Congressional hearing On Campus Rape

[amigocabal]

Watch between 2:00 and 2:30

[Aether]

"If 10 students are accused and 2 are guilty, wouldn't it be best to give rid of all of them? We are not talking about taking away someone's liberty, we are transferring them to a different university."

That mentality is not surprising given the over-correction regarding sexual assault on campus. Legally you have not been found to be a rapist, but who cares if the public perception is still there!

[Rogue 9]

Assuming they are guilty, chucking them to a different university just transfers the problem. Of course, you can't just assume they're guilty; that's not how due process works - and campus disciplinary proceedings have to allow due process rights, per several court decisions.

[amigocabal]

Assuming they are guilty, chucking them to a different university just transfers the problem. Of course, you can't just assume they're guilty; that's not how due process works - and campus disciplinary proceedings have to allow due process rights, per several court decisions.

Many states have civil rights laws that require private universities to adhere to those standards.

a state could of course repeal those laws, allowing private universities absolute discretion regarding student discipline and admissions. Good luck trying to get such a bill out of committee.

[RogueIce]

"If 10 students are accused and 2 are guilty, wouldn't it be best to give rid of all of them? We are not talking about taking away someone's liberty, we are transferring them to a different university."

The guy's response saying "That's not what we're talking about" got cut off, so I don't know what he was going to say (or if the applause would have drowned him out anyway).

But I agree. Because it's not just "transferring to another university" when you're getting a disciplinary expulsion. Even if your transcript/records say nothing about "...for sexual assault accusations" I'm pretty sure any university you apply to will want you to explain that. And it's effectively a black mark that will essentially ban you from any other university because who the fuck will admit you with that on your record?

And given how important a college degree is to the job market these days, being effectively blacklisted from all higher education is a pretty fucking serious thing and maybe people shouldn't be so blasé with a "well who cares if they're innocent, better safe than sorry rite guys lol" mentality.

[Guardsman Bass]

I'm fine with there being a lower standard of evidence for these cases, because the consequences are lower than for a full criminal conviction. But that's definitely a rather shitty way to go about it - even "preponderance of the evidence" is based around the evidence being such that you think someone actually did this. You would not take the whole "better hang ten innocents than let one guilty person go free".

Basically, there needs to be due process for these complaints, headed over by someone who doesn't have a conflict of interest. The set-up used by Oberlin College sounds pretty good.

a state could of course repeal those laws, allowing private universities absolute discretion regarding student discipline and admissions. Good luck trying to get such a bill out of committee.

Universities that forgo any federal funding or access to aid can avoid compliance with Title IX, like what happened with cases at Pensacola Christian College IIRC. I don't consider that a good thing, especially since I believe there's a legitimate role for college judgment in these situations - even if you take the stance of "forwarding it all to the police", then you have the issue of keeping the alleged rapist and alleged victim apart from each other, and similar actions.

[Arthur_Tuxedo]

One thing people keep forgetting is that it's not a college campus problem. The issue is that ~20-25% of young women have experienced some form of sexual assault (which can range from groping or a forced kiss to forcible penetrative rape). Follow-up studies have shown that women in this age group who don't go to college are actually more likely to be assaulted than ones who do. It's an issue of younger women and girls being favored targets of predators and also (sometimes) lacking the awareness that older women have to spot red flags. The idea that there is a specific rape epidemic on college campuses that justifies suspension of due process is a myth. We need to focus on better prevention and prosecution of sexual assault in general, not specifically regarding colleges.

[Aether]

I'm fine with there being a lower standard of evidence for these cases, because the consequences are lower than for a full criminal conviction. But that's definitely a rather shitty way to go about it - even "preponderance of the evidence" is based around the evidence being such that you think someone actually did this. You would not take the whole "better hang ten innocents than let one guilty person go free".

It bothers me that a lower standard may be used to determine if a sexual assault occurred especially when we enter the realm of rape. From my POV, rape is a serious crime and accusations of such should be taken seriously. If a crime as rape may be determined by such low standards that is a terrible mark to carry around even if the "only" consequence is expulsion.

What does this accomplish? If true, you are merely moving a rapist around. It could also be argued that it's not a big deal because "it was only determined based on preponderance of the evidence." That diminishes the seriousness of the crime IMO.

I do agree that due process is important in these matters.

[Coop D'etat]

I'm fine with there being a lower standard of evidence for these cases, because the consequences are lower than for a full criminal conviction. But that's definitely a rather shitty way to go about it - even "preponderance of the evidence" is based around the evidence being such that you think someone actually did this. You would not take the whole "better hang ten innocents than let one guilty person go free".

It bothers me that a lower standard may be used to determine if a sexual assault occurred especially when we enter the realm of rape. From my POV, rape is a serious crime and accusations of such should be taken seriously. If a crime as rape may be determined by such low standards that is a terrible mark to carry around even if the "only" consequence is expulsion.

What does this accomplish? If true, you are merely moving a rapist around. It could also be argued that it's not a big deal because "it was only determined based on preponderance of the evidence." That diminishes the seriousness of the crime IMO.

I do agree that due process is important in these matters.

You can sue someone in an ordinary court for commiting a sexual assualt for penalties much large than expulsion (i.e. significant monetary damages) and the standard of proof will also be preponderance of evidence. Its only when the state prosecutes you for a crime than beyond a reasonable doubt becomes the standard.

The protections an accused gets in criminal law are in place to protect a citizen against the state and are only for facing criminal punishments. Holding a black mark on your reputation isn't a criminal punishment.

[Aether]

You can sue someone in an ordinary court for commiting a sexual assualt for penalties much large than expulsion (i.e. significant monetary damages) and the standard of proof will also be preponderance of evidence. Its only when the state prosecutes you for a crime than beyond a reasonable doubt becomes the standard.

The protections an accused gets in criminal law are in place to protect a citizen against the state and are only for facing criminal punishments. Holding a black mark on your reputation isn't a criminal punishment.

That's a good point. In that regard, I would ask why would we want a university to handle these types of instances instead of a court? What is the difference between the way a sexual assault case would be handled by a university vs judge/jury/lawyer in a civil court even though both standards are the same?

[Coop D'etat]

You can sue someone in an ordinary court for commiting a sexual assualt for penalties much large than expulsion (i.e. significant monetary damages) and the standard of proof will also be preponderance of evidence. Its only when the state prosecutes you for a crime than beyond a reasonable doubt becomes the standard.

The protections an accused gets in criminal law are in place to protect a citizen against the state and are only for facing criminal punishments. Holding a black mark on your reputation isn't a criminal punishment.

That's a good point. In that regard, I would ask why would we want a university to handle these types of instances instead of a court? What is the difference between the way a sexual assault case would be handled by a university vs judge/jury/lawyer in a civil court even though both standards are the same?

I don't think a university tribunal is a good method of dealing with these issues either, since they really have no expertise in running them. That's a completely separate issue from whether you should expect criminal law protections outside of a criminal trial.

[Simon_Jester]

Outside a criminal trial one would not expect criminal law protections. One would, however, expect some protections, because constitutional rights apply in civil court as well as in criminal court.

The defendant still has a right not to be sued repeatedly for the same offense (at least not by the same party), a right to mount a legal defense, a right to be informed of the nature of the charges so that they can gather evidence as part of that defense, and so forth.

[Patroklos]

One thing people keep forgetting is that it's not a college campus problem. The issue is that ~20-25% of young women have experienced some form of sexual assault (which can range from groping or a forced kiss to forcible penetrative rape). Follow-up studies have shown that women in this age group who don't go to college are actually more likely to be assaulted than ones who do. It's an issue of younger women and girls being favored targets of predators and also (sometimes) lacking the awareness that older women have to spot red flags. The idea that there is a specific rape epidemic on college campuses that justifies suspension of due process is a myth. We need to focus on better prevention and prosecution of sexual assault in general, not specifically regarding colleges.

If you are talking about the recent Rutledge survey that 25% also includes disparaging comments. Honestly the whole thing is a hot mess for many reasons.

But I agree. Because it's not just "transferring to another university" when you're getting a disciplinary expulsion. Even if your transcript/records say nothing about "...for sexual assault accusations" I'm pretty sure any university you apply to will want you to explain that. And it's effectively a black mark that will essentially ban you from any other university because who the fuck will admit you with that on your record?

Its not even just that. Assuming the school you transfer too knows nothing and just thinks of you as a regular transfer, we are still talking about uprooting innocent people from their community, family and friends and effectively exiling them. Not to mention that credits rarely all transfer you are taking on (or perhaps more accurately erasing) sometimes years or academic effort and achievement plus delaying earnings. Thats probably worse than quite a few felony conviction penalties that amount to fines (probably far less than another year of tuition) and probation.

[amigocabal]

You can sue someone in an ordinary court for commiting a sexual assualt for penalties much large than expulsion (i.e. significant monetary damages) and the standard of proof will also be preponderance of evidence. Its only when the state prosecutes you for a crime than beyond a reasonable doubt becomes the standard.

The protections an accused gets in criminal law are in place to protect a citizen against the state and are only for facing criminal punishments. Holding a black mark on your reputation isn't a criminal punishment.

That's a good point. In that regard, I would ask why would we want a university to handle these types of instances instead of a court? What is the difference between the way a sexual assault case would be handled by a university vs judge/jury/lawyer in a civil court even though both standards are the same?

Take a look at how Graham Spanier and company handled those scandalous accusations against Jerry Sandusky thirteen years ago. That may be why some people would "want a university to handle these types of instances instead of a court".

That written, we should, as a matter of public policy, allow private universities wide discretion in handling student discipline matters. This is of course, subject to various antidiscrimination protections as well prohibitions against obstruction of criminal justice. If they choose to adopt "beyond a reasonable doubt" standard, they should be free to do so.

It does bug me why the Department of Education thinks that it would be a violation of Title IX for a university to adopt such a standard, or even a lesser standard but still greater than preponderance of the evidence, when it comes rto adjudicating sexual assault. Title IX prohibits sex discrimination, and I fail to see how a "beyond a reasonable doubt" standard constitutes sex discrimination.

[Guardsman Bass]

That's a good point. In that regard, I would ask why would we want a university to handle these types of instances instead of a court? What is the difference between the way a sexual assault case would be handled by a university vs judge/jury/lawyer in a civil court even though both standards are the same?

Criminal trials take time, and in the mean-time the college has to determine whether they ought to do stuff like order the students to be separate, suspend the alleged rapist, and so forth. And of course, the victim (for various reasons) may not want to go through the ringer in pressing charges - they may just want the above, the assurance that their rapist won't suddenly show up next to them or go after them further (it's the same thing with stalking/domestic violence allegations on campus).

[amigocabal]

That's a good point. In that regard, I would ask why would we want a university to handle these types of instances instead of a court? What is the difference between the way a sexual assault case would be handled by a university vs judge/jury/lawyer in a civil court even though both standards are the same?

Criminal trials take time, and in the mean-time the college has to determine whether they ought to do stuff like order the students to be separate, suspend the alleged rapist, and so forth. And of course, the victim (for various reasons) may not want to go through the ringer in pressing charges - they may just want the above, the assurance that their rapist won't suddenly show up next to them or go after them further (it's the same thing with stalking/domestic violence allegations on campus).

Colleges do have broad discretion in issuing no-contact orders. After all, there is no fundamental right to contact another person who refuses to be contacted. (Military academies of course have even greater leeway in issuing no contact orders.)

Ethically, of course, a shool should not suspend a student without at least a fair hearing.

[Patroklos]

Even that is an injustice to an innocent. Some courses are offered once a year. My grad school has several offered once ever two years (though these are special). You make it you don't finish your program. There really is no way around it, they either have proof or wrongdoing or they do not. The same goes for stalking. I can't just walk into a police station and get a restraining order on my word alone. If they do not have anything to corroborate the accusation there is zero justification to infringe on the rights of a student whether that be under their rules or the law. Separate but equal was tried, didn't work.

[Lagmonster]

One of the seriously unfortunately elements of life is that it's possible, and even easy, for a smart criminal to get away with their crime. This creates a world where victims have no choice but to drastically change their lifestyles, all while watching someone who they know is a criminal and who harmed them specifically go on with their merry little way.

It will always be okay to funnel significant resources into supporting the recovery and comfort of people who claim to be victims, but we absolutely have to draw the line at imposing restrictions and punishments on people based only on our personal convictions.

[amigocabal]

Jared Polis issued an apology

For starters, rape survivors are unlikely to report cases to police, citing things like not thinking it’s important enough, not wanting others to know, not having proof, fearing retaliation, and being uncertain about whether what happened constitutes assault. According to a recent Department of Justice study, only 20 percent of campus sexual assault survivors report the assault to police.

Whose fault is that?

Third, colleges have a unique obligation to adjudicate these cases because of the landmark federal civil rights law, Title IX, which prohibits sex discrimination in any federally-funded educational institution

Text of Title IX is here. Note that the words “assault” and “rape” are missing.

An outright refusal to punish rape does not constitute sex discrimination, for it treats male and female equally.

Sexual violence on college campuses creates a hostile learning environment, particularly for women, and is therefore a violation of civil rights

The word “hostile” does not appear in the text either. Should he not at least read the statutes he is interpreting?

It’s essential that colleges uphold the right of every student to a safe learning environment and colleges are uniquely equipped to provide that through accommodations that local police simply can’t offer. For instance, helping a student switch classes or move dorms so she or he doesn’t have to interact with their assailant on a daily basis are critical to survivors’ ability to complete their education. And those are things that can’t be done in a court of law.

I agree that colleges have wide discretion in doing this.

This is precisely why the Department of Education four years ago stepped in and required schools to use a “preponderance of evidence” standard to remove alleged assailants from campus, meaning the evidence shows it is more likely than not that the student is guilty of the assault.

In other words, the Department pretended to be the Supreme Court.

I wonder if other government agencies can pretend to be the Supreme Court, especially on issues with which they disagree with the Supreme Court’s interpretation of the law.

Our criminal courts weren’t designed to decide who can safely be in the same classroom with your kids or mine; they were designed to set a high bar for depriving someone of their liberty and imprisoning them.

Well, if someone is imprisoned by order of a criminal court, they can no more be in the same classroom with your kids or mine any more than they can stand at the same line for a taco cart with your kids or mine.

For those of us also concerned with the rights of the accused, dragging their name through the newspaper as an accused rapist through a criminal justice process will haunt them forever, even if they are found not guilty. So too, it damages the survivor of sexual assault even more to have their name and crimes against them in public, especially because a popular defense strategy is to attack the victim.

So how about anonymity for both?

Or publication of names, addresses, and phone numbers for both?

But the answer is not simply to tell schools to wash their hands of all responsibility on the issue and refer every student to a court system in which justice is elusive (for every 100 rape cases reported, only three rapists will ever serve a day in prison).

Or we could simply let the schools decide for themselves. That is a brilliant idea!

Students are customers of the schools they attend. I fail to see why a university has some sort of greater ethical obligation to punish rapes committed by its customers than the owner of a taco cart on an urban street corner has a duty to punish rapes committed by his customers. Schools can decide- and employers are free to judge the value of a degree from that university based upon a school’s policy on sexual assault.

[Patroklos]

I might buy an apology if he hadn't laughed when he originally said it. Now he is just a two faced coward unable to own what he actually believes.

[Haminal10]

I might buy an apology if he hadn't laughed when he originally said it. Now he is just a two faced coward unable to own what he actually believes.

Having just watched the video again, the laugh is definitely the most offensive part. Thinking that a hypothetical system where 80-90% of student being accused of sexual assault are actually innocent is perfectly fine, and that being wrongly expelled from college isn't a big deal makes him sound profoundly out of touch. "Better 9 innocents hang than for 1 guilty person to go free" doesn't sound like a system of justice that I would want to live under.

[Simon_Jester]

Students are customers of the schools they attend. I fail to see why a university has some sort of greater ethical obligation to punish rapes committed by its customers than the owner of a taco cart on an urban street corner has a duty to punish rapes committed by his customers. Schools can decide- and employers are free to judge the value of a degree from that university based upon a school’s policy on sexual assault.

The school has a far higher degree of control over student lives than any normal business has over its customers. Many students live in housing controlled by the campus, walk streets policed by campus security, and spend the great majority of their time on campus property.

Moreover, the campus is a business you cannot casually sever your ties with. I can walk away from a taco stand and eat elsewhere any time I wish. I cannot easily back out of my degree program.

In a real sense, the university is a de facto local government with the student body as its "citizens." Therefore, the university does need realistic policies for dealing with the prospect of on-campus violence, sexual harassment, and so on.

[Elheru Aran]

Simon is correct. Walking away from a school is not lightly done because there are financial and professional repercussions. It can destroy a person's career potential. I should know, it happened to me. Students are not customers, although they do pay for the knowledge and skills that are developed during their time in school.

The only area in which a school might be more like a 'business' would be the for-profit establishments like University of Phoenix, and even then there's financial penalties if you walk away from the courses you're taking. Typically there's never a full refund.

As such, it's important that a person's education is overseen by a responsible authority structure in charge of the school. That includes disciplining students.

[Patroklos]

In many cases, especially the South and Mid West, the college is the town for all intents and purposes.

What is the rational for expecting colleges to police their upwards of 100K "citizens" in some cases better than the local/state/federal government does for their own jurisdictions?

[Alferd Packer]

In many cases, especially the South and Mid West, the college is the town for all intents and purposes.

What is the rational for expecting colleges to police their upwards of 100K "citizens" in some cases better than the local/state/federal government does for their own jurisdictions?

Liability. They provide, for underclassmen anyway, food, shelter, and medical care in addition to educational and extracurricular services. The amount of time the students are engaged with a university's services puts the university in a unique position that has no analogue anywhere else in society, except perhaps the military. So, like the military, they retain the capability to adjudicate as needed.