Almost half of the suits are from complainants who think the college didn’t “punish enough” due to due process, negligence, etc. etc.although the percent of those cases “won” are lower than others. I’ve said before that I believe often the claimant expects expulsion and so far expulsion is not the predominant adjudication, nor should it be. I also noticed that in the insurance company report over a third of the claimants had mental health issues and the freshman rate involved in these assault claims was higher. (this has been discussed before). I absolutely think we have an issue with a class/group of students that is vulnerable to these sorts of issues. Off the top of my head I’m not sure if there is a solution – all freshman are not the same, with large age spreads and a shake-out after freshman year of students with mental health issues plus after freshman year kids “find their tribe and tend to stick together.”
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That makes perfect sense. They are a more vulnerable population and therefore make easier victims. Often, the victims have significant “mental health issues” after being attacked and that is used against them also, most horribly if they commit suicide. Then we hear, “her grades were slipping, she was clearly depressed, we’re so sorry that she was such a troubled young lady”.
The insurance claim report specifically cited prior mental health issues.
All he has to do is ask. He should ask. He doesn’t have to be a mind reader, and he shouldn’t try to be a mind reader because he’s probably bad at it. He just has to stop assuming that he has the right to her body unless she protests, and ask her if she wants to have sex with him.
Even asking isn’t good enough if she’s impaired. So I still like the idealistic, “Honey we’ve been drinking, let’s hold off.”
If we can point out that some % had prior mental health issues, guess we should also note, “Although athletes are about 10-15 percent of an institution’s student population, they comprised 25 percent of the study’s alleged perpetrators.”
Anyway, UE is “a risk retention group…owned and governed by the educational institutions it insures.” Just for the clarification.
I’m not a fan for making that a law. It just feels to close to transactional sex. If someone can articulate yes they can articulate no.
I noticed that also - the higher rate of accused athletes. I will have to ask my son if athletes can drink during season or off-season. Not allowing athletes to drink especially underage athletes might help and I would include all sports male and female. You gotta start somewherem
It is a law, though. We’ll find out if college guys in California stop having sex now that they face the intolerable burden of asking for her consent instead of just going ahead and raping her. Somehow, I think college men and women are going to find a way to work this out.
“and then he asked me would I yes to say yes my mountain flower and first I put my arms around him yes and drew him down to me so he could feel my breasts all perfume yes and his heart was going like mad and yes I said yes I will Yes.”
Is that so bad?
I thought even Yes means Yes allowed for “nonverbal” cues.
Now students are only required to get clear consent, which may include gestures and other nonverbal cues. (from this article http://www.latimes.com/opinion/opinion-la/la-ol-rall-affirmative-consent-yes-means-yes-sex-contract-20141029-story.html
So apparently this man asked “will you do x for me” and she did.
"She acquiesced to his request that she assume a certain position, that she do certain things to him. "
So is that a nonverbal cue or not?
PS I know that in the next sentence, she says “But I really didn’t want to.” But with the “nonverbal cues” already offered, how is he to know?
The way I read the description, he didn’t get consent before he began to engage in the sexual activity, which he would have been required to do under California law, and which he should have done, because engaging in sexual activity with people who don’t want to is disgusting. Eventually she acquiesced to his requests about sexual positions, presumably so he would finish faster and she could go home.
'It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity…"
4427 Cardinal Fang: [quote] It is a law, though. We'll find out if college guys in California stop having sex now that they face the intolerable burden of asking for her consent instead of just going ahead and raping her. Somehow, I think college men and women are going to find a way to work this out.
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I think it would be okay if college men decided to wait till women asked them for consent.
Joyce 
very well done indeed
I’ve been thinking about this this thread and affirmative consent every time I hear this on the radio:
This is an example of how I think such a situation should be handled, albeit this was a student from one school claiming assualt while at another campus. The assault was reported to authorities, they in turn arrested the individual, the institution at which the alleged assault occurred is suspended and so is the individual. A charge was made expediently, the accused is now in a system where he has due process, institutions within the university are put on notice that their existence is dependent on them regulating the behavior of its members and the university is not put in the position of violating the due process rights of the accused.
To me the police investigation of the recent Alpha Delta Phi incident is exactly the way a case of alleged rape/sexual assault should be handled, by law enforcement professionals with professional sexual assault experience using professional facilities, which just reinforces the un-professional and biased procedures employed by many campus sexual assault committees.
I’ve been reading about some 20 pending cases in which colleges are being sued by male students (and one female) who claim to have been wrongly accused and in most cases wrongly expelled. There are other pending, but all you need to do is read through the filings on some of these to get a panorama of how felony sexual assaults have been mishandled by a range of colleges – large and small – across the country.
Amherst, Colgate, Columbia, Delaware State, Drew, Duke, Holy Cross, Kenyon, Occidental, Salisbury, UCincinnati, UColorado, UHouston, UMass (2), UMich, Vassar, Washington & Lee, Wesleyan, Western State Colorado.
Reading about these cases is enough to make the hair on the head of a supporter of the American legal system stand on end. It’s not just the preponderance of evidence standard that makes these proceedings suspect, but just about everything else involving due process rights.
I realize that in the context of hundreds of colleges and presumably hundreds of sexual assault claims, 20 challenges is not statistically significant; however, I have to believe that the outcome of these cases will impact how colleges investigate and adjudicate felony assault complaints, especially if these cases work their way up the system on appeal.
If the majority of these cases are found for the plaintiffs, then the OSR may be inclined to adjust their regulations to remedy these transgressions of due process. On the other hand, if the colleges and the OSR prevail, then no change will be forthcoming. Thus far, quite a few cases have been settled confidentially, which I assume means some sort of monetary settlement awarded to the plaintiff, but the sampling is too small to draw a conclusion on which way the legal wind is blowing.
Concurrent with the Alpha Delta Phi alleged drug case, Duke is being sued by former student Lewis McLeod who claims (basically) that Duke bungled the investigation that resulted in him being expelled for sexual misconduct.
In the McLeod case, the accuser filed a police report, but the court declined to proceed. After McLeod was found responsible by Duke, he was expelled. He was allowed to take his final exams, but not allowed to graduate. Later, after he brought suit, a judge ruled that Duke could not expel him until the results of the trial were known. Unless the case is settled out of court, the trial should take place next month at the same time as the “roofie” incident is being investigated.
The McLeod case is a complicated he said/she said situation which hinges on whether or not the accuser was “incapacitated.” The Duke committee found that she was; McLeod says she was not and that witnesses who could have substantiated McLeod’s claim were not allowed to testify.
I believe the sentiment surrounding the McLeod case – positive or negative – will impact the way the college investigates and adjudicates the Alpha Delta Phi case, even though the circumstances are very different.
http://www.avoiceformalestudents.com/wp-content/uploads/2014/06/Lewis-McLeod-Complaint-against-Duke-University.pdf
http://www.indyweek.com/indyweek/a-duke-senior-sues-the-university-after-being-expelled-over-allegations-of-sexual-misconduct/Content?oid=4171302
I stand with Elizabeth Bartholet “an expert on civil rights and family law as well as a feminist:”
(From the Daily Beast article)
4209 Cardinal Fang: [quote] If we believe the 11% figure, we're faced with two alternatives, both unpalatable. Alternative 1: we accept the Lisak claim of serial predators. We don't say that 11% of our sons are rapists; we say that a few rapists are raping many women. In that case, colleges are doing a terrible job of getting rid of men who prey on our daughters.
Alternative 2: We don’t accept the Lisak claim. We don’t believe that most rapes are committed by serial predators. Then we have to believe that 1 in 10 of our sons are rapists. That’s a pretty horrific idea.
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How does a judge have jurisdiction over a private college’s disciplinary practices? Any school can expel someone for cheating, drinking on campus, academic reasons - there was even a school that disallowed interracial dating. I don’t understand how they can be compelled to give anyone a degree.
Ivvcsf, why did Mitch Daniels suspend the accused student and the fraternity? The accused hasn’t been convicted and this is not fair to innocent fraternity members. What about the right to be presumed innocent?
This is from a few pages back, but I was thinking about it. I think I would have the same problem expelling such a student if the proof problems were similar to those in some of the sexual assault cases.
Here’s a imagined fact pattern: Joe and Jim are identical twins. Tom was beaten up by one of them–we know it was one of them, because the assault was caught on a security camera. Neither one has an alibi, and they always dress the same. The only other piece of evidence is that Tom had an argument with Jim about who was likely to win the Super Bowl, about a week before the incident.
So if you were the decision-maker, would you expel Jim? Both Joe and Jim deny having done it, and neither one seems more credible than the other. Jim says the argument over the Super Bowl was trivial, and that he would never beat up somebody over something like that.
It occurs to me that if this were a rape case, even DNA evidence wouldn’t help.
This is kind of a silly example, but it’s intended to show why I am uncomfortable with the preponderance of the evidence test. With the preponderance of the evidence, a factfinder’s decision to expel Jim would hold up on appeal–they only had to find that it was slightly more likely than not that he was responsible.
I don’t like really close cases with high stakes–there are too many things that can bias decisionmakers, such as the race of the parties involved.
Because the judge felt that there was merit that his rights had been infringed and that denying giving him his diploma so he could start his job breached, violated, or otherwise deprived the plaintiff of material rights. People have rights, material and otherwise, (like 4 years of tuition and 4 years of work toward that degree) and colleges cannot arbitrarily make decisions to take away those rights. That is the point some of us have been trying to make especially in cases where a college uses expulsion as the outcome of adjudication. The adjudication has to be legally immaculate. in totality. If he loses the trial which should be determined sometime this year, then Duke could rescind the diploma, but the judges ruling signals that the young man has a pretty solid case against Duke. One thing i believe with certainty is that colleges are not going to be able to be arbitrary about evidence and testimony and who and what they allow to be presented. This seems to legally hang up college after college. That smacks of presumption of guilt rather than presumption of innocence and that won’t fly in a court of law.
Sorry forgot to address the heart of the original questions. There is a legal implication that has been upheld in legal history that “private” colleges are still required to comply with civil liberties because of their function and because they disperse federal funding.