunals require the accused to make disclosures that would be admissible later in a criminal case”
That’s right. This is a catch-22 for many accused. If there’s even a 1% chance of a felony rape charge, a good defense attorney will tell the accused that he must not speak to anyone about the case under any circumstances. So sometimes they have to decline to speak in their own defense, concede the Title IX matter, and get expelled in order not to add to the risk of the criminal investigation…which is usually dropped in the end, but in the meantime the expulsion is already on the books.
This can even be a problem for some of my clients who want to go to another school. The best practice, which I coach them on, is to disclose what happened at the first school and offer to talk to transfer officers about it. But if there’s some criminal matter pending (they can pend for months or years before they are dropped for lack of evidence), then the lawyers will advise them not to talk about this on their applications. Ditto if the accuser sues the accused civilly; someone in the middle of litigation can’t make disclosures that could later be subpoenaed. So their transfer applications just have to wait.
Thanks, @Hanna. So, if one wanted to maximize the probability that an accused would be expelled or otherwise punished, one should a) pursue the Title IX tribunal but b) also tell the person that after the university proceedings, you are going to try to file a report the rape to the police. Either the accused says nothing in the tribunal and faces a much higher likelihood of expulsion or other punishment there or provides information that can be used in building a criminal case against him (her).
@roethlisburger - it is indeed a major problem. However, I don’t think that many colleges truly act on the standard of “a preponderance of evidence.” I think people hesitate to mete out real consequences to a student unless there is real certainty. Yale publishes the outcome of its investigations into sexual assault charges, and there are a number of instances in which students have been found to have had “nonconsensual sex” (which sounds like the definition of rape?) but have received only nominal consequences. The details of the proceedings are not made public, but this seems to imply that college administrators still hesitate to impose serious consequences if there is any ambiguity. This benefits accused students but does little to convey a sense that rape is unacceptable. At the very least, it seems to me that a student found to have engaged in “nonconsensual sex” should be barred from campus until the victim graduates.
I only know that I would hate to be on one of those committees!
No I don’t agree with barring a student. It isn’t about one person’s perception it should be about the safety of a campus as a whole. The majority of these cases are disputed between two students not about risk to other students and many of these cases involve two students both who were drinking. It would be a striking step backward in history to say that women are incapable of mAking decisions while drinking and that men are capable of making decisions while drinking.
Unless they’re convicted, the young men are the accused, not the “perpetrator.”
The problems with these proceedings are numerous, but the worst is that the young men are presumed to be guilty. Even when they’re found not responsible, they are assumed to be guilty.
I have a young relative who was falsely accused by an ex-girlfriend because he refused to get back together with her. She threatened him (in writing) that she would do it, but the college ignored his evidence (and police reports of harassment and stalking) and found him responsible. They were under investigation by the feds for how they handle these cases so nobody was surprised at the outcome, but it is devastating.
This will follow him everywhere. He’s low income so he can’t afford the types of colleges who might give students like him a chance, and he’s terrified she’ll file criminal charges against him that he can’t afford to fight. The statute of limitations is nearly a decade. He feels like his life is over and he’s tried to end it at least once. People who support this system think about their daughters. You’d do well to think about your sons.
And I don’t think it’s a “major” problem. I think an older generation has turned it into a “major problem” because they don’t understand how casually this generation approaches sex and nudity. Add to this a generation of women who are empowered because of my generation, a good thing, but raised on a diet of Disney female characters and Princess diaries and it’s a recipe ripe for disaster. And as a bow to the OP.,.she says she was raped but that wasn’t enough. Saying you are raped IS not enough so I’ve got no problems with the need for more than a 50.1% chance by less than a full tribunal before a college ruins a young male life. Over Christmas my college son showed me some snapchats young women had posted that would turn your hair gray. There is misbehavior (or at least what we “oldsters” would consider misbehavior) on the parts of both sexes. I am not willing to throw men or women under the bus on less than verification and very close scrutiny to the behaviors of both people in a dispute.
Yale uses affirmative consent. Since I think Connecticut only passed an affirmative consent bill in June, sex that was nonconsensual per Yale’s definition could have been consensual according to state law.
Our kids really do live in a complicated world. So confusing what might be ok or not ok under college rules, county rules, city rules, state rules, federal rules. It is a good thing they have seminars for incoming students to explain all the legal requirements to fully understand this.
I disagree. This argument is the subject of a gazillion CC threads and I don’t think one side is ever going to convince the other.
I’ll point out again that we don’t follow this advice in other areas. For example, my area of law involves securities. It is possible to bring a criminal action if a company is accused of engaging in securities fraud or an individual broker is accused of stealing money from a client. However, the SEC can also bring a CIVIL action and the standard of proof is lower and there aren’t the same 5th amendment rights either. Then FINRA, a regulatory organization, can also bring actions and there is a lower standard of proof, much more liberal evidence standards, and no 5th amendment rights. And then if it’s a rogue broker, the firm can --and should–get rid of him/her, even if the evidence isn’t “beyond a reasonable doubt.” And the fact that the firm fired the broker because it thought he had stolen from several clients HAS to be disclosed on a legally mandated form which any customer who is considering doing business with him can find and read. Our system grants limited immunity to firms who disclose this, even if it later turns out the broker didn’t steal the money or forge the signatures, etc.
I used to work in house at brokerage firms, and I can’t tell you the number of times a broker who has been fired hired a labor lawyer inexperienced in the securities industry whose opening negotiation is “let my client resign voluntarily so he can get another job.” The firm can’t do this; it’s illegal. We learned the hard way that such brokers would go work for a series of securities firms, ripping off hundreds of clients until FINRA or the SEC finally stepped in.
This is true in many other areas. If a handyman is accused of raping 6 female tenants, the building owner/management doesn’t have to continue to employ him until he is criminally convicted of rape. (If he belongs to a union, then it does have to follow the procedures in the collective bargaining agreement.) In fact, it would be subject to lots of financial exposure if it did. If the six women all pursued criminal cases, it’s highly unlikely in our system that the jury would find out that there were 5 other women making the same claim–a fact that most of us would take into account.
Yet, so many parents on this board think a young man who has been accused of sexually assaulting a young woman–or multiple young women–on campus should be allowed to stay on campus unless and until he is convicted in a criminal court. They think the ONLY thing a young woman should be able to do is pursue a criminal action.
And time after time, a young man has withdrawn from the university before any disciplinary hearings are concluded and enrolled in another college which hasn’t a clue that disciplinary proceedings for sexual assault had been begun against him.
In the real world, if your boss calls you in and starts questioning you about money missing from an account over which you had signatory powers, you can’t say “I am not answering any questions until I engage a lawyer” or “I assert my 5th amendment privilege not to incriminate myself” and not expect you’ll be fired.
I have LOTS of issues with the way individual colleges handle these cases, but the idea that they should do nothing and tell victims that their hands are tied unless and until the accused is criminally convicted is mind boggling to me.
“So, if one wanted to maximize the probability that an accused would be expelled or otherwise punished, one should a) pursue the Title IX tribunal but b) also tell the person that after the university proceedings, you are going to try to file a report the rape to the police.”
No, you should go to the police right away, not just threaten to do it in the future. If you make multiple claims stemming from the incident (the sex was nonconsensual, pulling my hair was an assault, the text the next day was stalking, etc.), it’s going to take quite a while for most police to shake them out.
“there are a number of instances in which students have been found to have had “nonconsensual sex” (which sounds like the definition of rape?)”
A number of my cases involve a dispute over whether consent was withdrawn during the sex, or whether it was extended from Act C to Act D. These are often the cases where it is undisputed that the encounter was consensual, but some period of time or some specific acts within the encounter were not.
If someone has a honest, good faith, reasonable belief that the other person has consented – but the person is mistaken in their belief – then the sex is arguably “nonconsensual” but it certainly is not rape.
Agree but the term “rape” has become so meaninglesss and abused by young people. They use it for anything they think happens to them they don’t like including a bad grade.
If I’m an at will employee, the company can fire for me for any reason(wearing a brown tie when my boss hates the color brown) or without giving any reason at all. I fail to see why anyone would think at-will employment would be a good model for student disciplinary proceedings. Even SEC civil trials are likely to have far more procedural protections for the accused than most university disciplinary hearings.
The problem with your examples, @Jonri, is that the relationship between the SEC and companies is different than the one between colleges and students. Both male and female students are taught – by the colleges – that if they have a problem they should report it to the college so they can get help. The young men mistakenly believe the college is there to protect them too. They’re wrong.
In my nephew’s case, she didn’t approach the school to file a complaint – he did. The college staff who were supposed to take his complaint and help him file charges according to the Title IX regulations assured him they would “talk to her” and get back to him. What they did is help her file a Title IX complaint citing him for multiple counts of rape. One of the college staff told him early in the process that the school was under investigation and that he was going to lose. There was never any pretense from the staff, and I mean zero, that he might be innocent. The people running these charades belong in prison.
@momofthreeboys - are you really unable to differentiate literal usage from figurative? Because if so, that might indicate a serious problem.