@QuantMech let me try it this way. There are two broad categories of cases being adjudicated on campus. The first, involving circumstances traditionally thought of as rape or sexual assault, are already prescribed conduct under the criminal law. In that circumstance, the tribunal system really only makes it easier to find men culpable, both by lowering the burden of proof and by in the main doing away with traditional notions of discovery, cross examination, and the right to introduce evidence on one’s own behalf. In those cases, the only justification for the system is that it is worth finding some innocent men culpable in order to capture a greater percentage of guilty men. In other words, you have to break a few eggs to make an omelette. Now I may have a problem with that because the decision was made outside the normal democratic and even rule making process, but I think the decision can at least be defended.
The second category of prescribed conduct involves new notions of consent, coercion and impairment among other things. To my mind, it is this category of cases that accounts for most if not all of the cases we read about. It appears to me that these new rules are not so much designed to proscribe individual conduct, but to change the way we think about sexual relationships on a more macro level. It is in this respect that I find the tribunal system completely ineffective and ill conceived. I think the proof of this is not only in the ridiculous cases we all hear about, but also in the confusion evident in students in the articles like the one mentioned up the thread. I would be interested in someone articulating why they believe the tribunal system is a net positive in this respect.
Hanna, I think you are being too generous to “Jackie.” I think she got into something in order to get sympathy from a boy and attention from others, and eventually it snowballed beyond her control. In the process she slandered not only an entire fraternity, but people who were supposedly her friends.
I have a friend who has a daughter who is probably a sociopath. Certainly, she is very bright, and a cruel and ruthless liar and master manipulator. She has indulged in everything from theft to making repeated false abuse claims. (I know from multiple sources that these things have happened, not just from my friend’s side of things.) She coldly and cynically engaged in a course of accusations and behavior that resulted in her achieving emancipation, special admission to an elite LAC, complete FA, and a pseudo-adoptive family who provided her not only with a luxurious place to live–no youth shelters for this young lady–but subsequently gifted her with a brand new Prius, and provided cover for her when she did things like steal cash from the purse of the person who cleaned their house.
Such individuals do exist outside of the realm of fiction. I’d suggest that Emma Sulkowitz is probably one of them. Jackie seems like more of a hapless mess.
On the other side of this whole mess, read about the Parker Gilbert case at Dartmouth. The school stood solidly behind the victim, but the jury found him not guilty, in a decision that continues to blow my mind. My S, who is a Dartmouth grad, tells me that no one could believe he got away with it.
@Much2learn I would tell my daughter to first go to a hospital or women’s resource center to get a rape kit done and to attend to her medical needs. Then I would tell her to call her aunt, who works with abused women. Finally I would tell her to contact the actual police. Then I would get on a plane.
Yes @dstark, as you know it is a very simple issue. People who spend their professional life working in police sex crimes units and prosecuting sex crimes secretly hate women and only spend their days in that field to sabotage rape investigations. It has absolutely nothing to do with the costs involved in storing and testing rape kits. And of course the fact that most investigations don’t result in an indictment, either because the victim stops cooperating (which happens all too frequently) or because no suspect is ever identified is completely immaterial too, and unique to rape cases. Certainly most other violent crimes result in convictions. Very few other serious felonies remain unsolved. Just look at the success places like Chicago have had in solving murders for example.
It doesn’t do my daughter any good if there isn’t money to examine the rape kits, does it?
I think my priorities are a little different than yours. I think it is a priority to examine these rape kits. There has been improvement in this area. There is more funding. There is support from both sides to do better.
There is $1.5 trillion of federal tax breaks doled out every year. I think we can do a better job helping rape victims and society can afford it.
In the mean time, I don’t pretend law enforcement generally does a great job with rape or sexual assault. Sometimes there is nothing law enforcement can do and sometimes there is.
Movement. The only problem I have with what the state of Virginia is proposing is that this is still an “exclusive” avenue for college women and not all women in the state of Virginia and it still circumvents current law but perhaps it will afford the accused better access to due process. It is about time.
Ohiodad: The tribunal system was put in place to stem the tide of too many assaults going unpunished and too many men thinking that taking advantage of a drunk girl is their right. I believe there were good intentions and that something had to be done. Assault does not just include forcible rape or a passed out girl. Look at the Vanderbilt case, except for the videos those kids would not have believed they did anything wrong. The goal was to support woman and to come up with a way to reduce assaults and to make men aware that they could be committing rape even if the victim is not passed out or if they don’t have a weapon. That was critical and important. There has to be shift in thinking.
That being said, I agree that the system and the message given are not really clear in the “two drunk kids” scenarios, which is a lot of what we read about. I also agree with you that while men have to not assault women, women also have the power to change things by pushing for change in the party culture and demanding respect.
QM: I think the theory that serial predators are responsible for most of the sexual assaults on campus has been pretty much debunked. I don’t think that is the case on most campuses. But I would hope that the system would be able to catch such mean if multiple woman report being assaulted by the same guy.
@mom2and, I don’t disagree with your first point, although I will point out again that having sex with an unconscious partner is illegal and has been forever. Not sure how the OCR is moving that ball forward. But my real point is, let’s call it what it is. Unelected beaurocats decided, outside of our regular law or rule making process, that it was more important to relax standards of proof and the normal protections of our adjudicatory system because they felt the risk of punishing an innocent guy was worth the benefit of making it easier to punish more guilty guys. Let’s at least be honest with each other and call it what it is.
I would also point out that the OCR’s decision not to try and implement their ideas through the regular rule making process has certainly contributed to the obvious confusion on what is permissible and impermissible conduct.
One aside. In the article linked by @momofthreeboys, there is a note that OCR is now investigating 160 colleges for their rape/sexual assault policies. This was interesting with me because you would not believe how far behind the OCR is on their more “normal” investigations in general. As an example, I have cases being handled by my office where OCR has been investigating since 2011 and 2012.
That’s not great for sexual assault victims, is it?
I have been involved in two civil cases in the private sector that have not been resolved. The cases started in 2009-2010.
One of these cases may take many more years to resolve.
It may have always been illegal, but plenty of kids knew about this sort of behavior and did nothing. The woman may not have remember what happened in a coherent enough way to report it. I think many would agree that college certainly looked the other way when they should not have.
The alarmist statistics that 1 in 4 woman were being raped on college campuses were taken at face value and so something significant had to be done and quickly. (Not saying that just because the actual incidence is lower nothing should be done, but that might have resulted in a more nuanced approach). The standard of proof required for a criminal conviction is pretty impossible to meet in most he said she said cases. Residential colleges have some responsibility to protect woman students from assault and to improve the overall culture and clearly something needed to change.
I don’t object to the tribunal process if the outcome is commensurate with the the actions of the young man and the level of proof. The preponderance level could be used for the two drunk kids, within a grievance process, that would not allow expulsion but would allow some level of sanctions.
However, a clear and convincing standard should be used if the result is going to be expulsion or other life-altering punishment. How can a low level of proof be OK for expulsion when it clearly ruins the guys life for a very long time, if not forever? If a fair process leads to clear and convincing evidence of assault, then of course there should be expulsion. But the cases we argue about here and in other threads, are often lacking such a high level of evidence.
The Rolling Stone article and the uproar over the counselor at UVA who RS portrayed as doing nothing included support from many victims who did not want the men thrown out of school. They wanted the men to understand why they were upset, they wanted the men to apologize, they wanted some sort of punishment, but did not want to ruin their lives. Some of course do want the man thrown off campus or out of school, but not all.
In response to posts by Ohiodad51: As a university faculty member, I hear from women about instances in which they have been raped. Of these instances, zero have resulted in criminal prosecution, even though the correct procedures were followed (to a tee) by the women in several of them, and their cases were reported promptly to the police. Based on my discussions with and observations of these women, I have absolutely no doubt that they were forcibly raped. However, the prosecutors (multiple cases, different regions) did not bring charges.
If a person opposes the existence of college “tribunals,” even with a higher standard of proof than preponderance of the evidence, then it seems to me that the person should also acknowledge that although in principle the criminal justice system can deal with alleged forcible rape, in actuality that does not seem to happen–especially if accuser and accused know each other. I know about one case of an unknown, armed assailant. This case would have been brought to trial, if the assailant had ever been identified, but he was not.
I don’t think that it is acceptable to sanction a single innocent man, on the grounds that the court system appears not to work, for many women who have been attacked. I do not personally know anyone who would subscribe to the idea that expelling a few innocent men was the price that needed to be paid in order to expel guilty men who were not being prosecuted. Additionally, I do not know of anyone who has been unjustly expelled from my university for an action that was established at the “clear and convincing level.” Nor have I heard from any of my colleagues about such a case.
I do have difficulty with the “preponderance of the evidence” standard, because when a situation is nearly balanced in the description, it is hard to be sure what’s true.
On the second issue raised by Ohiodad51, in connection with a desire to change the cultural landscape around interactions between men and women: I do not think there is any general interest at universities in doing that. I would not rule out the possibility that the change is on the agenda of some faculty members who specialize in gender studies.
@dstark we agree that the OCR should not be in the business of adjudicating and investigating rape cases. I am kind of surprised that is your position frankly, but yeah I agree it is not a good system for the accused or the accuser.
@mom2and I also agree that clear and convincing is the appropriate standard for discipline potentially involving expulsion. I would add suspension to that list. That was I believe the position taken by Harvard and Princeton after the Dear Colleague letter was disseminated, before they were forced by OCR to knuckle under. Where we may disagree s in the importance of the perceived or expressed desires of certain complainants. I am less concerned with how rational people interpret these situations than I am with the freedom provided under the current system to advocates and others with an ax to grind to use the mechanism of the state in an irrational way.
Like what? That the OCR system (or the civil system in general) moves very slowly? Didn’t you just write that that was not a “great” system for accusers? I assume you are aware that the criminal system moves much, much more quickly than either a civil suit or an agency investigation, right?
mom2and, I think the question of the fraction of rapes that are attributable to serial rapists depends on the counting procedure. It may be much higher as a fraction of forcible rapes.
The Canadian study showed that 5% of women experienced completed forcible rapes in their first year in college. This appears to me to have been a good study, though I am neither a social scientist nor a statistician. Cardinal Fang linked it many pages back. It doesn’t need to be 25% to be an alarming number, particularly if the criminal justice system takes no actions.
@QuantMech, it is to me an inescapable consequence of lowering the standard of proof that the risk of sanctioning an innocent goes up. I think you and I probably agree that an appropriate balance is found around the clear and convincing standard, both because that standard requires pretty strong evidence of guilt, and because the sanctions on the table, even expulsion or suspension, while severe are just not the same as incarceration. But it is to me intellectually dishonest not to acknowledge what the actual effects of lowering the burden of proof are, both on the positive and negative side.
When I said legal system, I was referring to the criminal and civil justice system. I did elaborate a little in the post.
The court systems move very slowly and that includes the criminal justice side.
To pretend the court system works well for the accusers is a joke.
Recently I was called for jury duty. The case was a criminal case. Took 2 years to get to trial. Two years would be a long time for a college student to wait.
Yeah, the civil cases take longer. Many people advocate for accusers using civil courts to sue the accused. That’s ignorant in most cases, isn’t it? The costs and the time it takes to actually see a case can make pursuing a case not worth it.
I was just reading that the case I was involved with is going to take 10 years. Then, it may be appealed. I understand this case is taking longer than usual.
@ohiodad51, you are ok with using college tribunals if the standard is clear and convincing evidence?
Are you ok with using private judges or a system like Virginia might use to handle sexual assaults?
I don’t know what the court system is like where you live but there are a backlog of cases building up here.
A friend of mine is going to use a private judge in his case. He has been waiting 2 1/2 years for his case to go to trial. He has already gone through 3 different judges. That is why he decided to use a private judge.
Ohiodad51, I recognize that innocent people are convicted of various crimes under the standard of proof beyond a reasonable doubt. So erroneous convictions happen, even with the strongest standard. This is awful.
I agree that the odds of sanctioning an innocent person go up when the standard of proof is reduced. I also agree with your statement: “But it is to me intellectually dishonest not to acknowledge what the actual effects of lowering the burden of proof are, both on the positive and negative side.”
We seem to agree on the use of “a clear and convincing standard,” in university cases. I am not sure that we agree on the “actual effects” of lowering the burden of proof to the “clear and convincing” level, in cases of alleged forcible rape (use of real force) or incapacitated rape (of an unconscious person). I have not heard of actual effects, in terms of wrongful sanctioning, in cases of this type.
I believe that there are actual effects, in the sanctioning of men that I would regard as essentially innocent, in other circumstances. In my opinion those circumstances should be treated separately. Hanna pointed out quite a number of posts ago that some universities tend to act sweepingly, and do not differentiate cases that are actually rather different, when they ought to differentiate them.
I understand this case is taking longer than usual.