@“Cardinal Fang” of course we haven’t stopped prosecuting murder. But a deeper understanding of forensic evidence has led to an evolution of the use and persuasiveness of such evidence in murder trials. The system adjusts. It is organic.
In the same vein, I don’t believe I have heard anyone say that we should stop throwing rapists of campus. Indeed, I would venture to guess that for anyone convicted of rape, the question of whether they can make their Political Geography (my favorite class as an undergrad) lecture next Thursday is probably pretty low on the list of concerns. What we are talking about is whether in a situation involving conduct not likely to lead to a conviction in a criminal court, and with a sanction less than the loss of liberty, does the college tribunal system as constructed under the Dear Colleague letter and OCR guidelines provide a reasonable degree of access for the accuser as balanced against a reasonable degree of protection for the accused.
Speaking personally, I do not think using the rhetoric of the criminal law, relying on statistics that are definitionally not tracking provable criminal conduct, or frankly relying on anecdotal reports about discrete cases is helpful in that effort. I think it is instead inflammatory. It is my sincere hope that as my own kids head off to college over the next couple years that sober minds prevail and that the current system is just a first, flawed effort to make things better rather than an effort to score political points. But I find I grow more jaded the older I get.
Several people, including @momofthreeboys, @northwesty and @TV4caster, have said that colleges should stop adjudicating sexual assault accusations entirely, in favor of leaving it to the police. I think @Demosthenes49 is also in this group, though I may be mistaken. If colleges stop adjudicating sexual assault, then how can they decide to throw out rapists? If there is no adjudication, there is no mechanism to throw out rapists.
It would be possible to expel students convicted of rape, but that would be almost useless. By the time the offender gets convicted, he’d already have time to have graduated.
Yes “sexual assaults” that are CRIMINAL…I have no problem with colleges requiring counseling or mediating male/female relationship on alcohol abuse issues. I think colleges would always have a “mechanism” for dealing/suspending/expelling kids sitting in a jail cell or charged with a felony criminal sexual conduct charge don’t you think? If they aren’t found guilty then again there is no mechanism needed - they have been found not guilty. As far as misdemeanor charges, there are plenty of kids walking around campuses in the US with misdemeanor charges.
Aren’t all sexual assaults criminal? For example, boob-grabbing (of a stranger) is illegal, but the police are not going to prosecute it. But surely we want the college to show the door to the serial boob-grabber.
@“Cardinal Fang”: You are correct, I do not think colleges should adjudicate sex crimes. I do not think colleges as institutions are capable of doing so. That does not mean the alleged rapist sticks around. Civil and family court are available for protective orders or other such solutions, also using the preponderance standard.
Colleges, however, are amateurs playing prosecutor and court. Aside from that conflict they have a vested interest in the outcome. All that combines to create a wholly unreliable and dangerous process for adjudicating disputes. Better to let professionals handle it.
What really bothers me is that posters who want to dismantle the college tribunal system offer no other alternatives. They just point to the criminal justice system and say “there you have your remedy go make good use of it.” And it is incredulous that any poster can say with a straight face that our criminal justice system serves women well when it comes to rape. It has been an abysmal failure. So really, you are just leaving women exactly where they were before and that is nowhere.
I don’t see it as a effort to score political points. Despite the usual mantra that you hear on these threads, the DCL was not a result of the efforts of a mob of modern day “Agrippina’s” looking to trip men up, ruin their lives with false accusations and run off into the sunset with some new found political power. Although the letter was signed by Russlynn Ali it was Vice President Joe Biden and Secretary of Education Arne Duncan, two men, who stood on the steps of the University of New Hampshire in 2011 and rolled the program out. Even in 2015 it is wishful thinking that women would have the power to get this program off the ground without strong support from some pretty powerful men.
Joe Biden has been a staunch supporter of women for many, many years —it was under his leadership that the Violence Against Women Act was enacted in 1994. So this issue is not new to him . Arne Duncan is certainly no slouch either and his record indicates he is willing to look at unconventional approaches to solve persistent problems. And I think it would have taken more than just those 2 to make the college tribunal system a reality. So there are also a lot of men sitting in pretty high places that think the system can work.
If the thinking is the criminal justice system is flawed then then all the advocates and protesters should be focusing their efforts on their states and municipalities. I absolutely do not believe that we, as a nation, should be establishing and setting up a duplicate or quasi judicial systems for state and local crimes “just for” elite college students who are presumably college students for less than a decade. If males are guilty then they should be prosecuted. If females have charges, then there is a system already in place. I really don’t have a problem with colleges handling non-crimes. I don’t have a problem with colleges expanding their educational scope to include counseling and education on non-collegiate topics if they can afford to do so.
I think it is very easy for politicians to give lip-service to garner favor over popular topics. But I’d love to see Joe Biden read the Occi transcripts or the Amherst transcripts or the UofM case and with an open face try to tell us that the process is fair. I’d love to hear a response from the senators regarding the Harvard Law professors thought about due process. It’s not going to happen because any thinking person cannot with a straight face say that what some colleges and universities are doing is good and just.
I’d love to hear people in political power explain to me why if the sexes are equal under the eyes of the law, there is a movement to disband that thinking and admit that only men can be responsible in a sexual liaison and only men have the ability to determine how drunk a woman is. I would be laughing all the way to my grave if some politician had the you know whats to stand up and admit that is what this is all about.
Under Important Questions To Ask About Safety:
“What kind of punishments or penalties are in place for students who are accused or convicted of crimes?”
My question is, if dismissal is not appropriate, are we making rape “worse” than other crimes? Why not let criminals who serve time live their lives afterwards?
Also - hyperfocus on college rapes and how they “unfairly target the accused”? How about this case?
@“Cardinal Fang” , I must say you are very adept at weaving your language. I doubt if anyone on this board, or really any half sane person would advocate leaving a (convicted) rapist on campus, which was your original statement. As you mention in response to my post, some people may be in favor of colleges not attempting to adjudicate allegations of sexual misconduct or assault, but I believe you would concede that this is a completely different question. This is, if you will allow me, my point. We use strong rhetoric to make a point which the facts will not support.
For my part, I agree there is a place for a college tribunal type system, but that the tribunal should stop short of attempting to determine whether conduct which would support a felony conviction if proven occurred. I think you are correct that there is some conduct which would be technically criminal (groping, etc) which a prosecutor would never touch, but can be handled effectively in a less formal setting.
@harvestmoon1, I guess it was just a happy accident that President Obama’s reelection strategy depended on things like “The War on Women” and required a large turnout among young unmarried females, a group not known for consistently going to the polls. And again, I think most people believe there is a place for the college tribunal system. The current uproar is caused by some very specific cases which are very sympathetic to the accused. When people read about that, and then learn that the current system is set up in a way which is very different from what we have all come to expect, then I think you have problems. I don’t recall hearing near this much bitching prior to 2011.
And one last point. The criminal justice system is not designed to “serve women” at all. Nor should it be. Personally, I have always found this line of thought to be extraordinarily dangerous. Once you decide to personalize the law in this way, then it is a quick step to disregarding it all together if you determine it is in your interest to do so.
That is an interesting question. The difference is, I think, a person who is charged but found not guilty should not be punished the same as a person who is charged and found guilty even if they fulfill the terms of their sentencing. Businesses make those decisions every day - whether or not to hire a person who has a felony on their record so i supposed colleges have to decide the same thing during the admissions process (if a person has a felony on their record). But kicking out a kid with no criminal record is different than kicking out a kid with a criminal record. The issue is their records are identical at the point either would want to re-enter a university - they both have an expulsion on their record. Is that fair for the kid that hasn’t been charged and convicted of a crime?
The criminal justice system is, in fact, an alternative to college tribunals. It just happens to be one you don’t like. I’m also concerned by your statement that the criminal justice system “doesn’t serve women.” Serving people is not the aim of the criminal justice system, criminal justice is. Perhaps you meant something a bit different, so I will not read into it before giving you opportunity to expand.
@Ohiodad51: I’d be interested in your response to the concerns I raised earlier in the thread about college tribunals. Namely, that they lack process powers such as the ability to subpoena records or compel testimony, that they are investigated and adjudicated by amateurs, that the college acts both as prosecutor and as judge, and that the college necessarily has a vested interest in the outcome.
“And how many cases are there with the accused suing in civil court? 24? And the accused don’t all win their cases.”
The vast majority of young men who feel that they were wrongfully expelled do not sue. Suing is hugely expensive, and these aren’t cases lawyers will take on a contingent fee basis. Typically, the goal is to clear the student’s record and money damages are not significant. So only rich families can even consider suing. Within that group of rich families, many choose not to sue, and the biggest reason is that lawsuits are public. Most courts won’t allow the plaintiff to proceed as a John Doe, so suing associates your name with sexual assault forever, even if you win.
The vast majority of young women who are raped in college don’t sue the accused, either, even though most of them could state a claim in a civil action. Same set of reasons. The upshot is that looking at the number of lawsuits doesn’t say much one way or the other about the extent of the problem.
You put the word “convicted” in there, not me. I think that Vanderbilt should have expelled those four rapists the minute they saw the videotape; they should not have had to wait 19 months for the first two to be convicted in court. And in point of fact Vanderbilt DID expel the rapists many months before they were convicted.
Do you think they should have waited until the rapists were convicted? Kept them around, kept them on the football team? They were out on bail. They would have been free to go to classes and play football.
A serial boob grabber probably needs the education portion of what colleges and universities could offer. Although I prefer a good shove and a few expletives by a few women to a therapeutic analysis.
I share a number of clients with a law school classmate and former prosecutor who now practices in this area. His hourly rate is higher than mine, and I’m not cheap. Granted, he’s one of the best in the country, but these aren’t easy cases; I wouldn’t bother to sue unless I could hire a quality firm.
@demosthenes49 I share all of your concerns, and have significant problems with adjudicating potentially serious criminal conduct when that adjudication can lead to a serious consequence. I am also concerned with the potential “queening of the pitch” that could occur in a case that should actually be investigated by the police. I believe there is a lack of appreciation in how much damage is done by accepting claims that are made months or even years after the fact. As you know, when people do not promptly report a rape, or at the least seek some type of treatment, obtaining a conviction becomes virtually impossible. I think these tribunals, as they are currently run, could potentially lead to the mindset we saw expressed in the Columbia case where the accuser found it too tiring to deal with the police. If people decide not to report things, there is really very little the cops can do other than station an officer in the hall of each dorm and randomly walk in on people having sex.
That said, since we live in a time where we expect colleges to stand in loco parentis, I am ok with a system that seeks to address boorish behavior, or maybe technical misdemeanor sexual touching or the like. I worry less about process when the sanction on the table is getting ripped by the dean, going to sexual awareness classes, or being barred from certain on campus facilities for example. But once there is an allegation of felony conduct, the college should report it and get out of the way. We absolutely agree about that.
I do think that posters like @“Cardinal Fang” or @HarvestMoon1 have a point that there is a problem with non consensual sexual activity, particularly with the failure to appreciate the effects of alcohol and drug use. I just think that colleges should deal with that from an education rather than punitive perspective.
A few posters think going the civil court route is a viable solution. That is true for only the very few.