Can someone give a cite for the crazy college that said someone couldn’t consent after three drinks? I’ve followed a lot of Title X discussions here but not heard about that case.
I know of a very large number of break-ups that did not involve Title IX allegations at any point. I think that is a lot less common than women being raped on campus (whether or not they report it).
“That’s not really Title IX, though, iaparent. That is Title IX + malice on the part of the woman + not very good investigative procedures on the part of the specific Title IX office.”
I’m only interested in laws as they are or can be enforced. Title IX typed on the pages of a law book doesn’t protect anyone. Title IX operates in a world with lots of malicious people (and wounded people, mentally ill people, etc.). Title IX operates in a world where university staff members lack the training and experience and independence we expect of good detectives. That’s the only world we’ve got. So if Title IX doesn’t work well around malicious people and amateur investigators, then it doesn’t work well, period.
I think in the past unis have kicked out all kinds of males without rationale. Look at the Drake case where the female admitted she sexually assaulted a male. The male was kicked out. There is case after case after case. And more often or not the colleges are settling or losing in court because their systems are not fair and not equitable. So how many sacrificial males can’t afford to sue? We will never know. And even cases made famous through advocacy efforts have fallen apart under close scrutiny. So maybe just maybe the unis catch kids who genuinely assault helpless females with their wide discriminate nets and do so without police and prosecutors but our country and it’s courts are not on any level going to stand for a system that is not fair and equitable and appropriate. And in my opinion that is only right and just.
There is really no reason that a Title IX office could not operate competently. The bad cases reported here could have been handled reasonably and expeditiously by a decent Title IX office, of which there are some.
The fact that some of the Title IX offices operate poorly does not mean that the fault is in Title IX per se.
The application of Title IX to sexual assault and the issues of poorly operating Title IX offices would not have arisen, had it not been for the underlying fact that women are raped on college campuses in unacceptable numbers, and rape interferes very seriously with their educations in most cases when it happens. Despite the Title IX offices, there are many women who are raped and have no recourse, either through Title IX or through the courts.
I have reconciled myself to the fact that women who are raped often will have no recourse at all, as the cost of justice, to avoid penalizing men who are innocent.
However, I would like to see the universities offer better support services to women who are victims. As far as I have observed, often universities do not offer these services to the extent that they are really needed.
My spouse often observes that “hard cases make bad law.” That seems to be characteristic of many of the cases being discussed here, including cases where both parties are too drunk to act reasonably. It seems to me that part of the fault in those cases lies with the alcohol providers, either bars that accept phony IDs, or older students who can buy alcohol legally and provide it to people who cannot buy it legally. Are there states where the drinking age is 18? Or are most of the states like mine, where it is 21? Was this issue raised in the original article?
21 in all states in the US since 1996 or earlier, but some non-state parts of the US have lower drinking ages.
Why does it have to be one or the other? It doesn’t empower women to willingly sacrifice innocent boys because some boys are probably guilty. That’s why we have courts and trials instead of just locking people up – to try to determine who’s guilty and who’s not, and that’s where these cases belong. Not in the hands of an organization that has a vested interest in the outcome.
“There is really no reason that a Title IX office could not operate competently.”
I think it CAN be done, but it costs a fortune, which makes it unlikely to be done outside of schools like Stanford that have effectively bottomless budgets. Both accused and accuser need access to lawyers when assault is alleged. Investigators and decision-makers need to be actual professionals, not math professors/students/financial aid directors who are volunteering after a weekend course. Investigators and decision-makers need to be neutral, not incentivized to protect their employer, the university. The university’s interests may be aligned with complainants or respondents, depending on the circumstances, but are not generally aligned with seeking the truth.
There is no cheap and easy way to reach the truth of an allegation of a violent felony.
Are you talking about the great criminal justice system that catches a guy in the very act of starting to rape an unconscious woman, and puts that guy in jail for only three months? Is that the great criminal justice system I am supposed to rely on to right the injustices of rape?
The criminal justice system that put a wire on a woman, recorded Harvey Weinstein harassing her, and refused to prosecute? That’s the justice system I’m supposed to trust?
The justice system hasn’t exactly covered itself with glory, and has done virtually nothing to find those guilty of sexual assault. Relying on the justice system is the same as letting men continue to rape women with virtually no sanction.
“Are you talking about the great criminal justice system”
I’m sorry, were you addressing me? Can you quote where I said anything about the criminal justice system, positive or negative?
Since you brought it up, though, the criminal justice system costs billions of dollars, is run by professionals who spend their entire careers in the field, provides free lawyers to indigent participants, and STILL gets it wrong much of the time. That set of facts should not make us confident that weekend warriors can do better on a fraction of the budget.
Please let me know if/how you disagree with my conclusion, which is:
“There is no cheap and easy way to reach the truth of an allegation of a violent felony.”
I was addressing @austinmshari in #66, who said we should rely on courts and trials. Which is the same as saying, “Oh, sorry all these women are getting assaulted on your campus. We will do nothing. The court system will also do nothing. Oh well, boys will be boys.”
I see no reason why we should rely on a standard of “beyond a reasonable doubt” for expelling students for assaulting other students. That seems unduly stringent. “Oh, we’re 90% sure that he raped her, but hey, let’s let him stay on campus because we’re not absolutely certain”? This is the plan?
“Oh hey, that kid was caught thrusting on top of a naked unconscious woman. Let’s wait fifteen months to see if he happens to get convicted. Meanwhile he should stay on campus.” This is fair? This is just the perfect way to handle sexual assault on campus?
@“Cardinal Fang”:
“I see no reason why we should rely on a standard of “beyond a reasonable doubt” for expelling students for assaulting other students.”
But that isn’t the Title IX standard, is it?
The Title IX standard is “preponderance of the evidence,” same as for civil suits. But @austinmshari says colleges should not adjudicate sexual misconduct at all, and leave it to the criminal justice system, where the standard is “beyond a reasonable doubt.”
What about about sexual misconduct that is either not criminal, like sexual harassment, or is never prosecuted, like serial butt-grabbing? How should colleges handle accusations of that kind? Should those also be left to the justice system?
@“Cardinal Fang”, sexual harrassment is indeed criminal.
So why can’t the civil court system handle cases, then? I see @austinmshauri’s point. The college administrators handling Title IX cases may not be legal professionals or disinterested. If you or your kids were involved in some case involving sex, would you like nonlegal professionals who may have a motivation to lean towards one side to act as prosecutor, judge, and jury?
I’d appreciate it if you wouldn’t put words in my mouth. If I had meant to say “boys will be boys,” that’s what I would have said. What I said is that there are boys who are innocent – who colleges know are innocent – who are being prosecuted by the schools’ tribunals because it suits the purpose of the school.
The failings of the criminal justice system shouldn’t be an excuse to prosecute innocent boys. The evidence tribunals consider is the evidence the college staff permits the accused to present, so written threats like “if you break up with me I’ll get you kicked out of school” aren’t admissable. The witnesses the accused are allowed to call are approved by the college. The questions the accused would like asked of the witness are written up in advance and only those approved by the college may be asked. If a boy loses his case, he can appeal. The appeal is also handled by the college. They aren’t qualified to handle criminal matters and they have a vested interest in the outcome. They aren’t impartial – at all. In your estimation, the professionals who have attended college aren’t qualified to perform these tasks well, so what makes you think people who attend a weekend Title IX seminar can do a better job of finding the truth? Or does the truth not matter to you?
I’m glad you’re so interested in the failings of our criminal justice system. What are you doing to advocate changes in it?
The justice system does sometimes make mistakes…occasionally a guilty person goes free or an innocent person is jailed or a zealous investigstation runs on the assumption of guilt but the system and process is fundamentally sound and designed to check and balance each step of the way. Almost from the very first step of the process at unis…including moving accused from their living quarters or barring them from buildings etc is fundamentally at odds with what the vast majority of rights that our society believes in as one poster described innocent until proven guilty. The entire judicial system is established so that zealots and despots don’t run our society, so that everyone has the ability to get their story heard and mandatory sentencing guidelines are in place so that everyone faces relatively the same potential outcomes and goes through the process relatively the same with past, present and future societal implications considered. No it is not perfect but there is no reason to set up extra-judicial systems to circumvent what is in place for crimes.
Re #66: In my opinion, it pretty much does have to be one or the other: Either some number of women who are raped will have no recourse at all, or there will be negative consequences for some innocent men.
So I would choose the stricter standards that guarantee no negative consequences for the innocent, including no expulsion or suspension. Yet I realize that this means that there will be women with no recourse, because the action took place in private, without witnesses, and the man claims that it was consensual. Perhaps the man was so drunk he could not recognize whether the act was consensual or not. If the man thought it was consensual, does that free him from culpability? Is there a “reasonable man” test in a case like this? Or a “reasonable intoxicated man” test?
I have zero faith in the court system to be able to respond correctly to cases of sexual assault.
I know personally of seven cases of rape, where I am certain that the woman or girl was raped. In some of these cases, rape kits were taken. The number of these cases that led to prosecution is zero. In one case, the assailant was unknown and was never captured. In one case, the assailant was a senile relative. That leaves five where the assailant was known and might reasonably have been subject to prosecution, which were never prosecuted.
I was once called for voir dire as a possible juror in a case that involved child molestation. I was peremptorily challenged by the defense. A colleague of mine did serve on the jury. In response to initial questioning by the attorneys, he stated that his daughter had been raped. (She is not included in my count of seven.) No action was taken in her case, either. In any event, the trial proceeded, the accused was found innocent, and subsequently the jury learned of additional information that had been ruled inadmissible at trial, but that would have persuaded them that the man was guilty.
I understand, the law has to operate in this way. I don’t like it, but I would like the alternative less.
I think that Hanna is wrong to cast aspersions on the ability of faculty members to determine the correct outcome of a case within a university. Many faculty members have an overwhelming commitment to truth. Many faculty members would think that all possible evidence should be made available when a decision is to be reached. Many faculty members (especially mathematicians) are quite capable of considering multiple alternative scenarios for a situation.
The city of Detroit had at one time about 10,000 unprocessed rape kits. I believe that there is still a backlog. When they got around to processing some of them, they identified multiple serial rapists, based on DNA tests.
The situation at Stanford, with Brock Turner’s assault on an intoxicated woman, does not give one much faith that the outcome in the courts will be reasonable even when there are two witnesses who have apprehended the man in the act and the case is prosecuted.
“Serial butt grabbing” is a good description of men’s behavior toward my daughter when she was out walking her dog in Santa Monica, in broad daylight. Passers-by seemed to think this was “normal.” She had to move elsewhere. There is in fact some prosecution based on “serial butt grabbing,” as in the case of William Strample, Larry Nassar’s Dean. But it seems to me to be quite uncertain how that case will turn out. The presumption of innocence still holds, and that may be the decision of the jury. In general, I agree with Cardinal Fang that this type of assault is very rarely prosecuted.
It is tragic that the 2004 complaint to the Meridian Township police about an assault by Larry Nassar resulted in no prosecution. Many women might have been spared, had the police in that instance not been convinced by Nassar’s misrepresentation of what he did as “treatment.” I acknowledge that a physician has more standing in the community and might be more likely to evade prosecution (temporarily) than a typical college student. The prosecution only succeeded at the point where more than 150 victims were known (now there are approximately 300). Rachel Denhollander’s heroic work made this possible.
The perception is that colleges are the prosecutors but no equally rigorous defense is allowed. The perception is the the accused are presumed guilty through actions to constrain their freedom of movement before any investigation begins. That is the just the foundation of what is wrong within some university offices and the reason they lose legal challenges these days.
I don’t think my university operates the way that momofthreeboys describes. I acknowledge that some universities may act that way.