@CardinalFang, in the absence of the kind of obvious evidence that we agree should result in immediate suspension–video, witnesses to violent assault, DNA, rape kit, police report, and so on–this kind of compromise seems reasonable to me:
It presumes innocence, and it is even-handed. Obviously, the level of complication and difficulty involved would depend on the individual situation: possible shared classes, dorm locations, size of campus, etc.
Ok, so you and I agree then. In most cases, accuser and accused should be kept apart until the process is completed; an immediate suspension or expulsion would only be appropriate for egregious cases like the Vanderbilt guys. Usually colleges accomplish this separation without a legal restraining order.
@Demosthenes49 You are not correct when you state “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.”
See: https://conduct.wsu.edu/media/1330/parents-guide-to-the-student-conduct-process.pdf. Here’s an excerpt from Washington State University conduct procedure .pdf:
“The courts have consistently stated that even where a student is facing
expulsion from the institution, the process that is due need not be as elaborate as the process that
would be due in a criminal hearing. Thus, students facing disciplinary action from their institution
generally are not entitled to have an attorney represent them, to cross-examine witnesses or have an
appeal unless the institution’s conduct code allows for these procedures.”
In other words: Students accused of conduct violations do not face prison time and criminal repercussions. They face suspension, expulsion, etc. These conduct based repercussions are obv. not as severe as criminal consequences thus the due process required for conduct violations should not be compared to the due process required in criminal proceedings.
@momrath, your statement: ‘I am one that would like to see all felony sexual assault cases handled by the courts, not the colleges.’
…What about sexual misconduct that violates university conduct standards, but does necessarily meet a criminal felony definition? Shouldn’t Universities be allowed to set and enforce their own conduct/behavioral standards and impose consequences when those standards are violated?
mom12345, I think you meant to write “does NOT necessarily meet a criminal felony definition.” Yes, of course, I understand that “colleges need to set and enforce conduct/behavior standards” and that they have the right to “impose consequences when those standards are violated.” Cheating and plagiarism are often used as examples of misconduct that the colleges must address.
Sexual assault is a different situation and as this thread and the several others that have garnered a good deal of heated discussion demonstrate, we’re sailing in mostly uncharted territory. I certainly don’t have the answers for the thorny questions: where do we draw the line? what to we call the various acts? how to we separate the accused from the accuser? How drunk is too drunk to consent? and many others that have been raised.
But . . . I feel strongly that it’s always a mistake to create another problem in the effort to solve the first one. And that’s what I feel that the OCR’s Dear Colleague rules have done. In effort to protect the accusers, the rights of accuseds have been trampled.
In answer to your question, the definition of felony sexual assault and rape varies from state to state, but in general yes, I think if the complaint involves acts that would be punishable by significant prison time, then the case should be handled by the police and the courts, not the colleges.
Well, I’m a lawyer and I looked up the relevant law before I posted, so I’m going to go ahead and stick with what the case law says. You’re right that the due process considerations in criminal court are not the same as those in a state university proceeding. Of course, I never said otherwise, so I’m not really sure why you made that point, but you aren’t wrong.
State universities are bound by the Constitution and cannot deviate from it. It gets tricky in two areas: first, the Supreme Court has set out minimum requirements and said that harsher sanctions require greater process, but hasn’t actually explained what process is due. Second, most of the relevant cases deal with high schools and not colleges (there are lots more high schools and high school students, so they generate more cases). While the protections actually increase in college compared to high school (college kids are adults so the state interest in paternalism goes away), again the courts have not explained what process is due. I imagine this is especially frustrating for colleges as they really have no clear guidance on how to act.
I think that is why some lawsuits, among other complaints, include breach of contract.
@momrath, you state “if the complaint involves acts that would be punishable by significant prison time, then the case should be handled by the police and the courts, not the colleges.”
That’s not what was asked. When sexual misconduct is defined by a university as targeting vulnerable drunk freshman for easy sex,disciplinary consequences for that violation can be suspension/expulsion, etc. However, that predatory behavior is obv. not a felony and would not be prosecutable by criminal law enforcement.
Hardly any rape cases qualify, then. Hardly any cases that are handled by the police result in significant prison time. From 2005-2009, only 4.6% of rapes reported to the Los Angeles resulted in any prison time, and 7.9% of rapes reported to the Los Angeles Sheriffs Department resulted in any prison time. Relying on the police and the courts to punish rapists means letting rapists go free.
Which is also breaking the law - typically freshman are not old enough to be legally drinking. Fix the problem don’t look for a work-around. That said, if I were a college I would keep close track of multiple accusations of a male from women who do not know each other. It’s not unknown that there can be a small number of predators within a population. That is very different that casting a wide net of guilty until proven innocent, lack of investigation and negligence just hoping to catch a predator.
@momofthreeboys “casting a wide net of guilty until proven innocent, lack of investigation and negligence just hoping to catch a predator.”
Campus investigations, discipline hearings, and rendered decisions does not equate to your description. Students should read/sign the conduct standards documentation beforehand and not attend universities who’s conduct standards are too strict/unreasonable for their liking. If they choose to attend they are accountable when they violate documented conduct standards.
Don’t disagree, but conversely no one should be making claims that are dubious or being charged with actions that are dubious. Freshman girls also can presumably read…and men and women under the age of 21 are breaking rules when they drink. Focus on the originating problem. End runs are risky decisions.Confuscating poor behavior and decision making and honor code violations with criminal labels and knee-jerk actions is never acceptable.
@“Cardinal Fang” do you really mean to assert that every report of conduct described in that study as an alleged rape actually occurred? Is it your position that there is no need for an adjudicatory process at all?
@mom12345, how are you going to define “targeting vulnerable drunk freshmen for easy sex”, so that young men can make a reasonable decision whether to attend that school? Also, are you saying that there should be no Federal standards in this arena, and colleges should be free to set whatever policy best suits that community? I maybe could agree with that.
@Ohiodad51 Unacceptable Conduct is well defined these days at most Universities. Here’s 1 example: http://policy.ucop.edu/doc/4000385/SHSV Googling conduct policies at specific universities should answer your question. Agreed that my characterization of ‘targeting vulnerable drunk freshman…’ is vague, but University conduct manuals are not.
Universities are only accountable to Federal Standards when Federal Title IX funds are involved, correct? Otherwise aren’t they free to set their own policy?
@mom12345, here is one example of what I am talking about. The policy you linked to says that a person can not consent to sex if s/he is subject to threats, violence or other forms of coercion. What are these other forms of coercion? The devil, as they say, is in the details.
The heart of the problem, to my mind, is that we are trying to proscribe grey area conduct, not just stark examples of sexual assault. This is done by using broad language, which is then subject to the interpretation of the adjudicating body. What many of us are saying is that colleges just are not equipped to make those interpretations in a regular, predictable fashion. This is particularly true because this entire area of expanded disciplinary hearings is very new. I personally believe that this will even out over time, as the courts weigh in on various aspects of the issue, and new rule making occurs. Bluntly, this is how the sausage of the law is made. As a lawyer, I would just prefer that it move more cautiously, which is generally how the legal system moves. Instead, OCR jumped way out in front of this and has been very aggressive. The push back we are beginning to see is the result of that, and in my opinion, complicates the process.
And Title IX applies to any school which accepts federal funds over a certain minor threshold. I believe it covers virtually every college in the country. As I said up the thread, when even Harvard and Princeton knuckle under, it will give you an idea of the position most normal schools are in.
“Hardly any rape cases qualify, then.”
Sure they do. “Punishable by years in jail” and “usually punished by years in jail” are different things. If a student claims forcible intercourse, that’s a felony punishable by years in jail, regardless of how frequently a jurisdiction actually makes it happen.
I don’t think it’s a negative for every college or universities to tell its incoming class to step up their behavior and act like responsible adults. But I think it behooves the institutions to hold all students accountable for their individual behaviors. I don’t see this as entirely a gender based or gender biased issue. I think college and universities are perceiving this as a gender biased issue.
No I don’t, but those were rapes reported to the police. If we make a generous estimate that 10% of the reports were false (she made it up) or baseless (she thought she was raped, but she was wrong), that leaves 90%. If 90% were true, and only 5% resulted in prison, then that’s 95% of the true rapes not resulting in prison time.
Do we know of any statistics that show the breakdown in the above quoted statistics (or any similar ones) that list convictions by category? (eg- stranger rape, marital rape, acquaintance rape, etc)
I would assume that the conviction rate is the highest in forcible stranger rape but I would guess it is still pretty low because of a lack of evidence when a rapist is careful and doesn’t leave DNA etc.
I would guess that acquaintance or marital rape rates are higher but have no idea.
In attempting to find some statistics online I came across an article in The Guardian, a Pulitzer Prize winner from last year. It is interesting, as well as pertinent to the discussion about conviction rates and “victim blaming”.