All UVa frats on suspension

Parents Forum
3841

Boil it down, Mom3: did she consent or not? Does her condition at the time qualify for consent? Forget the distracting notions on this thread that she may have stupidly gotten drunk or flirted. Or is too drunk to drive, but not too drunk to party. Or out to seek revenge. Or whether the college punishments are severe or not.

I suspect few like the word rape, it conjures up visions of struggle or at least emotions, whether evidenced or hidden. But legally, in the strictest sense, the shoe fits.

*In 2012, the FBI changed their definition [of rape] from “The carnal knowledge of a female forcibly and against her will.” to “[Those explicit words] of another person, without the consent of the victim.” for their annual Uniform Crime Reports. The definition, which had remained unchanged since 1927, was considered outdated and narrow. …includes instances in which the victim is unable to give consent because of temporary or permanent mental or physical incapacity, and recognizes that a victim can be incapacitated and thus unable to consent because of ingestion of drugs or alcohol. *

I have no idea what further context awc thinks changes this basic principle.

3842

I’m unclear what you are asking me lookingforward and to which post example you are using. Intent and consent are intertwined. Short of being passed out, you would need all the facts to determine what each person’s intent was.

Sorry. In general I have no problem with colleges mediating between two students that have a disagreement. I am opposed to colleges and universities mediating cases that are criminal. It’s one or the other - either the accuser is accusing someone of something criminal or they are complaining about someone else’s behavior (non criminal). If a college even suspects that someone did something criminal they should be calling the police. If the accuser doesn’t feel it’s criminal then I have no problem with colleges mediating the situation. I think expulsion should be off the table at a 50.1% chance. Suspension perhaps in a teeny, tiny college where it is impossible to separate two kids who have a problem with each other. I’m firm on my feeling about this.

Title IX is poorly written, has conflicting information, does not address legal rights for both parties and cannot replace criminal law with regard to criminal felony acts.

3843

The law about whether a person is too intoxicated to consent to sex varies by state. In some states, such as my state of California, a person who is conscious, but very drunk, may be found too intoxicated to consent. Here are the California jury instructions for the charge of rape by intoxication:

So, in California, a woman does not have to be unconscious; she merely has to be unable to exercise reasonable judgment. It’s up to the jury to determine whether she was unable to exercise reasonable judgment. Here’s a case where a defendant was convicted of rape by intoxication when the woman was not unconscious: [People v Linwood](PEOPLE v. LINWOOD | 129 Cal.Rptr.2d 73 (2003) | ptr2d731193 | Leagle.com)

The defendant can offer the defense that he reasonably thought she was capable of consent, even though she wasn’t. Here are the jury instructions for that situation:

It’s up to the jury to determine whether the defendant’s belief of the woman’s consent was “reasonable.” In California, voluntary intoxication is not the defense for any “general intent” crime, and rape is a “general intent” crime.

3844

Again, speaking as a CEO, it is illegal for my HR (or any resolution team) to internally address anything that is even suspect as criminal, i.e., actions that violate municipal law, state law, or federal law. All suspected criminal activity must be reported to the police.

Therefore, no male or female can accuse someone of a crime and then think HR is going to be the one to handle it. They may initially go to HR, but with criminal activity, HR immediately contacts security, all tapes, all computers, all IP addresses, and all access points are locked, and the police are called.

As for violations of the company handbook, no one cares what we do there, as that is administrative. I am sure there are lots of things that happen between employees, which are violations of the handbook and which are handled, and I never hear about them.

But, we do care about the process. We treat each employee exactly the same and each employee, male or female, has exactly the same rights and privileges. There is no special procedures or favors anywhere. What is good for the goose is good for the gander.

We point blank tell all female employees if they are accusing someone of rape, we will call the police - that simple. And we tell all male employees, if they are accused of rape, they will be talking to the police.

Now, if there is a male or female who is exhibiting sexually aggressive behavior (slapping butts, telling someone they are cute all the time and want to take him / her out, unwanted emails with non-business content etc., then HR steps in and talks to the person, verifies what was accused is accurate, then gives a warning, and if it occurs again, then out the door you go!

3845

@awcntdb: It may have been a while since you’ve read your employee handbook or talked to the HR department about specific policies. I’d respectfully suggest you read the handbook again. Most especially the sections regarding workplace/sexual harassment. Much of what you may think of as your company’s choice is probably determined by federal law. I can’t imagine your HR people think otherwise - your probably paying for them to attend workshops and get training specifically on these points. If for example a rape were to occur in the workplace I’m sure your instinct is (correctly) to involve the police, but your company has its own responsibilities here, much like a college.

As for me, I have little tolerance for sexual harassment in my workplace - I’ve not hired great potential employees who had had consensual affairs in their previous workplace because they were married and I think it reflects on their character. Integrity is non-negotiable to me, and if someone can’t keep their marriage vows and will have affairs with junior employees who report to them I can’t trust them with my money.

As to it being “illegal” for HR to internally address anything even suspected of a crime - I’d look at how things like theft are handled. Most companies simply fire someone whose stolen amounts that are relatively small (say < $10,000) without involving the police. It’s easier for them than being part of a criminal investigation, and, say in the case of banks, they don’t want the bad publicity. (They may be filing U-5? reports though).

I do agree that colleges are pretty atypical in the degree to which they handle sexual misconduct issues without police involvement. The reasons for this have been discussed ad nasuem here.

Of course, if you have labor unions as part of your workforce then there are a whole host of other procedures that I’m not familiar with. Maybe this is the case in your company.

3846

The only people who would even think this are people who do not have female employees and have never seen them in action. Hint - they are no different than males.

3847

Thank you for your advice, aw, but I had already followed it, and in fact I went to a law library, with my lawyer friend, to research California case law with regard to rape.

Allow me to increase your knowledge. In the state of California, there is a crime called Rape of Intoxicated Person. The jury instructions for that crime, which I gave upthread, clearly state that the man or woman who is raped must be “so intoxicated that he or she cannot give legal consent,” “unable to exercise reasonable judgment.” This is not the same as the crime of Rape of Unconscious Person, where the person is actually unconscious. Upthread, I gave one example of a guy, Linwood, who was convicted of raping a woman who was conscious but was deemed unable to give consent by virtue of being exceedingly drunk. He is not the only guy in California who has been convicted of raping a woman who was conscious but unable to consent by virtue of intoxication.

3848

Laws are different from state to state. If I had a daughter I’d want to know what the laws were in that state she attended college. As I sad 100 pages ago, in Michigan the term rape is not used - it is criminal sexual conduct and there are 4 degrees - three are felony and one is misdemeanor. First degree requires force or force and incapacitation and Second degree addresses incapacitation (minus force). Everything I’ve found for Michigan states that incapacitation addresses drugs or alcohol not willingly ingested.

It’s best not to mix what happens with criminal law with individual college/university actions since the differences state to state can be significant and how the colleges adjudicate can be all over the place. The Drew Sterrrett case is moving through the courts now and may serve to advise college in Michigan how best to adjudicate to avoid lawsuits.

3849

All this talk of HR guidelines and policies regarding rape being contained in corporate handbooks makes no sense to me. While there are always lengthy sections on what constitutes sexual harassment I have never seen an employee or managerial HR handbook that goes into any detail on rape. That is clearly beyond the purview of any corporation and is a criminal matter defined by the state statute in each jurisdiction. And I am an attorney.

3850

None of this discussion makes any sense to me. If it’s a criminal matter it’s not a college matter. Except that the advocates and some college women don’t like the criminal system and sometimes there is not proof is still the best I can figure here. And, people say rape a lot when much of this is not rape at all.

3851

Again, states vary as to rape laws. But [People v. Giardino,](People v. Giardino (2000) :: :: California Court of Appeal Decisions :: California Case Law :: California Law :: US Law :: Justia) an appellate case, is instructive in the case of California. The court held

The court in Giardino is saying that if the person lacks the ability to consent because they are too drunk (or for some other reason) then any evidence about apparent consent is irrelevant. It is a crime in California to have sex with someone who is unable to consent, either because they are too young, because they have some mental disability, or because they are too drunk. It doesn’t matter whether the person appears to consent, if they legally are incapable of consent.

In the case of incapacity because of alcohol, in California it is for the jury to decide whether the supposed victim was too drunk to consent.

3852

Well colleges have undertaken a system to give students an alternate venue for adjudication of sexual assault claims so they have made it their business. I have always said that the original intent of the colleges doing so was to keep young males out of the criminal justice system where the stakes are very high. But the corporate world does not to my knowledge concern themselves with the question of rape. Corporations do undertake extensive education programs on sexual harassment because that is often verbal or involves a “pat” or “touch” that might be misconstrued. Rape is a very different set of circumstances and is not a common issue in the typical corporate office…

3853

“In the case of incapacity because of alcohol, in California it is for the jury to decide whether the supposed victim was too drunk to consent.”

If no-one else was there how can they possibly decide this beyond a reasonable doubt, though? The hard cases are the he said, she said cases with no witnesses and not much memory from either party.

I don’t really think the motive on the part of colleges is to keep young men out of the criminal justice system at all. But, if it is that’s not a great idea either in my humble opinion. Hmm.

3854

@awcntdb I would love for you to have a very drunk friend come in and sign a will in front of you and your “counselor” that leaves everything to you. Try using the “I know he was drunk but he clearly consented to signing the form” defense and see how far you get in court. Apparently you don’t understand that incapacitation doesn’t equal unconscious.

@momofthreeboys wrote:

That may be true in common verbal usage but they have very different definitions legally. That is especially true when referencing laws that specifically address consent and a person’s ability to legally give their consent. If someone is given PCP or LSD and then “consents” to something, they obviously had intent, but legally didn’t consent. I think even you and AW would agree to that. What stuns me is that you (I would guess) agree that a mind altering drug eliminates a person’s ability to legally “consent” but you don’t think the same thing about alcohol, despite it being a mind altering drug.

3855

So what do the colleges have to gain from undertaking the adjudication of these sexual assault cases then? They only seem to generate a lot of negative publicity for them. My own opinion is that is was set up by and for men.

3856

You are reading something that was never written.

I specifically wrote this:

So, you are correct. The HR handbook is full of sexual harassment stuff, but little about rape. Really for any crime, we just call the police. Plain and simple.

And that is the problem with the colleges, they are trying to develop rape guidelines and say they are handling rape claims and crimes when they are not.

3857

No, it was set up by women advocates seeking an alternate system for women with cases that don’t meet the criminal threshold for a guilty verdict. I don’t think that’s opinion, though. That is what happened.

3858

HarvestMoon1 - You’re right that rape is generally not the focus of most corporate handbooks vs. sexual harassment and non-rape sexual assault. But it’s safe to say that rape would be considered an (extreme) form of sexual harassment, and I believe that a single incident in all but a pretty large company could be construed as creating a hostile workplace if it were handled incorrectly. Fortunately, we’ve never had a rape accusation in our company so I don’t have any relevant experience and I’d largely defer to our experts in HR (and the police).

However, if they didn’t get the accused out of the workplace environment immediately while we/the police figured out what actually happened I’d almost certainly override them unless our legal department and our outside legal firms had a very convincing reason for me. In this respect I’d say most companies would have an even stronger reaction than colleges do.

It might be an interesting thought experiment to ask what level of evidence you’d want before firing a co-worker who is accused of rape. What should a company do in the months before an indictment/trial? Also, which is worse - being suspended or expelled, or fired from a job?

Anyway, I’d agree that talking about corporate policies doesn’t seem very useful here. But there are some analogies that might explain why I think some posters who maybe haven’t dealt with these issues professionally are wrong when they think it’s crazy for colleges to have all these policies for handling sexual misconduct. Similar to colleges, companies need to have written sexual harassment policies, they need to designate a point person to deal with these issues, and they need to conduct internal investigations after a formal complaint of sexual harassment is filed. Otherwise they’re subject to civil suits under various statues including Title VII. Clearly though this is a much more visible area for colleges than companies since the typical issues that arise are much different in a residential environment full of young single people, and there’s no agency focused on this problem that is threatening to yank federal funds. I’d actually say that colleges generally do a better job on this than most companies that I’m familiar with, controlling for differences in number & kind of incidents.

3859

Does anybody have an issue with kicking out of school a once warned student on a second offense of butt slapping?

3860

Omg, we’re back to the beginning. Campuses are communities and can take certain steps to govern their communities. They are NOT replacing the criminal justice system. The negative publicity comes as much from the assumptions and media reports of aberrations. The OCR tells them their expectations, as recipients of federal funds. they don’t tell them to expel.

TV4, the other phrase is “legal competence.”