More on Tennessee…
ucbalumnus, I know of cases in three different states. I don’t think a district attorney is being “lazy” if a case is not brought, if there is insufficient objective evidence to give any likelihood of a conviction. In cases of conflicting testimony, the tie must certainly go to the defendant. Yet if one knows the people involved (as the jury does not), one can be pretty certain what actually happened.
“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.”
Here’s my to cents on the history.
- Clearly the real CJ system produces very few convictions in acquaintance rape type situations.
- The tribunal system is established to respond to that.
- Turns out the tribunal system also produces very few convictions.
- The lack of tribunal convictions must be due to deficiencies in the tribunal system.
- In order to get the desired convictions, let's add more and more resources to the tribunal system. Let's also make the tribunal system less and less favorable to defendants in order to get the right result.
- The tribunal system still doesn't produce the right results.
- Repeat #5.
- Repeat #6.
- Repeat #5.
- Repeat #6.
And so on.
I think the intentions all around have been good on this. But the intentions are based on the logic flaw contained in #4. Turns out that procedural reforms do nothing to overcome the inherent proof deficiencies present in most acquaintance rape situations.
Again, I quote and agree with Mattress Girl. The problem with acquaintance rape prosecutions (real court or college) is that they all depend upon “the kind of proof that victims rarely have.”
But for the existence of the videotape, the Vandy footballers would have gone unpunished in college court and also in real court. With the videotape, both systems easily found them responsible. Even with the lower 50.1% burden of proof in college courts, you still can’t prove anything most of the time. If you have good proof, beyond a reasonable doubt standard can often be met.
Since the core problem is not litigation procedures, reforming litigation procedures doesn’t help much.
The actual Mattress Girl quote, to me, says it all.
"Sulkowicz has concluded that “the system is broken because it is so much based on proof that a lot of rape survivors don’t have. Even if you have physical evidence, you can prove that violence occurred but not that someone didn’t want the sex to be violent.” ”
Which implies that the only way to fix the system is to eliminate the need for proof. Since you can’t do that, you can’t really ever expect the system (real court or college) to function any better. It is what it is.
@dstark, yeah I would be ok with some type of private adjudicatory system. I think OCR is wrong to disallow mediation in these cases, which is probably the most used summary process in my experience. And I think the clear and convincing standard is appropriate for a non judicial process like the tribunals. I do think that the accused should be allowed to get discovery/put on evidence in his behalf, also.
To @northwesty’s point, I do think that it is important to keep in mind that there is a very different dynamic between “traditional” rape and “acquaintance” rape. I also think there is a difference between forcible rape and ineffective consent cases, whether between strangers or a long standing couple. I personally believe that we need something other than the one size fits all adjudicatory system (whether legal or tribunal) to deal with these disparate areas.
I think it is grossly disingenuous of the OCR to maintain that because “preponderance of evidence” is the standard used in civil court it should be used in campus tribunals. Correct me if I’m wrong, but in a civil case, BOTH parties have lawyers, BOTH parties have full discovery, BOTH parties can call witnesses, and BOTH parties can be cross-examined by the lawyers, and the proceedings are directed by a real judge IN PUBLIC, and if the judge makes unjustified, prejudicial decisions the case can be reviewed by a higher court and overturned on appeal. None of this is true at college tribunals.
I would not have a problem with preponderance of the evidence as a standard if all the protections of due process were in place. Instead we have inexpert panels asking asinine questions and excluding witnesses and evidence on a whim often fueled by personal agendas and preconceived notions. (And I’m sure this cuts both ways.)
I also completely fail to comprehend why mediation is not allowed in assault cases. In fact, in the classic “two drunk kids” case, I would think that mediation would be by far the most valuable proceeding for both parties.
Many schools get around the “no mediation for sexual assault” by giving the accuser the option of availing herself of “interim measures” in lieu of filing a formal complaint. Interim measures can include changes in class schedule to avoid the accused, changes in campus housing and the imposition of an on-campus “no contact order”. This allows the accuser to consider other options other than a full-fledged proceeding.
The decision in the Occidental case was in fact reached by an “outside adjudicator” - an independent attorney retained by Occidental to hear the case.
The problem, @HarvestMoon1, is that these decisions should not be made by the accuser. Our system is empathetic ally not a vigilante system. We do not allow complainants to pick and choose their process, or their remedy. I think it is a terrible idea to cast aside all of that history just to score political points.
I agree with that in theory Ohiodad51 that this should not in anyway be a vigilante system, but I am not opposed to colleges helping an accuser move to a different dorm, rearrange their schedule, get therapeutic counseling etc. if the accused primary driver is to “not see that person” but those should be measures that are to HELP the accuser not to be implemented as punitive measures e.g. making the accused move, or re-arrange a schedule, constraining their freedom of movement against someone on hearsay. I’m not sure “believe the accuser” is an appropriate reaction for administrators if the result is upheaval to an accused. Perhaps “believe but verify” is a better position to take at the onset. I can’t think of any system that does not require believe but verify before punitive actions are taken when given information that is contrary to laws or contrary to code of conduct. Some of the colleges seem to have conveniently ignored or skipped the verify portion in their zeal to check the box.
@momofthreeboys, you do not need an adjudicatory system at all to provide the support you describe. In fact I would argue that the mandated adversarial system actually gets in the way of providing support and education to kids, which is what the colleges should be concerning themselves with if anything.
i would and have agreed with what you say. I’m firmly in the camp of supporting the accuser and vehemently against colleges attempting to adjudicate as opposed to mediate and educate in non-education related matters. College and universities educate (as a business) and should stick to that mission. Move the accuser, change the accusers schedule, counsel the accuser and call the police if the accuser wants to press charges. And I’ve always told the boys, call the lawyer first and don’t get caught up in this current drama, let someone else navigate at least at the onset of allegations if you find yourself in this position, which hopefully would not happen. College administrations have overstepped their boundaries and are wildly out of their area of expertise. I see no reason to treat the population of young adults in college differently than the population of young adults not in college. No argument from me about what you say Ohiodad51.
Why is it the accuser who has to move and change the schedule in your version of things, momofthreeboys? In a number of majors, the courses are sequential with pre-requisites, and offered only once a year, with only one section. In that case, the person whose schedule is changed is effectively set back by a year. How is that fair?
How is it fair for an innocent person to be subjected to these things?
The reality is that it isn’t really fair to either party.
Do you want to advocate for one over the other?
Wasn’t it Reed where a kid was subjected to all kind of restrictions where it turned out that he couldn’t possibly have been the perpetrator?
I have a new plan: a woman who has been forcibly raped at a college and cannot obtain a remedy there should transfer as soon as possible, and send a letter to the President of the College, the person in charge of student life, the Dean of the College, and the Chair of her major department, explaining why. Other universities of a comparable level should offer quick transfer options for women in this situation. I would certainly endorse this plan for my university, for women transferring in and out.
If the numbers in the study of Canadian universities hold for any set of US universities, then I think that losing 5% of the incoming freshman women would be an attention-grabber.
Another option: Only yes means yes. The man should not proceed before obtaining a time-stamped video recording of the woman consenting, uploaded to a secure site, before anything happens. If the man and woman know each other well enough that this level of precaution is not needed, that’s a good thing. That’s really how it should be, in my opinion. But I know that more casual approaches exist, where the man may not know the woman well enough to trust her afterwards.
These two ideas are obviously not the solution, either–but I think that people posting on this thread need to recognize that the existence of forcible rape on campuses is a serious, tragic problem.
With regard to Consolation’s concern about the student at Reed: I am not advocating a rush to judgment, nor a limitation on evidence gathering. It would obviously have been much better if the evidence that the man at Reed could not have been the attacker had surfaced earlier.
In the early 1970’s, there was a serial rapist who attacked women at Girton College, one of the women’s colleges in the University of Cambridge. He was masked during the attacks. I believe that he wore a woman’s costume while bicycling out to Girton. (He was not a student.) In the discussion about the attacks, someone was quoted in the Cambridge paper as saying, “These were good girls!” (An example of indirect blaming of other victims, which I do not endorse.) No one’s behavior is an invitation to crime, but if the posters on this thread imagine that by not going to bars, not drinking, not going out alone at night (even though their academics would benefit if they could go to the lab or library alone), and not accepting “dates” with men they don’t know well, their daughters can stay safe–they cannot, though they can certainly reduce the odds. Also, I am serious that the “Patented Tortoise of Fury” move is not a thing. In the case of one student I know, training in hand-to-hand combat was not enough.
I am concerned about non-college women of the same age, as well. A difference I see is that the population density of young women on college campuses is much higher than the population density of young women in a locale, who are not in college. Also, the woman and man in college are forced into closer continuing proximity than in the population in general. (I realize that there are plenty of exceptions to this, especially in employer/employee situations.) I have read conflicting comments about relative risk, and am not certain about this. It may have geographic variations.
The lawyers in the university general counsel’s office at my university have given me the impression that a temporary restraining order is not too hard to get in the local court. For the lawyers on this thread: Could that offer relief to a woman who has been attacked, and what restrictions would it involve?
Because that is typically how a grievance is handled in the real world. Generally, if a person goes to an administrator in any situation and files a grievance the very first step is to look at what can be done with the person who has the grievance to ameliorate whatever is bothering them. The very first step in a case of a potentially criminal complaint should be: Would you like to talk to the police? Sexual assault is a crime. If the answer is no then the person with the grievance does not think the situation warrants that degree of action. The second step would be to offer things like I described above.
I’ve said at least a dozen times, college administrators should be mandatory reporters. There’s no question if a person comes to an administrator and describes a forcible rape that the police should be called immediately. I think the university can offer support to the person with the grievance, have someone go with them to the police if the parents or close friends or family members aren’t nearby. I would say the same thing about a person who claims another student was waving a gun around, or a student witnessed an assault or was the victim of an assault or really any criminal matter.
There’s a world of difference in society between a grievance and a criminal act. If you are a landlord and one tenant complains about another tenant, you offer to move the tenant with the grievance if you can. If that tenant is doing something unlawful, as a landlord you tell the person with the grievance to call the police. You “might” send a letter to the tenant and tell them you had a complaint and if it happens again you will take legal action to begin eviction or you might stop by and have a face to face conversation to try and ascertain the facts…but you don’t generally move the accused tenant, you generally don’t call the police yourself as a third party, you don’t immediately start an eviction process and you generally don’t presume that the accused tenant is as “bad” as the person with the grievance is saying. You assume that the two tenants don’t like each other and you go from there depending on the facts.
This presumption of guilt that seems to have become some sort of collegiate entitlement theory is very bothersome to me.
momofthreeboys, in all of the cases that I know of, where the woman reported the rape to the police immediately, and took all of the proper steps in terms of having a rape kit taken, charges were never filed. It was of no use to go to the police, as far as I can see.
I’m going with the suggestions:
- Temporary restraining order
- Transfer, and explain why to all of the administrators on the academic and student-life lines at the university.
I don’t generally presume guilt–and I have posted multiple times that I do not think it’s right to sweep up one innocent man in order to make it easier to “get at” the guilty.
In my recent posts, I have been limiting the discussion to instances of forcible rape, where I am quite certain about guilt, based on one or more years of interaction with the woman student involved (only one freshman). Yet nothing could be done, as far as I can see.
Can you point to a poster who doesn’t recognize that, because it seems to me that every poster repeats the same mantra of “situations where the person is not forced, drugged or incapacitated” every single time.
I think we have all repeated countless times that in cases of force, drugs, extreme drunkenness the perp should be handcuffed, prosecuted and punished to the full extent of the law. Which means that we all acknowledge that forcible rape happens on campuses.
There is no question of consent in forcible rape, so that scenario isn’t really relevant to a discussion of what to tell our sons about consent, in order to prevent non-forcible rape, in the gray areas where both parties could reasonably believe that they are right.
.There’s no question of consent in forceable rape, but only after you have decided that it was forceable rape. I would bet that a high percentage of defendants in forceable rape cases claim that the encounter was consensual. Even if there is evidence that force or restraint was used – “she asked me to do that.” And of course, every case of consent withdrawn without effect is a case that one would have to categorize as forceable rape. Emma Sulkowicz, if you believe her, was forceably raped.
Limiting the issue to “forceable rapes” does cut down somewhat on the two drunk kids scenarios, but it leaves plenty of complications and gray areas, and still makes adults- referee bedroom activity.