<p>Hunt, great post.</p>
<p>The question about the standard of proof is mostly symbolic or emblematic of the problem. </p>
<p>When sorting through complicated fact patterns, one doesn’t have a proof algorhythm or calculator that tells you that guilt has been proven by 51% or 80% or 90%. End of the day, that aspect is pretty squishy.</p>
<p>The Feds mandating and over-reaching for the lowest possibly evidentiary standard does tell you what is going on. “Hey, we are not getting enough expulsions. Let’s change the rules to get more!!” Feels like how the NFL or the NBA changes its game rules in order to produce more offense. Rigging the rules to get the desired outcome.</p>
<p>The real issue, though, is the elements of due process other than the proof standard. The Judge Friendly list above is a good summary. Regardless of the proof standard (real courts use varying standards after all in different kinds of cases), the need is for the colleges to largely replicate all the stuff that the real courts have – free lawyers provided to all, independent judges, trained detectives, trained prosecutors, discovery, keeping a record, cross-examination, evidence rules, right to appeal. </p>
<p>Personally, I question whether colleges can really do this well and why they should. If the college creates something that looks just like a real court room, why not just use a real court room instead. It really isn’t about the proof standard. FYI, you don’t have to do all this stuff so long as you avoid handling the most serious cases and the most serious punishments for first time offenders. Colleges can easily handle serial offenders with a bit less due process.</p>
<p>If colleges really due processed up, the female students would find them less appealing and might just start using the real courts anyway. That’s probably a good thing. It would also put the focus back on where it should be – does our real CJ system handle rape appropriately? Which is an issue for all women, not just college women.</p>
<p>One of the really bad things in this is that victims forego real punishment for attackers because they believe that warm fuzzy friendly college tribunals are a kinder gentler way to get justice. That’s total BS. Diverting incidents to the faux fuzzy college courts is a great way to under-punish offenses and incent guys to offend more. It is also a great way for colleges to cover their butts by sweeping things under the rug.</p>
<p>We should abolish the idea that college courts are the easier path of least resistance for victims. They should be every bit as demanding of proof as real courts are (again, the proof standard is really a distraction/red herring here). That is bad for victims (who don’t get justice), accused (who also don’t get justice) and schools (who get sued by accusers, accused and the Feds for doing something they are not set up to do). </p>
<p>Well, even if we think criminal courts should handle serious crimes, I think we still need college tribunals to handle various disciplinary issues, including interpersonal and sexual ones. Personally, I want the college to punish the butt grabber, for example. The criminal justice system really can’t deal with that. Also, we probably need college procedures to deal with serious crimes even when they have been reported to the criminal justice system–somebody has to decide whether the guy who has been charged with rape is allowed to return to campus or not. Remember, he’s out on bail, and he’s innocent until proven guilty. The college needs to deal with that.</p>
<p>It’s not simple. Acting like it is is part of the problem.</p>
<p>“also thought the suggestions to prohibit the frat parties from offering hard alcohol was a good one, and locking the bedrooms too however that one will be more difficult to enforce since that is the home for some of the boys.”</p>
<p>Having a son who lived in a frat house (and who sometimes just stayed in his room or studied during a party if he was t so inclined), that’s non-enforceable. So if my kid wants to leave the party early, or bypasses it entirely to go do something else, he can’t go into and use his own bedroom?? What, he has to be forced to stay out til Elvis has left the building? I’m all in favor of solutions, but that’s goofy. </p>
<p>Locking the doors was suggested after a comment about an acquaintance bursting into the bedroom and accosting a sleeping victim. Incidentally, there are now calls for Jackie to be brought up on honor code violations for lying so this really has come full circle.</p>
<p>Hunt, I have been trying to say what you wrote in your last couple of posts. </p>
<p>What you wrote is so much better than what I could write so thanks for your posts. :)</p>
<p>You can assert your Fifth Amendment privilege in a criminal case. If you do and don’t testify at your trial, the prosecution can’t comment on your failure to testify. If there’s not sufficient evidence to convict you beyond a reasonable doubt, you won’t be convicted.</p>
<p>But in a CIVIL proceding, you can also refuse to testify, but the fact-finder can draw the iinference that you are refusing because if you testified truthfully, you would incriminate yourself. That can be taken into account by the fact-finder in deciding whether you probably did it.</p>
<p>So, lets say a student named Jake works in the campus book shop. A number of students and faculty members experience credit card fraud. It turns out that all of them purchased an item at the book store a day or so before a fraudulent purchase was made. Further investigation shows that in each case Jake was the cashier. </p>
<p>Now, that’s circumstantial evidence and it is extremely unlikely that Jake would be found guilty of theft beyond a reasonable doubt. The police stop by to question Jake. He refuses to answer any questions and demands an attorney. The police can’t arrest him for refusiing to answer their questions.</p>
<p>But then the bookstore manager calls Jake in for questioning. He says “Did you use customer’s credit cards to purchase things for yourself or give the credit card information to anyone else? Do you know anything at all about this?” Jake says " I assert my Fifth Amendment right not to answer."</p>
<p>The bookstore manager doesn’t have to shrug his shoulders and send Jake back to his cashier position. </p>
<p>Lets say he doesn’t know that and thinks “Well, I don’t have proof beyond a reasonable doubt and Jake has a Fifth Amendment right not to answer, so I can’t take any action against him.” Jake’s worried about the police investigation, That afternoon Oliver Family-Money makes a purchase, Jake notices they are the same height and have the same color hair and eyes. He records the security code of Oliver’s credit card. He asks to see Oliver’s driver’s license. He tells Oliver that he has to get the purchase approved by his supervisor. He takes the driver’s license into the back room and makes a color copy of Oliver’s license. </p>
<p>He then purchases a phony passport in Oliver’s name, buys a one-way ticket to a country with no extradition treaty with the US, pays six months rent in advance and buys a second hand car using Oliver’s credit card. He also takes a $5,000 cash advance. </p>
<p>Oliver reports the theft to his credit card company which is out $20,000. The credit card compnay investigates and finds out what has transpired. It sues the university for its negligence in allowing Jake to continue working as a cashier after it had reason to know that Jake had probably used other students’ credit cards fraudulently. Do you think the university can successfully defend that case by saying “We couldn’t fire Jake just because of circumstantial evidence and because he asserted his Fifth Amendment rights. Therefore we have no responsibility for the fact he was able to get Oliver’s credit card info and a copy of his driver’s license with a real photo of him, his date of birth, etc.?” </p>
<p>So, change my case. Lets say 20 young women claim that they had non-consensual sex with a student who said his name was Thomas. A few of the women saw Thomas’ student ID card–maybe when he swiped into a building or used it to purchase alcohol. </p>
<p>Andrew’s roommate Noah notices that Andrew bears a resemblance to the sketch of Thomas except for one thing–Thomas wears glasses in the sketch. Andrew always wears contacts. He also realizes that Andrew had gone to a number of the parties at which the victims said they met Thomas. He goes to the campus police and meets Eager Beaver, a campus policeman. </p>
<p>Eager goes back to the room with Noah. Andrew isn’t there. Noah is willing to let him search the room. However, Andrew has a lock box for valuables which Noah can’t open. Eager smashes the lock. Inside it Eager finds some cash and jewelry. He also finds a student ID in the name Thomas and a pair of black-rimmed glasses. Thomas in the photo is wearing what seem to be the same glasses found with the ID. Noah identifies the Thomas in the photo as his roommate Andrew.</p>
<p>Andrew is arrested. He is given an attorney, who argues successfully that Eager had no right to smash open the lock box. He didn’t have a search warrant. Eager says he didn’t try to get one because he thought some “looney tune liberal judge” wouldn’t agree that the fact that Andrew looked a bit like Thomas in the police sketch and Noah thought he’d been at some of the same parties as the women who were attacked woud be sufficient to issue a search warrant. Why risk it? </p>
<p>The judge says the student ID and the glasses can’t be admitted into evidence because breaking into the lock box without a search warrant was a violation of Andrew’s Fourth Amendment rights. Andrew asserts his Fifth Amendment rights and refuses to answer questions as to where he was on the nights the victims were raped. In a line up, none of the young women can give a positive identification of Andrew as the rapist, because it was dark when he raped them and because each of them remembers the glasses vividly and Andrew isn’t wearing glasses. Moreover, most of the girls had had a few drinks when it happened. Two normally do wear glasses but didn’t wear them to the party because they thought they’d look prettier without them. </p>
<p>So, the criminal case against Andrew is kicked out. Should the university reinstate Andrew as a student and allow him to return to his dorm? </p>
<p>Should it kick him out immediately?</p>
<p>Should it hold a hearing at which Noah and Eager can testify about finding the ID and glasses and at which Andrew is given a chance to explain --and hold it against him when he refuses to testify?</p>
<p>Realize that in the real world there are lots of government agencies which impose penalties on people that are CIVIL penalties. They have to follow “due process,” but they do NOT give people all the same rights they get in criminal cases. The SEC, the FDA, the IRS, OSHA, etc. all impose penalties on people and companies based on less than “beyond a reasonable doubt.” There is NOTHING new about using a lower standard of proof. </p>
<p>Jonri, Do you write detective novels in your spare time? 
That was entertaining reading.</p>
<p>Does due process only apply to federal or state actions against an individual?</p>
<p>Look, I know some don’t like my posts but we have to separate fact from speculation. Ok, no, you don’t “have to.” But I personally find it more productive. And it’s got to be clear I often see the spin in how things are phrased. We don’t need to add more gray areas. Supposition is fine- but do you see how some are going beyond that and turning it into asserting? </p>
<p>Talking about whether T9 mandates processes because “they know” it’s harder to get a conviction in criminal court? I’m not finding that backed up in docs issued by DOJ. If it exits, please link it and I’ll read it. (Not a media assertion, please.) I don’t see anything describing the T9 process as a purposely easier path. I do see, “…sex-based harassment and assault continue to pose a significant threat to safe and supportive learning environments and equal educational opportunities.” (DOJ.) The point of T9 starts with that “equal educational opportunities.”</p>
<p>I agree we shouldn’t need T9, for a variety of reasons. At the start, we shouldn’t have needed a law to tell us to give girls, say, equal sports opportunities. We shouldn’t need to tell people not to harass, discriminate or assault. Clearly, we do. </p>
<p>Yes, preponderance is an issue, yes, fuzzy. But it also applies to civil court. It wasn’t created just for the college environment. </p>
<p>Apparently, the Honor Committee at UVa does not handle cases of sexual assault due to the interaction of Title IX and due process.</p>
<p><a href=“http://www.virginia.edu/honor/wp-content/uploads/2014/11/Honor-Committee-Rolling-Stone-Response-Final-CD.pdf”>http://www.virginia.edu/honor/wp-content/uploads/2014/11/Honor-Committee-Rolling-Stone-Response-Final-CD.pdf</a></p>
<p>Remember jonri’s real example of the two cops? A taxi driver called the cops to get a drunk woman his taxi back to her apartment. The two cops brought her back. Security cameras showed them return to her apartment three times that night, using her key, staying half an hour in the apartment.</p>
<p>The next morning she reported she’d been raped. There was no physical evidence, and the cops denied they’d been raping her. One said he’d been counseling her. </p>
<p>They were acquitted. The verdict came more than two years after the alleged rape. Convicting someone of rape is very difficult, even when you think they did it.</p>
<p>If that was two RAs instead of two cops, would you want to leave them on campus for two years, then decide that everything was just dandy because they were acquitted in court? Or perhaps, would you say to yourself, this is why we want to use the civil standard of proof rather than the criminal standard of proof at our college, we’ll put these guys up in front of the tribunal, with due process, and they’ll be gone?</p>
<p>In another real example that I know of, that I’ve mentioned before, a drunk student burst into the room of another student, intent on assaulting her, an intention he had previously described to his teammates. A teammate, being a normal person horrified by rape, had lurked near the woman’s door in order to prevent this assault, and stopped him. The girl, a foreign student from a conservative culture, did not want to bring shame on her family by reporting the assault to the police. The college threw the guy out. Should the college have done nothing because the girl wouldn’t report, even though they had the rapist dead to rights?</p>
<p>Occidental used due process in the John Doe/Jane Doe case we’ve been talking about. There was reams of evidence, and the college hired an outside adjudicator. The issue there was that the standard they were using for incapacitation was whether a sober person would have thought that Jane Doe was too incapacitated for consent. The adjudicator decided that the sober person would have thought she was too drunk. Other people may disagree with either the standard or the application of it.</p>
<p>Jonri: Clearly there is evidence in the Thomas/Andrew case as you presented it, including 20 women. I don’t think anyone would disagree that that would meet the burden of proof, even if the evidence in the lock box might be thrown out in court. The 20 women could ID him in a line up with the glasses on. The lock box evidence could probably be used in the school. Hard to believe nobody could put him at an event with one of the 20 women. </p>
<p>In the first case, the bookstore could fire him for any reason at all. In your set of facts, the bookstore did not allow him to work there indefinitely, but was still investigating before firing him.</p>
<p>Let go back to Andrew/Thomas. Let’s say that one girl reports someone with the same description as having assaulted her. The roommate says that the picture looks like his roommate and his roommate had been at the party in question, but the roommate does not wear glasses. He reports him to the college. The girl, who was a bit fuzzy on the details, agrees that she saw Andrew at the party and that he was the one that assaulted her. People saw both the girl and Andrew at the party, but not together. Nobody saw them go into a room or leave together. Andrew claims he is innocent but came back to the room very late and really was drunk so can’t quite account for his whereabouts after he left the party. Has never been accused by anyone else. Should Andrew be kicked out??</p>
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<p>Not by any standard. This doesn’t even meet the preponderance of the evidence standard. The roommate’s evidence tells us nothing, since we already know that Andrew was at the party. We’re left with the accuser’s identification and her accusation. Even if we believe her identification, that still doesn’t mean that the crime occurred.</p>
<p>Two Gregory Peck movies are good vehicles for discussion of this issue.</p>
<p>“Roman Holiday” in which Gregory Peck finds princess Audrey Hepburn lying on a Rome bench. She had been given a powerful sleep aid drug by her doctor. Gregory takes her up to his apartment for the night. She wakes up in his pajamas remembering nothing from the night before. Of course, Gregory being a gentlemen, nothing did happen. But in today’s world, if Gregory and Audrey were college students, Gregory could be accused of rape months after the fact and with just those facts could be expelled. </p>
<p>Then of course there’s “To Kill A Mockingbird” in which a man is convicted after a false accusation of rape.</p>
<p>Moreover, I wouldn’t kick Andrew out in mom2and’s example of the accuser at the party who later tentatively ID’ed Andrew as her attacker, even if Andrew acknowledged that the two had had intercourse, but claimed it was consensual. How would we know whether Andrew or the accuser was telling the truth?</p>
<p>And Fang’s Razor applies to these T9 committees, as well. Don’t assume they’re stupid and reactionary, just because you are afraid they could be. Or because some college, somewhere, bungled its responsibilities. Yes, they do bungle. And yes, the feds are going after them- I might speculate, the tip of the iceberg. Maybe.</p>
<p>Btw, if due process applies to state and fed, the circumstances for a state U can be different. I like Renda and see how shes had a chance to have her work discussed- but I don’t know how much I personally consider her a final say. Yet.</p>
<p>Eg, Mathews v Eldridge is a case about Social Security benefits. A ruling or opinion can shed light on further cases under T9, but we’d need a legal mind, not a very bright college senior, to tell us if her statement that “the Matthews balance considers only the individual interests of the accused student,” holds, etc.</p>
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<p>Sez who? What is the example where someone has been expelled based on an accusation and nothing else? This sounds like fantasy to me.</p>
<p>A final say? She’s a 22-year old activist advocate counselor student who insists that questions are offensive. Perhaps I’m misunderstanding something.</p>
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<p>All those things could happen if the school ran a sexual misconduct tribunal. But many of the people in this thread say that the Thomas/Andrew case should be left to the courts. </p>
<p>“I support this in a limited way–but not when the allegations are rape, the punishment is expulsion, and the accused’s “permanent record” will state that he or she was expelled for rape. Those are so close to criminal punishments that I think more procedural protections should be applied.”</p>
<p>Ding ding ding ding ding! Dean Wormer can go after the butt grabbers in a kangaroo court all day long. That’s fine with me. When you get up to near criminal punishments and actual criminal offenses, it has to be a totally different ball game.</p>
<p>According to the US DOJ study, “rape and sexual assault victimizations of students (80%) were more likely than nonstudent victimizations (67%) to go unreported to police.” </p>
<p>That’s the diversion affect. The existence of the perceived kinder gentler college tribunals diverts rape cases away from real courts and real criminal punishments and real due process protection for accused. Why is it a smart policy to do that? With all the counselling and resources being made available to student victims (rightly so), why do we consider it good when fewer college victims make real crime reports than do women without all the support? That diversion effect is proof of policy FAILURE, not policy success!!</p>
<p>Also could be evidence of the conflicts of interests of the university counsellors. Is UVA Dean Eramo really being sensitive to victims needs and concerns? Or is she diverting cases away from criminal court to CYA the interests of the university?</p>