A few months back I started this thread to discuss the new policies concerning rape and sexual assault that the Obama Administration and some state legislatures are forcing colleges and universities to adopt. I started that thread by mentioning that Obama frequently cites the bogus statistic that one fifth of all female college students are sexually assaulted. Unfortunately the thread then devolved into a discussion of exactly how intoxicated a person must be for consent to be impossible. There were other aspects of the topic that I wanted to talk about.
It seems I’m not the only one. 28 professors at Harvard Law School have signed a statement criticizing the university’s new policy. There’s criticism from many other sources as well. The main points being:
[ul]
[li]Rape and sexual assaults are serious, violent crimes. Thus any serious accusation of these crimes should go before a court of law.[/li][li]Judges, lawyers, and police officers are trained in the standards of criminal law, gathering evidence, and respecting the legal rights of everyone involved in a criminal case. University administrators and professors generally aren’t. This gives a further reason why accusations of rape should be tried by the legal system, not by universities.[/li][li]The new university policies violate the civil rights of the accused in a number of ways: double jeopardy, no right no cross-examine the accuser, etc…[/li][li]The university policies are also changing the definition of rape, without being straightforward about the fact that they are doing so. There should be one clear, legal definition of the term.[/li][li]President Obama does not have the legal authority to force universities to make this change. He claims the authority comes from the Civil Rights Act, but that piece of legislation flatly does not give the President any such authority.[/li][/ul]
An example of how these policies will play out arose this past summer at Occidental College. A female student accused a male student of sexual assault, filing complaints with both the university and the Police Department. The Police quickly and easily determined that the male student was innocent and no charges were filed. Nonetheless, the university continued with its investigation and hearing and eventually expelled the male student, despite evidence clearly showing that the female student had consented to have sex. Thankfully the male student in this case has chosen to fight for his rights in court.
Meanwhile, President Obama and other politicians who are pushing these policies show no desire to defend their actions on constitutional, legal, or logical grounds. Those who do aren’t making a very good case for it. Ezra Klein, for instance, wrote a cringe-worthy defense of them, in which he calls such laws “terrible”, “dangerous”, “overreach”, “extreme”, and so forth. Klein claims that false accusations of rape happen “very, very rarely” and links those words to an article in Slate documenting that such false accusations are fairly frequent. (Oops!) There doesn’t seem to be much sound defense for the university policies or the laws that are behind them.
IMO, any sexual assault related charges should immediately be forwarded to law enforcement. Period.
While Harvard appears to be trying to do something good, colleges have shown frequently that internal review boards are rife for sweeping incidents under the rug for the sake of reputation. Admittedly, our judicial system doesn’t have a perfect record in handling sexual assault, but it doesn’t have the same vested interest in ignoring perceived “minor cases” either.
This. It’s a serious crime that goes beyond what the university should handle. And private institutions have a history of handling such issues poorly; either they try to sweep it under the rug as you say, or they do the opposite and go into witch hunt mode.
Then what? The legal system isn’t going to resolve all of the issues that need to be resolved. The police and courts don’t decide someone’s status as a student.
And is the standard of evidence for a criminal trial really what colleges should use? No disciplinary action unless what you did is serious enough to send you to jail? Are employers going to be held to the same standard? No more terminations for sexual harassment unless the police and a jury agree?
Here’s why it’s not that simple. For most colleges over a certain size, most on-campus crime falls within the jurisdiction of campus police (who work for the college or university), not the local city or county police. And this is the result of a complicated soup of political and class issues.
Police nationwide want to avoid dealing with student-on-student incidents, for the same reason they avoid dealing with domestic incidents: Charges overwhelmingly get dropped. With on-campus incidents, there’s the added factor of “their daddies are lawyers or have a really expensive one on speed dial.” Arresting frat boys historically results in police departments getting sued more often than it results in successful rape convictions or frat house closures. Fraternity members are overwhelmingly white, from well-connected families, and on a track to a very high-paying career. College students in general come from backgrounds where their actions seldom have consequences involving police or the courts.
And campus culture, townie culture and police culture all have very different standards of how responsible a woman is for avoiding situations where alcohol-fueled hookups can get out of her control. (These standards are, respectively, “Don’t blame the victim,” “You should know better than to hang around boys like that,” and "If you don’t know by now what happens to girls in frat house basements and dark alleys, I’m not sure there’s anything we can do or say to help make a difference.)
Shifting the responsibility to city and county won’t change any of this.
If you get convicted for sexual assault, you’re going to jail, which makes the point of whether or not your school or work would let you on the premises moot.
And yes, I think colleges should let legal matters decide how the allegations are handled. What the alternative? A witch hunt by a college committee? Or a college committee that sweeps things under the rug? Automatic expulsion for just an accusation? It’s a legal matter, let it be handled by the legal system. If you’re worried about the accused being in class with the accuser, that’s what restraining orders are for.
Yes. What else? “You look creepy, so we feel you’re probably a criminal despite having no evidence of it, so we’re expeling you”? “This is bringing bad publicity for the uni, so despite being pretty sure you did nothing wrong, we’re expeling you”? “We tossed a coin, no luck, we’re expeling you”?
People should be presumed innocent until proven guilty, and this should apply to institution as well. You shouldn’t ruin someone’s life because you suspect he might have done something wrong.
Crimes and determining guilt is a matter for the judicial system, not for well (or not so well) intentioned curators.
My general opinion on the subject is that crimes, sexual or otherwise, are not part of the educational process. The university should handle education and forward all criminal matters directly to the legal system. Let the police and the courts decide if a crime occurred and what should be done about it.
So to this extent, the OP and I are in agreement. However, we’re in disagreement about where the problem lies. While there may be cases of a university punishing somebody for an alleged crime that didn’t actually occur, I think it’s far more likely for a university to try to suppress a real crime and ignore it.
But regardless of which problem is more common, the solution to both problems is the same: get the university out of the process.
This is the same system that’s been in place forever, and has been wrong forever. Crimes are a matter for the justice system, not schools. Changing the direction of an extra-judicial process which is unfair to both the accused and the accuser is not the answer.
Those are some good points. The way I’d like to see them addressed is this.
Harrasment and the like short of outright criminal behaviour = university or employer discipline, leading to the maximum of possible expulsion or termination of employment; the standard of review is the civil standard - balance of probabilities. The guarantee of rights here would be some sort of judicial review or lawsuit, should the decision be thought unjust.
Sexual assault = criminal behaviour = automatically handed over to the cops and courts. The standard is the criminal standard, proof beyond reasonable doubt. Should they be convicted, consequences include jail time, and the university/employers can take the criminal conviction as a given as well, and impose its own consequences (expulsion/termination). The guarantee of rights is the usual appeal process.
One effect is that, for more serious behaviour, a higher standard of proof is required for consequences; but this is natural enough, as the conequences are the more serious.
These are valid points. The standard for expulsion doesn’t necessarily have to be as high as the standard for criminal conviction. A standard equivalent to civil cases might be more applicable. An accused person can only be convicted of a crime if their guilt is beyond reasonable doubt. But that same person could be expelled from a university if the preponderance of the evidence indicates they are guilty.
The difficulty, though, is that potentially having two different standards (and two different sets of procedural protections) in two different fora for the same incident creates all sorts of problems. Not least of which is ‘forum-shopping’ (that is, a complainant strategically choosing to advance a claim in a manner designed to take advantage of perceived procedural advantages).
For example, the ability to pursue the more serious criminal allegations in a forum designed to deal with disciplinary infractions takes no account of the fact that a ‘conviction’ for a serious offence in whatever forum creates reputational damage that is roughly equivalent. For example, if a university tribunal ‘convicts’ a person for rape or murder, it cannot impose a jail sentence like a real court - but the person will still be branded as a rapist or murderer, all without having the ability to challenge trhe evidence, and based on the ‘balance of probabilities’.
To me it makes more sense, and seems more fair, to allow the courts first ‘crack’ at such serious allegations.
For a long, long time, heavy boozing has been commonplace on many college campuses, and college administrators have either turned a blind eye to it or even used the party scene as a marketing tool.
Seriously, how many colleges have tried to fight the notion that they’re “party schools”?
Cracking down on fraternities and other scoail groups that promote heavy boozing would be a tangible way of cutting down on both rapes of unconsious drunk women AND the number of drunken hookups that women MAY be incined to regard as rape the morning after.
But I’m not holding my breath waiting for college administrators to do that. Boozing and partying are often an integral part of the lifestyle they’re trying to sell.