<p>Actually, I wrote that. ^^. Colleges shouldn’t have to act as a substitute court of law in what should be a criminal case. The stakes are too high. Sexual harassment is one thing, but a charge of rape shouldn’t be “tried” on a college campus.</p>
<p>I’m very sorry, csfmap.</p>
<p>OK, so let’s say that colleges do adjudicate sexual harassment, but do not adjudicate sexual violence of any kind. Or maybe they adjudicate some kinds of sexual violence, but nothing that involves penetration.</p>
<p>So then if a person gets harassed, or is the victim of less serious violence, and the college adjudicates, their attacker is removed from campus. But if the person gets raped, and the evidence is much more persuasive than the harassment evidence was, their attacker stays on campus. I do not think the courts are going to go for that. It’s going to be a civil rights violation to leave that rapist on campus.</p>
<p>As the OCR increases its oversight of colleges’ compliance and the colleges in turn mete out tougher penalties, I think we’re going to see more and more instances of colleges being sued by students who feel they were wrongly accused and penalized, especially if they were expelled. As noted, many of the individual challenges claim that the colleges have denied the accused “an education free from discrimination” because of denial of due process in the implementation of the Dear Colleague mandates.</p>
<p>Andrew Miltenberg who has become the go-to attorney for these wrongly accused cases, says he could take six more cases a week. I’m not saying that all of those that file suits are innocent; only that the colleges are going to be hit with massive legal burdens.</p>
<p>I don’t remember if this database of suits against colleges has been posted here:
<a href=“http://www.avoiceformalestudents.com/list-of-lawsuits-against-colleges-and-universities-alleging-due-process-violations-in-adjudicating-sexual-assault/”>http://www.avoiceformalestudents.com/list-of-lawsuits-against-colleges-and-universities-alleging-due-process-violations-in-adjudicating-sexual-assault/</a></p>
<p>It shows that there about half of the listed cases are still pending, and although a handful of cases have been decided in the colleges’ favor, quite a few have been decided in favor of the accused student and either are already settled out of court or require new hearings.</p>
<p>I don’t know of any challenge to the legality of the OCR’s Dear Colleague letter’s mandates or the right of the DE to withhold funding from schools that don’t comply, but it wouldn’t surprise me to see a case like that work it way up through the courts.</p>
<p>The net result, I think, will be the opposite of the intention: The backlash from college tribunals denying due process and bungling felony rape cases will ultimately result in even less protection for victims. I agree, colleges have an obligation to keep students safe, but I can’t agree that there is no way to do so without violating constitutional rights. </p>
<p>In reading about the OCR DCL, I’ve come across this quote from Louis Brandeis several times:</p>
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<p>Post 3496 is about a drunk girl who was photographed in a state of undress by two 16 year old boys who thought it would be funny. That’s bad behavior as is her being drunk and getting undressed in front of them in the first place. But, it’s not rape. I’m not sure it’s a sex attack either. So, the comment about jail being for rapists and murders is not nearly as off-base as it initially sounds.</p>
<p>“The girl replied to one of her attackers: 'How would you feel knowing you basically got raped.”’</p>
<p>Um, well, no.</p>
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<p>You’re not sure it’s a sex attack??? Savannah Dietrich, a 16-year-old, “got undressed” when the boys undressed her, she being unconscious at the time. Her assaulters then proceeded to stick their fingers in her, photograph it, and pass the photos around to their friends. For crying out loud, they took off her clothes and stuck their fingers in her ******, and they took pictures of it. What more would you need to make it a sex attack?</p>
<p>Exactly, Cardinal Fang. </p>
<p>Well, that would certainly make it a sex attack. The story I read didn’t include any of that very important detail. And, why not? That’s important.</p>
<p>"Post 3496 is about a drunk girl who was photographed in a state of undress by two 16 year old boys who thought it would be funny. That’s bad behavior as is her being drunk and getting undressed in front of them in the first place. "</p>
<p>Oh, good grief, marie. It’s not as though she was in her bedroom getting undressed for the night and the 16 year old boys were Peeping Toms who took pictures of her through the window. And it’s not as though she walked into a room and started taking off her clothes in front of shocked 16 yo’s. She did not “get undressed in front of them.” That implies volition. They TOOK OFF her clothes when she was incapacitated, and assaulted her. </p>
<p>That is a deliberate misstatement of the case, but sadly, I’m not really surprised that that’s how you would word it.</p>
<p>What source were you reading it from? The Savannah Dietrich case had been around a while. The details were well publicized. Perhaps your source was a source with an agenda to prove that rape or sexual assault isn’t all that big of a deal, and well, boys will be boys.</p>
<p>All I read was the linked story above. Since then, I listened to a clip of her on the witness stand saying she was drunk and cooking food when she passed out and doesn’t know what happened but found out about the photos a month later. That’s all I know about this one. But, if there are photos of a sex attack what is the problem? </p>
<p>The “problem,” Marie, was that despite the fact that there was overwhelming evidence (the pictures the perpetrators and their friends took, where they had undressed her and sexually assaulted her), when the attackers got a plea deal and Savannah complained, the prosecutor told her to “get over it and see a therapist,” and added that the jail was for “real” rapists, murderers, and robbers. I’m hoping that you see “what the problem” is with his statement. I’ll give you the benefit of the doubt that you somehow thought this was just a girl who was the victim of merely photos taken by a Peeping Tom, and that you didn’t know it was sexual assault. </p>
<p>The problem is that when Savannah Dietrich complained because her rapists didn’t get a second of jail time in the initial deal, the prosecutor told her to get over it, and also told her she was prohibited from talking about it.</p>
<p>Okay, I looked it up and the prosecutor denies making that comment. But, they were tried as juveniles.</p>
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<p>I think it’s important to point out that it is not a “given” that someone accused of sexual harassment or sexual misconduct will be removed from campus. There are many remedial and punitive measures that a college can utilize…something easier to do on a big campus. They can separate the two into dorms on opposite ends of the campus, adjust schedules so the two are never in class together, restrict space around an accuser’s dorm.Some of the activities that were exposed in the Columbia mattresswoman story. I think it is because expelling a student is such a serious decision and can potentially have life changing consequences. Clearly if a student rapes or physically assaults, not only is it criminal but it would be serious enough to merit consideration of expulsion. But I think colleges and universities are on thin ice expelling a student who is found not guilty in the criminal system and I think a college is on even thinner ice if an accuser doesn’t want to press charges. I think as these things play out in the future we will see less expulsions and more uses of suspension in some of these felony cases that are absent criminal system adjudication. An unwillingness of someone to avail themselves of the criminal system when it is readily available is something that needs to be addressed. I also think there is a core of advocates that think the defacto decision for any allegation should be expulsion of the accused and clearly that is not true nor necessarily the message that was sent to colleges and universities from the OCR.</p>
<p>Talking about “tried as juveniles” - how come most kids who are 18 are in high school, especially in a city, but if a kid is killed in the city, he is an “18 year old man” and if a kid is killed in the suburbs, he is an “18 year old student” or “college-bound 18 year old”?</p>
<p>And seriously - a sexual offenders dorm?</p>
<p>And you say “accuser” - is it possible that the accused didn’t rape anyone, so the university should not do anything to the accused? And might it still be the case, even if the accused was not found guilty of rape OR guilty of rape in any sense of the word, that the accuser had PTSD for whatever reason?</p>
<p>(for example, anyone who was abused as a child might be very sensitive to a sexual experience that triggered any memory of that - is that the accused’s fault? (again, if it was not rape, and I do not consider regret rape)</p>
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Despite what some posters seem to think, this is a good question. My answer is “yes” and “no.”</p>
<p>First, the “yes.” We need a college disciplinary tribunal to deal with campus discipline, including relations between students. This can include lots of things that don’t belong in criminal court–including, in my opinion, sexual situations that aren’t amenable to criminal proceedings. I think this is appropriate–as long as the punishments (and the proceedings) aren’t too much like actual criminal punishments. Also, you will need college procedures to decide what to do in the aftermath of criminal proceedings.</p>
<p>Now, for the “no.” Personally, I am persuaded that the OCR’s letter is intended to push colleges to adjudicate criminal cases that can’t be successfully pursued in the criminal courts because of the standard of proof–that is shown pretty clearly by the requirement that a very relaxed standard of proof be used in these cases. You can argue that these are civil proceedings (as mini did), or that the college is simply enforcing its code of conduct, but the fact remains that OCR is requiring colleges to use a preponderance of the evidence standard for sexual violence claims even if the college uses a different standard for all other offenses. The only sensible reason for this requirement is to obtain more “convictions.” As I’ve said repeatedly, I don’t think that’s the right way to address the problem–Title IX is just the wrong tool.</p>
<p>A bit more “yes”–the college may actually be in a better position to inflict at least some punishment on the serial predator than is the criminal justice system. A careful predator can make it difficult to ever find him guilty of rape beyond a reasonable doubt–whereas multiple believable complaints of sexual misconduct (including conduct short of rape) can justify punishment, including expulsion, by a college.</p>
<p>One additional point, about the Columbia case: note that if the accuser went to the police, a conviction would require proof beyond a reasonable doubt, which seems pretty unlikely if the facts are as they’ve been presented in the press. On the other hand, if the accused sued her for defamation, truth would be a defense–and the court would apply a preponderance of the evidence standard. This may suggest why he hasn’t sued her.</p>
<p>“Talking about “tried as juveniles” - how come most kids who are 18 are in high school, especially in a city, but if a kid is killed in the city, he is an “18 year old man” and if a kid is killed in the suburbs, he is an “18 year old student” or “college-bound 18 year old”?”</p>
<p>It may surprise some of you to learn that I agree with this and think that decision and all of them being 16 is what affected the outcome in the Savannah Dietrich case and it’s why there was a gag order. I also mostly agree with #3515.</p>
<p>If Emma S had gone to the police with marks of strangulation on her neck and explained what happened, I think there is some possibility that they would have found something to charge him with. Not rape, I would guess, but some kind of assault. I don’t think the police think highly of guys who strangle girls. I would venture to guess that the reason they were looking at domestic violence is that they were in fact trying to figure out what might stick.</p>
<p>Her story has the ring of truth to me, but her actions and the conclusions she draws are puzzling. She goes to the police a year and a half later–after finals!–only because the campus adjudication doesn’t go in her favor, has an unpleasant experience there, and her conclusion is that it is the <em>campus</em> authorities’ fault? Why would she not conclude that the way the <em>police</em> handle rape accusations needs to be improved? If she was the victim of a crime, why does she think that the police are a last resort? Would she go to the college if she were robbed, mugged, or her car were stolen? Even if she knew or thought that the perp was another student? Of course not.</p>
<p>Instead of colleges setting up tribunals to deal with sex crimes and sex crimes only, conducted by people with little or no training in which normal due process (for both parties) is routinely trampled, maybe the police and courts need to set up a special system for sex crimes as they have for juveniles, Traffic Court, Probate Court, and so forth.</p>
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<p>That’s not the only possible sensible reason. The Dear Colleague letter says that colleges have to use the preponderance standard because the Supreme Court says that’s the standard that must be used for civil rights violations. In other words, the OCR claims they don’t have a choice-- preponderance must be used because that’s the law.</p>
<p>I think that some colleges/universities did believe that the answer to meeting Title IX Dear Colleague WAS to ramp up convictions and that is why you see the civil cases that are being mounted. I think that thought is slowly fading and the realizations are sinking in that there has to be some actual investigation and some attention to process and procedures. And that is if Title IX doesn’t get modified for felony offenses. Now colleges need to educate the students to call the police and if not the police campus security or the Title IX staff and not wait. I agree with you Consolation that the biggest problem with the Emma story are the lag times. It seems obvious and would be to anyone on that appeal process she requested that the only reason she went to the court system was dissatisfaction with the outcome of the path she originally chose. We’re not doing our students many favors by making it so kind and gentle and nurturing that they think they have all the time in the world to accuse people of what sometimes amount to crimes and at a minimum misconduct, doesn’t work for the criminal system very well and it doesn’t work for the college tribunals.</p>