<p>Well…I know the thread has moved on, but going to mom2’s question in post 3001:</p>
<p>I am NOT expressing “my view” of what things should be. I am ONLY saying that we routinely allow people to be “punished” in ways other than criminal convictions and penalities if they are PROBABLY guilty of some conduct and in some contexts we have created systems that do this. We may even allow them to be “punished” if they have only been accused of some conduct and there has never been a finding of guilt. If we have some “second system” for dealing with sexual assault on campus in addition to the criminal courts, this isn’t unique. </p>
<p>One example I used was the employee who is accused of theft by a tenant. Generally, in a unionized building, the employer can NOT fire an employee based on a mere accusation. (In many states, if you don’t have a written employment agreement and/or belong to a union, an employer can fire you for any reason other than one contrary to public policy, e.g., he wants to get rid of all employees over the age of 40.) The employer must conduct a reasonable investigation. How that is conducted is determined by the specific provisions of the collective bargaining agreement. Often there will be some sort of hearing in which the evidence is reviewed.</p>
<p>As I understand it, if the hearing results in the employee losing his job and the employee challenges the firing, the focus in the appeal to the courts or the National Labor Relations board is on whether the owner/management conducted a reasonable investigation in good faith. The employer does NOT have to prove that the employee is guilty of the conduct beyond a reasonable doubt. If the proceedings meet the standards for them set forth in the collective bargaining agreement, and there is no evidence that the employer was motivated by something unfair, the employee can be fired. </p>
<p>In the securities and banking industries, since employees have access to customer funds, if an employer investigates and concludes that a broker probably stole money from a client, forged a customer’s signature, or did something else of that sort, it HAS to fire him and report that as the reason for the employee’s termination to the relevant regulatory authorities. That information is available to the public. Again, it does NOT have to prove this beyond a reasonable doubt. Indeed, if the employee quits when he learns of the investigation but before it is concluded, that fact must be reported, even though there is no finding that he is guilty of the conduct under investigation. </p>
<p>Greater penalties may be imposed by FINRA, the self-regulatory organization for the securities industry, after a hearing. In that hearing, the broker doesn’t get the protection of our criminal procedures. For example, if he refuses to testify, citing the Fifth Amendment, he can be barred from working for any brokerage firm in the future. FINRA can also impose monetary penalties. In other words, society doesn’t say, if a broker is accused of forging a customer’s signature, the only thing his employer can do is suspend him while the DA investigates–coincidentally allowing him to accept employment with another securities firm that doesn’t know about the criminal investigation. </p>
<p>When a landlord thinks a tenant has raped other tenants, it can bring an action to evict him. In the complaint, it can say that it is evicting him because several tenants have accused him of rape. Depending on state law, the housing court will probably determine if the tenant can be evicted. In determining whether or not he can. It’s unlikely that the court will require the landlord prove the tenant’s guilt beyond a reasonable doubt. </p>
<p>People who are criminally charged with molesting children can’t be hired by day care centers or public schools in some states, even if the charges were later dismissed. This might result in a person who spent a lot of years training to be a pre-school teacher and who really did not molest a child being unable to work in his/her chosen field. </p>
<p>Again, I am not saying that I think all of these rules are what would exist if I ‘ruled the world.’ (Nor am I saying that they would not.) I am ONLY saying that there is nothing unusual in having “two systems,”–one for determining whether you will be subjected to criminal penalities for having committed a crime “beyond a reasonable doubt” and one for determining whether you PROBABLY committed some wrongful act and therefore shouldn’t be able to continue working as a handyman in a residential building, in a pre-school, at a brokerage firm or living in a building where other tenants have made serious, credible allegations against you. </p>
<p>I know full well that being booted from a college after having been found guilty of sexual assault by the college system rather than by the criminal courts is a severe sanction. I just am surprised that so many people seem to think that this is somehow different than the handyman who is fired after being found guilty of theft under provisions of a collective bargaining agreement–and who is therefore ineligible to be employed by any other unionized building. Or the pre-school teacher who is arrested for molesting a child, and may be unable to find another job working with kids. Or the tenant who is evicted based on allegations made against him by other tenants and a good faith effort by the landlord to determine the credibility of those allegations. </p>
<p>Now, I want there to be fair procedures. I don’t want there to be a “kangaroo court.” However, if the accused is asked whether he added a drug to the alleged victim’s drink and refuses to answer the question, I’m goiing to allow the college to take the refusal to answer into account in determining whether she consented to the sex she had with him, even though this refusal can’t be mentioned in criminal court. If he ADMITS that he raped her, I’m not going to pat him on the back and congratulate him for his “remorse” like the UVa dean. If 20 female students allege they were raped at the same frat, I’m going to take that into account in deciding what action, if any, should be taken against the frat even though not one of those complaints resulted in a criminal conviction.</p>
<p>Reality is that most sexual assaults, especially when the victim and the accused know one another, can’t be proven beyond a reasonable doubt. So, saying that only a criminal conviction whould result in expulsion means that people who probably sexually assaulted one or more victims can remain in campus, knowing that it is extremely unlikely they will face any punishment. </p>