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The Elided Rights of Accusers

There is a strain of thinking that I see repeated over and over as we work to change the culture around rape, as we work to see that people who bring accusations of rape don’t automatically become treated like suspects themselves, that they have equal access to institutional protections and remedies. This has been particularly evident in statements from those who oppose the White House Title IX initiatives addressing sexual assault on college campuses.

The clearest statement of this argument I’ve seen came from Joseph Cohn of FIRE in The Chronicle of Higher Education a couple of years ago, though I’ve seen it in various forms since.

Under the new standard, if it is determined that an accuser’s claims are a fraction of a percent more likely to be true than false, the accused may be subjected to discipline, including expulsion.

Unfortunately for students’ rights, a long line of institutions have adopted this low standard under federal pressure. In fact, a review of policies at 198 of the colleges ranked this year by U.S. News & World Report reveals that 30 institutions—including Yale University, Stanford University, and the University of Virginia—have changed their standards of proof following OCR’s mandate.

That’s too bad, because colleges should be free to grant their students more robust due-process rights—and the federal government should not stand in their way.

This argument is generally presented in gendered terms, though it isn’t here. While this article refers to “students”, it is usually “men” standing in for those who are accused of sexual assault. Their alleged victims are in turn presumed to be women, though the women/accusers themselves are rarely mentioned in the formulation of the argument.

There are a number of possible reasons for the invisibility of these presumed female accusers. Women’s rights are often viewed as “special” rights, along with the rights of other marginalized populations, so human and civil rights arguments tend to focus on men. People these days do tend to notice when you argue for men’s rights over women’s rights and apply a bit more critical thought to an argument that does this. Talking about women as alleged victims quickly brings to mind a number of well-publicized stories that look nothing like false accusations to even unsophisticated audiences, and that doesn’t help garner sympathy for the accused.

Whatever the reason, we cannot allow this particular argument to stand on its own. Arguments for the rights of the accused have to be considered in the context of the rights of the accusers.

Why? Because the only way to guarantee that there will never be a negative outcome for an accused innocent is to guarantee that there will always be a finding of innocence.

All binary detection systems have rates of both false positives and false negatives. Our systems of justice, whether at the state or the institutional level, are binary detection systems for guilt. To the extent that it is possible to eliminate false positives, we can only do so by dialing down the sensitivity of the system, which increases false negatives.

There are very good reasons we do not set an “innocent until proven guilty” standard for every system of justice. It is appropriate in a criminal justice system, where the consequences of a false positive are particularly high. Loss of freedom and possibly of life are large consequences. Proof “beyond a reasonable doubt” is an appropriate means of protecting people from facing those consequences in error, particularly when the costs of false negatives are relatively abstract (being “robbed of justice”) or diffuse (increasing risk of continuing crime across a population).

As soon as we step outside the criminal justice system, the stakes change and so do the standards we apply in deciding between accuser and accused. In the civil justice system, the basic standard is preponderance of evidence. For the most part, the claimants are viewed to be facing equal risk if their claim is inappropriately rejected, so they face equal standards of evidence. (Where risk is particularly unequal, measures are occasionally taken to make it easier for a party to afford to make a good case for a true claim or more expensive to make one that is known to be false. Think recovering attorneys’ fees or facing penalties for frivolous suits.)

When it comes to sexual assault allegations on college campuses, accuser and accused face nearly identical consequences. Both face potentially devastating damage to their reputation. Both face the censure of peers, faculty, and administration. Both face the possible end of their educational career, at least with that institution, as victims of sexual assault do sometimes find it impossible to function on campus with their assaulter present. To the extent they risk unequal injustice, a case could possibly be made that an honest accuser faces a larger risk, as lack of support after a sexual assault is a major risk factor for a poor outcome. However, I’ll stipulate that the risk is equal for the sake of dealing with this argument.

What does it mean, then, when someone posits that it is unacceptable for an innocent accused to be found guilty when that same someone doesn’t equally agree that it is unacceptable for an accurate accusation to be found false? What does it mean when someone tries to require “proof” rather than an equal weighing of all information available?

It means that person is arguing that accusers should bear the larger burden in these cases. In addition to an equal share of the risk, they should bear a greater responsibility for providing evidence for their case. Even before we get into issues of common rape myths and how those influence decision-making in these cases, even before we touch the issue of rates of true and false reports, someone who argues that it is unacceptable for an innocent accused to be found guilty is arguing that accusers should face injustice more often.

When they argue for no false positives, they are arguing for more false negatives. They don’t say it, either because they don’t stop to think about the consequences of their position or because they know that stating it baldly will be unpalatable. Neither of those make this any less true, however.

It’s an unpalatable thing to say, yes, but I’ll say it. Creating a system in which schools explicitly put accusers and accused on equal footing with regard to sexual harassment and rape will result in more innocent people being found guilty. I am willing to accept that, because the alternative is even less acceptable.

Do I want to see any false positives in findings on sexual harassment and assault? No. I don’t want to see any false negatives either. But wanting what I want will not create that perfect system.

There will always be results returned in error. The best we can do is minimize those errors and ensure that there is no systematic unfairness in how those errors hurt people. Right now, there is. The White House’s actions under Title IX addresses that unfairness. Any legitimate criticism of those actions must address that current unfairness as well.

Comments

  1. Pierce R. Butler says

    I appreciate your bluntness – even as a set of “but what if…” scenarios rise to mind.

    For your proposed standards to work with a modicum of justice, any institution which implements them needs to introduce them and the principles behind them to each and every one of its members, with particularly comprehensive training for all involved with their enforcement. Perhaps, as with courts of law, each party involved (accused and accuser) should be provided with a helper – one (or more) skilled in both the procedures of their organization’s hearing process and, maybe, general counseling.

    Even then… well, perfect justice every time is a guiding star, not an achievable destination.

  2. says

    This shouldn’t even be a “proposed standard”, it should be how things already operate. (And it technically is the standard, regardless of how piss poorly it is implemented or ignored, if I understand correctly.) The problem is that accusers are derailed and denied the whole way, while the accused are protected and excused, both socially, and by whatever system is in place. Even when an admitted incident occurred where if it had happened to anyone else, they would think it was rape (or other form of assault). Just not when it happens to someone else. Then the accused is given the benefit of ten doubts and a support network which is denied the accuser.

  3. A. Noyd says

    However, I’ll stipulate that the risk is equal for the sake of dealing with this argument.

    I’d love to see you do a follow-up post that factors in how much women are harmed versus men by not finishing college, in terms of things like income loss, recovery from debt, etc. (Or if you or someone else has already written such a post, a link would be welcome.)

  4. says

    It is my suspicion that some, perhaps many, people view accusations as inherently a hostile or aggressive act itself. Mixing that with some differences in prior expectations, it gets a very different view.

    If they’re already starting from the view that sexual harassment and rape claims are overblown, that feminists are encouraging it as a victim complex, and so they’re applying an expectation that ‘X harassed me’ is a claim not far off from ‘I saw bigfoot’… (I’ve actually seen someone claim that such a claim is extraordinary, because only a hundred thousand a year out of hundreds of millions of people makes rape extremely rare.)

    It seems pretty easy to get from there to suspicion of accusers and wanting a high standard of evidence to weed out all the false accusations, and basically viewing accusers as likely to be con artists out for gain or ideology.

    Certainly it does seem to be a standard that’s applied more to feminism and claims about sexual-related crimes than most anything else. There seems to be a lot of deep suspicion, fueled by anti-feminist propaganda of various sorts. But it’s the closest I get to making sense of some of the reactions and vitriol.

  5. alanjpartridge says

    There are very good reasons we do not set an “innocent until proven guilty” standard for every system of justice.

    Just like the Duluth Four rape case, eh, Minnesota girl?

    PS – I can already smell your cognitive dissonance when read the above comment.

  6. Kevin Kehres says

    …fraction of a percent more likely to be true than false…

    Also know as “more likely to be true”.

    Known in legal circles as “preponderance of evidence”. Which is the legal standard for every type of legal claim except criminal complaints, which is where the “beyond reasonable doubt” metric is in play.

    In short — the FUCKING LAW.

  7. says

    I’m not sure if this is expanding beyond campus violations or in the cases where organizations internalize the issue. But given that we have standards of law that must be followed in these cases when handled by the police department with oversight, meaning they’re accountable for their actions as well as their handling of the case. It seems that colleges and other institutions prefer to internalize these issues because of the public view of these incidents, the problem is the organization is not held to the same standards that a police investigation would be. I find it interesting how they can hide not only who did the investigation but that individual involved in the investigation are unavailable to account for their actions.

    What I really find problematic is that there is no legal representative required for these internal investigations. The right to due process seems to be missing. In cases of Federal Law it should be mandated that the institution is legally accountable to only perform these investigations with local law enforcement actively investigating the case, no exceptions.

  8. bonnie bannet says

    Some times I think the conservatives are right about the United Nations. They have included the presumption of innocence in the Universal Declaration of Human Rights as a fundamental human right. Meaning no exceptions even when there should be one.

  9. says

    Just like the Duluth Four rape case, eh, Minnesota girl?

    You just stopped reading when you hit something you could quote mine, didn’t you? Yes, yes, you’ve got me. The risks to all parties involved in lynching are exactly like those involved in administrative disputes over who gets access to educational resources. Go, you. You’ve found me out.

    Or you don’t know or care that you make ridiculous arguments in public. One of those two.

  10. says

    Wes, at what point do internal investigations at colleges have to do with enforcing federal law on either party? You seem to be confused by the fact that what is being investigated to determine the proper administrative actions for a college to take is also a crime. If a college finds that someone committed sexual assault, the college is not going to send that person to prison. A college investigation in addition to a criminal trial would not be double jeopardy. These are separate things with separate consequences, as the post explains.

    I do think colleges should have the investigations conducted by trained people, of course. Frankly, police officers should be better trained for investigating sexual assault than they are. And any student who can afford it or find it provided pro bono can have legal representation for dealing with the college. That happens now, and it’s true across any kind of disciplinary inquiry, not just allegations of sexual assault. It isn’t guaranteed, any more than it’s guaranteed anywhere outside a criminal court, but a college cannot actually prevent you from having legal representation.

  11. says

    bonnie, that’s Article 11.

    (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

    (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

    You do understand that colleges are not part of the penal system, and that this does not, therefore, apply to them, right?

  12. drken says

    While I agree with you on the level of proof needed, I can’t agree with you about getting rid of the presumption of innocence. Like with any claim, the burden of proof is always on the accuser, even if it’s difficult to prove. Also, both sides are not at risk, as only the accused is facing the prospect of official action. I’m not saying it’s not traumatic to see your attacker get away with it, but it’s the accused that is facing the risk of official action against them, not the accuser. Accusers deserve counseling from the school to help them get through the process. They deserve skilled advocates who understand the system and will fight to get the person who hurt them removed from the student body. They deserve to be taken seriously by those conducting the hearing, to be treated with respect, to be believed even if the accusation can’t be proven (or at least not treated as a liar), and to be protected from retribution. I’ve heard far too many stories of them getting none of that. But, the accused also deserve all those things and to have their guilt proven before any official action can be taken. No matter what they’re accused of. And yes, it is better to let a guilty person go free than to convict an innocent one.

  13. says

    And no, I’m not seeing how you get to claim that victims of rape are not at risk just because it “isn’t official action” that ends their time at that college or puts restrictions on those classes they can take or social events they can attend. Are the consequences to them somehow different because they come by a different path?

    Or are you just saying they should get over it?

  14. A. Noyd says

    This is a very short comment thread for the amount of false analogy Whac-A-Mole you’re having to play.

  15. Forbidden Snowflake says

    I’m not saying it’s not traumatic to see your attacker get away with it, but it’s the accused that is facing the risk of official action against them, not the accuser.

    You seem to be assuming that an offender who got away with it once will never commit the offense again, and if he will, won’t target the same person again. Is there any reason why you are assuming that?

  16. says

    I cannot agree that an internal investigation by a college counts as an adequate process for handling federal crimes on their property. The individuals involved are adults, rape is a federal crime. There should be no exclusion from proper legal action, it shouldn’t be an option. What more disturbed me about the last one is that the accuser and accused had gone through the investigation process before the contents of her rape kit were available. This seems to be a blatant disregard for her individual safety and other females at the college. And without getting too specific. The main defendant claimed that even though at both locations his pants were off, he was too tired from the game to get it up. Are you kidding me? This was acceptable by their investigation’s standards? Why didn’t they wait for the rape kit results to finalize their investigation? Yes this is rape culture and it has no place anywhere in this country.

    If the same thing happened at my place of employment they would call in the police and this would be investigated with local authorities. The company I work for would much rather watch out for their financial interests and the well being of employees.

  17. says

    Wes, that’s cool and all (no, it really isn’t), but once your place of employment does this (which you’re probably just assuming without checking, particularly if your company is large enough to have professional HR in place), then what? Say the reported rape happened at a business meeting in another state or another company. Say the police officer who takes the report writes it all down, then never follows up. Say they tell someone at your company while they’re there that 90% of these things are made up, as happened with one reported college rape. Say they close the file on the rape report for reasons you’re not privy to or because “Rape prosecutions are hard. We just don’t feel we can convince a jury beyond a reasonable doubt.”

    As a company with obligations to provide a safe workplace to your employees, you still have an obligation to sort all this out. If the person who reported the rape to you says they can’t work with their rapist, you’re still in a position where you have to figure out who is leaving your company. If your company were instead a college with a legal requirement to provide equal access to education, you couldn’t just throw up your hands and say, “Fuck me. I don’t know.”

  18. drken says

    @Stephanie:
    I’m not saying that the victim isn’t at risk. I did state that the college should treat the victim as if they’ve been raped, even if the accused was cleared of all charges. This can involve counseling, protective orders, etc. But, you can’t hold a hearing under the premise that having your rapist go free is so traumatizing that the accused must be found guilty and punished, because to do otherwise would violate the rights of the accuser. If that’s the case, why even have a hearing? Look, I agree that you can use a preponderance of evidence rather than “beyond reasonable doubt”. I even agree that you can be expelled for doing something that doesn’t reach the legal definition of rape. But, whatever the burden of proof or actionable offense, you still have to prove it happened. That you can be accused of rape, have the person fail to present any physical evidence or compelling testimony, but still be convicted because “it would be too traumatizing for the accuser if nothing happens to you” sounds like something a MRA would accuse feminists of doing. Is that what you’re suggesting?

  19. drken says

    I’m not making anything up, I just don’t understand what you mean. I’m actually kind of relieved. So, what do you mean when you say the accused shouldn’t have the presumption of innocence? To me it means that until a verdict is reached, the accused has the same rights they did before (there is no right not to have a protective order against you). It means that the prosecution has to present evidence that shows the accused did what they’re accused of, not the other way around. It means that if they’re acquitted, the school can’t treat them any differently than any other student with a protective order against them. You did say that you would be willing to have more innocent people punished so that less guilty people go free. It’s understandable, especially considering the victim-blaming farce some of these boards seem to be, but I wholeheartedly disagree.

  20. BrainyOne says

    @7:

    You’re wrong. There are legal proceedings (such as, in most states, proceedings to terminate parental rights or proceedings to revoke occupational licenses such as nursing licenses) in which a middle level of proof, more than preponderance of the evidence, but less than beyond reasonable doubt, is required, typically called “clear and convincing evidence”. This is the standard IMO which should be used in campus investigations of sexual assault. The reason is the same here as it is for the cases I cited above. It is a sensible middle ground.

    I agree with you, Stephanie, that the appropriate burden of proof is arrived at by weighing the consequences of false positives vs. false negatives, but I would add that also the benefit of true positives and true negatives also needs to be taken into account.

    I agree that proof beyond a reasonable doubt should be rejected as too big a burden, because criminal penalties such as possible incarceration are not imposed.

    I disagree that preponderance of the evidence is a sufficient burden, because some penalties, potentially life-altering ones, are imposed. Preponderance of the evidence is the standard in civil cases because the because the end goal of the civil justice system is not to punish but to restore justice (equity) when it has been violated. However, when the end result of certain proceedings is to punish (such as parental rights or occupational licenses) albeit in less severe ways than criminal punishment, the state sensibly adheres to a “clear and convincing evidence” standard. It is quite clear in parental and occupational cases.

    It is too much of a burden to demand the state prove beyond a reasonable doubt that the parents were guilty of criminal abuse or neglect before termination of parental rights. The cost of a false negative (continued child maltreatment) is too high. It is too much of a burden to demand the state prove beyond a reasonable doubt that a nurse was guilty of a crime before revoking the nursing license. The cost of a false negative (bad patient care) is too high. Yet it is not enough of a burden to allow these punishments merely by preponderance of the evidence. The cost of a false positive (loss of children or livelihood) is too great. Thus a clear and convincing evidence standard is used.

    So, I would argue that in campus sexual assault cases, since being expelled from school, with a black mark which may make it impossible to enroll in any other college, is a serious, life-altering punishment, the cost of a false positive is simply too high to justify a preponderance of the evidence standard.

  21. freemage says

    drken: The “presumption of Innocence” standard is what leads to the “Beyond a Reasonable Doubt” standard of proof. If you presume innocence until such time as it is firmly established, then you’re requiring the accuser to meet the latter level of proof.

    There’s no presumption of innocence in civil tort law, which is why preponderance of evidence is the standard. Stephanie’s position is merely that the civil court standard is a better model for college disciplinary committees, especially those involving a victim (arguably, a presumption of innocence standard could be used for, say, violating rules about alcohol in the dorms, or whatever). Saying you’re fine with Preponderance of Evidence but nto with eliminating the Presumption of Innocence is a bit like saying you support women’s rights to bodily autonomy but oppose abortion rights. You can’t get to one without the other.

  22. bonnie bannet says

    You do understand that colleges are not part of the penal system, and that this does not, therefore, apply to them, right?

    I am not disagreeing with your premise. I am saying that presumption if innocence shouldn’t be a fundamental human right. Fundamental means the right holds in all places, at all times. Parsing whether we are talking about a criminal trial or an internal tribunal is a slippery slope that only opens the door to others parsing language about other, real fundamental rights like bodily autonomy.

  23. drken says

    @Freemage: OK, I guess I’m confused as to what presumption of innocence entails. What parts of what I said still applies to preponderance of evidence?
    @Stephanie: If the accuser is at risk of not being able to continue at school if the rapist gets away with it, does the panel have to weigh that in making their decision? I’m not trying to put words in your mouth, I’m just trying to figure out just what you’re proposing here.

  24. says

    Stephanie: First things first. An HR associate is not qualified to handle cases of assault, sexual assault, or any cases that involve a physical alteration. In these cases, where it happens on company property both employees are subject to termination. If it is rape they are going to encourage and even offer a ride to the victim to the PD to report the crime, if they decline to do so it can result in their termination as well.

    The company I work for has an HR department and is part of a large corporation. My ex girlfriend worked in HR. If your talking about cases of harassment or company ethics then yes the HR department is qualified to handle the affairs as long as it is not criminal. But rape is not harassment it is a federal crime and any company is normally going to defer to local authorities because of such.

    When you started bringing in second hand accounts, after the fact allegations, third hand or so on. Then your trying to compare apples to oranges. When it comes to second hand accounts HR may talk to the proposed victim, but if they say a crime was committed, HR will encourage the employee that they need to go and report this to the local authorities. Since they are not a legal system, they don’t pretend to be one. They’re not going to fire the accused until their is legal confirmation that the crime did happen. If the accuser is saying a crime happened and is reluctant to report this to the local authorities they can be terminated for spreading rumors. In either case they are going to protect their investment, the company.

    All college students are adults by legal standards, except in the rare cases of a juvenile attending the college. As you pointed out the college is not capable of litigating the law. So their internal investigations are not precedent to legal standards. OK. So what. The are no different than an HR department and therefore should involve local authorities in these cases, because they run the risk of harboring a criminal or in some cases actually facilitating the crime. Both of these would be the death of some companies, losing a business licence pretty much shuts you down. As for colleges I not sure what legal precedence would be.

    I am also curious why you would ever think that presumption of innocence is a bad thing. This ensures that the accused cannot be guilty by prejudice. Also the standard of evidence means that the accuser must provide evidence of guilt. In the case I had brought up the internal investigation was done before the contents of her rape kit were available. In normal investigations why would anyone not wait for the all the evidence to be collected before passing judgement especially when they know there was a rape kit used? Also according to federal standards it is still rape even if the female is intoxicated. This ensures that just because she is drunk, she isn’t an acceptable target of these actions.

    Our legal system is already designated to be a standard of legal precedence why would anyone not take advantage of this system is beyond me. I don’t like the idea that a college might encourage or passively prevent a victim to not go to local authorities. In this case the college representative had informed her it would take longer if she went to the police but it was entirely her decision. I don’t know if she had already stated that she just wanted to get it over as quickly as possible or not, but if a victim of a crime doesn’t want to see her attacker again which is true in most all the cases of rape. Well if that is what they desire and it isn’t necessarily the victim’s best legal option, why say it? It would seem to me they should have been encouraging her to go to the PD, maybe even gone as far as to offer a ride to the police department. Instead you get what she got.

    Just to clarify I’m not saying their guilty of raping her, this is about questionable actions and possible criminal activity protected by the college, whether intentional or not. I see no reason not to mandate that all institutions including colleges must be deferred to local authorities in cases of federal crime as the bare minimum. More to the point any criminal activity should be required to involve local legal authorities. Doesn’t have to be perfect, but it would be more equivalent to the standard of law.

  25. freemage says

    Wes Aaron: The problem is that you seem to be living in a universe where the criminal justice system handles such cases adeptly and fairly, with a high rate of conviction. In such a universe, requiring the campus to default to the courts would, indeed, be the way to go.

    We don’t live in that world. Some days, it seems like it’s hard to imagine what living in that world would be like. Many, perhaps most women are aware that making a rape accusation in court is a good way to get your life hyper-scruitinized, as the accused will hit your reputation and history with everything they’ve got. The defense will make every legal effort, and whatever illegal efforts the judge permist (and oh, do to they permit the defense attorneys to get away with horrible, horrible shit in rape cases) to fend off the charge.

    Knowing this, many women choose NOT to go through it, and it’s hard to find fault with that decision. The university is in a position, however, to offer a partial solution. A well-0managed adjudication system can at least offer the victim the option to seek a ruling that will give her a safe environment to go to school in. This may be all she needs to keep her life on track; sure, it would be better oif we could put the rapist away , but if we cannot, that doesn’t mean we should turn around and say, “Oh, well, nothing to be done. Would you two mind sharing a class together?”

  26. says

    freemage: Not to quote myself but, “Doesn’t have to be perfect, but it would be more equivalent to the standard of law.”

    I’m against institutions facilitating crime, and since this is an avenue in which this does get abused to allow this action. Anytime there is a conflict with the organizations PR versus the individuals civil rights, the organizations benefit themselves.

    My argument has been to uphold the civil rights of those involved with proper oversight. Our current legal system is already designed for this, whether it is perfect or not is irrelevant. Victims get access to social workers as well as mental health assessment. And regardless of the individuals wealth they both have access to legal council including legal representation. I see not good reason to throw any of this aside, for the benefit of the institution instead of the victim. I agree that is difficult for a woman to face her attacker, but not protecting her civil rights with a system of oversight is far worse.

  27. says

    Wes Aaron:

    In these cases, where it happens on company property both employees are subject to termination. If it is rape they are going to encourage and even offer a ride to the victim to the PD to report the crime, if they decline to do so it can result in their termination as well.

    In what world is the preferred moral solution one where perpetrator and victim may receive identical punishments, and where a person whose bodily autonomy has been violated subsequently has their right to self-determination violated as well? For all your talk of “federal crimes,” you realize that rape victims, like assault victims and so forth, have the right to decide whether or not to press charges, right? Why should an employer have the right to remove that ability from an employee, or to coerce an employee’s decision?

    Incidentally, I question your understanding of HR practices, at least in terms of US law. If a victim faced termination for reporting assault/rape/harassment that happened at a work function, that would at least strongly appear to be an act of retaliation by the employer (since the conclusion would easily be drawn that they would not be facing said termination if they had not made the report), which is illegal under the same EEOC laws that criminalize workplace harassment and discrimination.

    You seem to misunderstand (or completely ignore) the point Stephanie made in the OP about false positives and false negatives, types of errors that are possible in every system that attempts to determine things about reality, from courtrooms to laboratories. Criminal courts are weighted in such a way as to try to eliminate false positives as much as possible, but this system necessarily increases the number of false negatives. Different systems are weighted differently because of the consequences of committing the different kinds of errors.

    If you are “against institutions facilitating crime,” why are you holding up as your preferred example a system that by design lets more criminals go free than other systems?

    You’re arguing for a one-size-fits-all approach, and acting as if it is the only legal or acceptable option. It isn’t. We have layers of systems for a reason. Someone experiencing workplace harassment may approach HR, may file a civil suit, or may seek criminal charges (depending on various factors). Each avenue has different standards of evidence, due to different degrees of consequences, and resulting in a different balance of errors. The same is true for campus rapes, where student victims may go to college counselors, campus police, or file a lawsuit or press criminal charges. Is there a compelling reason why this should not be the case? Is there a compelling reason why a victim should not have options and the freedom to choose from them?

  28. says

    Stephanie I love your straw man, lets put quote in proper context.

    “An HR associate is not qualified to handle cases of assault, sexual assault, or any cases that involve a physical alteration. In these cases, where it happens on company property both employees are subject to termination. If it is rape they are going to encourage and even offer a ride to the victim to the PD to report the crime, if they decline to do so it can result in their termination as well.”

    The reason why someone reporting this to HR is subject be terminated even in first hand accounts when they decline to report the crime, it is because this is looked at as spreading rumors or in legal terms is deformation of character of the accused. Notice I said can result in termination is in part due to the qualifiers in my statement. (“Assault, sexual assault, or any cases that involve a physical alteration”) If you’ve ever been at a company where rumors run wild, companies crack down on this because it costs them money and hurts employees.

    HR isn’t going to get involved in the specifics of these altercations especially when they require a legal case. They will choose what is safest for the company.

    Given that if a person reports a rape second hand, third hand, etc. and the victim denies it ever happened, this is a liability for the company. The person may be terminated, you don’t get to accuse people of doing bad without proper evidence.

    I will close with this. Since rape is a federal crime, why should an adult attending college be subject to or inflict upon another person this action and not be treated the same legally as someone not attending college? Colleges have no business trying to sweep this under the rug, and the Vatican is not a role model on how to deal with rape.

  29. says

    Wes Aaron, I scarcely know where to begin with your illiteracy.

    Stephanie I love your straw man, lets put quote in proper context.

    I am not Stephanie. This was likely obvious given that my name (not Stephanie) was at the top of my comment, and that I referred in the body of the comment to Stephanie in the third person.

    The reason why someone reporting this to HR is subject be terminated even in first hand accounts when they decline to report the crime, it is because this is looked at as spreading rumors or in legal terms is deformation of character of the accused.

    Can you substantiate this with anything other than your repeated assertion? Again, this looks like a violation of the EEOC, specifically on the bounds of retaliation. For instance, here’s a relevant bit from the EEOC’s “Questions and Answers” page:

    Title VII prohibits retaliation for protected activity. Protected activity can include actions such as filing a charge of discrimination, complaining to one’s employer about job discrimination, requesting accommodation under the EEO laws, participating in an EEO investigation, or otherwise opposing discrimination. For example:

    An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

    Note that nothing is mentioned about filing charges, and that the employee isn’t even terminated, merely excluded, and this is still illegal. I’d like to see some evidence beyond your repetition that terminating this employee for “spreading rumors” wouldn’t open up the company to a major Title VII discrimination lawsuit.

    Given that if a person reports a rape second hand, third hand, etc. and the victim denies it ever happened, this is a liability for the company. The person may be terminated, you don’t get to accuse people of doing bad without proper evidence.

    Do you recognize that there is a difference between “denying it ever happened” and “not pressing charges”?

    Since rape is a federal crime, why should an adult attending college be subject to or inflict upon another person this action and not be treated the same legally as someone not attending college?

    You know, since you keep saying it, I decided to look it up. A “federal crime” is one that is prosecuted under federal, not state, law. Rape is not a federal crime. More specifically, rape is only a federal crime if it occurs in a federal jurisdiction, such as:

    in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency

    You can check out the relevant legal code yourself.

    Rapes that don’t happen at sea, in prison, to ambassadors or foreign officials, while crossing state lines, or on a reservation are crimes prosecuted under state laws. So all your “rape is a federal crime” nonsense is just that.

    Why should college students have options not open to other individuals? Because colleges are governed by additional laws, specifically Title IX, which prohibits sex-based discrimination by schools or any conduct or circumstances which cause anyone to be denied the benefits of the school on the basis of sex. The “Dear Colleague” letter by the Department of Education’s Office for Civil Rights outlines a school’s responsibilities when it comes to investigating allegations of assault and rape. Some relevant quotes:

    If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects. (Page 4)

    Regardless of whether a harassed student, his or her parent, or a third party files a complaint under the school’s grievance procedures or otherwise requests action on the student’s behalf, a school that knows, or reasonably should know, about possible harassment must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation. As discussed later in this letter, the school’s Title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct. (Page 4)

    In cases involving potential criminal conduct, school personnel must determine, consistent with State and local law, whether appropriate law enforcement or other authorities should be notified.

    Schools also should inform and obtain consent from the complainant (or the complainant’s parents if the complainant is under 18 and does not attend a postsecondary institution) before beginning an investigation. If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation. If a complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the school should inform the complainant that its ability to respond may be limited. The school also should tell the complainant that Title IX prohibits retaliation, and that school officials will not only take steps to prevent retaliation but also take strong responsive action if it occurs. (Page 5)

    Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

    A school should notify a complainant of the right to file a criminal complaint, and should not dissuade a victim from doing so either during or after the school’s internal Title IX investigation. For instance, if a complainant wants to file a police report, the school should not tell the complainant that it is working toward a solution and instruct, or ask, the complainant to wait to file the report.

    Schools should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting. For example, a school should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime. (Page 10)

    As noted above, the Title IX regulation requires schools to provide equitable grievance procedures. As part of these procedures, schools generally conduct investigations and hearings to determine whether sexual harassment or violence occurred. In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints. The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. (Page 10)

    For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX.27 OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings.28 Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence. (Page 11)

    You’re right about one thing: colleges have no business trying to sweep this under the rug, and colleges that do try to sweep sexual harassment and violence under the rug are actually in violation of federal law, specifically Title IX, and are subject to investigations and punishment as a result. But colleges also have additional responsibilities to investigate and remedy sexual harassment and assault that victimize their students, independent of law enforcement agencies.

  30. says

    Mr Foss yeah I was wrong is it a state law. I still don’t understand whether it is a state, federal, or local law why this is the preferable method.

    I would like to bring up that harassment is considered an ethics violation not necessarily a legal violation (it really depends on the severity of the act). Since rape is always a legal crime, then why equate the two?

    A simple to sum up why HR is and colleges are not equipped to handle the law, in either case neither has legal precedence. It doesn’t count as a court case it holds no legal authority. Why would this be the beneficial to the victim? How does this protect the student body or work place from further crime? At what point is this preferable, to a legal system with oversight?

    And as for the preponderance of evidence a legal judgement would fulfill that requirement. Once again there is no need for any investigation other than a legal one.

  31. says

    I would like to bring up that harassment is considered an ethics violation not necessarily a legal violation (it really depends on the severity of the act). Since rape is always a legal crime, then why equate the two?

    You brought up the workplace. When we talk about sexual misconduct in the workplace, most of the regulations deal with harassment and assault. They’re not the same as rape, but they’re where we have the legal precedent.

    And, while harassment/assault is not always a legal crime, it sometimes is. In those cases, it is fairly comparable to rape. And in any case, the victim chooses whether to press charges.

    It doesn’t count as a court case it holds no legal authority. Why would this be the beneficial to the victim? How does this protect the student body or work place from further crime? At what point is this preferable, to a legal system with oversight?

    It holds authority for the campus. It would be beneficial to the victim and future victims because it would result in disciplinary action against the perpetrator. It is potentially preferable to a legal system with oversight (this system *also* has oversight) in that it has lower stakes and an easier standard of evidence, so that a victim who doesn’t have enough physical evidence to convict their attacker might still be protected from further attack, retaliation, or contact with said attacker.

    A lot of this is covered in the Title IX letter. I know reading isn’t your strong suit, but maybe try looking at it.

    And as for the preponderance of evidence a legal judgement would fulfill that requirement.

    In the same way that a 70-lb barbell weight would fulfill the requirement of a flyswatter. You understand that “preponderance of evidence” is a lighter standard than the “beyond a reasonable doubt” standard of a criminal case, right? You understand that rape is a crime that often doesn’t leave a lot of physical evidence, right?

    Once again there is no need for any investigation other than a legal one.

    Except that an investigation other than the legal criminal one is mandated by Title IX.

  32. says

    Tim Foss, I am happy to know that colleges are supposed to involve local authorities in criminal cases.

    My only complaint would be is that the college determines whether to or not to involve the authorities as long as they convince the victim not to go to the authorities, which is what happened recently.

    http://freethoughtblogs.com/pharyngula/2014/07/13/the-priorities-at-hobart-and-william-smith-colleges/

    It seems this could be a loophole where the college could claim their investigation found no evidence of a crime and there was no need to involve the authorities? Is it only a violation of Title IX if a crime is proven to have happened legally? So in cases where there may have been good evidence but not enough to convict or the DA decides that there is not enough evidence to go forward to trial, would this let the college off the hook?

  33. says

    Tim Foss,

    Wes, if you can’t be bothered to read, at least learn how to copy-paste.

    It seems this could be a loophole where the college could claim their investigation found no evidence of a crime and there was no need to involve the authorities?

    No, it doesn’t. See, if you followed the link in PZ’s article to the primary source, you would have read this:

    In May, the federal Department of Education disclosed for the first time the names of colleges — 55 in all, including Hobart and William Smith — under investigation for possibly violating federal rules aimed at stopping sexual harassment.

    What’s the title of that linked article?

    U.S. Department of Education Releases List of Higher Education Institutions with Open Title IX Sexual Violence Investigations

    So, no, there’s no legal loophole. There’s colleges in violation of their Title IX obligation to investigate rape and assault on campus and correct it so that all students have equal access to education.

  34. says

    “I also want to make it clear that a college or university’s appearance on this list and being the subject of a Title IX investigation in no way indicates at this stage that the college or university is violating or has violated the law.”

    Yes I did read it and no they didn’t say that they were confirmed to have violated Title IX.

    Until the investigation is finished and legal action is taken, I will reserve from trying to assume that it’s going to end in the best interest of the victim.

    I still don’t see how this is a better legal system than allowing police to investigate the crime. They say they have a higher standard of evidence. Well since sexual harassment in some cases doesn’t violate the local, state, or federal law and your investigation does (OK under that specific yes you wouldn’t be wrong, but we are talking about rape not harassment and in all fifty states it is a crime. So how did this protect the victim? (Well they avoided a police investigation, they convinced the victim that it was faster if they only investigated the crime, and they concluded before all evidence, “her rape kit”, was available.) Given what happened and that there are 55 cases of this violation by colleges, I see no reason to believe or accept that they have a higher standard of evidence. Police must be qualified for their position and can be fired if they fail to meet the requirements. In a legal investigation, if new evidence is available the case can be retried. At what point is this less desirable than a system where college overhead assembles a committee to do their investigations, and apparently they don’t have to prove their adequately trained in dealing in the issue, before they appoint them. It is easy to see how this system breaks down and pales in comparison to the standards of the Police.

    I agree that harassment may be settled by the college, but in sexual violence cases where the assailant is an adult there is no excuse not to involve local authorities as mandatory no exception. Because that person is also a threat to any community they may go to. It also doesn’t hinder their investigation as noted in Title IX and they can do their investigation as normal.

  35. says

    Yes I did read it and no they didn’t say that they were confirmed to have violated Title IX.

    Because the investigation is ongoing. Still literally no evidence for your legal loophole. As with so many of the points you’ve tried to make here, that rests entirely on your assertion.

    I still don’t see how this is a better legal system than allowing police to investigate the crime.

    Jesus tap-dancing Christ, who says it is? I mean, in many cases, it can hardly be worse, given how often police fail to investigate rape. The school’s investigation is not meant to be in place of a police investigation, and the fact that some colleges are treating it as such is part of why those colleges are being investigated! The police actions and the school actions are largely independent of and unrelated to each other.

    They say they have a higher standard of evidence.

    Who says who has a higher standard of evidence? I have consistently, repeatedly, and clearly stated that colleges have a lower standard of evidence. That is what the OP is about.

    Look, let’s lay this out to be entirely clear:

    A student of a particular college is raped. That student either knows or discovers who their rapist is. The student may notify the college. The student may notify the police.

    If the student notifies the police, the student has the option to press charges against their assailant. The student may decline to press charges, in which case the police investigation will likely end. The student may decide to press charges, in which case the police will (ideally) investigate the crime, make an arrest, and refer the matter to the court. The court will decide the matter based on the high standard of evidence beyond a reasonable doubt, and criminal punishment may be handed out accordingly.

    If the student notifies the college, the student may ask for anonymity, but the college is obligated to pursue an investigation regardless, because the college has an obligation to protect its students and provide equal access to education. This is the college’s responsibility whenever they know about rape or assault affecting their students, especially on the basis of sex or gender. The college may (ideally) take various kinds of disciplinary and institutional action as a result of their investigation, depending on how and where the attack occurred, and who was involved. The standard of evidence for the college is almost certain to be lower than evidence beyond a reasonable doubt.

    These two investigations may communicate with one another, but they are independent. They occur for somewhat different reasons, they have different outcomes, and they have different standards of evidence. They are likely to occur concurrently, they may come to the same conclusion, and they may both issue sanctions against the perpetrator.

    Well since sexual harassment in some cases doesn’t violate the local, state, or federal law and your investigation does (OK under that specific yes you wouldn’t be wrong, but we are talking about rape not harassment and in all fifty states it is a crime.

    This is incoherent.

    So how did this protect the victim? (Well they avoided a police investigation, they convinced the victim that it was faster if they only investigated the crime, and they concluded before all evidence, “her rape kit”, was available.)

    So, your argument against the system that is mandated by law is to take an example of that system being flouted in such a way as to put the college under investigation for violating that law. We call this “cherry-picking,” and unfortunately for your “let the police handle it!” argument, choosing specific examples cuts both ways. The police are notoriously terrible at investigating rape, and what good is having a rape kit done if it goes untested for thirty years?

    There is a multilayered system in place to protect victims and punish rapists. This system doesn’t work if the authorities who are supposed to enact and enforce its mechanisms fail to do so. Colleges that sweep rapes under the rug, conduct only cursory investigations if any, and pressure victims not to go to police, are violating the law and failing in their duties to protect their students. Police departments that sweep rapes under the rug, store untested rape kits in a warehouse, and bully victims into recanting are violating the law and failing in their duties to protect victims and carry out justice.

    Police must be qualified for their position and can be fired if they fail to meet the requirements. In a legal investigation, if new evidence is available the case can be retried. At what point is this less desirable than a system where college overhead assembles a committee to do their investigations, and apparently they don’t have to prove their adequately trained in dealing in the issue, before they appoint them. It is easy to see how this system breaks down and pales in comparison to the standards of the Police.

    It must be nice living in your fantasyland where the police are paragons of virtue and justice like the ones on TV. Here in the real world, there are jurisdictions where rape cases are categorized as unfounded by default, police are pressured to downgrade crimes in order to maintain positive statistics, rape victims are charged for the processing of their rape kits, rapists get slapped on the wrist when their victims aren’t suitably pure, and police officers themselves abuse their power to get away with rape.

    That’s one ten-minute search of one website, and reading through those reminded me of another handful of examples.

    No system works when it’s not enforced correctly. The benefit of the Title IX system is that, correctly enforced, it can protect a student from their assailant even if there is not enough evidence against the assailant to convict them in court. The standard of evidence necessary to move someone to another dorm, to change their class schedule, or to expel them is far, far lower, for obvious reasons, than the standard necessary to put them in jail for any length of time.

    I agree that harassment may be settled by the college, but in sexual violence cases where the assailant is an adult there is no excuse not to involve local authorities as mandatory no exception.

    Why would the assailant being an adult figure into that decision?

    The decision to involve the police, as far as I can tell, is a complicated one. The victim has the option to go to the police, make a report, file charges, etc. Whether or not they choose to do so, the school seems to have its own obligation to involve the police if the incident legally merits police involvement. Where it gets tricky is if the college calls the police when the victim chose not to do so. In such cases, the college should do everything it can to respect the victim’s decision while also exercising its responsibility to protect the student body.

    Because that person is also a threat to any community they may go to.

    No fucking shit? A rapist might be a threat to a community? Then it sure would be nice if, in addition to the slow-moving justice system and its high standards of evidence, there were some other authoritative body that had a little more freedom to act quickly to protect its community from a predator, even if the evidence weren’t strong enough to sustain criminal charges. Huh.

  36. says

    Tom Foss @ 40: Just thought I’d drop back in to mention that I appreciate the responses. It’s helpful to read the detailed rebuttal.
    Kinda sad, though, that it has to be gone through step-by-step like that so often.

  37. says

    Umm… Well Mr Foss I can see you miss the subtle words like. Follow the *.

    “It *seems this could be a loophole where the college *could claim their investigation found no evidence of a crime and there was no *need to involve the authorities? Is it only a violation of Title IX *if a crime is proven to have happened *legally? So in cases where there *may have been good evidence but not enough to *convict or the DA *decides that there is *not enough evidence to go forward to trial, *would this let the college off the hook?”

    In no way did I ever assert that this was going to happen.

    In cases involving potential criminal conduct, *school *personnel *must *determine, consistent with State and local law, *whether appropriate law enforcement or other authorities should be *notified.

    As long as the victim doesn’t notify the authorities it is entirely up to the investigation committee to involve the police. That quote came directly from Title IX, that you posted.

    The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

    This is again from Title IX and look at what it considers a higher standard of evidence. This would explain why I brought it up vs the legal system outside schools and colleges.

    Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

    For so many times of asserting I don’t read, (work long hours so sometimes I skim, but I am always willing to accept that my view are my own and I am willing to change them with good convincing evidence) I can read the language and understand that this in no uncertain terms determines good evidence they just assert that the committee needs a higher standard than law. So colleges avoiding the legal system are in fact requiring victims to reach a higher standard of evidence for said crime. Sad isn’t it, this is a system in which criminals can hide. It means the victim is unnecessarily burdened by the committee to go above and beyond the law to prove a crime happened. Ya sounds fair. (Maybe in an alternate universe but not here.) Maybe you should take the time to read the subtle wording of the law, it isn’t as direct as you may prefer and in the cases of sexual violence schools and colleges are at an advantage to protect criminals from the law as long as the victim doesn’t on their own accord contact an report this to the local authorities. This is bad, this is what the Vatican does with it’s power. Unless they are able to enforce any penalties upon these institutions that commit these crimes, then victims are powerless against those who’s dollar they threaten. If the girl in the story had been raped at a place of work or bar. This wouldn’t have been swept under the rug so easily. And let’s say the college does receive heavy sanctions, does this in any way right itself, or is the female and other females like her still victims of the committee? As long as this law allows colleges to determine whether legal action is needed, I’d say hell ya, it is too easy to corrupt.

  38. says

    In no way did I ever assert that this was going to happen.

    You also provided no evidence to suggest that it was likely to happen with impunity. It’s fairly clear from the “Dear Colleague” letter that a school’s investigation is separate from the police investigation. It’s clear that the school has its own independent obligation to investigate and correct any issues with assault and rape it knows about on campus. The college’s obligations are not dependent on or subordinate to police findings.

    As long as the victim doesn’t notify the authorities it is entirely up to the investigation committee to involve the police. That quote came directly from Title IX, that you posted.

    No, it’s not entirely up to the investigation committee, it’s determined by “state and local law.” The determination of the school must be consistent with state and local law.

    This is again from Title IX and look at what it considers a higher standard of evidence. This would explain why I brought it up vs the legal system outside schools and colleges.

    For the love of Pete, stop skimming for quotes to mine and start actually reading. Here’s that quote in context, emphasis added:

    Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence. (Page 11)

    In short, under Title IX, schools must use a preponderance of evidence standard, which is the standard for violations of civil rights (and the standard for civil cases). Some schools, the letter says, have used a “clear and convincing” standard, which is a higher standard of evidence than “preponderance of evidence,” and use of that higher standard is a violation of Title IX.

    The “beyond a reasonable evidence” standard of courts is higher still than “clear and convincing.”

    (work long hours so sometimes I skim, but I am always willing to accept that my view are my own and I am willing to change them with good convincing evidence)

    Times are tough all over, Wes. We all have day jobs and other obligations. We don’t all blunder around comment sections writing definitive pronouncements without having done the slightest bit of research. If you’d listen more than speaking (or read more than writing) you would have saved yourself a bunch of time.

    I can read the language and understand that this in no uncertain terms determines good evidence they just assert that the committee needs a higher standard than law.

    Good lord. “Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation.” So evidence that is insufficient for police may be sufficient for the college, and that constitutes a “higher standard” in your mind?

    Maybe you should take the time to read the subtle wording of the law, it isn’t as direct as you may prefer

    This is an awful lot like rain on my wedding day.

    colleges are at an advantage to protect criminals from the law as long as the victim doesn’t on their own accord contact an report this to the local authorities. This is bad, this is what the Vatican does with it’s power.

    Yes, colleges have a vested interest in sweeping rape cases under the rug, because they could develop bad reputations and lose student enrollments. Title IX works to provide them with a greater vested interest in investigating and correcting rape cases, because otherwise they’re in danger of losing federal funding and facing sanctions. Unlike the Vatican, there’s actual legal oversight working to prevent schools from abusing their power.

    But everything you’ve said there applies to the police as well. The problem is that there’s no Title IX for police. The oversight of police is inconsistent at best, and the ‘blue wall of silence’ produces a culture where cops protect other cops even when those other cops are violating the law themselves. Police forces across the country are run through with wide streaks of racism and misogyny, and it’s not hard to find report after report of cops abusing and flouting their authority in disgusting ways. But cops aren’t in any danger of losing their funding.

    If the girl in the story had been raped at a place of work or bar. This wouldn’t have been swept under the rug so easily.

    Maybe the cops would have investigated it. Or maybe they would have badgered her into recanting or filed her untested rape kit away. Your view of the police is not just counterfactual, it’s pollyannaish.

    And let’s say the college does receive heavy sanctions, does this in any way right itself, or is the female and other females like her still victims of the committee?

    No, a wrong has been piled on top of additional wrongs. The sanctions are not to correct what happened previously (though they would give serious weight to the young woman if she wanted to file a civil rights lawsuit against the college) but to prevent it from happening again.

    Wes, you need to take a step back. If you don’t have time to actually, carefully read through the Dear Colleague letter or the links I posted, if you don’t have time to actually learn how rape investigations actually work in a majority of cases around the country, if you don’t have time to learn that there are myriad reasons why a rape victim would choose not to go to the police and press charges, then you have no business continuing this conversation. Your position is based on a stack of misunderstandings both due to misreading and naïveté, and it’s pointless for either of us to continue until you’ve corrected those misunderstandings.

  39. says

    I don’t understand why mandatory involvement of the police is accusations of sexual violence isn’t a preferred change. Who better protect the victim and determine if there is need of an official investigation?

    That said I do understand the committee is determining the colleges actions on the account.

    I fail to see how the police are so inept or corrupt that they couldn’t conduct a proper investigation. They spend many years of their life studying the law and upholding it. It doesn’t take a genius to realize given how much it takes to become an officer it would be absurd to think that most care nothing for the people of their community. In my personal life I have found that completely the opposite. You don’t go into a line of work where you are constantly bitched at, called all types of obscenities, or treated less than human cause you just want to screw people. Law enforcement is no walk in the park, risking your life to protect those around you isn’t something to scoff at.

    I can accept that I am the oddball for thinking that police are generally caring humans and that the ones who commit crimes are the rarities.

    Seriously get real! If the victim is encouraged to go to the authorities face her aggressor she is less likely to let it dominate her life to the point she is unable to function or a constant feeling of helplessness. I have known personally women who have suffered this abuse and the ones who don’t back down and hide are stronger. Fear is irrational and a fearful mind is prone to irrational thoughts. I can’t even begin to explain the long term damage these actions have.

    I will do what I can and look for a time where victims are encouraged to stand up for themselves and communities come together to support them instead of a football team. And the idea that colleges internal investigations could be adequate on their own in cases of rape is just asking for more of the same.

    And since I don’t care to read about the issue. Well here is the general end to these cases.

    http://www.nytimes.com/2011/07/29/sports/review-shows-title-ix-is-not-significantly-enforced.html?pagewanted=all
    http://www.sadker.org/TitleIX.html

    Maybe in five to eight years they will do something to the college? What about the aggressor? (Maybe a legal case can be made.)

    And you thought the legal system was slow. If the police had been involved we could have seen the college not try to sweep this under the rug (because if the police found the players guilty the college wouldn’t want to look like they were protecting criminals), but now it is a waiting game.

    I can truly empathize with the victim here, its got to be utter hell to have to struggle through this with no result for such a long time.

  40. says

    Who better protect the victim and determine if there is need of an official investigation?

    How about the victim?

    I fail to see how the police are so inept or corrupt that they couldn’t conduct a proper investigation.

    You fail at a lot of things. Obviously you’ve failed to follow any of the links I provided earlier. You’ve also failed to keep up with basic statistics on rape convictions. You’ve failed to read even the slightest goddamn thing about how police officers treat rape victims. You’ve failed to even apparently take note of prominent cases like the Steubenville rape case, where local police and politicians refused to act and covered up the crime–a crime with tons of witnesses and video evidence–until Internet vigilantes forced their hands. The way to correct those failures has been pretty clear from word one: stop talking like you’re an expert and start doing some fucking research.

    They spend many years of their life studying the law and upholding it. It doesn’t take a genius to realize given how much it takes to become an officer it would be absurd to think that most care nothing for the people of their community. In my personal life I have found that completely the opposite. You don’t go into a line of work where you are constantly bitched at, called all types of obscenities, or treated less than human cause you just want to screw people. Law enforcement is no walk in the park, risking your life to protect those around you isn’t something to scoff at.

    University administrators spend many years of their life studying educational laws and upholding them. It doesn’t take a genius to realize given how much it takes to become a university administrator it would be absurd to think that most care nothing for the people of their campus. In my personal life I have found that completely the opposite. You don’t go into a line of work where you are constantly bitched at, bribed, or treated like a diploma dispenser cause you just want to screw people. University administration is no walk in the park, dedicating your life to protect and educate the students around you isn’t something to scoff at.

    I can accept that I am the oddball for thinking that police are generally caring humans and that the ones who commit crimes are the rarities.

    Strange that you don’t think the same about college officials.

    The number of cops who commit crimes may well be in the minority. I suspect that differs from place to place. The number of cops who treat rape victims like suspects, who dismiss rape cases under pressure to improve numbers, who believe falsely inflated statistics about the prevalence of false rape accusations, who file rape kits away untested because rape cases aren’t a priority or the department doesn’t have the resources to test all of them? I’m not so sure they’re in the minority.

    Cops may spend their lives learning how to study the law and uphold it. Do you know how much time they spend learning how to deal with rape cases? 80 hours. That is, assuming they’re in New York City’s sex crimes unit. Cops outside of that unit? Cops in less wealthy districts? Gonna guess less than that.

    I’ve posted that link twice in this comment, because it’s a nice overview not only of how the system is designed to work, but how failure to actually enforce the law occurs on every level, from the college administrators on up to the police. Of course, if the college doesn’t take your claim seriously, you can always go to the Department of Education or the police. Where do you go when the police don’t take your claim seriously?

    Every cop spends a good deal of time learning how to uphold the law. The spend a far greater time living in and absorbing the biases of rape culture.

    Seriously get real! If the victim is encouraged to go to the authorities face her aggressor she is less likely to let it dominate her life to the point she is unable to function or a constant feeling of helplessness. I have known personally women who have suffered this abuse and the ones who don’t back down and hide are stronger. Fear is irrational and a fearful mind is prone to irrational thoughts. I can’t even begin to explain the long term damage these actions have.

    Oh just fuck right the hell off. Are you seriously mansplaining how to be a proper victim? Are you seriously trying to claim that there’s a one-size-fits-all approach to getting over a rape? No wonder you think that going to the cops should be mandatory, you don’t accept that different people are different. Different people have different experiences with rape, with law enforcement, with survival and recovery.

    If you don’t read any other word of this comment, read this: Your ignorance is not evidence. Your experience is not universal. Your anecdotes are not representative. You need to spend less time pontificating like you’re an expert and more time reading what actual people who have been in these actual circumstances have experienced.

    I’d leave it there, but there’s one last thing.

    Maybe in five to eight years they will do something to the college? What about the aggressor? (Maybe a legal case can be made.)

    And you thought the legal system was slow. If the police had been involved we could have seen the college not try to sweep this under the rug (because if the police found the players guilty the college wouldn’t want to look like they were protecting criminals), but now it is a waiting game.

    That Title IX cases involving sports discrimination take awhile does not therefore indicate that all Title IX investigations are multi-year affairs. The article you linked specifically says that athletics cases are among the most scrutinized because of the political weight they carry. Moreover, the article says that the Office of Civil Rights is cracking down harder after years of being undermanaged.

    That we’ve seen in the intervening three years since that article was published the notice I posted earlier about the investigation into Title IX violations regarding rape and assault on campus would seem to support that latter point. It’s possible that those cases will take years; it’s also possible that publicly naming those 55 schools will scare many of them into compliance.

    What you leave out in your paean to policework is the rape kit backlog. An estimated 400,000 rape kits across the country, untested, some for decades. Cleveland alone had over 3,000 untested, and actually making an effort to test them revealed multiple serial rapists who might have been caught years ago, sparing other people from being assaulted, had the city made rape investigation a priority. New York City has done that, at least with regard to testing every rape kit, but there’s no data for the rest of New York. We have no idea what would have happened to that young woman’s rape kit even if it were taken. Even going to the police likely could have led to the exact same damn result.

    Wes, you need to do some research. Start at EndtheBacklog or Rainn or Shakesville or something, but you need to actually learn something before you sound off again. Your cluelessness is embarrassing.

  41. says

    Mansplaining well that didn’t take long did it you accuse me of uncaring and trying to assert that I know what is best for them, no it is far more simple than that. A person who lives their life as a victim will always be the victim. As one of my well known friends who had suffered abuse said it wasn’t until she took control that she had any freedom to live without fear. It nearly cost her, her very life for waiting so long to address it. Yeah I am just telling them what to do. (Pull your head out seriously. I listened to them explain their troubles and what did help them. In every case I’ve found the same result, if they don’t hide but instead face it head on the event doesn’t dominate their lives.

    Don’t guilt or pressure your friend into reporting the rape – it is up to his or her discretion whether or not he or she wants to report the rape to the police. You can encourage this, but do not use guilt or pressure as a motivator – your friend is already dealing with a lot of guilt and grief about the rape.

    If the victim is encouraged to go to the authorities face her aggressor she is less likely to let it dominate her life to the point she is unable to function or a constant feeling of helplessness. I have known personally women who have suffered this abuse and the ones who don’t back down and hide are stronger. Fear is irrational and a fearful mind is prone to irrational thoughts. I can’t even begin to explain the long term damage these actions have.

    Yep what I said was dead on. It is about encouragement, not force!

    http://www.bandbacktogether.com/How-To-Help-Someone-Heal-From-Sexual-Assault/

    Talk about getting your facts straight. (I have dealt with women who have suffered abuse and this is not bad advice.)

    EndtheBacklog or Rainn or Shakesville

    Yep I did look at these sites and notices that of the reported cases how many were charged with the crime. This is spot where the police officer investigating the case will no longer be a part of the process except as testimony within the trial. The court trial determines their sentence. I don’t blame the officer if the court fails to uphold the law. And this is where you are making your mistake. Also you seen to have brain farted that 60% of all rape is never reported well that doesn’t help. How can the legal system or an officer attempt to help a victim if they won’t even report it? And saying that the college investigation equates to the same as a police investigation is absurdly wrong. A college investigation is not admissible for a criminal trial, so if you want the perpetrator to be held accountable for his actions then a police investigation is necessary. (Quit playing dumb and realize that in the eyes of the law the internal investigation committee the college appoints cannot present a criminal case, all they do is determine what the colleges actions are towards the individuals involved.)

    Maybe you could take the time to read Stephanie’s 11’s post about this. If it was a criminal trial then it would substitute double jeopardy.

    I see no good reason (for the victims protection) for a college committee to determine whether or not to involve a police investigation in cases of rape. This is a giant turd in the middle of a law that was intended to protect people. (No they cannot prevent the victim with any authority from going to the police. But rape is a crime. Police would determine if there is strong enough evidence for a criminal trial as it currently is written, so at what deluded point do you think the committee should just do the investigation solo?)

    Maybe when you understand the difference, you will understand why everyone I have discussed this with in person has said that (“They completely agree that the law must be involved instead of just the internal investigation committee.”) Yep I do care and since you don’t understand that the college committee doesn’t determine guilt in relevance to a criminal case (They can’t send anyone to jail or prison!), You fail to see the difference. The most they can do is prevent them from attending college. So if the person still lives in the surrounding community the student body is safe how? If they have been convicted of rape that is a black mark that follows them around in all fifty states not just campuses. You couldn’t address the issue and you keep asserting there is no problem here.

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