There may be legal reasons, but even before Title IX most colleges had their own codes of conduct because it’s simply the right thing to do - the (mostly women) victims are human beings and our students. We don’t want them sexually assaulted, and we want them to get justice if they are. The (mostly male) perpetrators need to be educated to stop what they’re doing, and in serious cases we don’t want them as part of the campus community.
Most of us are okay with sexual misconduct policies, but rape is a criminal felony offense and not misconduct. And, the alcohol part of this which is most of it makes analogies to a workplace where drunk people are not usually sleeping together a little off base and many workplaces have published policies against coworkers dating. So yeah.
And, we are sort of back to the beginning I guess, but it’s really more like no-one is changing their mind here.
I’m not sure why you think that I think this. I have numerous times said that i would accept that someone incapacitated by alcohol could not text, could not carry on conversations, would not have the forethought to ask if a male partner had a condom and would probably not be able to walk very well. i do not think that people that drink alcohol are automatically incapacitated. I think the concept of date rape drugs is fairly obvious and most of them are named in criminal court documents. Blood alcohol level would probably be a good indicator of incapacitation but not very many women go to the hospital fast enough to make that worthwhile…heck somtimes the accusations come a year later.
Are colleges and universities not corporations? They are no different, as they have HR books just like corps on the outside. So why should it no be shown what other corporations do? Maybe they could learn something.
And I posit the reason colleges are in so much of a mess is they are trying to do something that ALL corporations know they cannot do, even the one’s with top notch legal staff and billions of dollars.
Yes, people will say it is because of Title IX that colleges are doing this - that is a ruse. There is nothing in Title IX that says colleges must take on rape cases; that is their choice. All colleges are doing is trying to increase conviction number and taking any and all cases and trying to rig the system to raise the number.
The end result I bet will be rape cases, which are criminal, are going to be sent to the police. The non-criminal stuff will be left to the colleges, just like it is left to our HR.
And I darn sure think the analogy is apt because colleges do not have immunity from corporate laws. More importantly, a collegiate code of conduct does not override corporate law or criminal law - so if a law is broken, then the police should handle it. It is right here where the colleges are going to get their behinds handed to them; they are in waters where they are not even allowed swim, but pretending that they can.
In the states that allow prosecution of rape where the woman is alleged to be voluntarily incapacitated by alcohol but not unconscious, there doesn’t seem to be a lot of guidance to the jury about exactly how incapacitated she would have to be. And in the states where the defense of mistake of fact is allowed-- i.e. she was incapacitated but he didn’t realize she was incapacitated-- there doesn’t seem to be much guidance to the jury about what “he reasonably should have known she was incapacitated” should mean.
This is incorrect, and after this whole long thread, I’m surprised that anyone here would still believe it. From the [Title IX guidelines](http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf) provided by the US Department of Education Office for Civil Rights, we find this clear statement of responsibility:
If a school is taking a penny of federal funds, it must follow the Title IX guidelines.
This is one of those self-fulfilling prophecies.
How do they know that each case does not meet the criminal threshold if the case is never reviewed by the police to determine as much? And how do they know in advance that the jury would not find a guilty verdict?
This has nothing to do with criminal threshold; it has everything to do with changing a conviction rate to say politically that one is doing something, even if the supposed rate of assaults stays the same.
@al2simon my thought is that an employee accused of workplace rape would immediately be put on paid “leave.”
@marie1234 Title IX was not originally designed to adjudicate sexual assaults. It was not until the 1980’s that the purview of Title IX was expanded and sexual assault was viewed as a form of sex discrimination, thus opening the door for federal mandates on what colleges had to do. The expansion of Title IX was accomplished through administrative opinions issued by the OCR and opinions crafted by some of the highest courts in our land. The current system is very much a product of policy set by various branches of our federal government over the last 30 years.
So yes, I believe the policy reflects the thought that there might be an advantage to having an alternative to the criminal justice system in the college environment. When you couple the history with the fact that women are not actively encouraged to report these assaults to the police, one draws their own conclusions. I have drawn mine.
I think other posts have already explained why this becomes a very flawed analogy when talking about students in college. However, you are right when talking about how (private) colleges deal with their employees
(faculty employees are a bit different, since there are issues of tenure and academic freedom). The procedures there are quite similar to corporate policies.
"So yes, I believe the policy reflects the thought that there might be an advantage to having an alternative to the criminal justice system in the college environment. When you couple the history with the fact that women are not actively encouraged to report these assaults to the police, one draws their own conclusions. I have drawn mine. "
Me too. But, it’s by looking at who is advocating for what and why and it’s not men and interestingly it’s also not prevention. On the history and the facts we agree completely.
“Are colleges and universities not corporations?”
No, many private institutions are corporations but public institutions are established either under the state constitution or state statute.
While diving into the weeds of criminal case law about rape in California, I found another appellate case that bears on what we’ve been discussing here. We’ve talked about the fact that a rape defendant can offer the defense that he reasonably thought in good faith that the alleged victim had the capacity to consent and did consent, even if in actuality she couldn’t or didn’t consent. Some here have alleged that an accused rapist can argue that he was too drunk to notice that his victim didn’t or couldn’t consent. Alas for the rapist, if the alleged crime was committed in California that defense is not allowable.
In [People v Potter](http://law.justia.com/cases/california/court-of-appeal/3d/77/45.html), the appellate court wrote:
Re Post 3865:
Again, this is a reading of a guideline where someone sees what they want and this explains why there are so many problems with this Title IX.
Not all sexual violence is defined as, or rises to, the level of a criminal act and a felony. Rape does.
For example, something as simple as putting up a pic of naked female in the common room could be deemed sexual violence by females who see it - and that is nothing close in terms of violence, like physical rape, yet it called the same name. It is not even criminal in the least.
There is absolutely nothing in that statement that says schools must adjudicate rape cases, which are criminal cases. The schools take those criminal cases on by choice.
Awc- are you just being inflammatory here?
Or do you really not get it?
It’s crazy to make blanket statements counter to what we’ve been discussing and on details which, as Fang just pointed out, are right there in the document. Hence, my question: you yanking our chains on purpose?
And the accuser still has the right to privacy and not report to police, if she so chooses.
Thanks for the distinction there re private and public institutions. However, I highly doubt that the state university charters bestow powers reserved for the judiciary to adjudicate criminal cases. So I am not sure it changes the point that the public schools are in areas they do not belong when it comes to criminal cases.
@awcntdb - “You are reading something that was never written.”
Well you did say:
“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.”
And in response to : “I don’t think there is a single state in the country that doesn’t have a law that says if a person is passed out it is illegal to have sex wtih them.” You did say:
@awcntdb “Speaking as a CEO, who has a handbook that comports with the laws of many states, this is correct.”
“In all the states we do business in, which is most, it is illegal to have sex with a person who is passed out; technically, the term in the HR handbook is incapacitated.”
So you are saying that either you or your employee handbook addresses the issue of rape and I am just saying in my experience I have never encountered the topic of rape in either an employee handbook or in a conversation with a corporate executive.
No. no. no, awc. A pic is not sexual violence, as defined- not even if you can find some person who believe it is. Sorry, but you must have some “counsel.”
And the colleges ARE mandated to inform the accuser she has the right to report to police.
Try harder, awcntdb. The same document ([here](http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf)) that says that schools must respond to sexual violence also defines sexual violence. I bolded the part where rape is included, so you wouldn’t miss it. All types of sexual violence are crimes.
Schools and colleges which take federal funds (virtually all schools and colleges) must respond to reports of rape. If they do not, then they risk having all their federal funds taken away.
LF - I know it’s not really the main point you were making, but in the interest of sharing knowledge I’d point out this is an area of some misunderstanding and controversy that also relates to some other recent comments.
Here’s the policy I’m familiar with (I think it’s mostly universal, but it might not be. Also I may have some details wrong, but the gist should be right). If a sexual crime is committed then most employees of the college are “mandatory reporters”. If they hear about a crime they are required to notify someone who’ll notify the police (usually the campus police). I even think RAs might be mandatory reporters, but I’m not sure. A small handful of employees are exempt from this - clergy and designated sexual assault counselors. If a victim visits a sexual assault office they may not realize it, but they are usually quickly shunted to an exempt person so that they still have the option of not notifying the police.
I think that some sexual crimes are covered by this and some aren’t. The serious ones are; I’m not sure about things like butt slapping etc. Maybe the police and prosecutors are the ones exercising discretion. I doubt the prosecutors and non-campus police are going to do much for things like forced kissing or fondling.
I’d say this is an area of controversy and a bit of a grey zone in actual practice. Many women’s advocates feel that the alleged victim should retain complete control over reporting to the police. I think most people’s natural empathy aligns with this viewpoint - it wouldn’t surprise me if many RAs suffer acute memory loss from time to time. This is not an option for senior administrators though. However, the law is what it is, but no one can force a victim to cooperate. I think it originated from requiring that elementary school teachers report suspected sexual abuse to the authorities.
No, it may be simply that I disagree with your interpretation and in what the colleges can and cannot choose to do. And you may say I do not get it - but I am fine that I do not get a lot of what others get.
I am always amazed by people who think a different opinion or interpretation is inflammatory - never understood that mindset. So I guess I do not get that either.