There is a very real and involved process when it comes to academic dishonesty. If the same level of rigor is applied in campus handling of rape cases, then there shouldn't be a problem in my opinion. My concerns stem from oversight ensuring the university actually holds themselves to that standard in all serious cases that are brought before it.
The whole reason we are arguing is because this is not what happens currently for rape cases at universities. Currently, it goes one of two ways: if it's a popular staff member or popular student, the rape gets hidden, otherwise, the university assumes the student is guilty, and drops the hammer, before the investigation even begins. You can just look at the recent Rolling Stone / UVA case to see the latter happen, where UVA dropped the hammer on a fraternity (effectively forcing about a dozen students to withdraw due to harrassment) over a rape story that's since been proven to be a complete work of fiction.
In reality, both methods currently used by universities are horrible. Instead, universities should defer to the police and wait for the prosecutor to make a decision. It should be "go to police or lose your job" when it comes to felonies.
Sorry if I wasn't clear, that's what I meant with my final sentence. If we could believe that the university was ACTUALLY investigating these cases then I don't think there's necessarily anything wrong with them expelling or suspending students as required. But it requires some form of 3rd party oversight as it's been shown that many of these universities DON'T actually perform any sort of rigorous investigation.
Because, as has been pointed out, should we be forcing rape survivors to face their rapists to continue to get their education? I really doubt it. Should we be taking education away from innocent people? Fuck no. But what do we do with a criminal justice system as slow as the western world frequently has? Court cases can take years to finish so something needs to be done to protect the rights of both parties until something is proven. Oversight of university tribunals is a start.
I agree with you that universities should probably not mess up actual legal investigation when there is doubt about the outcome, but I disagree with the implication (apologies if this is not your position) a university cannot take action based on the police investigation or reports from their own personnel.
When it comes to felonies, the university should wait until the case goes to grand jury before making a decision.
Basically, if there's not enough evidence for a prosecutor to convince a grand jury, then there's not enough evidence for the university to suspend a student.
Assuming grand juries were efficient, fast, and incapable of error I'd find this more reasonable, but again, this prevents a university from expelling a student they discovered selling drugs* until an appropriate amount of time through the justice system. That seems a bit off to me.
*or committing any other felony a campus security officer could discover, but your specific example was drug sales.
What's the big hurry?
I'm not seeing a compelling reason universities shouldn't be able to expel somebody whom a credible staff member found committing a crime as soon as possible.
Because staff members can be wrong or lie, and it's an action that is profoundly hard to undo
why shouldn't we just throw everyone in prison without trials if a credible witness testifies to police? if they're innocent itll sort itself out later
We do hold people prior to their trial if they are believed to be a danger to others.
Bail / bond can be denied, and people quite frequently can't post bail / bond. Their lives are frequently ruined as well, but there isn't much outcry ti abolish the bail / bond system.
I literally said, in this post, that I do not think that universities should try to serve as criminal investigators. I do not believe this means universities should only be allowed to take action based on the police.
I'm pretty sure that everyone here is willing to say indictment by a grand jury is a fair line in the sand.
Temporary suspension upon indictment, to be made permanent if convicted.
Before the grand jury, the results of the investigation are still unknown.
I disagreed with you when you said that before, and I haven't changed my mind just because you've said I can agree with it.
E: Moreover, I am not really sure of the purpose of your suggestion. If you are willing to have them suspended until conviction, you may as well just expel them!
A lot of people here are pretending that you can manage a months or years long suspension, or a month or years long restraining order on a college campus. You can't. Those are effective expulsion, though the latter might only be expulsion from your major.
I don't believe colleges can or should have anything to do with this. They have too much incentive to fuck people or situations over just to make them go away. Victims and accused alike deserve the protection of the law, that doesn't change because you're going to school.
I think colleges absolutely have a responsibility to set and enforce policies for student behavior on campus. The policies should be transparent and fair, but they have an obligation to ensure the safety of their students on campus. There is no reason those policies can't hold students to a higher or different standard than criminal proceedings.
I also think that colleges should have an obligation to involve law enforcement in criminal matters that happen on campus. While they may have sworn law enforcement that is involved in the initial investigation due to their relationship to the student body, schools should under no circumstances sweep crimes under the rug.
On top of that, people are arguing in favor of (regardless of the case) neutering the school's ability to take action in disciplinary matters. Not just sexual assault either - they are basically arguing to tie the school's hands on essentially any discipline whatsoever. Everyone brings up rape, but what about vandalism, theft, or assault? Should the school be powerless to act until the person is prosecuted?
I think it's goosey (not that you are) that schools should have no power over their student body. Or they are arguing that sexual assault is so different from other crimes / accusations that it needs to be treated through an entirely different process...which, I guess there could be arguments to that effect, but I don't see them being made.
I think you are confused because the argument is that sexual assault should be treated as a separate matter-just not from the side you think. California for instance just reversed the burden of proof onto the accused in college disciplinary hearings, but exclusively those involving sexual misconduct.
As far as I know, schools are not pushing to apply this standard to any of the other crimes you list. Or even non-crimes, like cheating.
Affirmative consent is not "reversing the burden of proof". In fact, it's actually bringing rape in line with other charges, as demonstrating consent as a defense would be on the defense in every other crime out there.
Having sex is not a crime. Therefor the accuser(prosecutor) needs to show both the occurrence of the sex AND the lack of consent, rather than just the former to prove a rape claim.
The affirmative consent standard the schools are applying removes the second part of that. The accuser just needs to prove sex(a non-criminal act occurred). It's telling that they did not amend the penal code the same way, it is as they knew it wouldn't withstand scrutiny.
Being given a gift isn't a crime either. And yet if you were to use that as a defense against a charge of theft, the expectation would be on the defense to prove that the item was given freely.
The defense doesn't have a burden of affirmative proof of anything in a criminal case. Defendants are assumed not guilty by default. The burden would be entirely on the prosecution to prove that the item was not given freely.
They do if they use an affirmative defense - for example, self-defense, or duress.
Introducing an affirmative defense into our legal framework does not, in and of itself, invert the principle of "innocent until proven guilty." If it did, we wouldn't be able to treat self-defense that way in criminal cases.
In fact, we already use consent as an affirmative defense in some types of civil tort cases.
With both of these facts in mind (that affirmative defenses exist in criminal cases, and consent is an affirmative defense in civil cases) the legal ramifications of using consent as an affirmative defense in criminal sexual assault cases aren't remotely as disastrous as certain chicken littles claim.
That said, affirmative consent as a criminal justice paradigm overlaps with, but is not precisely, the topic of this thread. Even if we were to adopt affirmative consent in criminal courts (and I strongly believe we should), that doesn't mean that I want college administrators enforcing it. I'm passionate about affirmative consent, but I'm ambivalent on how much of a role I think college administrations should have in enforcing sexual assault policies on-campus.
Well, the problem is that consent isn't an affirmative defense because it directly denies one of the elements of the crime. Affirmative defenses are when the defense concedes the elements of the crime.
If you raise self-defense in a murder trial, you are admitting to willfully killing someone. The requisite elements of murder charge are that A) Your actions lead to the death of another and You acted with the intent to harm (removing B reduces it to manslaughter or equivalent). The affirmative defense of self-defense admits A and B to be true, and then states C) You acted out of necessity to defend yourself. The burden is then on the defense to demonstrate C.
In the case of a rape trial, the necessary elements are A) Sex happened and Without consent. Arguing that consent was present denies B. The burden of proof is still on the prosecution - the defense only has to raise reasonable doubt as to whether consent existed.
This is a fundamental difference, and it's why people say the affirmative consent policy goes against the basic tenets of the legal system.
tl;dr: Affirmative defenses concede all elements of the crime to be true. Consent is an element of the crime so saying consent was present is not an affirmative defense.
We are still talking a lot about what colleges should do but in the conversation about consent we seem to have skipped over what they must do under Title IX.
Colleges have a very, very clear conflict of interest in that their main goal must be avoiding Title IX sanctions, and that's why they investigate these crimes at all. That's why they often don't provide due process to the accused when they're not burying the claim entirely.
Campus police are absolutely unreliable and a biased 3rd party with an interest in protecting the institution first and foremost. They should not only stop investigating crimes on campus, they should be barred entirely from doing so, and required to instead fork over their entire enforcement budget to the municipality where the college resides, so that the local police can do their jobs.
Campus police should be security guards, nothing more. The actual police should do policework, not a division of an institution with an interest in avoiding federal government discrimination sanctions under Title IX.
The entire structure of campus enforcement should be eliminated, nationwide. From there, we can rebuild victim advocacy groups alongside organizations that provide legal assistance to the accused, then the institutions can formulate new codes of conduct that reflect their lack of investigative power with regard to criminal acts.
This is all fascinating stuff. How do campus police who are actually police compare to what are essentially campus security?
For example. Vanderbilt University Police are actually a police department who is under the Nashville metro police department as a government agency.
The formation was preceded by "Vanderbilt Security" in 2001. I'm looking around on the Google machine to find out why it changed and what the outcome has been over the last 10 years, but having a police department who's jurisdiction is the campus seems infinitely better for accountability and transparency of the law than having mall security drive around in golf carts.
Edit: Vanderbilt is huge. Like 23,000 employees huge. It makes sense for them to have extra law enforcement available with an on campus station.
Spool I am not sure anybody has disagreed with you, so it's less people are ignoring it and more that people said "yeah, you're right, but..." where the but was your implication that conviction should be required for any punishments.
Spool I am not sure anybody has disagreed with you, so it's less people are ignoring it and more that people said "yeah, you're right, but..." where the but was your implication that conviction should be required for any punishments.
well, the institution ought to be able to form its own punishment regime for violating campus conduct codes that students agree to when they attend the university. Those will probably be all over the map but at least the argument will be about what's appropriate before conviction, rather than how best to cover up / fuck over an person accused of a a crime.
Spool I am not sure anybody has disagreed with you, so it's less people are ignoring it and more that people said "yeah, you're right, but..." where the but was your implication that conviction should be required for any punishments.
well, the institution ought to be able to form its own punishment regime for violating campus conduct codes that students agree to when they attend the university. Those will probably be all over the map but at least the argument will be about what's appropriate before conviction, rather than how best to cover up / fuck over an person accused of a a crime.
The other objection I have is "before conviction," because I am still not of the belief universities need to act with a beyond a reasonable doubt standard.
Spool I am not sure anybody has disagreed with you, so it's less people are ignoring it and more that people said "yeah, you're right, but..." where the but was your implication that conviction should be required for any punishments.
well, the institution ought to be able to form its own punishment regime for violating campus conduct codes that students agree to when they attend the university. Those will probably be all over the map but at least the argument will be about what's appropriate before conviction, rather than how best to cover up / fuck over an person accused of a a crime.
The other objection I have is "before conviction," because I am still not of the belief universities need to act with a beyond a reasonable doubt standard.
I don't have an opinion on that... I just figure that after conviction it's pretty obvious. Beforehand, it's going to be up to the institution to decide what steps they want to take with alleged criminal conduct, and I'm fine with students having this argument within their individual institutions and coming to different conclusions.
Personally, I think a code of conduct that results in a UVA or Duke incident is pretty broken, but I'm more interested in preventing these institutions from being forced into various actions to defend their Title IX discrimination status. That's the linchpin here - the university has a financial interest that prevents it from being a fair arbiter.
Spool I am not sure anybody has disagreed with you, so it's less people are ignoring it and more that people said "yeah, you're right, but..." where the but was your implication that conviction should be required for any punishments.
well, the institution ought to be able to form its own punishment regime for violating campus conduct codes that students agree to when they attend the university. Those will probably be all over the map but at least the argument will be about what's appropriate before conviction, rather than how best to cover up / fuck over an person accused of a a crime.
Yup, the limits of what they should investigate are dictated by what they have authority over; the code of conduct that the student agreed to.
I don't see it as being any different than a professional (e.g. doctor or lawyer) being sanctioned by their certifying body for unethical behavior regardless of whether an actual criminal conviction is handed down. The police have no business being involved in that just as the certifying body has no reason to be involved in the criminal proceedings (barring exchange of information perhaps).
Spool I am not sure anybody has disagreed with you, so it's less people are ignoring it and more that people said "yeah, you're right, but..." where the but was your implication that conviction should be required for any punishments.
well, the institution ought to be able to form its own punishment regime for violating campus conduct codes that students agree to when they attend the university. Those will probably be all over the map but at least the argument will be about what's appropriate before conviction, rather than how best to cover up / fuck over an person accused of a a crime.
Yup, the limits of what they should investigate are dictated by what they have authority over; the code of conduct that the student agreed to.
I don't see it as being any different than a professional (e.g. doctor or lawyer) being sanctioned by their certifying body for unethical behavior regardless of whether an actual criminal conviction is handed down. The police have no business being involved in that just as the certifying body has no reason to be involved in the criminal proceedings (barring exchange of information perhaps).
The disparity only makes sense when there isn't overlap. If, for example, the student code of conduct forbid being alone with a member of the opposite gender, and this was a case of alleged male on female assault, then a not guilty rape verdict would not immediately satisfy the question of it the code was violated. OTOH, if, more reasonably, the student code forbade rape, and the student was tried and found not guilty of rape, the verdict satisfies both codes at once.
Rape is pretty borderline, but overall, I don't find the American justice system to be overly lax on anyone but white collar criminals, so I see little value and much danger in allowing it to be preempted by an organization that may arguably have greater ability to give out consequences, depending on the offense. If someone gets expelled for a low to mid level offense after borrowing $40K and doesn't re-matriculate elsewhere, well, not a lot of first time offenders see $40 grand fines attached to first offenses. The sheer power of universities should invite caution.
Well, the problem is that consent isn't an affirmative defense because it directly denies one of the elements of the crime. Affirmative defenses are when the defense concedes the elements of the crime.
If you raise self-defense in a murder trial, you are admitting to willfully killing someone. The requisite elements of murder charge are that A) Your actions lead to the death of another and You acted with the intent to harm (removing B reduces it to manslaughter or equivalent). The affirmative defense of self-defense admits A and B to be true, and then states C) You acted out of necessity to defend yourself. The burden is then on the defense to demonstrate C.
In the case of a rape trial, the necessary elements are A) Sex happened and Without consent. Arguing that consent was present denies B. The burden of proof is still on the prosecution - the defense only has to raise reasonable doubt as to whether consent existed.
This is a fundamental difference, and it's why people say the affirmative consent policy goes against the basic tenets of the legal system.
tl;dr: Affirmative defenses concede all elements of the crime to be true. Consent is an element of the crime so saying consent was present is not an affirmative defense.
IANAL.
That isn't necessarily true. An alibi defense doesn't work that way - the defendant denies one of the requisite elements of the murder charge (A, in your example) and has to construct a narrative that he was elsewhere at the time the crime occurred.
Granted, a quick confirmatory Googling came up with mixed results - some resources classify alibi as an affirmative defense, others say that it technically isn't but works similarly to one. Whether it is technically classified that way is a semantic game for our purposes; it still serves as an example of a defense that shifts the burden of proof back to the defendant.
A better example would be a claim of right in a theft case. A claim of right has to be supported by evidence; a person accused of theft may not just glibly claim rights to the property being stolen. The defendant is taken at their word that the theft was effectively "nonconsensual" unless the accused can produce evidence of their right to the property. That evidence doesn't have to be beyond reasonable doubt - it can be merely substantial.
every person who doesn't like an acquired taste always seems to think everyone who likes it is faking it. it should be an official fallacy.
I apologize if this been debated, but I'm not sure I saw this in the thread:
Let's say that rape accusations are switched to being handled entirely by the criminal justice system. How do you reconcile the rights of the accused and the accuser on a college campus? If student A is accused of rape, and student B is the accuser, what do you do when they are the same major, or at a similar point in their education, and share a couple of classes with no substitutions are available? Do you force student A to drop classes (or suspend them), potentially putting student A into a position of non-compliance as they are not fulfilling whatever requirements of the loans/grants/etc. they have? Or do you force student B to drop classes, potentially putting them in a position of non-compliance? Student A deserves the right of being innocent until proven guilty. Student B deserves the right to safe environment. I guess my question is how do you balance the rights of everyone while not hurting anyone? It could take a year (or more) for the investigation and trial to conclude. Either student A and/or student B could be financially devastated by the time everything has concluded.
(Disclaimer: My wife handles Title IX investigations for a large university here in the eastern US. I've discussed this with her while trying to understand what she does.)
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I apologize if this been debated, but I'm not sure I saw this in the thread:
Let's say that rape accusations are switched to being handled entirely by the criminal justice system. How do you reconcile the rights of the accused and the accuser on a college campus? If student A is accused of rape, and student B is the accuser, what do you do when they are the same major, or at a similar point in their education, and share a couple of classes with no substitutions are available? Do you force student A to drop classes (or suspend them), potentially putting student A into a position of non-compliance as they are not fulfilling whatever requirements of the loans/grants/etc. they have? Or do you force student B to drop classes, potentially putting them in a position of non-compliance? Student A deserves the right of being innocent until proven guilty. Student B deserves the right to safe environment. I guess my question is how do you balance the rights of everyone while not hurting anyone? It could take a year (or more) for the investigation and trial to conclude. Either student A and/or student B could be financially devastated by the time everything has concluded.
(Disclaimer: My wife handles Title IX investigations for a large university here in the eastern US. I've discussed this with her while trying to understand what she does.)
I think the right to safe environment case is often overstated or more exactly it is misstated. People say "safe environment" when what they mean is "not having to see person A in a lecture with 50 other students".
And once again this is the school trying to create(and maybe it has to for Title IX reasons) a slapdash duplicate for something the judicial system already provides. If student B doesn't feel safe with student A in the same building they can get a restraining order issued.
e: I guess my thought is to protect the rights of student A, because there is no civil legal remedy available to them if they are acquitted. Where as B can file a civil rape suit to recoup damages.
What you are asking, is when should a university step in?
When the student is under suspicion?
When the student is arrested?
When the grand jury indicts the student?
When the trial returns a guilty verdict?
The only obvious ones are the first an last. Mere suspicion should never be good enough to act upon. In any felony, the police will cast a wide net initially, putting nearly everyone under the microscope, so mere suspicion catches way too many innocents. As for a guilty verdict at a trial, that's also plenty enough evidence to act upon.
As for arrests and grand jury indictments, looking at say New York City attorney general records, we know that for felonies, of those arrested, only 60% are found guilty, with the percentages going down for violent felonies, and going under 50% for misdemeanors.
Thus, the gray area, between arrests and trial verdict is practically a coin toss about whether or not the accused student is actually guilty.
And yes, it's pretty fucked up that the biggest city in the USA arrests the wrong person almost half the time.
Both students deserve a safe environment but the presumption of innocence trumps. It's practically impossible to compel either party to silence and possibly harmful to try... Maybe you offer both students some compensation or a semester at another campus? That just invites dishonesty though. I'm not sure how you deal with a possible victim in the same major as the alleged attacker.
it's not difficult to go through life without committing any serious crimes; and yet, we need a reasonable way of dealing with people who may have committed serious crimes
I know. I just hate all this hand wringing about false accusations of rape like it's an easy situation to fall into. Even the high profile cases, there was usually a lot of poor decision making going on that led up to it.
And that's really what we're worried about here, right? People getting their lives ruined even though they didn't actually commit the crime.
I mean
this appears to be what's happened in the case at columbia; per usual it's difficult to really know, but there's a variety of circumstantial evidence that the sex was in fact consensual, and the university's 'enforcement' has been a pretty big mess
it was the smallest on the list but
Pluto was a planet and I'll never forget
The justice system which is served by trained and experienced police officers investigating crimes, with the lawyers and judges at 3rd party to the case with no financial stake in the outcome, backed by centuries of legal precedent, long codified rights for the accused and the accuser, and established procedures for admitting or excluding evidence and testimony; struggles to effectively and fairly handle sexual assault cases.
Why anyone thinks a shadow justice system made up of administrators and faculty with no specific legal experience all members of a university under pressure to reach a resolution quickly and running on whatever rules they come up for the time being would be anything but a trainwreck...I have no idea.
Well, the problem is that consent isn't an affirmative defense because it directly denies one of the elements of the crime. Affirmative defenses are when the defense concedes the elements of the crime.
If you raise self-defense in a murder trial, you are admitting to willfully killing someone. The requisite elements of murder charge are that A) Your actions lead to the death of another and You acted with the intent to harm (removing B reduces it to manslaughter or equivalent). The affirmative defense of self-defense admits A and B to be true, and then states C) You acted out of necessity to defend yourself. The burden is then on the defense to demonstrate C.
In the case of a rape trial, the necessary elements are A) Sex happened and Without consent. Arguing that consent was present denies B. The burden of proof is still on the prosecution - the defense only has to raise reasonable doubt as to whether consent existed.
This is a fundamental difference, and it's why people say the affirmative consent policy goes against the basic tenets of the legal system.
tl;dr: Affirmative defenses concede all elements of the crime to be true. Consent is an element of the crime so saying consent was present is not an affirmative defense.
IANAL.
That isn't necessarily true. An alibi defense doesn't work that way - the defendant denies one of the requisite elements of the murder charge (A, in your example) and has to construct a narrative that he was elsewhere at the time the crime occurred.
Granted, a quick confirmatory Googling came up with mixed results - some resources classify alibi as an affirmative defense, others say that it technically isn't but works similarly to one. Whether it is technically classified that way is a semantic game for our purposes; it still serves as an example of a defense that shifts the burden of proof back to the defendant.
A better example would be a claim of right in a theft case. A claim of right has to be supported by evidence; a person accused of theft may not just glibly claim rights to the property being stolen. The defendant is taken at their word that the theft was effectively "nonconsensual" unless the accused can produce evidence of their right to the property. That evidence doesn't have to be beyond reasonable doubt - it can be merely substantial.
An alibi denies A) in both cases, since people can't be in two places at once. It's not an affirmative defense, it's a standard "I couldn't have been the one to do that, I was somewhere else".
I agree with you that universities should probably not mess up actual legal investigation when there is doubt about the outcome, but I disagree with the implication (apologies if this is not your position) a university cannot take action based on the police investigation or reports from their own personnel.
When it comes to felonies, the university should wait until the case goes to grand jury before making a decision.
Basically, if there's not enough evidence for a prosecutor to convince a grand jury, then there's not enough evidence for the university to suspend a student.
Assuming grand juries were efficient, fast, and incapable of error I'd find this more reasonable, but again, this prevents a university from expelling a student they discovered selling drugs* until an appropriate amount of time through the justice system. That seems a bit off to me.
*or committing any other felony a campus security officer could discover, but your specific example was drug sales.
What's the big hurry?
I'm not seeing a compelling reason universities shouldn't be able to expel somebody whom a credible staff member found committing a crime as soon as possible.
Because staff members can be wrong or lie, and it's an action that is profoundly hard to undo
why shouldn't we just throw everyone in prison without trials if a credible witness testifies to police? if they're innocent itll sort itself out later
We do hold people prior to their trial if they are believed to be a danger to others.
Bail / bond can be denied, and people quite frequently can't post bail / bond. Their lives are frequently ruined as well, but there isn't much outcry ti abolish the bail / bond system.
Uhhh
Yeah, my post was poorly worded and should have been fleshed out / clarified quite a bit more...it comes across as pretty awful now that I read it this morning. Phone posting last night.
I also want to note that what I'm posting has to do with public universities - as someone (tinwhiskers maybe?) said yesterday, private universities are private businesses, and in a sense should be able to do just about anything they please (within the law). I'd say there's a grey area when it comes to government loans / GI bill stuff, but that's a whole other issue.
I don't think (although I may be wrong) that most people are calling to entirely abolish the pre-trial process, rather reform it to be fair and consistent. I think we can all agree that there are cases where an accused poses enough of an immediate threat to public safety that - even if they are not yet convicted - the government must have some ability to mitigate that danger to the public.
Similarly, although it's frequently abused and in need of reform, I don't think allowing police to hold someone for some about of time prior to them being charged (or, to be truly analogous, convicted) for a crime is entirely unreasonable.
I know that whenever sexual assault gets brought up, the topic immediately goes to the handful of well publicized false allegations, but I would bet that you would find orders of magnitude more cases where the victim of a sexual assault is harassed or otherwise retaliated against...much less the number of rapes that go unreported or lack sufficient evidence to convict. The school has an obligation to take measures to prevent retaliation against the victim and keep their campus otherwise safe, and I don't think tying their hands until a grand jury convenes or a trial (which can take months or even years) is an effective way to ensure student's safety.
Now, even within our court system, there are varying standards of proof. While criminal courts generally require 'beyond a reasonable doubt', civil courts simply require 'a preponderance of evidence'. Sufficient evidence to get a conviction for a rape or sexual assault doesn't mean there isn't a preponderance of evidence, and frequently there still exists enough evidence to unquestionably show that the conduct of the accused - criminal or not - violated university policies and is sufficient for dismissal. I don't think it's unreasonable for an institution to take action based on the standards for Probable cause for an arrest based on rape accusations.
While I agree that even a temporary and reversible suspension can greatly impact an accused student's academic progress, a sexual assault victim's academic progress will likely also be greatly impacted by the presence of their rapist. Given the staggeringly high amount of sexual assaults on college campuses (1 in 4 college women will be the victim of sexual assault during her academic career.), I would strongly argue in favor of the university taking the temporary and reversible action in light of probable cause rather than ignoring evidence (pending an investigation that could take months or years) and likely causing permanent and irreversible harm to the victim of a sexual assault.
I would strive for a fair, clearly documented, impartial, and transparent process for (any) code of conduct violations, but I simply find it unreasonable to expect colleges to take no action to protect students.
I do agree that there are some major issues with police forces that are part of the university. However, I do prefer that there is a clear chain of accountability that comes with having law enforcement involved and I also don't think police forces in the surrounding community are entirely unbiased either. In a perfect world, we would have a division of the FBI or Department of Education has the resources to oversee the entire process when it comes to sexual assaults or other serious crimes on college campuses, but I don't see that happening any time soon.
I agree with you that universities should probably not mess up actual legal investigation when there is doubt about the outcome, but I disagree with the implication (apologies if this is not your position) a university cannot take action based on the police investigation or reports from their own personnel.
When it comes to felonies, the university should wait until the case goes to grand jury before making a decision.
Basically, if there's not enough evidence for a prosecutor to convince a grand jury, then there's not enough evidence for the university to suspend a student.
Assuming grand juries were efficient, fast, and incapable of error I'd find this more reasonable, but again, this prevents a university from expelling a student they discovered selling drugs* until an appropriate amount of time through the justice system. That seems a bit off to me.
*or committing any other felony a campus security officer could discover, but your specific example was drug sales.
What's the big hurry?
I'm not seeing a compelling reason universities shouldn't be able to expel somebody whom a credible staff member found committing a crime as soon as possible.
Because staff members can be wrong or lie, and it's an action that is profoundly hard to undo
why shouldn't we just throw everyone in prison without trials if a credible witness testifies to police? if they're innocent itll sort itself out later
We do hold people prior to their trial if they are believed to be a danger to others.
Bail / bond can be denied, and people quite frequently can't post bail / bond. Their lives are frequently ruined as well, but there isn't much outcry ti abolish the bail / bond system.
Uhhh
Yeah, my post was poorly worded and should have been fleshed out / clarified quite a bit more...it comes across as pretty awful now that I read it this morning. Phone posting last night.
I also want to note that what I'm posting has to do with public universities - as someone (tinwhiskers maybe?) said yesterday, private universities are private businesses, and in a sense should be able to do just about anything they please (within the law). I'd say there's a grey area when it comes to government loans / GI bill stuff, but that's a whole other issue.
I don't think (although I may be wrong) that most people are calling to entirely abolish the pre-trial process, rather reform it to be fair and consistent. I think we can all agree that there are cases where an accused poses enough of an immediate threat to public safety that - even if they are not yet convicted - the government must have some ability to mitigate that danger to the public.
Similarly, although it's frequently abused and in need of reform, I don't think allowing police to hold someone for some about of time prior to them being charged (or, to be truly analogous, convicted) for a crime is entirely unreasonable.
I know that whenever sexual assault gets brought up, the topic immediately goes to the handful of well publicized false allegations, but I would bet that you would find orders of magnitude more cases where the victim of a sexual assault is harassed or otherwise retaliated against...much less the number of rapes that go unreported or lack sufficient evidence to convict. The school has an obligation to take measures to prevent retaliation against the victim and keep their campus otherwise safe, and I don't think tying their hands until a grand jury convenes or a trial (which can take months or even years) is an effective way to ensure student's safety.
Now, even within our court system, there are varying standards of proof. While criminal courts generally require 'beyond a reasonable doubt', civil courts simply require 'a preponderance of evidence'. Sufficient evidence to get a conviction for a rape or sexual assault doesn't mean there isn't a preponderance of evidence, and frequently there still exists enough evidence to unquestionably show that the conduct of the accused - criminal or not - violated university policies and is sufficient for dismissal. I don't think it's unreasonable for an institution to take action based on the standards for Probable cause for an arrest based on rape accusations.
While I agree that even a temporary and reversible suspension can greatly impact an accused student's academic progress, a sexual assault victim's academic progress will likely also be greatly impacted by the presence of their rapist. Given the staggeringly high amount of sexual assaults on college campuses (1 in 4 college women will be the victim of sexual assault during her academic career.), I would strongly argue in favor of the university taking the temporary and reversible action in light of probable cause rather than ignoring evidence (pending an investigation that could take months or years) and likely causing permanent and irreversible harm to the victim of a sexual assault.
I would strive for a fair, clearly documented, impartial, and transparent process for (any) code of conduct violations, but I simply find it unreasonable to expect colleges to take no action to protect students.
I do agree that there are some major issues with police forces that are part of the university. However, I do prefer that there is a clear chain of accountability that comes with having law enforcement involved and I also don't think police forces in the surrounding community are entirely unbiased either. In a perfect world, we would have a division of the FBI or Department of Education has the resources to oversee the entire process when it comes to sexual assaults or other serious crimes on college campuses, but I don't see that happening any time soon.
I would be in favor of reversible action too if remuneration was commonplace
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
I agree with you that universities should probably not mess up actual legal investigation when there is doubt about the outcome, but I disagree with the implication (apologies if this is not your position) a university cannot take action based on the police investigation or reports from their own personnel.
When it comes to felonies, the university should wait until the case goes to grand jury before making a decision.
Basically, if there's not enough evidence for a prosecutor to convince a grand jury, then there's not enough evidence for the university to suspend a student.
Assuming grand juries were efficient, fast, and incapable of error I'd find this more reasonable, but again, this prevents a university from expelling a student they discovered selling drugs* until an appropriate amount of time through the justice system. That seems a bit off to me.
*or committing any other felony a campus security officer could discover, but your specific example was drug sales.
What's the big hurry?
I'm not seeing a compelling reason universities shouldn't be able to expel somebody whom a credible staff member found committing a crime as soon as possible.
Because staff members can be wrong or lie, and it's an action that is profoundly hard to undo
why shouldn't we just throw everyone in prison without trials if a credible witness testifies to police? if they're innocent itll sort itself out later
We do hold people prior to their trial if they are believed to be a danger to others.
Bail / bond can be denied, and people quite frequently can't post bail / bond. Their lives are frequently ruined as well, but there isn't much outcry ti abolish the bail / bond system.
Uhhh
Yeah, my post was poorly worded and should have been fleshed out / clarified quite a bit more...it comes across as pretty awful now that I read it this morning. Phone posting last night.
I also want to note that what I'm posting has to do with public universities - as someone (tinwhiskers maybe?) said yesterday, private universities are private businesses, and in a sense should be able to do just about anything they please (within the law). I'd say there's a grey area when it comes to government loans / GI bill stuff, but that's a whole other issue.
I don't think (although I may be wrong) that most people are calling to entirely abolish the pre-trial process, rather reform it to be fair and consistent. I think we can all agree that there are cases where an accused poses enough of an immediate threat to public safety that - even if they are not yet convicted - the government must have some ability to mitigate that danger to the public.
Similarly, although it's frequently abused and in need of reform, I don't think allowing police to hold someone for some about of time prior to them being charged (or, to be truly analogous, convicted) for a crime is entirely unreasonable.
I know that whenever sexual assault gets brought up, the topic immediately goes to the handful of well publicized false allegations, but I would bet that you would find orders of magnitude more cases where the victim of a sexual assault is harassed or otherwise retaliated against...much less the number of rapes that go unreported or lack sufficient evidence to convict. The school has an obligation to take measures to prevent retaliation against the victim and keep their campus otherwise safe, and I don't think tying their hands until a grand jury convenes or a trial (which can take months or even years) is an effective way to ensure student's safety.
I just want to state again that the school doesn't necessarily have this obligation at all, and if they do, it's because they've chosen to. Their only outside obligation in this matter is avoiding Title IX discrimination sanctions. This gives them a strong financial incentive to either sweep sexual assault under the rug, or wreck an accused person's life before anything has been proven. Seeking justice, for either party, is not part of their goal.
What about the commitment to caring and moral integrity in all school administrahahahahaha HA HA HA
Marty: The future, it's where you're going? Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
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Sorry if I wasn't clear, that's what I meant with my final sentence. If we could believe that the university was ACTUALLY investigating these cases then I don't think there's necessarily anything wrong with them expelling or suspending students as required. But it requires some form of 3rd party oversight as it's been shown that many of these universities DON'T actually perform any sort of rigorous investigation.
Because, as has been pointed out, should we be forcing rape survivors to face their rapists to continue to get their education? I really doubt it. Should we be taking education away from innocent people? Fuck no. But what do we do with a criminal justice system as slow as the western world frequently has? Court cases can take years to finish so something needs to be done to protect the rights of both parties until something is proven. Oversight of university tribunals is a start.
Uhhh
I disagreed with you when you said that before, and I haven't changed my mind just because you've said I can agree with it.
E: Moreover, I am not really sure of the purpose of your suggestion. If you are willing to have them suspended until conviction, you may as well just expel them!
A lot of people here are pretending that you can manage a months or years long suspension, or a month or years long restraining order on a college campus. You can't. Those are effective expulsion, though the latter might only be expulsion from your major.
Well, the problem is that consent isn't an affirmative defense because it directly denies one of the elements of the crime. Affirmative defenses are when the defense concedes the elements of the crime.
If you raise self-defense in a murder trial, you are admitting to willfully killing someone. The requisite elements of murder charge are that A) Your actions lead to the death of another and
In the case of a rape trial, the necessary elements are A) Sex happened and
This is a fundamental difference, and it's why people say the affirmative consent policy goes against the basic tenets of the legal system.
tl;dr: Affirmative defenses concede all elements of the crime to be true. Consent is an element of the crime so saying consent was present is not an affirmative defense.
IANAL.
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Colleges have a very, very clear conflict of interest in that their main goal must be avoiding Title IX sanctions, and that's why they investigate these crimes at all. That's why they often don't provide due process to the accused when they're not burying the claim entirely.
Campus police are absolutely unreliable and a biased 3rd party with an interest in protecting the institution first and foremost. They should not only stop investigating crimes on campus, they should be barred entirely from doing so, and required to instead fork over their entire enforcement budget to the municipality where the college resides, so that the local police can do their jobs.
Campus police should be security guards, nothing more. The actual police should do policework, not a division of an institution with an interest in avoiding federal government discrimination sanctions under Title IX.
The entire structure of campus enforcement should be eliminated, nationwide. From there, we can rebuild victim advocacy groups alongside organizations that provide legal assistance to the accused, then the institutions can formulate new codes of conduct that reflect their lack of investigative power with regard to criminal acts.
For example. Vanderbilt University Police are actually a police department who is under the Nashville metro police department as a government agency.
The formation was preceded by "Vanderbilt Security" in 2001. I'm looking around on the Google machine to find out why it changed and what the outcome has been over the last 10 years, but having a police department who's jurisdiction is the campus seems infinitely better for accountability and transparency of the law than having mall security drive around in golf carts.
Edit: Vanderbilt is huge. Like 23,000 employees huge. It makes sense for them to have extra law enforcement available with an on campus station.
well, the institution ought to be able to form its own punishment regime for violating campus conduct codes that students agree to when they attend the university. Those will probably be all over the map but at least the argument will be about what's appropriate before conviction, rather than how best to cover up / fuck over an person accused of a a crime.
The other objection I have is "before conviction," because I am still not of the belief universities need to act with a beyond a reasonable doubt standard.
I don't have an opinion on that... I just figure that after conviction it's pretty obvious. Beforehand, it's going to be up to the institution to decide what steps they want to take with alleged criminal conduct, and I'm fine with students having this argument within their individual institutions and coming to different conclusions.
Personally, I think a code of conduct that results in a UVA or Duke incident is pretty broken, but I'm more interested in preventing these institutions from being forced into various actions to defend their Title IX discrimination status. That's the linchpin here - the university has a financial interest that prevents it from being a fair arbiter.
Yup, the limits of what they should investigate are dictated by what they have authority over; the code of conduct that the student agreed to.
I don't see it as being any different than a professional (e.g. doctor or lawyer) being sanctioned by their certifying body for unethical behavior regardless of whether an actual criminal conviction is handed down. The police have no business being involved in that just as the certifying body has no reason to be involved in the criminal proceedings (barring exchange of information perhaps).
The disparity only makes sense when there isn't overlap. If, for example, the student code of conduct forbid being alone with a member of the opposite gender, and this was a case of alleged male on female assault, then a not guilty rape verdict would not immediately satisfy the question of it the code was violated. OTOH, if, more reasonably, the student code forbade rape, and the student was tried and found not guilty of rape, the verdict satisfies both codes at once.
Rape is pretty borderline, but overall, I don't find the American justice system to be overly lax on anyone but white collar criminals, so I see little value and much danger in allowing it to be preempted by an organization that may arguably have greater ability to give out consequences, depending on the offense. If someone gets expelled for a low to mid level offense after borrowing $40K and doesn't re-matriculate elsewhere, well, not a lot of first time offenders see $40 grand fines attached to first offenses. The sheer power of universities should invite caution.
That isn't necessarily true. An alibi defense doesn't work that way - the defendant denies one of the requisite elements of the murder charge (A, in your example) and has to construct a narrative that he was elsewhere at the time the crime occurred.
Granted, a quick confirmatory Googling came up with mixed results - some resources classify alibi as an affirmative defense, others say that it technically isn't but works similarly to one. Whether it is technically classified that way is a semantic game for our purposes; it still serves as an example of a defense that shifts the burden of proof back to the defendant.
A better example would be a claim of right in a theft case. A claim of right has to be supported by evidence; a person accused of theft may not just glibly claim rights to the property being stolen. The defendant is taken at their word that the theft was effectively "nonconsensual" unless the accused can produce evidence of their right to the property. That evidence doesn't have to be beyond reasonable doubt - it can be merely substantial.
the "no true scotch man" fallacy.
the "no true scotch man" fallacy.
Let's say that rape accusations are switched to being handled entirely by the criminal justice system. How do you reconcile the rights of the accused and the accuser on a college campus? If student A is accused of rape, and student B is the accuser, what do you do when they are the same major, or at a similar point in their education, and share a couple of classes with no substitutions are available? Do you force student A to drop classes (or suspend them), potentially putting student A into a position of non-compliance as they are not fulfilling whatever requirements of the loans/grants/etc. they have? Or do you force student B to drop classes, potentially putting them in a position of non-compliance? Student A deserves the right of being innocent until proven guilty. Student B deserves the right to safe environment. I guess my question is how do you balance the rights of everyone while not hurting anyone? It could take a year (or more) for the investigation and trial to conclude. Either student A and/or student B could be financially devastated by the time everything has concluded.
(Disclaimer: My wife handles Title IX investigations for a large university here in the eastern US. I've discussed this with her while trying to understand what she does.)
I think the right to safe environment case is often overstated or more exactly it is misstated. People say "safe environment" when what they mean is "not having to see person A in a lecture with 50 other students".
And once again this is the school trying to create(and maybe it has to for Title IX reasons) a slapdash duplicate for something the judicial system already provides. If student B doesn't feel safe with student A in the same building they can get a restraining order issued.
e: I guess my thought is to protect the rights of student A, because there is no civil legal remedy available to them if they are acquitted. Where as B can file a civil rape suit to recoup damages.
When the student is under suspicion?
When the student is arrested?
When the grand jury indicts the student?
When the trial returns a guilty verdict?
The only obvious ones are the first an last. Mere suspicion should never be good enough to act upon. In any felony, the police will cast a wide net initially, putting nearly everyone under the microscope, so mere suspicion catches way too many innocents. As for a guilty verdict at a trial, that's also plenty enough evidence to act upon.
As for arrests and grand jury indictments, looking at say New York City attorney general records, we know that for felonies, of those arrested, only 60% are found guilty, with the percentages going down for violent felonies, and going under 50% for misdemeanors.
Thus, the gray area, between arrests and trial verdict is practically a coin toss about whether or not the accused student is actually guilty.
And yes, it's pretty fucked up that the biggest city in the USA arrests the wrong person almost half the time.
I mean
this appears to be what's happened in the case at columbia; per usual it's difficult to really know, but there's a variety of circumstantial evidence that the sex was in fact consensual, and the university's 'enforcement' has been a pretty big mess
Pluto was a planet and I'll never forget
Why anyone thinks a shadow justice system made up of administrators and faculty with no specific legal experience all members of a university under pressure to reach a resolution quickly and running on whatever rules they come up for the time being would be anything but a trainwreck...I have no idea.
An alibi denies A) in both cases, since people can't be in two places at once. It's not an affirmative defense, it's a standard "I couldn't have been the one to do that, I was somewhere else".
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Yeah, my post was poorly worded and should have been fleshed out / clarified quite a bit more...it comes across as pretty awful now that I read it this morning. Phone posting last night.
I also want to note that what I'm posting has to do with public universities - as someone (tinwhiskers maybe?) said yesterday, private universities are private businesses, and in a sense should be able to do just about anything they please (within the law). I'd say there's a grey area when it comes to government loans / GI bill stuff, but that's a whole other issue.
I don't think (although I may be wrong) that most people are calling to entirely abolish the pre-trial process, rather reform it to be fair and consistent. I think we can all agree that there are cases where an accused poses enough of an immediate threat to public safety that - even if they are not yet convicted - the government must have some ability to mitigate that danger to the public.
Similarly, although it's frequently abused and in need of reform, I don't think allowing police to hold someone for some about of time prior to them being charged (or, to be truly analogous, convicted) for a crime is entirely unreasonable.
I know that whenever sexual assault gets brought up, the topic immediately goes to the handful of well publicized false allegations, but I would bet that you would find orders of magnitude more cases where the victim of a sexual assault is harassed or otherwise retaliated against...much less the number of rapes that go unreported or lack sufficient evidence to convict. The school has an obligation to take measures to prevent retaliation against the victim and keep their campus otherwise safe, and I don't think tying their hands until a grand jury convenes or a trial (which can take months or even years) is an effective way to ensure student's safety.
Now, even within our court system, there are varying standards of proof. While criminal courts generally require 'beyond a reasonable doubt', civil courts simply require 'a preponderance of evidence'. Sufficient evidence to get a conviction for a rape or sexual assault doesn't mean there isn't a preponderance of evidence, and frequently there still exists enough evidence to unquestionably show that the conduct of the accused - criminal or not - violated university policies and is sufficient for dismissal. I don't think it's unreasonable for an institution to take action based on the standards for Probable cause for an arrest based on rape accusations.
While I agree that even a temporary and reversible suspension can greatly impact an accused student's academic progress, a sexual assault victim's academic progress will likely also be greatly impacted by the presence of their rapist. Given the staggeringly high amount of sexual assaults on college campuses (1 in 4 college women will be the victim of sexual assault during her academic career.), I would strongly argue in favor of the university taking the temporary and reversible action in light of probable cause rather than ignoring evidence (pending an investigation that could take months or years) and likely causing permanent and irreversible harm to the victim of a sexual assault.
I would strive for a fair, clearly documented, impartial, and transparent process for (any) code of conduct violations, but I simply find it unreasonable to expect colleges to take no action to protect students.
I do agree that there are some major issues with police forces that are part of the university. However, I do prefer that there is a clear chain of accountability that comes with having law enforcement involved and I also don't think police forces in the surrounding community are entirely unbiased either. In a perfect world, we would have a division of the FBI or Department of Education has the resources to oversee the entire process when it comes to sexual assaults or other serious crimes on college campuses, but I don't see that happening any time soon.
I would be in favor of reversible action too if remuneration was commonplace
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
I just want to state again that the school doesn't necessarily have this obligation at all, and if they do, it's because they've chosen to. Their only outside obligation in this matter is avoiding Title IX discrimination sanctions. This gives them a strong financial incentive to either sweep sexual assault under the rug, or wreck an accused person's life before anything has been proven. Seeking justice, for either party, is not part of their goal.
Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.