That's crazy that any of them would still be in school. Seems like it happened forever ago.
spoiler alert: i linked this
That's crazy that any of them would still be in school. Seems like it happened forever ago.
Shit. I didn't read the article. I assumed it was one of the lax players.
Trained professional police investigators often have a difficult time investigating criminal cases, particularly sexual assault cases, despite the fact that they have far more resources at their disposal than any University employee would ever have (including vital subpoena powers). I find it incredibly disturbing that an undertrained, underequipped University employee can make determinations of effective innocence or guilt, which can have such massive consequences on a student's life. The power to expel a student for sexual assault should be removed from the University absent.a criminal conviction.
Additionally, there is added incentive to find male students guilty due to Title IX heat from the Secretary of Education. So it's already tilted against them.
He wasn't expelled for sexual assault; he was expelled for sexual misconduct.
The definitions are not at all the same and it's quite possible for someone to have committed the latter without committing the former.
Yeah, I'm sure employers, friends and family, and potential transfer schools are careful to read the definitions of each and note the important distinctions between the two before they choose whether or not to ostracize a student who is found guilty of sexual misconduct.
The state doesn't require you to obtain a woman's consent for sex; the university does. Why should the university be bound to the red line chosen by the state?
Let's say consent May or may not have been granted. What is the burden of proof the school requires to determine consent was not granted?
The state doesn't require you to obtain a woman's consent for sex.
The law prohibits force and coercion; it's silent as to consent.
The law in Michigan also prohibits sex with a mentally incapacitated person but the statutory definition of "mentally incapacitated" only includes intoxication if the intoxication was involuntary.
You see why that might matter in the case at hand? I don't know North Carolina law but if it's like Michigan's the state wouldn't have brought charges if she was "too drunk to give consent" because there would be no charges to bring.
I did not know that. That is very disturbing.
The argument's been put forward--I've even read that it was the reason the law was drafted that way, but I don't know if that's true--that by avoiding the question of consent the law avoids the necessity of probing the mental state of the victim at the time, thus making her life easier during discovery and trial.
In some jurisdictions there's case law broadening the definitions of "force" and "coercion" to the point that one or the other almost always applies in the absence of consent, but I don't think that's happened in Michigan. I'm wondering if that's because the carveouts for voluntary intoxication make it clear that the legislative intent was that there would be no such thing as "too intoxicated to consent", and that's the area where the cases of no-consent-but-no-force tend to lie.
A conviction is too far the other way.
I would settle for an indictment. If the courts are going to say "we feel this person committed the crime so we are going to spend the resources to try and punish him appropriately" gives the university leeway to make a move.
can be a completely political thing right? An indictment is very far from a sure criminal conviction and frequently get dropped.
Right now they don't even need that.
You also realize how many sexual assault causes get bungled at trial right?
Requiring a conviction is too low of a standard. The university might as well not do anything because if someone is convicted of rape they won't be coming back to school anyway.
Ok, so if someone were indicted, and then found to be not guilty as a matter of law, then what? Also, is this only true for sexual assault/misconduct, or does it apply elsewhere as well? What if a student were wrongfully indicted for burglary or even a murder (the one crime that is at least as bad as rape)? If it is determined that the state was wrong in bringing charges against him/her, and the student did not commit the murder, would expulsion still be appropriate? I think the answer is clearly no, as it seems to be a good public policy not to punish people for indictments that are found to be lacking in a sound evidentiary basis (especially given the reality that there are some overzealous DA's out ther who bring charges without merit). However, once we exchange the word murder for sexual assault, the reasoning changes, and we question whether even an indictment is necessary for a student to be expelled for allegations of sexual assault/misconduct.
I know the murder hypothetical is a little out there, but I think it works well as an analogy to the way we reason about those who are accused of sexual misconduct.
I think that would be the difference between a perponderance which the school needs (51%) and proving it within a shadow of a doubt (~99%).
The other altenative is to maintain the status quo and kick out people who aren't even indicted.
Using the indictment as a switch to trigger the punishment takes the onus off of the University and puts it squarely on those who are best suited to determine if punishment is warranted (I understand we may not have the most confidence in some police/prosecutors but at least they have they tools/experience to investigate).
If someone then sues they have a clear directive they can point at. Indictment = expulsion.
I would also expect that if someone is indicted for sexual assault/murder/rape they would likely be taking time off from school to face trial anyway.
I don't know just seems like a median to me between the current system and the requirement of being found guilty which in my opinion tips the scale the other direction.
MGoCop here, currently working for a campus pd and recently was certified for sexual assault investigations (a specialized requirement w/in Massachusetts).
A lot of this has changed recently so lawyers or administrators may have more insight.
HOWEVER, as I understand it: under the new title IX requirements any reported sexual assault (reported to an advisor, ra/rd, or brought to a police department) on a college campus or involving students MUST have a separate non-law enforcement investigation. The title IX investigators are supposed to undergo training for this purpose, but I don't know how extensive this training is, and I know colleges are reeling because of the sudden requirement, and many are simply trying to get by by "honoring the spirit of the law." It's a shitshow.
through more aggressive tuition increases, and perhaps building dedicated Title IX investigation facilities on campus, as long as they're LEED-certified and the general contractors are disabled pregnant women of color over age 40 who are Vietnam-era veterans and the construction workers eat only organic vegan meals during the projects. Did I leave anything out?
People get expelled for honor code violations all the time. Often there us scant evidence. How s being a student at a private school different from At-Will employment?
Will lawsuits on behalf of expelled students become increasingly more common?
Yes. Any cause, no matter how good, if pushed sufficiently hard in one direction, will eventually see pushback. You only have to look at breast cancer awareness to know that. Well, here comes the pushback for sexual assault. Efforts to prevent sexual assault have been going on for a long time, and no university would dare be seen as anything other than zero-tolerance on sexual assault. Eventually it was bound to happen that universities would get a little too zealous in that regard. Always erring on the side of zero tolerance was bound to catch someone that shouldn't have been caught.
No one should be expelled without a trial. This includes Gibbons or anyone else. If the court finds that the defendent is guilty after both sides have made their case then ok. Too many times institutions want to cut the accused loose to help with public perception and show that they are doing something. Duke even fired their lacrosse coach before the facts came out.
What would be the approrpriate standard of proof in such a trial. Preponderence? Clear and convincing? Proof evident, presumption great? Beyond a reasonable doubt? I think this may be a determining factor, especially in the he-said/she-said cases without any other type of evidentiary corroboration, such as a confession, DNA evidence, a recorded pretextual conversation, first-hand eyewitness testimony from an indepedent third-party witness, etc.
Mgolawyers, especially those with either prosecutorial or crminal defense backgrounds, what say you?
IIRC, the current standard is a preponderance of the evidence (i.e. more than 50% likely). That's a laughably pro-plaintiff (complainant) standard given the fact that the University's investigative process is so poor and rife with problems that the investigator can effectively contort the evidence to generate an outcome they deem acceptable.
Given the quality of the investigations as they currently are, I think it should be even higher than "beyond a reasonable doubt."
In the most simplistic Bayesian framework, the standard suggests that we consider only how likely an offense is without accounting for the amount of evidence to support the charge. That is not the case if we must prove the offense occurred "beyond a reasonable doubt."
I am not arguing for one approach or the other. The standards are both pretty fuzzy to me. But I would hope that schools have some clear and reasonable guidelines about the amount of evidence needed to judge an case. The "more likely than not" standard, alone, does not seem sufficient and could put us on a very slippery slope.
So universities can't expel students for anything that doesn't constitute a crime? Or you want trial courts to handle cases involving student codes of conduct?
1) Who would you rather have "convicting" a student for plagairism on behalf of the U - a teacher/University employee or a cop? And who would you rather have "convicting" a student for rape - a teacher or a cop?
2) Also, being kicked out for stealing answers off your neighbor's paper is totally the same as having your name plastered over the internet as a rapist.
Trial courts for plagarism etc. and more serious crimes are handed to the local authorities.
Plagarism is actually handled in house at Duke (and many other institutions).
Link or GTFO.
Hey Thadmattaisagoblin, I see your point. It's nice. Well crafted. It is also a lie that you have concocted and has literally zero basis in fact. Routine plagiarism is not handled in court. It's all handled in house.
I'm saying that plagiarism and stuff of that sort should be handled in house. More serious stuff should be handled by the police and authorities rather than university officials who may not have the best interests at heart by either sweeping stuff under the rug or expelling someone due to public pressure.
I'm pretty sure we're going to see a slew of these types of lawsuits in the coming years. I don't think anyone really has a clear answer at this point as to how much latitude and power, outside of the criminal justice system, a university should have over criminal allegegations. I think this is something the courts will eventually decide, and I think it will end up going way up the court system to decide.
Secret video of those involved in the decision making process at Duke. Or not.
I loved that movie. Lots of obvious gags but great 90s fun. I was enrolled at UM when it came out...the Daily reviewers didn't enjoy it as much as I did.
Tid bits from the local press:
- The standard of guilt used in this case was "more likely than not".
- The panel found the student was too drunk to give consent
- The alleged victim is a freshmen
more info here: http://www.indyweek.com/indyweek/a-duke-senior-sues-the-university-after-being-expelled-over-allegations-of-sexual-misconduct/Content?oid=4171302
I also think that drunk sex should be consensual. If the girl is passed out then it's a different story. To me it's bad judgement if a girl says yes she wants to have sex then claims that it's rape the next day. If a guy has sex when she says no or doesn't say anything at all, then he is a douchebag who deserves to go to jail.
There's pretty general agreement that sexual assault is a terrible thing and deserves the fullest penalty of the law.
But there's very little agreement on what actually constitutes sexual assault. You've got behavior that on the one hand is considered by many to be rape that, on the other hand, is very common in some environments. And there's not much grey area in the law to allow it to handle cases at the margin--unlike the homicide spectrum from first degree murder to involuntary manslaughter, rape either is or it isn't. (There's a spectrum of findings available for the non-violent statutory situations; that's not what we're talking about here.)
And so we've got a situation where universities are trying to eliminate conduct that is, for some of the students, routine, and is not a crime. There's going to be conflict.
Yeah, I would personally never have sex with an intoxicated person but there are a lot of ways that a person without bad intentions could get blamed for rape and become a sex offender. The guy might not know that the girl has been drinking and had sex with her after she said yes. According to the law, he is guilty and will now have to register as a sex offender. Personally, I don't understand how a person is unable to give consent while drunk yet it is their fault and they should know better when getting behind the wheel while drunk.
"According to the law, he is guilty."
Not in Michigan he isn't. The law specifically carves out intoxication from its definition of "mentally incapacitated" unless it's involuntary. Spike her drink without her consent, you're guilty. If she gets drunk on her own, you aren't.
Universities currently classify all "drunk sex" (any sex after an alcoholic drink) to be rape by the male. That makes essentially all sexually active males rapists. That's insane. Obviously, sex with someone who is so intoxicated as to be physically and mentally incapacitated is rape. How do we determine when somebody crosses this point? It's often impossible. But the solution to this dilemma isn't to criminalize all sex and classify all males as rapists. The only just solution is to only pursue criminal charges for clearly provable cases of rape of an incapacitated person and accept the reality that we can't punish every wrongdoer.
If they had, we'd see an avalanche of expulsions instead of a trickle.
What they've done is issue a guideline (no sex without consent), with anything falling in the grey area potentially subject to review. Apparently only the most intractable cases result in an expulsion. They're prohibited from revealing information on individual cases so we don't know precisely how they make that determination (although enough information is known at this point to allow some educated guesses), but one thing we know for damn sure is that they haven't expelled everyone that's had sex after a drink.
The common behavior I'm referring to isn't sex after any drinking however minor. It's people deliberately pusihng the line, hoping to find someone drunk enough to agree to something they'd never consider if they were sober. There are people who do that routinely. Some of them seem to have extrapolated from their circle of friends to the world at large and they think all men behave that way, that it's what sex is, that to treat that behavior as problematic is to criminalize all sexually active males.
Hence the conflict.
Hmm, that article tends to not make Duke look very good. In comparison, the evidence gathered against Gibbons paints a much stronger picture that Gibbons actually did commit rape. "Preponderance of evidence" with three untrained panel memebers who can dismiss any witness' testimony they find irrelevent, no police evidence, and anonomoys witnesses doesn't seem like the best system. Pretty much why we're going to see a bunch of lawsuits on this stuff. Makes me glad I'm past the point of my life that worry about this stuff. You know, until I have a kid, then I can worry all over again.
Frankly, I'm neither sure that the testimony of a friend of the accused who saw them get out of a taxi is really relevent nor that Duke handled themselves correctly.
I guess, I just see the testimony of a friend of the accuser who saw them get out of a taxi, just as relevent as the testimony of a friend of the victim who saw her walk. I was under the impression that allowing defense witness testimony, especially when called to refute prosecution testimony, was kind of a hallmark of any due process.
I actually think universities are way too lax in their handling of sexual assault cases. The universities don't want to investigate sexual assault cases because it adds to their statistics. And in fact, the DOJ is currently investigating 55 different colleges for mishandling sexual assault cases:
Additionally, there's the Brendan Gibbons situation. What I think many don't realize, though, is that the Central Student Government's report wasn't limited to Gibbons, but to widespread issues involving sexual assault reports by Michigan students:
I have a friend who helped in the investigation (they were interviewed by DOJ officials) after the school tried to sweep their case under the rug.
The idea that a judge would block an expulsion after the school determined that there was reason to believe that a student committed sexual misconduct is baffling to me. Unless Duke affords its students substantial contractual rights (usually such rights are non-binding on the school to the best of my knowledge), this seems like a bad ruling.
Also, this IS NOT a criminal investigation and students do not have a right to attend a specific school, so saying that the school shouldn't be qualified to conduct sexual assault investigations seems misguided to me.
Given your position, should a school be able to collect evidence by requesting unreasonable invasions of privacy? Perhaps if the student doesn't comply with said searches they can expel. Do you think the school should have that right also? Essentially holding a degree over their head to force them to give up rights. And yes, the student could always transfer right?
tell the accused to keep their mouth shut. Better to be kicked out of school than to say something wrong that sends them to jail. Even if they did nothing, an attorney is going to tell them not to cooperate.
It's funny you say that, because an "unreasonable invasion of privacy" is dependent on having a "reasonable expectation of privacy." With a private school (like Duke), there's essentially no such thing, since they aren't subject to the constitution. But with a public school like Michigan, any court will tell you that you have little to no expectation of privacy when using THEIR lockers (which is what students at Michigan do).
All of this is missing the real issue, though, that sexual assault cases are routinely mishandled and swept under the rug by universities in an attempt to keep their statistics down. And now a judge is preventing a university from taking action when it actually chooses to do something about the problem. Perhaps this individual kid was not guilty, but the instances of unpunished rapists far outnumber the instances of falsely accused innocents.
I wasn't talking about lockers. Think of this scenario: a girl has sex at a party. In the morning she claims she was too intoxicated to consent. DNA evidence was collected that the university demands anyone who attended the party submit for a DNA sample or else be expelled. Is that acceptable? Is it reasonable for a random male student who went to a party to expect not to be given that type of ultimatum.
I'm not claiming this has happened, and yes this is slippery slope type argent, but it's not out of the question once universities are encouraged to stray from the legal system.
That likely wouldn't happen, though, because the negative publicity from taking such action would be incredible.
And what do you mean by "straying" from the legal system? I'm asking sincerely.
By straying from the courts I am referring to what they're currently doing. Setting up kangaroo courts that require lower burdens of proof for determination of guilt and don't need to follow actual laws.
Universities have always "strayed from the law." There is no law against cheating on tests or plagiarism, for instance.
I agree with you that universities have been lax on the handling of sexual assault cases to make themselves look better. And the new emphasis by the Dept of Ed is a good thing to protect victims and survivors...as long as it's done correctly. I know this isn't a 'criminal investigation' or 'criminal penalty', but Duke, by expelling him and not awarding him a degree, is basically confiscating his degree. That is a material possesstion by the judges rulling; a material possestion that he would have otherwise earned by merit. Thus, from what I've read, it seems the crux of the accused lawsuit, is that Duke did not follow any type of due process is confiscating his property. That's the problem here.
The panel allegedly, according to the accused, would not even hear, or let be admitted, defense witness testimony or evidence, and also did a poor job investigating. This may vary by state, jurisdiction, etc, but I'm pretty sure that even when an organization, even if freely associated with, wants to take a material possesstion, they have to follow due process (but burden of proof is lower than criminal justice system). That is certainly true of my profession. If my Board wants to confiscate by earned license, they have to follow due process that includes me presenting evidence in my defense, being represented by an attorney, and presenting defense witness testimony. If they don't, they they will get slapped with a lawsuit, that, I'm told based on history, they will lose.
IMO it is necessary for universities to make these determinations even when law enforcement fails to, because we know for a fact that law enforcement frequently fails to deal with sexual crime. I also kind of think the preponderence of evidence standard is high enough; the alternative is keeping college bars and frat parties stocked with suspected rapists. Other students deserve better than that. I don't see how Duke, a private university, is going to lose this case. All that happened here is that the judge refused to dismiss it. That's a long way from the student's winning.
To answer the OP's first question, I do think we'll see a lot more of these lawsuits. Even if the accused did it and knows he did it, it's very much in his interest to appear as outraged as possible.
FWIW, WSJ has taken a strong editorial stance against the current Title IX interpretation as it applies to accusations of sexual assault on college campuses. They are a pretty biased source, even more biased than me!
...Universities have a definite conflict of interest to be seen to active against those accused of sexual assault or rape irrespective of the facts.
For example, what would have happened to the Duke lacrosse players if Title IX had been in effect then?
I also do not understand why are there different rules for University students than the population at large?
I am against sexual assault in all it's forms, however I do not believe creating the potential for kangaroo courts to be the answer.
Greater vigilance, education and on campus security can help.
That point doesn't really carry any weight. Almost every organization you'll ever find has it's own unique bylaws that subject its participants to conditions and restrictions different from those placed on the general population. And it's easy to cherry pick evidence to the contrary. You can do that for anything. For every duke lacrosse case, there are hundreds of sexual assaults and rapes that go unpunished. This is a proactive step. Is it perfect? No. But it's infinitely, immeasurably better than the alternative.
With being expelled on a preponderance of the evidence if you didn't do it and law enforcement didn't charge you?
That really is the key issue I am trying to (poorly) highlight.
Title IX was in effect then. The guidance from DoE about what universities had to do to be compliant was just different. And i don't know what the university would have done; could it do any worse than the police and DA did in that case? I doubt it. Worse case scenario: Duke is also on the losing end of a lawsuit from the falsely accused?
There aren't different rules for anybody. See how long you keep your job if a coworker accuses you of rape.
Vigilance, education, and security do not unrape people.
The Duke issue was totally political. It was horrible police work that was tainted, at least in part, due to severe pressure from self-aggrandizing liberals at Duke and in the media who couldn't wait to jump on the race and class issues that exist in Durham. The number of statements from Duke professors and students, and op-eds from major left-wing newspapers decrying the crimes of the "white boys of privilege" was ridiculous given the fact that the investigation hadn't even been completed.
...it is before you are sued if you are dismissed for rape without being charged by police.
One court hearing less time than it takes for the suit to be dismissed. Employers can do pretty much whatever they want. Read your contract, if you actually have one.
"For example, what would have happened to the Duke lacrosse players if Title IX had been in effect then?"
Title IX has been in effect since 1972. And the Duke lacrosse players were hosed by the university, and only were reinstated when it became obvious the district attorney falsified evidence.
Yes but you're assuming that preponderence means that you'll only catch people who are rapists or sexual presators. If you do not use "beyond reasonable doubt" you're bound to have a lot more innocent people convicted than if you had a trial. Essentially what these schools are saying is that you are guilty until you can prove you're innocent of what we're charging you with.
What exactly did I say that required assuming that?
ETA: the comment about the standard being high enough right? The occasional false positive is worth it, IME.
You're OK with punishing people who don't deserve it?
I'm not ok with confirmed rapists remaining enrolled. (We're just supposed to be saying things that make our positions seem like common sense that only truly outrageous bastards could disagree with, right?)
and you're only a confirmed rapist until it's been proven beyond reasonable doubt.
Question the sensible poster above.
(I get it)
I'm not ok with confirmed rapists remaining enrolled. (We're just supposed to be saying things that make our positions seem like common sense that only truly outrageous bastards could disagree with, right?)
That's not the same thing as what you said, though. Neither of us is OK with confirmed rapists being enrolled. Only one of us is OK with slapping the "rapist" label on people who aren't rapists.
You've created a terrific paradox in your own position. You're saying that rape is such a heinous crime that it justifies tyrannical methods to stamp it out - yet you're fine with innocent people carrying the stigma of it. That's supremely fucked up.
they were convicted on MGoCourt.
have summed up in a succinct argument, the true issue at hand here. Rape is a heinous crime that is difficult to prove and can be nearly as bad detrimental to be falsely accussed. I took a class called philosophy in law and rape was one of the topics we covered. In college, with young hormone fueled adults with their first chance at freedom and access to lots of alcohol, rape is a very confusing issue and problem.
I don't envy anyone in the process who has had to deal with rape, false accusations, or with making a judgement sure to affect both lives.
I didn't say it was the same thing as what i said before. I just thought I'd try to play the same game as you by saying things that it's uncomfortable to disagree with. There are not good solutions here. The bad solution where once in a blue moon somebody gets expelled on the basis of a preponderance of the evidence is probably the least bad solution.
I am, of course, ok with slapping the rapist label on rapists, even if the legal system can't convict them. Take, for example, Gibbons, who we both know is a rapist. I was willing to--and did--call him a rapist a long time before you were willing to call him one, and I've been right all along.
What I really think is that universities are legally required to do whatever they can to remove threats from their classrooms, and that the current policy does that. As for the worry about false accusations, there are two kinds of situations where somebody can get falsely accused: (i) he said/she said cases and (ii) cases where the accusation can be proved false. In situation (ii), the falsely accused has a legal unicorn--a slam dunk defamation case--so things will work out that way. In situation (i), the outcome is bad. But I don't see how to avoid it without something worse happening, and we have no evidence that it's ever actually happened anyway. Seriously, point to a single case of somebody being expelled under the current DoE rules on the basis of a false accusation. Can't be done.
Are you OK with letting people get off scot-free who did do it?
Obviously the answer to both questions is "no" and misses the point.
You can't have both and Western democracies have decided that putting more guilty people in jail at an expense of getting more innocent people in jail is unacceptable.
What does jail have to do with it? Expulsion from, in this case, a private university is a hell of a far cry from being jailed.
...but we use the same "preponderance of evidence" standard if I want to take your property/money.
The only place the US Justice system uses "beyond a reasonable doubt" is in criminal cases where your FREEDOM could be taken.
If someone just want to take your money/property/posessions - it's straight up preponderance of the evidence.
No, the answer to your question is yes. I'd rather not, but there is absolutely, positively no way to nail down, with 100% unimpeachable certainty, every guilty party, while also with 100% certainty allowing every innocent to walk free. That's a fantasy land that doesn't exist.
The choice between imprisoning innocent people and allowing guilty people to walk free is not a desirable one but it's an absolutely necessary one and I prefer to let guilty people walk.
I'm not talking about incarceration. Liberty is a fundamental right and is protected by the whole "beyond a reasonable doubt" standard.
What we are talking about, though is not criminal. And it's a HUGE difference. We let O.J. Simpson off the hook under the "beyond a reasonable doubt" standard (I know it's a loaded example, but bear with me), but he didn't get off scot-free. He was later found guilty in civil court.
We should absolutely conform to the highest standard possible before taking away a person's freedom, but there's no reason that a person should be legally immune from all consequences for his/her actions just because you can't prove they did it with 100% certainty.
But liberty also involves not having your property unfairly confiscated. And that's the what the accused says happened, and what future lawsuits will decide. A degree is something one can own, and costs time and money. In order to confiscate it, due process needs to be followed (in the examples I can think of at least). OJ Simpson was found guilty in civil court with a lower burden of proof, but the legal system's due process was still followed. The crux of this lawsuit seems to be that Duke did not follow proper due process. While no system is perfect, proper due process is in place to help avoid the 'innocent' from being unjustly punished. I imagine future lawsuits will explore other aspects of these type of accusations that are being discussed here though.
you can be expelled from school by a university without a criminal trial, due process, etc. etc.
Incorrect from what I can tell. Note, this is not a criminal trial and does not require criminal burden of proof, but due process must still be followed. From an ACLU chapter's webiste:
In 1974, the Supreme Court heard the case Goss v. Lopez, a case involving students who had been suspended without a hearing, and ruled that students have a right to due process in schoool...If a student is facing a more serious punishment (suspension for more than 10 days, or expulsion), the student is entitled to a formal hearing before an impartial body (usually the local school board). The student may have a lawyer present and may cross-examine witnesses.
That was a public high school.
Just to repeat, private actors (which include universities) ARE NOT bound by the Bill of Rights.
Scenario #1: You are a government worker and your boss wants to fire you because you're ugly. You are ENTITLED to due process because your job counts as a property interest.
Scenario #2: You are a worker for any non-government employer and your boss wants to fire you because you're ugly. TOO BAD. You are NOT ENTITLED to due process.
Just to repeat, private actors are not obligated to give due process rights. Period.
Public actors are obligated to give due process rights.
True, a private university has not been obligated to provide the same due process under the 14th amendment that public institutions are. I was just responding to the poster's statement about universities, seemingly, in general.
But private institutions are obligated to follow their own policies and 'due process' when disciplining a student. In Duke's case, it is very vague as to how the investigation should be carried out, who should conduct it, and what witness testimony should be allowed. It does specifically state the presumption of innocence and grant rights to confront the accuser and such. And more specifically in this case, the policy used to punish him I believe was unpublished at the time (and one of the deans allegedly told the accused he could see the policy when he sued Duke). Litigation is still pending and such, but the judge seemed to think there was enough evidence of Duke violating their own due process to stop the expulsion for now. I have no idea if this will result in any generalizability outside of this specific case though. Probably not.
If it is found that the university's policy provides grounds to sue the university, then you will probably see every university changing its policies to eliminate due process guarantees.
Which is the worse (and far more common) injustice to the innocent: being sent to prison or getting raped and watching "the guilty people walk"? To present what may be a reasonable summary of the question:
It is true that most rapes go unreported, that the public believes false accusations are exponentially more common than they actually are, and that a man's chances of being falsely accused of rape are incredibly small.
the legal system's capability to handle rape has a heinously bad type II error rate. and considering that the consensus on rape statistics shows that type I errors are rare, this seems like the lesser of two evils.
and far worse punishments are doled out to people who deserve it much less every day. or maybe i'm just watching too much GoT...
if 1) the punishment is expulsion from school and not a prison sentence, 2)false accussations are rare, and 3) it means that damn near 100% of real incidents of sexual misconduct that are reported result in expulsions.
1 is definitely true, there is a "preponderance of evidence" that 2 is true, and considering the lowered burden of proof, 3 is most likely true as well.
It's inevitable - under any standard.
While we should attempt to minimize false positives to the greatest extent possible, we can't (to paraphrase Voltaire) let the "Perfect be enemy of the good".
That statement is contradictory to everything the western system of justice is built on.
people can argue alot of things, but that is most definitely not the legal standard. And you're saying so doesn't make it so. The burden of proof--which is a meaningful obstacle that must be met in our jurisprudence--remains on the complainant.
I try to no longer open these types of threads because of, among other reasons, the consistent legal misrepresentations--particularly in administrative settings--and the unbelievable lack of concern for women--and sexual assaults on our campuses.
We should change the law, not let schools, who have no investigative skill or ability to fix the problem.
3) standard should be the court of law. We have laws and lawyers for a reason (even if the system is flawed). That should be it. A university does not have the same ability to investigate anything, which is why police departments exist (again, even if flawed). I don't understand how anybody can believe otherwise. Maybe change laws to make it easier to convict accused sexual assault perps? However, we have laws for a reason.
So when BYU decides to expel a student for extramarital or premarital sex the investigation should be entrusted to the police and the action should go through the courts? When they expel a student for failing to meet the requirements for religious observance, they should go through the courts?
We have courts for a reason--to administer the law. They aren't there to enforce every code of conduct belonging to a voluntary association (though they are available, as in the present case, if someone believes that the voluntary association has acted illegally in enforcing its code).
When a police officer pulls her over, does she get the chance to say she's not responsible because she's a female and she didn't understand what she was doing? No, she is held accountable for her actions. Yet when most likely both parties were drunk and made a poor decision, the female says she couldn't give consent and it's the guys fault. The guy's life is destroyed even though two parties were involved in the poor decision. We are just going to assume the female wasn't responsible because sometimes the guys take advantage. The guy gets kicked out of school and is stigmatized for life and the female goes to the next party.
I have a daughter and a son.
I'm going to be damn sure I explain to my daughter that if put yourself in the wrong circumstances, bad things will happen. Hopefully you don't do that but know that you can put yourself in situations where bad things will happen and drinking makes it more likely.
I'm going to be damn sure to explain to my son that if you put yourself in the wrong circumstances, bad things will happen and drinking makes it more likely.
Saying a mutually stupid decision is the guys fault makes no sense but it's the way it's looked at now. Both parties need to be held responsibility for the stupidity.
A rape is different. I'm talking about sex that happens every weekend after leaving every bar in the country.
Is there actually any evidence that schools wouldn't take action if a male student brought allegations that somebody took advantage of him while he was drunk and unable to truly consent? Has any male student ever brought such a case?
I know that there are men that joke about "banging drunk chicks" and set up situations with the intent of bringing that about. I've never heard of women doing the same, with reference to drunk guys. Maybe they talk about it on their own and I'm not invited to the conversation?
I'm guessing not.
I'm aware of the possibility--has such a case ever been brought to the university's attention?
That is absolutely not what you were referencing when you said "I'm guessing not." You were referring to your sarcastic hypothetical of women setting up men for unwanted sex, i.e. rape. And you were sarcastic because you were dismissing it as a possibility, by implication. It can and does happen. It is not a mere theoretical possibility.
No, my hypothetical was a female equivalent of male locker room humor as respects "banging drunk chicks." And it wasn't sarcastic--I'm quite aware of what you describe but I've never heard a hint of common female discussion or humor about it, which could mean that such discussion/humor is uncommon or that it's hidden. I was guessing the former but could be wrong--more than one woman has commented that while they're aware of the male version of this it never happens in their presence.
I'm also not being sarcastic with my question about whether any university's seen a report of this. It's another example of something that the law can't currently deal with but most university codes could, since they don't suffer from the same gender imbalance the law does.
The guy gets kicked out of school and is stigmatized for life and the female goes to the next party.
I think this is a bit of a straw man. The flip side of your tale is exceedingly more common: the girl gets raped and has to live with that while the male guy goess to the next party.
I certainly fall on the side of the fence that says being raped is worse than being falsely accused of rape, but I'm willing to entertain the counter-argument. My issue is that your scenario is pretty rare while rape is an unfortunately popular behavior.
Your position holds water so long as you are willing to be publicly labeled as a sex offender when you did not commit any offense. Are you? Are you willing to have your father/brother/son carry that label unjustly? It's easy to take that position when you are not the one asked to bear the burden.
are not labeled sex offenders. the sex offender registry is it's own entity that is entirely within the realm of the court of law, and carries it's own commonsense pro's and evil cons.
rapists? That was clearly what he meant by being labeled as a sex offender. He never mentioned the list.
is that people are implicitly conflating the legal ramifications of being a convicted rapist to being ruled by a university of sexual misconduct. the differences are extremely significant.
having to deal with random people you'll never interact with calling you a rapist is very different from being on the sex offender list.
i bring it up because i think that people are making it seem like being falsely expelled is on par with being falsely convicted. it's not. the ramifications are baby-time compared to the legal system.
They are absolutely labeled as sex offenders. You think Brendan Gibbons isn't labeled as a sex offender just because he isn't on a state registration list? He will be called a rapist for the rest of his life, as will any person like the student from Duke who is forced to sue if he/she is wrongfully found to have committed "sexual misconduct". Once you have to sue, your name is public for any employer or google search to find.
I've put plenty of people on the sex offender registry in California. I'm perfectly aware of what it is. I'm also not naive enough to believe that once a school makes a finding like this and you have to sue to get it corrected that it won't follow you for years.
received, he will not have to face the job market as a convicted felon, never have to make sure he lives far away from every school, etc. etc. etc.
And that in no way addresses the fact that he is labeled as a sex offender. When a rudimentary google search yields your name as a person found to have committed sexual misconduct, you are labeled as a sex offender. To say otherwise is naive at best and intellectually dishonest at worst.
being "labeled" a sex offender by random posters on an internet blog is not the same as being labled a sex offender by the legal system. 1 is largely sticks and stones while the other is something that will almost assuredly inhibit your means of making a living for your entire life.
What's intellectually dishonest is assuming that every employer merely googles the names of applicants and flips out immediately if anything unscrupulous pops up.
I do sensitive work, and some of my coworkers are ex-cons. A law school guy I knew at Michigan had multiple arrests on his record and got a job easily at a top-tier firm in NYC. It sucks way, way more if you're doing a minimum-wage job or something similar paid hourly, because those skills are largely ubiquitous, but if you're a graduate with rarer skills, employers are willing to overlook all sorts of stuff.
NB: some people get called rapists because they raped someone. That is sometimes independent of whether or not they were expelled for a broader offense.
I'm already assuming that risk by having sex, it's just an extremely low one relative to the odds of getting raped and seeing no justice for the perpertrator. But as tough as it is to make such decisions, I'm willing to accept a small increase in the number of falsely accused having their lives ruined if it leads to a significant reduction in the number of rapes total.
It's a callously practical position as much as a serious attempt to look at it from the female perspective. I'm a male, but I think any (and all) discussion optimally includes perspectives from both sides and this forum skews heavily one way.
As I already stressed, my issue is reality versus anecdote. I realize false accusations occur, but my admittedly cursory research suggests its pretty uncommon compared to rapists seeing no legal or social consequence. Whether and how a university/legal system can solve that underlying issue is another debate. The solution is not so simple and I admire but don't envy the difficult task of sorting it out.
This has nothing to do with assumption of risk. This is an actuality.
So my options are A) go to prison for a falsely accused sexual offense or B) no longer lobby this blog for any action that reduces the number of sexual offenses that occur (even if it means A is incrementally more likely for everyone)? Well sure I'd take B if those are my only 2 choices, but in actuality that's not how it works.
Or maybe I'll just say "yes." If I were falsely convicted for a sexual crime, I would go to prison. Or possibly kill myself if I had the chance. Like rape victims sometimes attempt- to the tune of 13 percent, per suicide.org. I dunno if they have an angle or not, it's just the first Google result. This blog likes data over perception. Show me the data on outcomes for the falsely accused.
we're talking about being expelled from school. maybe you never are able to transer, so you end up entering the job market with only a high school diploma. very stiff punishment, but not on the same level as being a felon on the sex offender list.
Believe me, I understand that. The ramifications of a criminal conviction compared to sexual misconduct are demonstrably different. I'm just answering the hypothetical I was given by guthrie.
But you are talking about confiscating a material possession, which is why the judge blocked the expulsion. That's more like, say, your HOA saying you raped someone, investigating it, judging you, and then confiscating your house. That's why most everything requires due process by an organization to confiscate something. The the extent to which 'due process' follows the criminal due process system is probably something these lawsuits are going to figure out.
And I argue that it's easy to take your position when you've not been asked to bear the burden of being raped. Nor have I, but your theoretical condition upon which my argument holds water is ridiculous.
Listen, I absolutely agree that no one should be unjustly sentenced to the legal or social ramifications of false accusation; it would be an unimaginably horrifying scenario for me or my family. I also think no one should be unjustly sentenced to being a victim of sexual offense; even worse offense when the perpetratror suffers no repercussions. One of these sentences is vastly more common. In my opinion, its consequence is at a minimum equally as devastating. To me that makes the "what if it happened to you?" line pretty bogus. Yet I answered it, anyway, above.
One of these sentences is vastly more common. In my opinion, its consequence is at a minimum equally as devastating.
This is what I strongly disagree with. One outcome being more common doesn't make it worse for the individual involved. I think you're making a fallacy of failing to separate the actual act of rape or sexual assault with the outcome for the perpetrator. Is rape traumatic? Yes - but it's traumatic whether or not the perp is punished. It's just that it's some degree more traumatic if not.
On the other hand, there is a 100% difference between being the victim of a false accusation, and not being one. And there are very tangible effects on those victims. Look at it this way: We as society consider it vile and unforgivable to deny an opportunity to someone for something they couldn't control, like their race. Donald Sterling wouldn't rent to black people, and that helps make Donald Sterling the most hated man in America - and those people he wouldn't rent to can find another apartment relatively easily. So I can't reconcile the idea that it's acceptable to deny someone these opportunities for the rest of their lives because of something they didn't do.
Even if it's less common - well, it should be. And - this is important - persecuting people who didn't do anything is not going to make sexual assualt go away on campus. At some point, which Duke and U-M probably reached, you're not preventing sexual assault. All you're doing is making sure the perception of your own actions cannot possibly construed as being tolerant of rape.
And, I'm sure I don't have to remind anyone, false accusations hurt actual victims too. Viciously stamping out false accusations and making sure that an accused person gets his (or her) due process is another way to ensure that when someone does speak up, they're taken seriously. So to me, it's just logic. Err on one side and you risk hurting victims of rape. Err on the other side and you also risk hurting victims of rape, plus the victims of false accusations. I know which way I'd rather go on that.
being a victim of rape and having to suffer through the process of the completely incompetent legal system letting the rapist go scotch free, and then having to face the possibility of the seeing the rapist at random times for the rest of your college life can and often does lead to such extreme decisions as suicide
I'm not the authority on which victimization is "worse," but the justice system (and society at large) already does a pretty good job of protecting people from punitive consequence for committing (and even moreso being falsely accused of) sexual offenses. Protecting the victims of those crimes? Seems like there is room for improvement. So I've taken my stand there and it seems you have as well.
I don't begrudge you for the opposing position, but it really runs the risk of minimizing the impact of sexual offense by emphasizing something like "for the rest of [the falesly accused] lives," as though being a victim of sexual offense doesn't carry consequence for the rest of one's life. Or that "there is a 100% difference between being the victim of false accusation, and not being one," as though there is no grey area between sexual misconduct charges from a university and a criminal conviction of rape.
I do agree that it's a huge unknown as to whether harsher prosecution (or anything that results in a greater number of falsely accused receiving punishment) would relate to any reduction in the number of sexual offenses committed overall. The larger issue of how to reduce sexual crimes on campus or in society at large (and whether or not universities have a place in that effort) is much more complex.
No, I have not had to bear the burden of being raped, nor has anybody I'm close with as far as I know. But I have had the bear the burden of having someone perpetrate a crime against me and not be punished because of due process and the presumption of innocence. And yes, most would consider it more 'trivial' thing than being raped. But you know what, I still believe in due process, and I still believe in the presumption of innocence. God help me if something as bad as rape happens to me or to those I love, but I certainly hope I will still hold to those core values. But it won't matter what I would believe in that senario because others who are not emotionally wrapped up in the situation will probably still defend those values. But I just cannot agree with you that because rape is vastly more common, and still probably under-reported, than false accusations, we should just glide past due process.
I think the issue is that I've gotten off track a bit from the question of whether universities should be involved. I'm not sure how to approach that and recognize it does run the risk of apparent guilt without due process.
My issue is that "but what about the falsely accused!?" is used as a straw man for limiting societal efforts to prevent and properly punish sexual crimes. There just aren't any numbers to back up the claim that false accusations are a serious problem in our society that needs addressing. Meanwhile, a significant percentage of offenders get to "glide past due process" by never even appearing in a police station or court.
separated from the discussion. I'm talking about casual sex. I'm also talking about two people being responsible.
The people on here that push the hardest continue to call people rapist without a trial even though they keep saying there should be a lower standard. The rapist term shows how damaging these cases are and also show that the wrong person on one of these panels would destroy a lot of people's lives. I'm hearing a lot of people saying if they weren't guilty they wouldn't be accused.
To take a concrete, and in some respects extreme, example that a lot of people here are probably at least somewhat familiar with, was the Steubenville case a rape or was it casual sex?
Ohio law is different but under Michigan law it probably wouldn't have been a criminal sexual assault since the victim's intoxication was (as far as we know) voluntary.
Of course all that demonstrates is that statutory law doesn't draw the line correctly, but I think the real difficulty here is that there isn't a sharp line to be drawn. We could probably set up a hypothetical set of facts that some of us would think constituted rape and others wouldn't find particularly problematic.
Solving that conundrum is what what the justice system is designed to do, but it'll never be perfect. Not until we have robot lawyers and judges, at least.
Did the victim say yes she wanted to have sex? Then it's consensual if she was drinking voluntarily. Did she say no or nothing at all? Then it's rape. Was she passed out? Then it's rape.
That's a system, it's just an imperfect one. And if I followed some earlier chatter that occured in the thread, one that applies in the state of Michigan? How the state reached that system is presumably a long series of decisions generated by events and thoughtful discourse of the nature we're all trying to have here. Again, I'm not a lawyer.
Though tempers have flared, I think everyone is agreement we should continue the discussion as a society in seek of perfection, or at least the semblance of consensus. Perhaps we're among the last few keeping it alive for tonight as this thread approaches a relatively civil 100 replies.
Yep. I'm going to bed. The Oregon State UC irvine baseball game on ESPNU just ended.
She was conscious but unable to walk or speak coherently. From the witness's testimony it's likely she said or mumbled something, but it was never established in court what it was.
From what you've written it sounds like that would be the critical question for you--did she mumble something that could be construed as a yes?
I have a different standard, and I'm not alone.
But going back to this specific case, the whole crux of the accused's lawsuit seems to be that Duke did not allow testimony, nor did the investigators interview, witnessess who say she was able to speak and walk coherently.
But, man, this whole case presents a bunch of hypotheicals and conundrums for Duke and other universities. I find this quote during the lawsuit from Duke's Dean interesting:
Rachel B. Hitch, a Raleigh attorney representing McLeod, asked Wasiolek what would happen if two students got drunk to the point of incapacity, and then had sex. "They have raped each other and are subject to explusion?" Hitch asked. "Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex," said Wasiolek
Wooo, that just seems to be begging for more lawsuits/rights violations. Basically saying, 'you are incapacitated to make decisions, but you are male, so you are the one held responsible."
Unless Duke is intentionally trying to get sued to force the courts to intervene with DoE's policy, one of Duke's lawyers needs to have a talk with that dean ASAP. There's no way in hell that's the policy, and that's an incredibly stupid thing to say, especially on the record to a plaintiff's lawyer.
But premarital sex is not a criminal offense. Shouldn't the criminal justice system be investigating criminal offenses?
Sexual misconduct is also not a criminal offense.
Every school in the country (maybe there's an exception out there somewhere but I've never heard of it) has a student code of conduct that's more restrictive than criminal law. All of the cases I can remember discussing on the board have had the possibility of falling into the area between, of being code violations without being criminal acts. In Michigan's case the law deals with "force and coercion" and the code is primarily interested in "consent". The critical question in a university hearing hasn't even been dealt with by the police or prosecutors or courts--it's irrelevant there.
I guess the equivalent at BYU would be a case where a court clears a student of rape. Absent a finding in the court that sex hadn't taken place at all, the school would be well within their rights to expel the student for having sex in violation of their code.
Whatever anyone might think about the efficacy of the criminal justice system in dealing with sexual assault, one thing that's clear is that that system is only set up to enforce criminal law. It can't, and doesn't, evaluate those cases against a university's code of conduct.
You're right. Although I would bet there will be more lawsuits about what 'sexual misconduct' is as it relates to having sex without consent, which can probably be justified as a criminal offense (although, as pointed out before, may vary depending on local laws). It's a bit more murkey as it relates to similar criminal penalties than pre-marital sex. Basically, one can argue that regardless if Duke calls it 'sexual misconduct', when your investigating and convicting someone of having sex when someone is unable to consent, you're investigating and convicting them of rape. Just because you call something by a certain name doesn't mean it is. Kind of like the whole NW student-athlete/employee designation. NW can call them 'student-athletes' all they want, but a legal rulling said, 'no, they're employees and are granted some of the legal rights even if you call them 'student-athletes''.
between a rape conviction and violating a university's "code of sexual conduct." But think about how ridiculous this whole "code of sexual conduct" really is. How is a male student "violating the code of sexual conduct???" According the university standards, he violates it by #1 being male #2 having sex with any female who has imbibed any amount of alcohol #3 having sex with a female who decides she was "raped" even if she consented to sex with him. So he's basically judged guilty by being a normal sexually active heterosexual male who was unfortunate to hook up with a crazy or vindictive female. His whole life is then turned upside down and he's forever stamped with the scarlet letter of "sexual offender" or whatever label you prefer.
That's immoral and should be deemed illegal conduct by the university. And it's obscenely sexist. Why isn't the female judged equally guilty of "sexual misconduct" or "rape" or whatever you wish to call it and expelled as well???? If we're being fair and just, that would be the appropriate result. Universities would become sex-free zones with sex police running around. We're already headed that way. That's totally #$%^ed up.
Most of the females I know share the sentiment that consensual sex while drunk isn't rape. They feel that it's sexist that they aren't responsible for their decisions while under the influence of alcohol.
Follow the money.
This guy was a scholarship athlete from a foreign country. If he was paying any tuition Duke has already gotten they could from him (he was a senior in a fall sport so he had completed his eligibility) so keeping him around was of no financial benefit to the University. The complainant (can't use victim as no crime?) was a freshmen so the university still has 3 years of collecting Daddy's money left. Given the average cost of attendance per the Duke website of $61,404 per year * 3 years = $184,212 total. That is one hell of a gravy train to potentially lose out on plus the potential ramifications if she transfers out and bad mouths Duke.
Gotta protect that institutional reputation.
That...is a very cynical view to take.
Cynical yes. But I think it is based in observational fact.
Look at FSU and Jameis Winston for comparison, Winston brings in more money for the university given that he is a high profile athelete with at least 1 more year left at the school (2 years at the time of complaint). If FSU expells Winston they do not win the BCS championship which leads to less donations from alumni.
So high profile athelete with eligibility left doens't get expelled but a low profile athlete with no eligibility left gets expelled.
#1 Yes, these lawsuits should become more common so that universities are forced to respect the rights of the accused.
#2. No, university employees should not be handling criminal matters.
#3. The only "sexual misconduct" universities should be penalizing would be criminal convictions handled appropriately through the justice system. Beyond that, universities should not be "sex police." Period.