Okay, let’s count that attempted metaphor as officially botched and move on.
what evidence? We don’t have any. We do know that the university, which presumably has all of the evidence, decided to expel the guy. I suspect they know something we don’t.
Furthermore, “he and she have different stories” does not mean there is no other evidence.
There may be witnesses. There may be communications records. There may be inconsistencies in the story on one side or another that make the story fall apart. There may be a confession or even an inadvertent admission of guilt. People who are outright lying are rarely particularly good at it, and false stories often unravel.
So no, it isn’t necessarily her word against his. There is a whole range of potentially useful pieces of evidence.
Perhaps I wasn’t clear but Universities should not be getting involved via extra-judicial proceedings in serious criminal matters.
Universities should not be involved in adjudicating serious criminal offenses, regardless of their honour code. And that, in essence, is what they are doing with lowered standards of admissibility of evidence, limiting the rights of the accused (including no right of cross examination) and having a lower burden of proof than the criminal system. All being handled by people who are unlikely to be qualified to handle a serious matter like sexual assault. This is barnyard justice.
Can, for example, the expulsion be used in a criminal trial (if the witness claimed to be of good character)?
This whole thread is about the impropriety of their having done so. It’s about debating how they could not have reasonably come to the conclusion that they did with the evidence they had.
Do you really not understand that?
We don’t know what evidence they had. And they have every right to expel any student at any time for any reason.
No, they don’t.
You won’t learn; I can live with that.
No they don’t. Private universities like Yale may be bound by contract law to follow certain procedures. Public universities may also be required to follow constitutional due process procedures.
I’ve heard this repeated on and on… Well I’m sorry but it does… both in a criminal proceeding or and administrative one like this. For example… person a says they were raped… its proved that they never were undressed at any point. well if their claiming penetration then that matters…
Actions prior too. That does matter and is part and parcel of any investigation… In what criminal/civil investigation would prior immediate actions not matter??
It matters if those facts are in dispute. But in this case, those facts are not in dispute.
From the lawyer: “She stated that she did not consent to it. He said that she did.”
But he may very well have confirmed to Yale staff that the consent he claims did not count as affirmative consent as defined by Yale’s policy (linked upthread).
The point is that how a woman is dressed is not evidence for whether she consented to sex.
If you include “getting naked into bed with someone” in your definition of “how she was dressed”, yes, it is evidence.
OK, then did the woman consent, and how did she signify that consent? And also, did the man consent, and how did he signify that consent? If the woman didn’t do whatever she had to do to give positive consent, then did the man also not do whater he had to do to give positive consent?
No, I don’t, and that is the point.
There is only one person with whom I have sex, and she and I have had sex in the past. And it has been known to happen that she will get into bed next to me naked*, and then we have sex without her ever explicitly saying Yes. Was that rape? If not, then there must be something else that shows positive consent such that it wasn’t. What is that something? It must be something that shows that I also gave positive consent, otherwise it would be rape but on the other side. Therefore the something must be more than just ‘getting into bed with your lover naked’.
Call that something, X. Did the woman in the Yale case not do X? Did the man in the Yale case also not do X? And what exactly is X?
Regards,
Shodan
*OK, sometimes it’s that purple nightgown, because she knows it drives me crazy. But that still counts.
Are you and your wife college students? “Positive consent” is an internal policy on some college campuses, meant to address the reality that you have a lot of sexually inexperienced young people who don’t know each other very well, a lot of alcohol, and a lot of problems that can be avoided by just saying “look, just take a minute to make sure your partner is in to it.”
No, we’re not college students. What was the something that the woman college student didn’t do to give positive consent, and did the man college student do it, or not?
What made it rape?
Regards,
Shodan
Haappy, Belowjob2.0, Shodan, I obviously don’t know exactly what happened here, and you don’t either, but let’s consider this hypothetical:
You are very tired and want to go to bed. You normally sleep naked. You get into bed with your wife, naked, intending to go directly to sleep. She says “let’s have sex”. You say “no, I’m too tired”. She proceeds to have sex with you, over your objections.
Did you get into bed naked with someone you previously have had sex with? Yes
Did you refuse consent to sex? Yes
Did your wife have the right to assume that your prior acts of (consensual) sex, and the fact that you were naked, overrides your current refusal of consent? No
Were you raped? Yes
OK so far?
Now: what proof can you offer that, despite getting into bed naked with someone you previously have had sex with, you refused consent? None? Oh, OK, so you should just shut up and never tell anyone about it, because if you can’t prove it happened then it didn’t happen. Right?
We here on the Dope don’t know what happened in this case. But the only issue at hand in determining guilt was whether the victim gave consent to whatever sex act happened that night, not whether she was naked or whether she got into bed with him or whether she got into bed with him while naked.
Not as evidence that the crime occurred, no. Statements made by witnesses might be admissible for impeachment or certain other purposes, but even that it unlikely.
No, that’s not what they’re doing. They are adjudicating honor code violations. The fact that they may also be crimes is irrelevant. They are not imposing criminal penalties and the outcome of the expulsion hearing has no bearing on any subsequent criminal proceedings.
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Here’s a question: do universities typically have their own codes of conduct for other non-study related matters? Meaning, I understand they’ll need their own codes of conduct for things like cheating on exams and so on. But what about assaults, robberies and the like? Do they have a separate proceeding beyond the legal system?
[/QUOTE]
Yes. For example, you may remember that Cam Newton was kicked out (or technically, about to be kicked out before he withdrew) of the University of Florida for stealing another student’s laptop. AIUI, a university would probably not impose discipline for criminal conduct that took place off-campus, though.
Are you are lawyer? I ask because this seems to be a technical evidentiary question to me. If an accused in a criminal trial introduces evidence as to their good character couldn’t this proceeding or elements of it be used against them? if not, why not?
And the point is they have no business (and no expertise) adjudicating serious allegations like to the ones we are discussing. This isn’t plagiarism . Indeed, this goes far beyond anything that an honour code should cover. They may not impose criminal penalties, because, you know, they’re not a court but they are imposing significant penalties that can have a devastating impact on a person’s life. And they do so without any system that allows the accused to property defend themselves.
If a rape allegation is made it should be taken to the police. If the evidence is there, they will likely arrest the subject and charge him. The University can then suspend the student until the criminal matter is completed.
If the accused waits to make the allegation to the police then the university should consult with the police and make a determination then. If, for example, a restraining order is obtained then the student can be suspended.
These show trials, however, do nothing other than to demonise the accused and subject them to unnecessary harassment particularly if the criminal system determined that there was no case to pursue (and the accuser can also take an action via the civil system).
Not to fight the hypothetical, but in your scenario getting into bed naked with your partner is habitual, even on nights when we don’t have sex. That is different from the OP, because the two did not habitually sleep together AFAICT. Therefore it is more likely that getting into bed naked is a sexual invitation implying positive consent.
Correct, but sort of beside the point. You are right that consent is the only issue. But since we don’t know all the facts, we can only consider those facts before us, and use them to determine as far as we can if the woman did, in fact, consent.
You are entirely right that she could have said No even after getting naked into bed. But we have no way of determining whether she said No or not, except thru facts that are not AFAIK in dispute.
If there are no facts to go on, then it is indeed a he-said-she-said case. If there are other facts, then we need to examine those facts and see what they indicate, so we do not have to rely on testimonies that contradict each other.
I am not saying that getting naked into bed with your boyfriend constitutes irrevocable consent. I am saying that getting naked into bed with your boyfriend constitutes evidence that you did, in fact, consent. Not proof, evidence.
Likewise, getting back into bed with your boyfriend might be something that you do because you are confused and traumatized over being assaulted. But it also might be something you do because you weren’t assaulted and people who have consensual sex often finish up by sleeping together. And it would seem to me that it is more likely that a woman who was raped would not sleep with her rapist. Again, evidence, not proof. But still more than just he-said-she-said.
You are entirely correct - we don’t have access to all the facts, perhaps not even all the facts that Yale had access to, or thought they did. And maybe the defense lawyer is lying outright. But maybe not, and if he is not, then the facts seem to indicate that, at the very least, it is not clear that this was rape.
I suspect the guy’s mistake here was that he didn’t get, or at least didn’t mention getting, a verbal Yes before having sex, and not proceeding until and unless he did. But as my example of being awakened occasionally in the middle of the night by the Lovely and Talented Mrs. Shodan, it is common IME for people in an ongoing relationship to have sex without an unambiguous verbal Yes. And it isn’t rape in those cases. Therefore it is possible that it wasn’t rape in this case either.
But as you say, and I agree, we don’t know, because we don’t have all the facts.
Regards,
Shodan
The idea that a school honor code should not include serious act like sexual assault on another student unless there is a criminal conviction is ridiculous.
A university has a right and a duty to kick people out when they affect the community negatively.
Unless you can show that they’re discriminating against someone they should be able to kick that person out from anything to being a downer to being someone who “we’re pretty sure raped someone.”