CHE article: Rape Procedures

[dr_codex]

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.

I'd bet a lot of money that there's some selection bias here. That is, sexual assault accusations without witnesses are often not brought forward, and/or not pursued. That's what happens in criminal cases; I'd be very surprised if it's any different with college procedures.

[fishbrains]

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.

Yes. We've gone from a President who encouraged the cliquishness to the point of chaos (as in who do you report problems to when you can't trust HR?). Then we had a temporary President installed by the system who called herself "the fixer"; she noted clearly that forwarding such cliquishness was a good way to get yourself fired. She was fun. Now we have a President who is trying the juggle the chainsaws in the aftermath of all that.

Sometimes it's good to be a little Humanities instructor on the far side of campus.

[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.

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

Yes, it is also important, but the writer seems to essentially reject the possibility of actual bias because "these are good people" doing it.

[ergative]

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.

Yes, it is also important, but the writer seems to essentially reject the possibility of actual bias because "these are good people" doing it.

I'm with marshwiggle here. The fetishization of the 'appearance of partiality' is what gets us news shows 'teaching the controversy' by hosting climate scientists against skeptics to give full weight to both sides. Then they appear impartial, but pursuit of that impartiality betrays actual reporting and science. It's okay to appear one-sided if the truth is one-sided.

The 'these are good people' thing drives me wild. It's such bad, circular reasoning. How do you know they're good people? We've never seen them do anything bad. How do you know they've never done anything bad? They couldn't, because they're good people. Actions and character are different things, and if we have to choose one, choose actions! If they're genuinely good people, they'll want to know they screwed up and have the opportunity to fix it.

[Ruralguy]

I feel like I must have been reading a different article than others because I am not even sure I saw any of these points being made, let alone agree with what people have been saying about them.

In any case, I do understand some of the general points being made by her (I think I said "him" in an earlier post, but I think the author is a woman for what was said at one or to points in the article).  I think "believe the woman" really has to be presented as "take he woman seriously." Just because you are seriously listening to a woman recalling her assault doesn't mean that you have to believe her in the end. It certainly doesn't mean you have to believe every detail, ignore others (such as other *female* witnesses who might have contradicting statements) or her comments on matters than aren't directly related to the claimed assault.  So, though I am willing to listen to everyone, and bring almost everything to a hearing, it doesn't mean I am dedicated to finding all respondents "responsible." As I said earlier, that principle would apply to other offenses as well and not just sexual assault or other forms of sexual misconduct.

I still think most parents in this situation with their sons (it mostly is sons) who have been accused are largely in denial, or at least think that their son doesn't deserve punishment for doing something their father (the son's father) got away with (and perhaps even got away with involving their mother!).

Since much of the article is historical, I think its referring to college justice systems that largely don't exist anymore. That is, its much more the default (because its what is in the Title IX Regulations) to have open hearings, clear statements of the findings, possibility of appeal, etc.. So we have to be clear about concluding "see! A dean admits that there are colleges at which the respondent never knows the charges against them! They are found guilty without a hearing!). I am sure its all happened somewhere, but anywhere after about 2015? Decreasingly less likely every year.

Lastly, on the point of whether students can continue with their education before a finding is reach. As with everything else, it probably depends on the specific charges. If the charges really amount to rape charges, I think suspension is probably in order until resolution. I do think the school should have to refund tuition if the student is suspended during a semester in which they are later found to be not responsible.  I say "probably" because maybe something can be worked out with online instruction now that we had to all do that for COVID.

[Ruralguy]

By the way, the prediction of derailment seems to be off, Wahoo! Sorry. It might have been more interesting if we had all called each other idiots.

[marshwiggle]

I still think most parents in this situation with their sons (it mostly is sons) who have been accused are largely in denial, or at least think that their son doesn't deserve punishment for doing something their father (the son's father) got away with (and perhaps even got away with involving their mother!).

And this is why institutions shouldn't count on their own staff to be impartial..........

(You really think that women married men who had raped them? Seriously????? Maybe when women were legally property, but that's long before any of these people were born.)

[Caracal]

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.

Yes, it is also important, but the writer seems to essentially reject the possibility of actual bias because "these are good people" doing it.
[/quote]

I'm with marshwiggle here. The fetishization of the 'appearance of partiality' is what gets us news shows 'teaching the controversy' by hosting climate scientists against skeptics to give full weight to both sides. Then they appear impartial, but pursuit of that impartiality betrays actual reporting and science. It's okay to appear one-sided if the truth is one-sided.

[/quote]

When I teach subjects that are "controversial," only in the sense that lots of people believe something that is unsupported by any evidence or reasonable interpretation, I talk about that from the beginning, explain that I don't think there's a real argument and then lay out the case and present the overwhelming evidence. I don't try to present the counterarguments if I don't think they are reputable.

This is actually, more or less, how a prosecuting attorney would proceed when they have very strong evidence. If four people who know someone identify them as the person they saw commit a robbery, and the proceeds of the robbery were found in the trunk of a car the person owned you wouldn't confuse things in your presentation of the case by spending any time on the guy's claim that actually he was being set up by a person who looked exactly like him.

That said, if you're going to persuade people, you do need to not just dismiss ideas out of hand. When I'm telling students that it doesn't make any sense to argue that the Civil War wasn't about slavery, I'm very careful to not be dismissive when students present counterarguments. I take those arguments seriously and explain why they don't really work.

[ergative]

(You really think that women married men who had raped them? Seriously????? Maybe when women were legally property, but that's long before any of these people were born.)

I absolutely believe that this kind of thing happened, and still happens, all the time. There's a scene in Mad Men that i think perfectly encapsulates what we're talking about here. Joan shows her fiance her workplace, and he thinks it will be a great idea to have sex in the boss's office. She doesn't want to. She says no. He insists, and she stops resisting, even though it's very, very clear that she doesn't want to be having sex with him at that time in that place. By any modern standards, what he did was rape: She said no, he didn't stop. And she goes ahead and marries him. Is this an utterly unbelievable plot development? I believed it without question.

This is rape. It is not Todd Aiken-style "legitimate rape", but it is rape. She doesn't see it that way, although she's pissed off about it, but there is no way to describe it as anything but rape. She said no, he didn't stop.

What's changed now is that modern day women in Joan's position recognize that these sorts of situations are rape. But it's an uphill battle, because the people in a position to dispense penalties can't get past the Todd Aiken narrative of "legitimate rape". Maybe they've moved past 'but you were wearing a pretty dress,' but they haven't yet moved past  'If he raped you, why did you go on a second date? If he raped you, why did you respond to later text messages? If he raped you, why did you marry him?' All of this is beside the point. The point is that she said no, and he didn't stop.

[RatGuy]

I would imagine that many larger universities have multi-tiered policies in place regarding accusations against students, similar to what was said upthread. For example, an accusation of assault or rape in the dorm would mean that those students would be barred from the dorm, perhaps a suspension from campus. Here, the terms "suspension" or "expulsion" are joined by other terms like "loss of privileges" or "special sanction." Certainly these sanctions apply before a criminal decision, and perhaps even a university one.

I do know that there are "restitutions" in place for students who are deemed "not responsible" for accusations against them. So if someone is accused of assault and is subsequently removed from the dorm, they forfeit the boarding payment. If on appeal the student is held not responsible, that money is returned. OK, fine. But it seems that the author of the article is saying that such restitutions aren't enough, and that universities should do more to protect accused. I wonder, outside of financial and curricular restitutions (like reinstatement or refunding forfeited tuition), is there something the university can do? I mean, I can't imagine a university punishing a group of students for shouting "rapist!" at someone outside the library? Can the university control the larger potential damages (short term or long term) to a student's reputation?

[marshwiggle]

(You really think that women married men who had raped them? Seriously????? Maybe when women were legally property, but that's long before any of these people were born.)

I absolutely believe that this kind of thing happened, and still happens, all the time. There's a scene in Mad Men that i think perfectly encapsulates what we're talking about here. Joan shows her fiance her workplace, and he thinks it will be a great idea to have sex in the boss's office. She doesn't want to. She says no. He insists, and she stops resisting, even though it's very, very clear that she doesn't want to be having sex with him at that time in that place. By any modern standards, what he did was rape: She said no, he didn't stop. And she goes ahead and marries him. Is this an utterly unbelievable plot development? I believed it without question.

This is rape. It is not Todd Aiken-style "legitimate rape", but it is rape. She doesn't see it that way, although she's pissed off about it, but there is no way to describe it as anything but rape. She said no, he didn't stop.

What's changed now is that modern day women in Joan's position recognize that these sorts of situations are rape.

That's a condescending view of women in the past; the fact that they chose not to interpret it as rape is as legitimate as modern women choosing to interpret it as rape.

But it's an uphill battle, because the people in a position to dispense penalties can't get past the Todd Aiken narrative of "legitimate rape". Maybe they've moved past 'but you were wearing a pretty dress,' but they haven't yet moved past  'If he raped you, why did you go on a second date? If he raped you, why did you respond to later text messages? If he raped you, why did you marry him?' All of this is beside the point. The point is that she said no, and he didn't stop.

Unless it was in a situation where the woman was forced to marry that man, then the fact that she married him indicates that she did not see the situation as traumatic in the same way as modern women might. That doesn't make either one "right" or "wrong"; it just reflects different views of the same situation.

In the Aziz Ansari case of a few years back, as the story unfolded it became clear that really bad communication resulted in him thinking he had her consent, and her thinking she had clearly rejected him.

Hookup culture is really stupid. Two intoxicated virtual strangers having sex can go wrong in a million ways, for both people. But as long as institutions are implicitly *condoning it, they have to be fair about dealing with it.


*About 2/3 of sexual assaults occur where one or both people have been drinking. The easiest way to reduce assaults would be to mimic the slogan against drunk driving which says, "If you drink, don't drive." There's lots of evidence of people getting drunk because they have anxiety about hooking up. It would be infinitely smarter to encourage them to avoid having sex with anyone unless and until the prospect does not fill them with anxiety. This applies equally to men and women.

[Ruralguy]

Part of the campus education campaigns encouraging the understanding of consent discuss the role of alcohol and incapacitation (inability to give consent) related to high levels of intoxication. So, its not about not drinking a beer and then having sex, its about women and men not getting wasted at all, or at least recognizing that this is a situation in which their guard is likely to be down, and so, only go into such situations with a group of friends. Look out for each other during the evening.

I do agree that there is some ambiguity here. Maybe both people thought that they gave consent, but didn't. Maybe one person thought the other was awake when she was really asleep. Strictly speaking, these cases could be examples of rape, but if there are no witnesses (even to just the drinking or the effects of the drinking) and no physical evidence, the cases like this usually lead to a "not responsible" verdict (for either--or in some cases, multiple individuals---individual) .

As for marrying rapists, yeah I think it happens, especially if the woman did not consider those instances to be rape at the time. Whether or not that's the explanation for some of them being in denial over the actions of their sons--who knows. Maybe it is for some, maybe it isn't for others. I admit that some of these men are innocent, or at least not responsible in the sense of a Title IX complaint.

[marshwiggle]

I do agree that there is some ambiguity here. Maybe both people thought that they gave consent, but didn't. Maybe one person thought the other was awake when she was really asleep. Strictly speaking, these cases could be examples of rape, but if there are no witnesses (even to just the drinking or the effects of the drinking) and no physical evidence, the cases like this usually lead to a "not responsible" verdict (for either--or in some cases, multiple individuals---individual) .

If two people were drinking, and the woman suggested they have sex, and the man has regrets the next day, is she guilty of rape?

[Ruralguy]

She wouldn't be responsible under Title IX unless there is proof of incapacitation(for him, that is) due to drinking, which means slurred speech, inability to walk straight or up stairs, vertigo, etc.. Also I am assuming that her suggestion of sex was accepted by the guy.

[Ruralguy]

I should be more clear...the incapacitation could be due to many things:

1. excessive drinking
2. excessive drugs (legal or illegal)
3. sleep
4.unconciousness due to....illness, falling coconuts, whatever.
5. also, children below age of consent can not consent, obviously.
6. certain forms of mental incapacitation may lead to inability to give consent.