CHE article: Rape Procedures

[mamselle]

No, the question revolves around fairness to all parties.

A rape victim doesn't want to casually run into their perpetrator on the mall on the way to class.

A perpetrator needs to be ascertained, fair enough, but they can't be allowed to play the uncertainty card if they did it, anymore than an inaccurate accusation should be sustained if a more accurate identification emerges.

DNA testing, for one thing, helps with the latter, in those cases where it's possible.

But the classic, "S/he's lying, I'm innocent" line has run its course as a means of stirring up sympathy for perpetrators who aren't in fact innocent, know it, and have it proven against them.

Those who may be incorrectly accused are a small percentage of those involved in such cases, and the number who 'rally around the justly accused to try to undermine the attacker's case are the larger judicial problem.

And that's true whether the person who was attacked is male or female. It's terrifying enough to have to confront one's attacker on any regular basis, anyway. Having their smug, smarmy frat buddies ranting along behind the attacked person en route to the dorms or a class (as a student of mine did) is compounding the horror.

M.

[marshwiggle]

What I can't really relate to  is the idea that we should engage in  no disciplinary proceedings at all  *if* police are involved in any way.  It seems as if the two procedures can proceed in parallel.

So in situation like the Duke lacrosse case, where the accusation turns out to have been completely false, does the institution owe any redress to the students it expelled (or whatever) preemptively?

What if the institutional "process" finds a student guilty, and a later court case reveals the accusations to have been fake?

Punishments by an institution based on what turns out to be entirely false allegations are wrong, and institutions should be held legally liable for the injustice.

[ergative]

What I can't really relate to  is the idea that we should engage in  no disciplinary proceedings at all  *if* police are involved in any way.  It seems as if the two procedures can proceed in parallel.

So in situation like the Duke lacrosse case, where the accusation turns out to have been completely false, does the institution owe any redress to the students it expelled (or whatever) preemptively?

What if the institutional "process" finds a student guilty, and a later court case reveals the accusations to have been fake?

Punishments by an institution based on what turns out to be entirely false allegations are wrong, and institutions should be held legally liable for the injustice.

I'm not sure that a 'later course case revealing the accusation to have been fake' is really a thing. The prosecution can drop charges for lack of evidence. Does that mean the accusation was fake? A court case can return a not guilty verdict, but since the burden of proof is on the prosecution, then that only means that the prosecution failed to make its case sufficiently convincing. Again, not the same thing as proving an accusation fake. I suppose the accuser could testify in a sworn statement that the accusation was fake. That could be legal evidence of fakeness.

However, I do agree that it would be great if institutions had procedures in place to deal with situations in which they turn out to have taken action against someone who was innocent. That might make the institutions less hesitant to take action in the first place (or make their excuses for not taking action less convincing), if they know that they can make amends in the event that they got it wrong.

[Ruralguy]

Every school must have an appeals process. Verdicts can be overturned on appeal.

You want to be careful about letting the school do so without open hearing because that could go both ways and without much of anyone's knowledge.

[Ruralguy]

The way I translate what some parents have said about their sons is something like "If this were a generation or two ago my son would have been hailed for his exploits. Now he's being held accountable. That's not fair!"  Though I understand how shifting standards can be upsetting, they often shift in ways that are more fair.

[Caracal]

What I can't really relate to  is the idea that we should engage in  no disciplinary proceedings at all  *if* police are involved in any way.  It seems as if the two procedures can proceed in parallel.

So in situation like the Duke lacrosse case, where the accusation turns out to have been completely false, does the institution owe any redress to the students it expelled (or whatever) preemptively?

What if the institutional "process" finds a student guilty, and a later court case reveals the accusations to have been fake?

Punishments by an institution based on what turns out to be entirely false allegations are wrong, and institutions should be held legally liable for the injustice.

I'm not sure that a 'later course case revealing the accusation to have been fake' is really a thing. The prosecution can drop charges for lack of evidence. Does that mean the accusation was fake? A court case can return a not guilty verdict, but since the burden of proof is on the prosecution, then that only means that the prosecution failed to make its case sufficiently convincing. Again, not the same thing as proving an accusation fake. I suppose the accuser could testify in a sworn statement that the accusation was fake. That could be legal evidence of fakeness.

However, I do agree that it would be great if institutions had procedures in place to deal with situations in which they turn out to have taken action against someone who was innocent. That might make the institutions less hesitant to take action in the first place (or make their excuses for not taking action less convincing), if they know that they can make amends in the event that they got it wrong.

Yeah, I think it is worth distinguishing between the legal process and the college discipline process. This isn't controversial in cases that don't involve sexual assault. For example, suppose there's a fight between a few students. There's a police investigation which eventually determines that one of the students shouldn't be prosecuted because he was acting in self defense. That's fine from a legal perspective, but a school might still want to take action against the student if they determine that he was partially responsible for instigating the incident or did something in the lead up to the incident that violated codes of conduct.

[marshwiggle]

I'm not sure that a 'later course case revealing the accusation to have been fake' is really a thing. The prosecution can drop charges for lack of evidence. Does that mean the accusation was fake? A court case can return a not guilty verdict, but since the burden of proof is on the prosecution, then that only means that the prosecution failed to make its case sufficiently convincing. Again, not the same thing as proving an accusation fake. I suppose the accuser could testify in a sworn statement that the accusation was fake. That could be legal evidence of fakeness.

However, I do agree that it would be great if institutions had procedures in place to deal with situations in which they turn out to have taken action against someone who was innocent. That might make the institutions less hesitant to take action in the first place (or make their excuses for not taking action less convincing), if they know that they can make amends in the event that they got it wrong.

Yeah, I think it is worth distinguishing between the legal process and the college discipline process. This isn't controversial in cases that don't involve sexual assault. For example, suppose there's a fight between a few students. There's a police investigation which eventually determines that one of the students shouldn't be prosecuted because he was acting in self defense. That's fine from a legal perspective, but a school might still want to take action against the student if they determine that he was partially responsible for instigating the incident or did something in the lead up to the incident that violated codes of conduct.

There's still a big difference if the case includes irrefutable video evidence and/or testimony from reliable and impartial third party witnesses. In other words, actions which are verified but may fall below the legal threshold for charges may be OK for institutional sanction. However, especially when the case comes down entirely to one person's word against another's, finding someone "guilty" and imposing punishment is very problematic.

[Caracal]

I'm not sure that a 'later course case revealing the accusation to have been fake' is really a thing. The prosecution can drop charges for lack of evidence. Does that mean the accusation was fake? A court case can return a not guilty verdict, but since the burden of proof is on the prosecution, then that only means that the prosecution failed to make its case sufficiently convincing. Again, not the same thing as proving an accusation fake. I suppose the accuser could testify in a sworn statement that the accusation was fake. That could be legal evidence of fakeness.

However, I do agree that it would be great if institutions had procedures in place to deal with situations in which they turn out to have taken action against someone who was innocent. That might make the institutions less hesitant to take action in the first place (or make their excuses for not taking action less convincing), if they know that they can make amends in the event that they got it wrong.

Yeah, I think it is worth distinguishing between the legal process and the college discipline process. This isn't controversial in cases that don't involve sexual assault. For example, suppose there's a fight between a few students. There's a police investigation which eventually determines that one of the students shouldn't be prosecuted because he was acting in self defense. That's fine from a legal perspective, but a school might still want to take action against the student if they determine that he was partially responsible for instigating the incident or did something in the lead up to the incident that violated codes of conduct.

There's still a big difference if the case includes irrefutable video evidence and/or testimony from reliable and impartial third party witnesses. In other words, actions which are verified but may fall below the legal threshold for charges may be OK for institutional sanction. However, especially when the case comes down entirely to one person's word against another's, finding someone "guilty" and imposing punishment is very problematic.

I partly agree. I still think it is reasonable for a school to have a lower standard than a criminal system. Of course those rules need to be clear and carefully applied.

[Ruralguy]

I find (from what I know about this from my school) that the last kind of case you mention is somewhat common in terms of the situation, but not in terms of the verdict.  That is, if its really "he said, she said" (please excuse the heteronormative expression), most people on a hearing panel will ask "is there an physical evidence?" (the answer is either "no" or the "DA has that and isn't sharing.") . They will also ask if there is an issue of incapacitation (victim was sleeping or obviously highly inebriated). If the answer to that is also "no" or "we don't know," then the panel will find the "perp" (the respondent) not responsible. It's different if there were witnesses (its rather surprising how many times there *are* witnesses!), especially particularly reliable ones.  I don't know if other schools are similar. I hope so. I know that the far right especially likes to think there's a left wing  administrator somewhere declaring "You have sinned for being a male! Out with you!" , but my impression is that this happens far less often than people are led to believe. Of course, highlighted counter examples lead people to believe that this is frequent.

[Ruralguy]

I don't think a single school has "reasonable doubt" as a standard. I am quite sure that nearly all, and maybe all, have either "clear and convincing" or "preponderance" (just barely over 50%) as standards.

[marshwiggle]

I find (from what I know about this from my school) that the last kind of case you mention is somewhat common in terms of the situation, but not in terms of the verdict.  That is, if its really "he said, she said" (please excuse the heteronormative expression), most people on a hearing panel will ask "is there an physical evidence?" (the answer is either "no" or the "DA has that and isn't sharing.") . They will also ask if there is an issue of incapacitation (victim was sleeping or obviously highly inebriated). If the answer to that is also "no" or "we don't know," then the panel will find the "perp" (the respondent) not responsible. It's different if there were witnesses (its rather surprising how many times there *are* witnesses!), especially particularly reliable ones.  I don't know if other schools are similar. I hope so. I know that the far right especially likes to think there's a left wing  administrator somewhere declaring "You have sinned for being a male! Out with you!" , but my impression is that this happens far less often than people are led to believe. Of course, highlighted counter examples lead people to believe that this is frequent.

Part of this is because often these cases involve the most shocking allegations which the media choose to report without any investigation.

In other words, if the media were responsible in not reporting on these sort of cases unless and until there was solid supporting evidence, then they wouldn't be fueling the "false accusation" fire. They are simply being hoist on their own petard.

[fishbrains]

The way the article touches on the various deeper interpersonal relationships within an organization touched a nerve with me. I'm at a smallish CC in a rural area. We have the usual titles and positions listed in the organizational chart, but there is a social structure that is probably just as powerful. Many people up and down the chart have known each other since grade school, many go to church/don't go to church together, and it's easy to see who is in a certain clique on Facebook.

This isn't a huge problem in normal circumstances, but when the poop hits the fan, things get weird very quickly. It's hard to be certain about what's confidential, who is siding with whom, who is maintaining the professionalism of their position and who isn't, etc. In short, the wagons get circled into formations you might not expect.

When people come from the outside like the parents in this article, it's easy to see how disturbing it all could become.

[Ruralguy]

Good points, Fishbrains.

My school is similar, but we evolved significantly when the current President made some crucial hires to increase professionalism. We can't get totally beyond the power of cliques and such, but if people at least try to put professional standards first, we can achieve something close to an ideal result.

[marshwiggle]

Good points, Fishbrains.

My school is similar, but we evolved significantly when the current President made some crucial hires to increase professionalism. We can't get totally beyond the power of cliques and such, but if people at least try to put professional standards first, we can achieve something close to an ideal result.

What's really odd is that the writer seems to view the appearance of partiality as much more of a problem than the fact of partiality. The idea that it will "look bad" to parents, rather than the likelihood that all kinds of personal bias will affect the result, seems to be her primary concern.

It's not just some sort of quaint formality that the legal system has all kinds of measures in place to try and ensure fairness; it's that history has shown countless times that an unbiased result is much harder to achieve than a biased one. And all kinds of historical injustices have resulted from decisions by people who weren't even aware of their own bias.

[ciao_yall]

Good points, Fishbrains.

My school is similar, but we evolved significantly when the current President made some crucial hires to increase professionalism. We can't get totally beyond the power of cliques and such, but if people at least try to put professional standards first, we can achieve something close to an ideal result.

What's really odd is that the writer seems to view the appearance of partiality as much more of a problem than the fact of partiality. The idea that it will "look bad" to parents, rather than the likelihood that all kinds of personal bias will affect the result, seems to be her primary concern.

It's not just some sort of quaint formality that the legal system has all kinds of measures in place to try and ensure fairness; it's that history has shown countless times that an unbiased result is much harder to achieve than a biased one. And all kinds of historical injustices have resulted from decisions by people who weren't even aware of their own bias.

The appearance of partiality shows respect for the process and people involved. So yes, that is also important.