This sounds like a pretty good reason to encourage further police training. It doesn’t offer much support for the Professor Cop thesis though.
You mean it doesn’t result in convictions where you nevertheless feel it should?
@Ohiodad – yes actually you are correct. Judge McFadden is an appellate judge who was sitting as a trial judge for that particular case. My apologies for the inaccuracy. But the quote is in fact his. And now I imagine that the plaintiff’s attorney is left appealing that decision to a court of appeals on which he sits.
@mom12345, My understanding of the cases filed is that the plaintiffs are disputing the Title IX process, not the decision. My understanding is also that pursuing cases that challenge the process is the best way to get the process changed over time.
I agree that KC Johnson has an agenda. (Most everyone writing on the topic has an agenda.)The value of reading and following the links in Johnson’s piece on Amherst is that it includes a transcript of an actual hearing and other supporting documentation. This documents are not opinion – this is what happened.
Of course A Voice for Male Students has n agenda (Duh!) but they are also the most convenient source for the legal documents – the complaints, the decisions. Obviously the complaints are one sided, but they do illuminate the fault lines in the adjudication procedures. Only by reading the complaints can you understand the problems from the point of view of the accused.
I wrote that “10 (cases) have been settled out of court or found in favor of the plaintiff.” This is just in 2014 and 2015. I stand by that figure. If you go back to 2013, it might be greater.
I understand that cases can be settled for ambiguous reasons. Actually, I think the impact of each of these lawsuits taken singly is minimal. The impact will be felt in the aggregate: either policies and procedures will change or they won’t. Let’s see what happens in the next 33 cases.
I am one that would like to see all felony sexual assault cases handled by the courts, not the colleges. I believe there are solutions that would make the courts more effective and more responsive to alleged victims. We have seen seismic shift in how the courts handle sensitive issues like domestic abuse and child abuse. I believe – with collaborative pressure from colleges and advocate groups – the same is currently happening with rape cases and will continue to improve…
I also recognize that the Dear Colleague mandates are not likely to disappear any time soon. In that case, I would like to see the procedures and policies revised (evolved if you like) to include more due process rights for the accused.
To start, all colleges should guarantee that both parties have access to lawyers, even if the schools have to pay for them. They must also allow the lawyers to do their jobs, which means the ability to cross examine the accuser, the witnesses and the investigator. Reading the transcript makes me cringe. There are so many questions I would have wanted to ask the accused and the witnesses – and I’m just a lay person!
I would also like to see a separate appeals panel/tribunal. In many cases the appeal is decided by the same group that handed down the initial decision. Allowing the accused to appeal a decision to smacks of double jeopardy and I don’t think this should be allowed, unless significant additional information is uncovered.
@harvestmoon1 you better believe it sucks trying to appeal a decision of an appellate judge “sitting by assignment” in a trial court. I am trying to figure out how to tactfully do that in a state court case sitting on my desk this very moment 
And again for clarity, in that case the prosecutor has to decide if he or she wants to appeal Judge McFadden’s decision not to recuse himself from presiding over the new trial. Don’t know how it works there, but in the courts with which I am familiar, that is a tough appeal even if you are not arguing it to the Judge’s regular colleagues.
“It’s kind of silly for a college to get a restraining order banning a student from campus without expelling them.”
I don’t know about that. A restraining order is inherently about the here and now. They are regularly issued to keep the peace while a court figures out the facts. They can readily be lifted or altered. Expulsion is about the future. It’s a conclusion, a consequence, and usually a permanent one.
I’m not “pretending” any such thing. Does every statement have to be girded about with every possible caveat?
@Ohiodad51 KC Johnson clearly has an agenda demonstrated by his blog ‘Minding the Campus’. Other sources not driven by idealogical propaganda? http://unh.edu/unhtoday/2015/02/change-0 http://maloney.house.gov/media-center/press-releases/bipartisan-coalition-of-house-members-introduce-campus-accountability
Would a TRO have to be campus-wide or could it just be something like “100 yards away at all times”?
That would depend on state and local law, but broadly speaking, a TRO might say almost anything. It could ban a person from a particular building, from a wide area, from approaching some other person who presumably moves around, etc. There could be a TRO that just says you can’t go in this dorm, etc.
However, colleges don’t need an actual court order to set up rules like this. I have a client who was found not responsible by his college, but until the result was decided, the college had TRO-like rules for both parties that kept them away from each other’s dorms and classes and specified different hours when each could eat in the dining hall and use campus common spaces.
- What is your agenda? Did you join this website just to post in this thread? Honest question.
- It is interesting that your portray protecting constitutional rights as somehow a bad thing and "idealogical propaganda"
@Ohiodad I think I read that McFadden in the end did voluntarily recuse himself. I have no experience with trying criminal cases, but it was a revelation to me that a Judge could unilaterally overturn a jury verdict. I thought that was done in extremely rare circumstances where no reasonable jury, after considering the evidence presented, could have found the defendant guilty. Doesn’t appear to fit the bill in this case.
Expulsion isn’t necessarily permanent.
But if a college is using a restraining order as a suspension, to remove the student entirely from the campus for a time, why wouldn’t they just use a suspension? A restraining order, it seems to me, would be more appropriate when the two parties need to be kept apart but the restrained student is still allowed to be on campus.
Well, my feeling is that if someone has waited for a year or two to decide that their drunken sexual encounter wasn’t “consensual” and therefore was “rape,” that there is no need to suspend the accused.
If an accuser promptly goes to the police, has a rape kit done, and there is physical evidence of rape/assault, then there is a clear need to protect the accuser from the accused.
What to do about cases in between those extremes is more difficult.
What if they didn’t wait a year or two? What if they wanted to press charges as soon as they became aware of the video? What if they wanted to press charges as soon as they became conscious and the police told them about the situation they were found in? Should those accused students be suspended? Under what judicial system would they be suspended, if the campus system doesn’t handle alleged rapes?
- I don’t see how that is relevant.
- Universities are well within their rights to impose/enforce behavioral standards that are more strict than criminal behavior standards. If/when universities determine that a student has not adhered to these standards, universities have the right to suspend/expel/discipline. Students can/should decide to attend/not attend universities who's behavioral standards and disciplinary proceedings don't fit with their desired behavior/beliefs.
@mom12345: You are not necessarily correct when you state that “Universities are well within their rights to impose/enforce behavioral standards that are more strict than criminal behavior standards.” Universities operate under a fairly broad spectrum of laws, and differently set up universities have different requirements. State universities in particular cannot deviate much, since they too are bound by the Constitution.
@“Cardinal Fang”: No, the student should not be suspended. A court could look at the evidence and grant an immediate TRO, however. The college may also be able to enact reciprocal stay-away orders without running afoul of due process concerns.
People are arrested. Some can’t post bail. That means people are sitting in jail and haven’t been convicted yet.
A school can suspend.
@CardinalFang, are you ignoring the rest of my post? Or are you citing hypothetical cases in the middle ground?
@Consolation, I agree that some (probably most) cases wouldn’t demand an immediate suspension. But I say that some would, and I see no reason to substitute a temporary restraining order for a suspension. Colleges have the right to enforce conduct regulations, and egregious violations should be punished with suspensions and/or expulsions.
Technically, a Judge is supposed to determine whether there is sufficient evidence on each element of the underlying crime to support the conviction. Usually they revolve around whether there was enough or any proof of a discrete element of the claim, rather than just a blanket decision that the jury got it wrong. While you are correct that, particularly in the civil context, granting motions for a new trial are rare, I am coming to learn that they are not unheard of in the criminal context. Assumedly this is because of the heightened burden of proof and the increased specificity of some of the elements. For example, I handled a case a few years ago that grew out of a state court’s decision to overturn a jury verdict for drug trafficking. In that case, the Judge determined that the State did not produce sufficient evidence that one of the people convicted had constructive possession of the drugs which were in the trunk of a car in which he was a passenger. Basically, the court said that because the State couldn’t prove that the guy drove, or had keys to the car, he couldn’t be found to have constructively possessed the drugs. I just didn’t see enough in McFadden’s comments in his case to know what he actually did. Again, I think the over sensationalized reporting does harm to a fuller understanding of the issue, which impedes the most efficient solutions.
Having an agenda is different than having bias. Virtually everyone writing on this issue has an agenda. That is one of my biggest problems. An agenda is publishing stories that highlight the flaws in the current system, which I agree Johnson does. Bias is taking a study which collects data from co eds about unwanted sexual touching and publishing it under a headline that calls all of the conduct described rape. And a group of politicians do not have an agenda? Please.
If you are supporting @dstark’s argument, then in his example there has been no violation at all. Just an accusation. I find it hard to believe that any of you actually believe that a woman should be able to get a guy kicked off campus just for sh$ts and giggles. The point of a TRO or a civil protective order, or a bail hearing for that matter, is that there is at least a summary process before a neutral judicial officer that determines there is some reason to believe the allegations being made.