I agree some unis do seem to escape civil suits. Is the difference a more socially mature student base, a poorer student base who don’t challenge legally or a better run and managed administration…one has to wonder. The theory of conduct on campuses is not foreign but the execution of punishment seems fraught for abuse.
Universities that “seem to escape civil suits” do so by being careful about the rights of the accused. The balance is struck in favor of preventing adverse action against an innocent accused person, versus making sure that the majority of guilty parties are caught. This is the general situation that I would certainly recommend. It means that some women who have been raped have no recourse.
It is still not clear to me what should happen if an intoxicated man thinks that a woman has given consent when she has not. Probably the belief that the woman consented is enough to evade any culpability. This certainly gives an “out” to a lot of men who were not acting in good faith, whether intoxicated or not.
I don’t believe this is accurate at all. I think there are definitely some abusive cases, but they represent a tiny percentage of the sexual assault claims colleges process. I also think it’s a mistake to judge cases on the basis of reading the male plaintiff’s complaint against the college, or his publicist’s press release, or what some right-wing website says about it. And that’s a lot of what is generating the kind of folklore reflected in the foregoing quote.
That’s not to say everything is hunky-dory. I respect @Hanna 's experience in this field. I am sure @QuantMech is correct that there are cases where justice may be lacking on both sides of the problem: men who are unjustly accused and disciplined, and women who are legitimately traumatized and have no acknowledgment or vindication. Like her, I doubt the numbers are even approximately balanced; women still disproportionately bear the burden of the system’s shortcomings. I think colleges should be working on this, but I doubt acting as the sex police in individual cases is the best way to do it.
Someone upthread talked about cases involving long-term relationships, no alcohol, breakups. Anyone who thinks that rape – real, honest-to-God rape – doesn’t happen in connection with the messy breakups of long-term relationships between teenagers or early 20-somethings didn’t grow up in the same world I did. My spouse was raped by her first college boyfriend at the end of their relationship. She never had any doubt that’s what happened; she didn’t need Susan Brownmiller to tell her that. It didn’t destroy her life or education, but it certainly bent her life for a while. At the time, there was no recourse whatsoever besides filing a police report that would have gone nowhere.
And conversely an intoxicated women should be held responsible for control of her actions. We will get nowhere without accepting that we have progressed since the 60s to the point where it is acceptable for women to be the pursuer and accept that women have agency for their actions and to accept that either gender can be the aggressive. To do otherwise negates the concept of agency and equality regardless of gender. Why would we not hold both genders to the same standard? The only answer is that we still believe that women are weaker and need additional protections .It is not about “a woman” giving consent, it is about two equal adults who decide to have sex. Who kissed who first or who touched who first or who was acting in good faith is an utterly ridiculous exercise and not something educational institutions should be regulating. Assault, harassment, criminal sexual contact, rape…all these are legal terms with legal meanings and should be determined within the legal system…of course women have recourse they always have.
For women, the “recourse they always have” is basically none, momofthreeboys. If you look at my post about the seven women I know personally who were raped, none of them had any recourse, neither in their universities nor in the court system.
If a woman is raped by a stranger who attacks her when there are witnesses present, and the stranger is apprehended, then a prosecution may occur, and some type of sentence may be handed down. This is a rather small fraction of all rapes.
Of course there is recourse. Abused spouses can leave their husbands and almost every community has support systems for those women along with the domestic violence hot lines. There are federal laws and services, state laws and services, local laws and services. Domestic violence and spousal rape is recognized law in all 50 states. But again in the colleges very infrequently are we talking about violence although all the same services are available in addition to the college counseling services for accusers who are conflicted and confused.
What crime is sexual harassment (without touching, which would be sexual assault or sexual battery)? What statutes forbid it? Workplace sexual harassment without touching is not a crime, though people can be fired for it. Why would college sexual harassment be different?
The belief she consented is not enough to evade culpability. If he says she consented and she says she didn’t, and there is no evidence either way, then he won’t be convicted, and if she says she agreed to the act but was very drunk, he shouldn’t be convicted. But sometimes there is probative evidence. For example, if he says the woman consented, but he was found thrusting on top of her near-naked unconscious body, he can be arrested, tried and convicted.
And when this individual was sentenced, a member of CC said that they found the sentence to be appropriate.
This is the world in which we live…
I understand @hanna’s position that the college sexual assault resolution system is so bad and so unfair that getting rid of it would be better than trying to repair it.
But saying that the criminal justice system “occasionally” fails to apprehend and convict rapists is getting things backwards. The criminal justice system occasionally apprehends and convicts a rapist, but in the vast majority of cases, the rapist – the person who actually sexually assaults another person, in cases where if we knew all the facts we’d all agree this was an assault – suffers no consequences. It may be that we can’t do better than that; just because the current system is bad doesn’t mean there is a better one.
But we’ll never do better if we don’t acknowledge the truth of what actually happens now: law enforcement is often hostile to accusers, doesn’t believe them, doesn’t investigate their cases. Moreover, even with the best possible law enforcement, many rapists cannot be convicted beyond a reasonable doubt, even though the police and everyone else believe sincerely that they’re guilty.
I think where @hanna and I differ is that @hanna believes that we can’t expect colleges to do good, fair investigations, even though it is in principle possible to do good, fair investigations. So, @hanna, suppose that we could expect colleges to do good, fair investigations and make good, fair judgments. Would it then be appropriate for colleges to expel students based on a preponderance of the evidence (or, what I would prefer, clear and convincing evidence) standard?
Is this a matter of money? That is, is it possible to contract out this job or do it in house and get just results, but we can’t expect colleges to spend the money to do it right? If that is the case, are we just saying that colleges can somehow come up with the money for things like big football stadiums and training facilities, but shouldn’t be expected to pay for women’s safety? How many investigations would a football coach’s salary pay for?
@“Cardinal Fang”, it seems to me that you have not read up on workplace sexual harrassment laws.
https://en.m.wikipedia.org/wiki/Sexual_harassment:
"The United States’ Equal Employment Opportunity Commission (EEOC) defines workplace sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment” (EEOC).”
So verbal conduct and unwelcome advances count.
"Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. It generally applies to employers with fifteen or more employees, including federal, state, and local governments. Title VII also applies to private and public colleges and universities, employment agencies, and labor organizations.[30]
“It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
You haven’t listed any criminal offenses, @PurpleTitan. You assert that sexual harassment is a crime, but you don’t list any criminal statute. You’ve only listed civil offenses. And let me point out that the offender in those statutes is not the person who harasses, but the employer who fails to stop it.
In fact, the laws you cite go exactly counter to your argument that colleges should leave all sexual misconduct to the justice system. If a college allows sexual harassment of its employees, it is violating the law and is liable to lawsuits. If the college can deal with employees harassing, it should also be able to deal with students harassing.
Workplace harassment can be criminal in states where groping or grabbing are criminal and the accused harasser groped and grabbed in a sexual manner.
Cardinal, in unis harassment would still need to be defined by the Feds to make it the equivalent of how the EEOC defines harassment in my mind… and unreasonably interferes with a student’s ability to attend class etc. Stalking to me would be a clear case of harassment on a college campus. I can think of other examples. I can think of multiple remedies on a large campus but it would be more difficult on a small campus. I suspect when the new federal regulations are lawfully put in place in 2019 harassment may be addressed. It feels like the current climate in the OCR is to be thorough and explicit in their direction to colleges but we will see.
One issue that really has to be addressed: A number of the cases that seem most problematic are initiated by someone other than the person cast as the victim. Often, the victim feels like something bad happened to her, but that there were lots of ambiguities, and she made mistakes and bears some of the responsibility, etc., and someone else – a friend, a RA, or even a bystander who happens to hear about it – decides that this should be dealt with as a sexual assault.
Of course, I understand why it may be a good thing for third parties other than the victim to initiate investigations. But any case where someone has to explain to the victim why she is a victim and ought to seek a remedy is not going to be a clear case.
In addition, a lot of these third-party cases seem to come up a long time after the events in question. That has a tendency to make things a lot worse. There’s less evidence, less sharp memories, memories that have undergone a lot of revision, and a heightened potential for unfairness. The kid who was kicked out of Yale – and who may have deserved to be disciplined, by the way; Yale hasn’t backed off that decision at all or settled the case – paid tuition and fees for three semesters after the event in question. Those were to have been his last three semesters. That could be close to $200,000 lost. That’s a pretty significant penalty, in addition to being expelled, and it completely relates to the delay in reporting the incident. (Of course, the tuition wouldn’t be lost if he were merely suspended, but that’s not what happened.) I do not mean to argue that a rapist shouldn’t be expelled because he has paid a lot of tuition, but I do believe there’s a lot of randomness in the severity of punishment based on delays, and the variation isn’t trivial.
This viewpoint would be very popular at Brigham Young or Liberty. Most people have a less puritanical view of alcohol and sexual relations. If you are going to create some absurd standard, no sex with a partner above 0.08, then shouldn’t you hold girls to the same standard? Why only teach the boys?
Isn’t that exactly what the Atlantic article was about? The woman was held to the same standard?
Yes. That is the jist of the Atlantic story. The Atlantic has done an admirable job of analyzing all angles of this complex issue over the past couple years.
“I understand @hanna’s position that the college sexual assault resolution system is so bad and so unfair that getting rid of it would be better than trying to repair it.”
Go back over my posts. That’s not my position. I have never proposed getting rid of it and never suggested that we shouldn’t try to repair it.
I apologize for misstating what you believe, @Hanna. I’m looking at posts 62, 67 and 69. You say “ So if Title IX doesn’t work well around malicious people and amateur investigators, then it doesn’t work well, period,” and then emphasize that only rich schools like Stanford can afford to do the kind of thorough investigation that is fair to both sides. I thought you were saying that Title IX can’t possibly be implemented justly at most schools and therefore should be eliminated.