How to deal with sexual assault on campus

[Stonebow]

@Stringbean

Whatever the problem may be, the solution is certainly: guilty until proven innocent.

That is certainly a pithy phrase, but does not do much to forward the conversation. what is your precise problem with the system?

If it is something endemic to the process, then I am very interested in discussing it, fixing it if we can, or arguing why it is worth the trade off if we cannot.

But if you point at a one-off where one school jumped the gun or did something stupid, I say it’s a natural consequence of trying to bring 1000s of fairly independent institutions within a couple years, and to be expected. That does not minimize the issue- any cases of school overreach or improper due process is a real problem- but balances it against the cost of doing nothing.

[JesterX]

@Malthus

Again, can’t say how it works in the US, but up here in Canada, the people administering university discipline as “hearing officers” and “investigating officers” are often members of the faculty appointed by the administration for such purposes - and drawn, where available, from members with some sort of legal background.

Ok. But then those personnel are not ACTING as faculty, they’re acting as administration.

[yellowjacketcoder]

@Stonebow

There is already a provision that makes it the University’s responsibility to stop retaliation against accuser or accused, just saying. So in theory, lynch mobs are right out.

The difference between theory and practice is vast, and even the school administrators are aware of that.

[Little_Nemo]

@Really_Not_All_That_Bright

The forum shopping idea is goofy. If the university believes the accusation is credible it should be informing law enforcement anyway. Indeed, part of the current Title IX investigation is over why some universities weren’t doing that.

I don’t think the university should even being making a decision as to whether or not it considers the accusation credible at that point. The university should have no more power to decide not to inform the police of an accusation made by a student than a business should have to not inform the police of an accusation made by an employee. All criminal accusations should automatically be turned over to law enforcement. The university’s only role at this point should be to facilitate access to the legal authorities.

The university’s role after that is to decide if it should continue its association with the students involved. Again, this is similar to a business deciding it if wishes to continue employing one of its employees. A university should be able to expel a student for cause just like a business should be able to fire an employee for cause - even if their actions do not rise to the level of criminal conviction.

But I think there should be some protections for the student. Continuing with the business analogy, a university should be able to expel a student for cause but not at will. I would consider a preponderance of evidence that a student committed a serious cause to be just cause for expulsion. And I would also consider a preponderance of evidence that a student falsely accused somebody of a serious cause to be just cause for expulsion.

[Little_Nemo]

@Malthus

Huh? They are expelled, and no-one is told why they are expelled, and that protects the students - this person’s friends and colleagues - how?

He’s not in jail, and if no-one knows about his alleged offence - what exactly is stopping him from hanging with the exact same crowd as before (and presumably, striking again)?

Let’s say I’m a business owner and one of my employees, Smith, gets into an argument with another employee, Jones, and picks up a two by four and whacks him with it.

My duty should be to report the incident to the police and assist Jones in doing so. I should not be making decisions about whether or not Smith is guilty of assault and whether the police should be notified. Notification should be automatic and the legal system will decide whether or not he’s guilty.

But as a business, I still need to decide what to do about Smith as an employee. I shouldn’t be deciding if he’s a criminal but I do need to decide if I want to continue employing him.

I could just make a blanket policy that any employee who’s accused of a crime is automatically fired. Or I could make a blanket policy that no employee who’s accused of a crime is fired unless he is subsequently convicted and imprisoned. But neither policy seems fair or reasonable. I need to have a policy where I review these situations on a case by case basis and decide whether or not to fire employees who have been accused of a crime.

But my responsibility ends with my decision to fire Smith if I do so. I do not have a responsibility if Smith decides to beat up Jones again in a local WalMart. That’s a criminal matter that the police are responsible for.

[Malthus]

@Little_Nemo

Let’s say I’m a business owner and one of my employees, Smith, gets into an argument with another employee, Jones, and picks up a two by four and whacks him with it.

My duty should be to report the incident to the police and assist Jones in doing so. I should not be making decisions about whether or not Smith is guilty of assault and whether the police should be notified. Notification should be automatic and the legal system will decide whether or not he’s guilty.

But as a business, I still need to decide what to do about Smith as an employee. I shouldn’t be deciding if he’s a criminal but I do need to decide if I want to continue employing him.

I could just make a blanket policy that any employee who’s accused of a crime is automatically fired. Or I could make a blanket policy that no employee who’s accused of a crime is fired unless he is subsequently convicted and imprisoned. But neither policy seems fair or reasonable. I need to have a policy where I review these situations on a case by case basis and decide whether or not to fire employees who have been accused of a crime.

But my responsibility ends with my decision to fire Smith if I do so. I do not have a responsibility if Smith decides to beat up Jones again in a local WalMart. That’s a criminal matter that the police are responsible for.

Assume each employee accuses the other. Fire them both? What if one employee was a really important employee (say, the guy in charge of comming up with new intellectual property vital to the existence of the company, or a top sales rep), and the other was a lowly, easily-replaceable administrative assistant? The institution would have a built-in bias to fire the latter and retain the former, quite regardless of guilt or innocence! Even if they don’t act on that bias, you can be sure that if the latter is fired, he or she will allege that they did in the subsequent lawsuit.

Strikes me that, if the business is really large (say, the size of a modern university), the most fair and just thing to do, rather than invent some kind of modern-day “star chamber” like proceedings in which the “hearing” is not open to the public and the “reasons” are not published (all, BTW, examples of situations that raise concerns about administrative unfairness) would be - to take ‘interim measures’, such as seperation of the workplaces of the parties, to avoid them having to work together - and to let the courts determine who is guilty or not.

Why is this so unreasonable?

[yellowjacketcoder]

@Malthus

Strikes me that, if the business is really large (say, the size of a modern university), the most fair and just thing to do, rather than invent some kind of modern-day “star chamber” like proceedings in which the “hearing” is not open to the public and the “reasons” are not published (all, BTW, examples of situations that raise concerns about administrative unfairness) would be - to take ‘interim measures’, such as seperation of the workplaces of the parties, to avoid them having to work together - and to let the courts determine who is guilty or not.

Why is this so unreasonable?

Because it isn’t always practical.

Say two students are taking a senior level course, required to graduate, of which there is only one of those courses offered a year (this was not uncommon when I was an undergraduate or even a graduate student). Attendance is mandatory (again, not uncommon) and the class cannot be completed individually (consider a discussion based class, or one that uses a lab that has limited availability). An accusation is made. Are you seriously suggesting that the accused should have to drop the class, delaying graduation by a year, simply because they are accused? Or are you suggesting that the accuser must delay their graduation by a year?

Or maybe the university should leave legal matters to the legal system. Now, I would be in favor of mandatory reporting by all university employees to the legal system. But a policy like you suggest has all the same problems that “zero tolerance” has in elementary school.

This is not to say I think university’s should ignore student’s concerns or that universities should not be safe spaces. They should take those concerns seriously and do their best to promote a safe environment. But that doesn’t mean policies like the ones proposed and discussed in this thread are the best way to do that.

[Malthus]

@yellowjacketcoder

Because it isn’t always practical.

Say two students are taking a senior level course, required to graduate, of which there is only one of those courses offered a year (this was not uncommon when I was an undergraduate or even a graduate student). Attendance is mandatory (again, not uncommon) and the class cannot be completed individually (consider a discussion based class, or one that uses a lab that has limited availability). An accusation is made. Are you seriously suggesting that the accused should have to drop the class, delaying graduation by a year, simply because they are accused? Or are you suggesting that the accuser must delay their graduation by a year?

Or maybe the university should leave legal matters to the legal system. Now, I would be in favor of mandatory reporting by all university employees to the legal system. But a policy like you suggest has all the same problems that “zero tolerance” has in elementary school.

This is not to say I think university’s should ignore student’s concerns or that universities should not be safe spaces. They should take those concerns seriously and do their best to promote a safe environment. But that doesn’t mean policies like the ones proposed and discussed in this thread are the best way to do that.

What about ‘take what interim measures are practical under the circumstances to limit each student’s exposure to the other until the matter is dealt with by the legal system’?

I am not in favour of ‘zero tolerance’ or inflexible and arbitrary policies; it simply strikes me as the most reasonable solution that:

(1) Universities should forward criminal accusations to the police and courts;

(2) Until such matters are dealt with, universities should, without judging the merits of an accusation, take such measures as are reasonable, practical and non-disruptive to preserve the educational experience; and

(3) After the matter is dealt with by the courts, take disciplinary steps as required.

[furt]

@Really_Not_All_That_Bright

Faculty do not enforce university student conduct policies. Not only not primarily, but not at all.

Historically, university faculty are not just ordinary employees. Most colleges, certainly including Harvard, claim to embrace the shared governance model, in which faculty are consulted on most major administrative decisions. As this case illustrates, not everyone agrees on what “most” and “major” mean.

[furt]

@Malthus

I am not in favour of ‘zero tolerance’ or inflexible and arbitrary policies; it simply strikes me as the most reasonable solution that:

(1) Universities should forward criminal accusations to the police and courts;

(2) Until such matters are dealt with, universities should, without judging the merits of an accusation, take such measures as are reasonable, practical and non-disruptive to preserve the educational experience; and

(3) After the matter is dealt with by the courts, take disciplinary steps as required.

I agree that this is the best solution; however the problem is that (2) is going to take months, perhaps a year. In that time, it’s entirely possible you’ll see either the alleged perpetrator or the alleged victim or both getting publically demonized and made the object of scorn and harrassed. Think of the girl at Columbia that’s gotten headlines for carrying a mattress around campus as a protest, even though her case was so weak that it was dismissed by the university, let alone the courts. Think of cases where the accused is a star athlete, or the alleged victim a popular student leader, or either the child of a wealthy donor.

I agree its’s the best solution, but either way you’re going to see one or the other vindicated by the courts, but still having their college experience ruined.

[bashere]

Please understand I am exploring this idea, and I’m not sure how well I will convey it.

When a crime is prosecuted, the case will read, for example “The State of California vs. Joe Smith”. Not the accuser, but the State, is advancing the charges.

In that case, all of the people who are involved are ultimately responsible to, well, us. The State. The prosecutor (who reports to a DA, who is generally elected), the judge (whether elected or appointed, was put there by an elected official) and the police report to government oversight.

They have a well-defined responsibility to us, to society at large. They, individually and collectively, have a well-established set of responsibilities, checks, balances, tradition and law that keeps them accountable. Their roles exist to maintain the laws that let society continue to function.

And, ultimately, they are accountable to me (and, you know, you guys). The laws they adjudicate or enforce are ones written by our elected representatives, expressing the will of the electorate, with a careful set of safeguards behind them. We have an obvious and public law. This allows us, society, to be more or less comfortable with the idea that the accuser will have the full power of the state behind investigations, and that the accused will have a very carefully thought out set of protections and defences. Both of these are the end result of hundreds of years of legal thought, hammered out by all of society, with buy in from, well, everyone. While imperfect, this balances society’s right to be protected from rapists against the accused’s right to defend himself.

When a sexual assault occurs, while the victim is obviously, of course, the one most injured, all of society is made just a little bit worse. So, society itself (in the form of “The State of Mass. Vs. Alleged Rapist”) seeks to punish, and make right, this wrong.

On the other hand, I have no idea who, if anyone, the President of Harvard is responsible to, but it sure isn’t me. I have no idea what criteria he or she will use to evaluate evidence, but it isn’t one I got to send my peeps (my elected representatives) to legislate on. I don’t know what training he or she has, but it isn’t one backed by the State-run bar association, overseen by, again, the State. I don’t know what safe guards he or she will use, but I know they aren’t, necessarily, the ones we, collectively, have recognized (other than by coincidence). I do know prosecutors take an oath, to uphold justice, and they are expected to place upholding justice before all else. I don’t know that the President of Harvard, or his or her appointed judicial board, has taken such an oath. I think that the President of Harvard could reasonably be expected to have, at best, divided loyalties, with “furthering the interests of Harvard” being one of them. Bluntly, I don’t know this guy from Adam, and I don’t trust him to make sure society is healed.

tl; dr. If a university is “investigating” these allegations, they are not doing so under the framework we agree on for our legal system. They are, instead, creating private laws.

I’m really, really uncomfortable with the idea that we have two sets of laws, one for people in society at large, and one in a “don’t worry, we’ll take care of this” environment. If we accept that a crime against an individual is also a crime against the State (meaning, in context, all of us), then we need the State, and not some college board, to handle this. We need to have one set of laws, one set of protections, one set of rules. And the people who enforce those rules are our (for want of a better word) servants; they should answer to us, not to some unknown body.

Because of those (poorly articulated) beliefs, I think that allegations of sexual assault (and, FFS, we’re talking about SEXUAL ASSAULT here. This is a big deal), universities have to accept this is beyond their pay grade, and turn this over to the State to deal with. Which means turning it over to the police, as quickly and cleanly as possible. Ultimately, I’m not really interested in the opinions of the President of Harvard (or of his or hers subordinates) over whether a sexual assault occurred: I want the people I (via my appointed representatives) have decided to deal with this to deal with it.

[ITR_champion]

@Revenant_Threshold

I think I see an issue with these two points - I confess I’m hardly a legal scholar, so quite probably I’m wrong, but so far as civil rights go, aren’t protections against double jeopardy, no right to cross-examine etc. protections from the government specifically?

Right now we have the federal government, in some cases accompanied by state governments, are forcing colleges and universities to hold disciplinary hearings whenever a charge of sexual assault is made by one student against another. Moreover the governments are passing laws dictating how those disciplinary hearings will be conducted. Thus the disciplinary hearings conducted by colleges and universities are starting to seem like a branch of the government’s legal apparatus.

As I noted in the OP, 28 faculty at Harvard Law School have publicly expressed concern about how the defendant’s civil rights are disrespected under their school’s policy. One would hope that those 28 people are fairly knowledgeable about the law.

[Revenant_Threshold]

@ITR_champion

Right now we have the federal government, in some cases accompanied by state governments, are forcing colleges and universities to hold disciplinary hearings whenever a charge of sexual assault is made by one student against another. Moreover the governments are passing laws dictating how those disciplinary hearings will be conducted. Thus the disciplinary hearings conducted by colleges and universities are starting to seem like a branch of the government’s legal apparatus.

You can make a jump like that about almost anything. Businesses are required by law to handle firings in a certain manner, to follow certain health and safety standards, to mark products in particular ways, to avoid certain illegal working practices. The federal and state governments have and are passing laws dictating how all these things must be done. Therefore all those things when conducted by private companies “seem like a branch of the government’s legal apparatus”.

As I noted in the OP, 28 faculty at Harvard Law School have publicly expressed concern about how the defendant’s civil rights are disrespected under their school’s policy. One would hope that those 28 people are fairly knowledgeable about the law.

One would hope. But on reading your source, I’m not entirely convinced you’re reading it correctly. So far as I can tell, the faculty in the letter make appeals to fairness and principle rather than to the law - that is to say, they bring typical factors and methods involved in a legal trial, but they don’t actually seem to be claiming that by not including them student’s civil rights are violated. Rather that they’re just good and preferable methods of getting at the truth.

[Stringbean]

@Stonebow

That is certainly a pithy phrase, but does not do much to forward the conversation. what is your precise problem with the system?

If it is something endemic to the process, then I am very interested in discussing it, fixing it if we can, or arguing why it is worth the trade off if we cannot.

But if you point at a one-off where one school jumped the gun or did something stupid, I say it’s a natural consequence of trying to bring 1000s of fairly independent institutions within a couple years, and to be expected. That does not minimize the issue- any cases of school overreach or improper due process is a real problem- but balances it against the cost of doing nothing.

The core of the problem is age-old: absent physical evidence, it is one person’s word against another.

All the new rules I have seen being implemented by colleges and universities is to simply take this flaw and enhance it by saying that positive consent is required for legal sexual activity. Of course, that positive consent is no different than explicit refusal: how does one prove what someone said, how they said it, when they said it, why they said it, etc.?

I guess my point is, the “yes means yes” phenomenon is merely a show of patting one’s self on the back and feeling good about doing something to stop rape, without actually doing anything other than possibly incriminating consensual (though not explicitly consensual) sexual activity. That’s no solution at all.

[Stratocaster]

@Really_Not_All_That_Bright

Yes, though a public university would be “the government” for due process purposes (not for double jeopardy or the confrontation clause, though.)

RNATB, do you happen to know where the line is drawn? I seem to recall that universities are considered a quasi-government agency in public forum cases, subject to similar obligations as the Feds (that was in that SCOTUS case where a Christian club was forced to “accept all comers” even though other clubs were not, a first amendment issue, if I remember correctly).

If the university accepts government aid, is that the trigger? Does any of that apply here–i.e., a governmental duty that requires certain standards of evidence? I guess not or it wouldn’t be so widespread, but I wonder where the line is…

That question aside, my opinion:[ul][li] Such matters should be referred to the police.[/li][li] That doesn’t mean the university can’t have less-strict standards. That’s up to them.[/li][*] I think many of the policies are ludicrously slanted in favor of the accuser, this in reaction to the very real problem of campus sexual assaults. It’s an over-reaction to having been called out on the previous non-policy ludicrously in favor of sexual predators.[/ul]

[PhillyGuy]

@Ibn_Warraq

I’ll agree with those who say such complaints of sexual assault should be turned over to the police and the courts.

In most of these cases, it is the victim who decided not to call 911. And I’m not sure they are wrong there. The idea that the police and courts do a better job here is dubious. Part of the reason is that there are a lot of cases where probable cause exists but proof beyond a reasonable doubt does not.

As to whether the school should offer an alternative legal system to that of the courts, I am on the fence. What they should do is prevention. I believe that, in freshman orientations, there already is some prevention.

One big piece of prevention that was in place until around 1970 has been discarded. That is a requirement for all university-sanctioned housing buildings, including fraternities, to have unambiguous adults living there along with undergraduates. While I like the model of faculty apartments best, the adults could be janitors, or house mothers, or older graduate students. While the devil is in the details here, I think that this would cut the problem roughly in half.

[astorian]

At the risk of being called an old fuddy-duddy (so what else is new?), why not:

a) Bring back all-female dorms, at least as an option? Dorms where male visitors would have to sign in and out after presenting ID, and where a security guard could watch for signs of intoxication?

b) Crack down on party culture, and ban “Animal House” frats from campus if drunken debaucherie gets out of hand?
Out and out assault by force or with a weapon is (relatively) rare. More common are drunken hookups in which one or more parties are incapable of giving informed consent. Those kinds of rapes are hard to sort out in court, but easier to prevent by shutting down the drunken party culture that spawns them.

[Acsenray]

@clairobscur

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.

Universities don’t prosecute crimes. They don’t determine guilt beyond a reasonable doubt for an offense defined by the state criminal law.

However, they can and do and should set standards of behavior that don’t rise to the level of a crime. It’s entirely conceivable that someone might have done something that doesn’t result in a verdict of guilt in a criminal proceeding, but is bad enough that he or she should be expelled from the university.

Or are you unable to conceive of such a situation?

[even_sven]

There is no answer.

The issue is that for a long time, universities did nothing. And since rape is rarely prosecuted or even reported for various reasons, predators kept assaulting woman after woman. Eventually a victim figures out that the guy who assaulted them has a history, and they get pissed off that nothing was done to protect or even warn them.

This happened at my school. A woman was assaulted in a “jump out of the bushes” style attack, and it came out that the guy had multiple complaints about him, but because the victims didn’t want to go through the legal system, nothing was done.

[Ranger_Jeff]

I suppose one could examine the Penn State model concerning sexual assault and do the opposite.