Really it depends on how good your lawyer is and how well they can read the judge … sad to say.
I believe that college’s should suspend their investigations and hearings until after the police and courts have completed theirs one way or another. Even if colleges officially allow the respondent not to answer questions, silence often turns out to be a negative in the eyes of the panel or investigator. (See the Joshua Strange case I referenced in point #755)
Rigorous questioning is so much a part of getting to the truth in any inquiry. When you read the transcripts and reports of college hearings it’s obvious that neither the respondent nor the panel has the skill, experience – or sometimes in the case of the panel, the motivation – to probe the complainant or the witnesses. So much pertinent information is left unsaid and undiscovered.
Yes, I agree with you momrath. But I ram ealistic enough to know that step one is to secure a lawyer no matter if you are the accuser or the accused. What that says is nothing more than societies are complex and no one should go it alone. I agree that no matter what you read it is clear that non-judicial organizations do not have to ability to investigate, secure subpena level information and interview with the skills that the professionals have.
Once again, I point out that the Vanderbilt rapists’ conviction didn’t happen until 19 months after the rape. Do you think Vanderbilt should have allowed those rapists to remain in their school?
I agree that any student involved in a college sexual assault case – respondent or complainant – should get a lawyer, pronto. However, there are complications both financial and procedural. If the college won’t absorb the cost (and I have no idea how many will) then the legal fees can be impossible for some families. Some colleges don’t allow lawyers, period, and some (I would guess most) don’t allow lawyers to question the complainant, the witnesses or the investigator or to participate in an active manner in the proceedings in any way except to confer quietly with the accused. So the questions are not being asked and answered as they would be in a courtroom.
What if the “rapists” weren’t rapists? UVA suspended all campus fraternities over the fraudulent UVA rape story. Guilty until proven innocent…
I think there are procedures that would either get the alleged perpetrators off campus or separate them from their alleged victims. For example, a college could automatically suspend a student who has been indicted for a violent crime and re-visit the suspension once the legal decision is made.
I think I agree with you but the Devil’s Advocate side of me wonders how people would answer the following question if I just change one word from your query:
“Once again, I point out that the Vanderbilt rapists’ conviction didn’t happen until 19 months after the rape. Do you think law enforcement should have allowed those rapists to remain in the community”?
So if you agree with “innocent until proven guilty” then you should answer yes to both questions. I also think it is easier in hindsight to say that the school should have kicked the kids off campus. Do you kick off anyone who has an accusation against them? Do you hold a hearing even though you will not have access to most of the evidence in the case?
Like I said, I tend to agree with you but I am conflicted.
I agree that it’s difficult to devise procedures that are universally fair. I wouldn’t immediately suspend on the basis of an accusation nor would I wait for a conviction, but I would be OK with a suspension if the alleged perpetrator were arrested. If the criminal case goes forward then the suspension could hold until the verdict was known. If the criminal case doesn’t go forward, then the college could proceed with their own investigation and hearing.
Not ideal, I know, but I think preferable to forcing alleged perpetrators going through two simultaneous trials for the same crime, even if one is a college hearing. The college would actually benefit from the police investigation and the trial proceedings.
The other option of allowing one party to maintain silence at a college hearing means that one side of the story is never heard which can’t help but prejudice the outcome, especially if lawyers aren’t allowed to speak on their clients’ behalf.
I just got an inquiry about serving as an expert witness in one of these lawsuits against a university. I’d be testifying about the likely impact of a sexual assault expulsion on graduate admissions. I’ll keep you posted if this becomes a part of my practice.
@Hanna: That would be quite interesting.
I am putting this in this thread. There are enough sexual assault threads.
3 female students are suing my old school.
What’s interesting is it looks like one of the guys was convicted of felony assault.
This link has the lawsuit.
http://www.dailycal.org/2015/06/29/sexual-assault-survivors-file-lawsuit-uc-regents-uc-berkeley/
http://www.sfgate.com/bayarea/article/3-women-sue-UC-Berkeley-alleging-sex-assault-6356471.php
Interesting. The fact patterns of the cases are wildly different. I don’t know if I would have combined them in one lawsuit.
My favorite part of that lawsuit is how this lecturer allegedly came up behind the complainant, put his hands in her underwear and massaged her genitals. And the representative of Berkeley allegedly asked how the lecturer was supposed to know his conduct was unwelcome. Indeed. Who could possibly know that walking up to a strange woman and sticking your hands in her underwear would possibly be unwelcome? It’s a mystery.
Yeah… And John Doe was known to cause some problems. A few people are going to testify under oath and they are going to be squirming. I don’t think my school is looking too good.
When you report to your boss that someone assaulted you, and your boss says, “Oh, was it John Doe?” and it was, you know there was already a problem before you set foot in the place.
John Doe reminds me of the star of the soap opera in Tootsie. I think the character was a doctor and he had trouble keeping his tongue in his mouth during kissing scenes. John Doe is worse.
That exact response happened to me once when I was in – of all things – a lawyers’ theater production my first year out of law school. This guy was grabbing my waist during a chorus number on stage. I went to the directors and they said, “Oh, John Doe? Yeah, he’s always after the young ones.” Problem solved with a swift backwards kick the next (and last) time it occurred, but I lost all respect for the leaders of the group that they knew about Mr. Hands and didn’t get rid of him. That was the last time I was in that show.
A positive development out of California: A trial judge has ruled that University of California San Diego’s disciplinary board hearing was unfair to John Doe, a student found responsible for sexual misconduct, mainly because the university limited the student’s due process rights.
This is the judge’s decision:
http://www.avoiceformalestudents.com/wp-content/uploads/2015/07/Order-John-Doe-University-of-California-San-Diego-due-process-sexual-assault-filed-2015-7-10.pdf
Though this is just one case at one college I think it’s significant that Judge Pressman ruled that
“People involved in an administrative proceeding have a right to cross-examine witnesses, this right ‘is considered as fundamental an element of due process as it is in court trials.'” In the Vassar / Peter Yu decision, Judge Abrams found that since Vassar followed its own policies, it didn’t violate the Yu’s due process rights. Judge Pressman seems to argue differently: that since UCSD’s policy was unfair, so was their finding.
The Judge referred to several due process issues which are endemic to many of the cases that have been discussed in this thread.
John Doe was denied the right to cross examine witnesses, both his accuser and the 14 witnesses interviewed by the investigator who compiled the report that the panel relied heavily on in their decision.
John Doe was also unable to confront the investigator since she didn’t attend the hearing.
The committee chair asked Roe just 9 of the 32 questions that Doe had submitted and denied him follow up questions in response to her answers. Questions to Roe weren’t reviewed by the chair at all.
The chair did not allow the board to consider pertinent emails between Doe and Roe or their continuing sexual relationship following the act that Doe was accused of.
The panel held Doe’s 5th Amendment right of silence against him
The judge criticized UCSD’s decision to increase John Doe’s penalty when he appealed (twice)
Judge Pressman also weighed in on the issue of consent to an isolated act within the context of a continuing sexual relationship. I think this will be the most controversial part of the decision.
“Judge Abrams found that since Vassar followed its own policies, it didn’t violate the Yu’s due process rights. Judge Pressman seems to argue differently: that since UCSD’s policy was unfair, so was their finding.”
Hard to know how much the different finding was influenced by the fact that one is a private school and the other public. There are a lot of ways private schools can treat their students that public schools can’t.