@jonri, I was referring to a TRO, which at least around me is not hard to get IF you can make the proper showing to a real judge, and also is free for people unable to pay.
“I certainly don’t understand why people think the evidentiary rules should be the same.”
The big rationale behind evidentiary rules is distinguishing reliable and probative evidence from that which is unreliable or more prejudicial than probative. The hearsay rule, for example, isn’t there to keep lawyers busy. It’s there because, absent certain exceptions, it’s too hard to tell whether hearsay is true or not.
So if you want a tribunal of any kind to get at the truth, evidentiary standards help make that happen.
@prospect1 many of your posts indicate that you do make an attempt to consider both sides of this issue. Most of us are concerned with getting it right. I would venture that nobody wants to see men wrongly convicted or expelled. Nor do we want to see those guilty of sexual assault walk free with no accountability. Unfortunately, because of the failings of our criminal justice system and the burden of proof in these difficult cases that is just what we have - unaccountability and what it breeds - increased incidence of campus sexual assault
The college tribunal system is far from perfect and I am all for reforms that might offer more protections to both parties. However for the present moment, given the abysmal failure of our current system, I do think it offers advantages to the parties involved. When you look at the system on it’s most basic level it really is one that “decriminalizes” sexual assault - the penalty the accused faces is expulsion or suspension. While this “decriminalization” bothers me, it is the victim’s choice and presumably he or she knows that there are other options available. I can accept that choice. What I can’t accept is people continually pointing to a broken system and saying “there is your remedy” even though we are all aware that it does not work. What kind of solution is that?
@harvestmoon1, I suppose the disconnect is that I see ALL of these systems as “broken.” I think the college system presents just as abysmal a failure as any.
My belief is that it is easiest, most efficient, and most effective to fix the system that is more likely to result in fairness for all involved parties – that being the system that has been in place and tested for at least 100 years.
The college system in place right now is not a solution, in my opinion, nor is it fixable without a complete and costly overhaul (again, in my opinion).
So many here have opined that it’s the best system in place for the accuser. Really? I would venture to guess that just as many women come away dissatisfied with this process as young men. I have not seen statistics on this, but isn’t it just as possible for a college tribunal to dismiss a young woman’s valid complaints as it is for the tribunal to validate unfounded ones? I don’t see how these folks are qualified to make these kinds of decisions. To me, the college system presents the most unfair outcome of all, at unnecessary expense.
The only people who are going to be happy with the college tribunal process are the “winners” (men OR women) because their story will have been validated by the math teacher and the psych professor who received some perfunctory Title IX training. The “loser” will be convinced that they were judged by a kangaroo court. In “REAL” court, there are unhappy losers too, but at least they understand that they had their day in court and are psychologically more likely to accept the outcome without escalating behaviors and suing their colleges.
But being fired for forgery is surely stigmatizing, and forgery is criminal. Yet securities firms still fire people they think are forgers and fraudsters. How is colleges expelling people they think are rapists any different?
Thanks for agreeing with my swizzle stick idea, prospect1. There is also roofie detecting nail polish, which I believe is commercially available. As far as video equipment goes, I was just thinking of a cell phone video.
About the video, I am partly serious and partly just trying to jumpstart thinking (my own and others) about how women could be better protected, that would actually be workable. I’m not planning to open QM’s Place, but I would like to see something along these lines put into place in bars. Perhaps there could be truly a safe escort back to the dorm/apartment for a woman who has detected roofies in her drink. Probably not one of the patrons of the bar.
The difference between “yes means yes” and “no means no” is a very narrow band. We are talking about the very narrow band of people who are subjected to unwanted sexual activity who do not communicate “no” in words or actions. I have to think that this encompasses a very small group of people, and, if I thought my own daughter fell within that narrow band I would be sure to train her to provide a strong, vigorous “NO!,” no matter what the legal standard was. Instead of teaching our daughters that a man is raping you if you did not give affirmative verbal consent to each stage of the proceedings, in my view, we should be teaching them to affirmatively communicate “NO,” something that 99% if people would naturally do if faced with unwanted sexual advances.
I also think that communicating YES in nonverbal ways is a common part of many (if not most) people’s normal, natural, healthy sex lives, and I think attempts to legislate against natural and healthy sexual practices to address a very narrow problem (see previous paragraph) is a mistake. And if you broaden the “yes means yes” standard to include nonverbal consent, you are in a hopelessly ambiguous place – certainly nothing that you would want a potential victim to rely on for protection.
@prosepct1 and if a movement ever got underway to improve the current judicial system’s handling of sexual assault cases, we all better be prepared for the consequences. You are going to see a lot of MC and UMC class young college men being convicted of felonies and serving time in jail. And when you see the reaction of so many to the sentence in the Labrie case, I would say those consequences are not going to settle right with a lot of people. That result is exactly why the college tribunal system exists.
I have said it before but I will say it again. The college tribunal system was created by and for men. While it also provides ancillary benefits to women, it is an attempt to shield young, college boys from the severe penalties of the criminal justice system. It decriminalizes rape. That’s a huge concession from a victim’s perspective.
@HARVESTMOON1 Are you really saying that the increased incidence of campus sexual assault is because the burden of proof in criminal court is too high? Or am I misreading your post #1282.
Also, I don’t agree that @prospect1’s posts show an unwillingness to see multiple sides of this complex issue. I see just the opposite, as a matter of fact.
One of the things I really enjoy about CC is that our posters are so intelligent, and they really make me think sometimes. @jonri and @cardinal fang and @quantmech have really made me think today about justice; how is it best sought out; how do we best administer it; what happens when it goes awry; how can we fix it?
Yes, if someone is fired for forgery, it is stigmatizing. I assume we don’t care if the person is truly guilty of it. But what if the termination was wrongful? What is that person’s recourse if he/she was wrongfully terminated? An employer who wrongfully terminates an employee is subject to significant civil liability, including punitive damages. This is why employers do not take such firings lightly, and any employer who does not seek legal counsel and an investigation by experts in the field of forgery before accusing and firing an employee based on such an accusation is a foolish employer. Are there such foolish employers out there? Yes, sadly.
But at the end of the day, if the employee was wrongfully terminated, that employee can seek and win an economic recovery that makes up for it. There is a remedy.
When college campuses decide to believe a false accusation of rape, or decide to disbelieve a true accusation of rape, they are affecting people’s lives in ways that a future economic recovery can’t completely cure, even if the wronged party sues. And, they do so with no expertise. No amount of money can give a girl or a boy back a ruined college experience.
I’m not even sure that colleges want this burden; it is mandated by Title IX. I’m sure it is heart wrenching for them to have to make a decision in a close call. They are not qualified to make these decisions in my opinion.
@midwestdad3, I read Harvest Moon’s post as stating I am trying to see both sides.
In truth, I do see both sides. I think we can all disagree on how justice is best served, but I think we all agree that we WANT justice to be served. The trick is figuring out which way is the best way. We will probably never all agree on that.
@MidwestDad3 I think you must have misread my post #1282. I acknowledged that @prospect does make an attempt to see both sides of the issue.
In my view the increased incidence of sexual assault on college campuses and elsewhere is due to “unaccountability.” And the unregulated use of alcohol on campuses. The vast majority of sexual assault cases never see the inside of a courtroom. The reasons for that are complex and numerous, and have been discussed in great lengths on this forum. But they all result in a system that does not work. I believe that one of the benefits of having a system that works is that it acts as a deterrent, sending a message to society that criminal acts will have meaningful consequences. We don’t currently have that deterrent with sexual assault and the numbers attest to that.
Schools could set up a system with professional investigators to investigate charges of sexual misconduct under the Title IX standards, with hearings to be held before experienced adminstrative judges. For schools too small for maintain a dedicated department for these purposes, they could contract with a third party to provide these services. In other words, there is no reason why a university couldn’t acquire the expertise necessary to deal with this issue. Or, schools could jointly collaborate to create an outside third party that would provide investigative and adjudication services on these issues.
The one thing that the decision makers under the current system seem unwilling to do is make credibility determinations in difficult cases.
Ok, I misread. One of many reasons I don’t want to see the burden of proof lowered in criminal court is that it would move us closer to the criminal justice systems in Saudi Arabia, Iran, North Korea, etc. We just don’t want to go there, even if some defendants occasionally do slip through our system.
@nottelling - don’t you think that setting up such a comprehensive system for every single college - shared or not – would be extremely expensive? I could see that as a solution if it were 100% funded by the government as a new administrative judicial branch. But honestly, how high is tuition supposed to go to fund this, and every other, administrative burden on colleges? I would so love to see how much of a typical college’s budget already goes toward funding these forums.
I don’t know how much it would cost, but there’s no reason to think it would cost substantially more than the current ad hoc system where panels of highly paid administrators and/or professors with little relevant training or expertise conduct the investigations and hold the hearings. But honestly, I don’t know what the costs would be.
The idea of a government tribunal run by the Department of Education is intriguing. I’m sure a lot of schools would view this as undue government intrusion into their affairs. It would certainly provide a lot of comparative data regarding schools, though.
Well if we are going to start discussing issues of cost, we are going to have to get our priorities straight. I would put the reduction of sexual assault on college campuses as very, very high on the list of priorities. With the exception of big crowds for football and basketball, most other college athletics see zero revenue but very high costs. I read that a top 20 university’s golf team spend over $20,000 per player. If we can find the money to support non-revenue generating sports programs we can certainly find the money to fund college tribunals.
And tribunals already exist at colleges for the the adjudication of other violations of their student conduct codes.
I’m not at all convinced that being wrongfully fired for financial fraud is less bad than being wrongfully expelled for sexual assault. Losing one’s job can be horrible and stressful even when it’s a layoff and there is no question of misconduct; losing one’s job due to a false accusation must be worse.
Why? We have a system…a system that has been in place for a long, long time for criminal behavior. You pick up the phone and you dial 911. Why on earth do we need a paralegal system for adjudicating criminal complaints? Not one person in over a year has been able to articulate a reason why a parallel system is needed. I keep waiting for that “ahah” moment when someone can make a reasoned argument why two systems are needed. I don’t want to pay for it. I don’t want my state to pay for it.
I don’t want my taxes subsidizing a federally mandated parallel justice system. If private colleges and private high schools want to do this and pass the costs on to their student parent base, more power to them.
That’s often not true. Most employees are hired “at will.” Many companies now simply fire people or “lay them off” and give no reason. That’s the advice most employment lawyers give firms. Don’t tell the employee any reason for his termination. Just tell him he’s terminated. The only information they will give out regarding past employees is the dates of employment. Since most employees are “at will” you have no recourse if you are terminated because of false accusations. Nobody ever finds out about the accusations.
Securities firms are a bit different. In the bad old days, the rotten apples went from securities firm to firm. They were often permitted to resign, so the firm would avoid the expense of litigation. Their records were clean. They hadn’t been fired; they had resigned. Then along came things like Stratton Oakmont and some terrible bankruptcies of clearing firms. Investigations showed there were brokers who had been charged with criminal acts who continued to rip off other people at different firms while awaiting trial.
So, now, the employers have to tell the truth on a standard form explaining why the person was fired. If they were “permitted to resign” --in other words given the opion of resigining before they are fired–you have to say so. You’re granted limited immunity against claims for defamation. As long as you act in good faith and conduct a reasonable investigation, you can’t be sued for wrongful termination and/or defamation. This is to protect the public.
Is it really nuts to think that our daughters and sons are also entitled to protection? That the man charged with Hannah Graham’s murder should not have been able to simply withdraw from college after being accused of sexual assault, apply to another college with a clean record–okay except for having had sex at Liberty U, but that’s not going to hurt anyone–and have more accusations of sexual assault brought against him and just withdraw again?
If a stockbroker quits after being informed that he is being investigated, that fact is included in his official record. When he applies for another job, the firm will learn that he quit after an investigation was begun.
But when a student withdraws from a college after a college begins investigating him for a sexual assault, the most common practice is NOT to indicate that on his transcript. Instead it shows up as a voluntary withdrawal.
There is something wrong with this picture.