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President Obama has undertaken a much needed initiative to focus public attention on the epidemic problem of acts of rape/sexual assault occurring between students at the nation's colleges. It is certainly not a problem that is limited to colleges, but there are several good reasons for some specific focus on this population. The president has also undertaken an initiative to focus on the same problem in the US military.

A person (about 9% of rape victims are boys or men) who is a victim of rape typically confronts a daunting landscape in any quest for protection and justice. There are multiple reasons why about 60% of rape victims decide not to report the incident to any investigatory authorities. The general perception is that on top of an already traumatic experience they would then face a highly stressful experience with very poor prospects of achieving resolution.

Campus rape epidemic finally getting much-needed attention  

If you heard President Barack Obama speak last month about the epidemic of rape on college campuses, chances are it was the first you learned of it. And that's a big part of the problem: Too often, on too many campuses -- even in California -- sexual assaults and harassment are swept under the rug and victims are denied the pursuit of justice.

But courageous students lately are speaking out, filing federal complaints and demanding changes in how campuses handle these cases. Obama has given a federal task force three months to figure out what colleges and the government should do.

Colleges have a rather complex mixture of powers and responsibilities under federal and state laws. They have their own internal administrative procedures for dealing with student discipline. These deal with a broad range of situations that range from violations of college rules that are not criminal in nature to acts that are potentially punishable as felonies in criminal court. Colleges also have a campus security force. In most states some members of that force are legally certified as sworn peace officers and they have investigative jurisdiction over potentially criminal incidents that occur on campus property. With a complaint about a rape that occurred on campus they would typically conduct the investigation instead of the municipal police force. That is not always the case but it is fairly typical.

Under Title IX of the Educational Amendments of 1972  the federal government has powers to set requirements for colleges that receive federal funds in terms of a broad range of issues relating to sex discrimination. These range from athletic programs to problems in dealing with sexual harassment and assault.

Conduct More Than Just a Police Investigation

When institution officials become aware of possible harassment, their first obligation is to investigate the information, whether the victim or a third party brought it to their attention. Institutions are expected to coordinate their law enforcement and Title IX responses to such complaints.
While a school resource officer or campus police officer may conduct a law enforcement investigation, "because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX," writes Russlynn Ali, the assistant secretary for civil rights at the U.S. Department of Education and head of OCR. This means that when a sexual assault is reported to campus law enforcement, in addition to conducting a law enforcement investigation, the department should "notify complainants of their right to file a Title IX sex discrimination complaint with the school in addition to filing a criminal complaint, and...report incidents of sexual violence to the Title IX coordinator if the complainant consents."

Use the Preponderance of Evidence Standard

A school will not meet its Title IX obligations solely by conducting a law enforcement investigation because conduct "may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation." For example, the new guidance makes it clear that institutions must resolve Title IX disciplinary matters using the "preponderance of the evidence" standard (meaning it is more likely than not that sexual harassment or violence occurred). Disciplinary procedures should not use the higher "beyond a reasonable doubt" standard required in criminal proceedings or the intermediate "clear and convincing" standard (meaning it is highly probable or reasonably certain that the sexual harassment or violence occurred).
 

This dual track process tends to create considerable confusion in a highly controversial matter. Colleges are required to report statistics on violent incidents on campus and in the immediate environment. They have an incentive to minimize this reporting since the impression of a violent environment does not reflect favorably on their reputation. In many instances there is an effort to deal with rape complaints exclusively in terms of the internal administrative process. In California there is a bill pending in the legislature that would require all colleges to refer all  complaints of violent crime for formal investigation unless the victim specifically request that the matter be handled administratively.

New California Bill Would Change Rules for Reporting Rapes on College Campuses

There is also focus on trying to establish clearer standards for how colleges deal with sexual harassment/assault complaints in their administrative disciplinary process.

Rape at colleges: Victims challenge policies favoring attackers  

At UC Berkeley, student sex offenders go through the same disciplinary process as those caught cheating on an exam, their punishment -- sometimes as light as a warning and an essay -- decided in informal talks with the university.

Campus assault victims often turn to their colleges for justice in addition to -- or instead of -- going to the police. However, Cal held a formal hearing for just one of the 32 student sexual misconduct cases it investigated from 2011 to 2013, according to information obtained by this newspaper.

In contrast Stanford has made recent efforts to institute procedures that attempt to provide greater protection for victim rights.
Today, after private interviews, each student testifies to a panel; the other student, though not present, can listen by phone and email questions to the reviewers. The case must be resolved within 60 days, and either side can appeal the outcome to Student Affairs.

In the first three years Stanford tested the new procedure, 11 of 53 assault victims came forward to have their cases heard, Dauber said. In the previous 12 years, only four of 175 did so.

Many people think that for college students who are rape victims an investigation of the complaint should be exclusively handled as a criminal investigation. There are other issues that need to be handled while an investigation is in progress. Arrangements may need to be made to protect the victim from having to confront the accused rapist in the course of daily activities. The college needs to make a determination whether someone accused of violent crime poses a safety risk to other students.

There are no simple and quick means of changing the rape culture that continues to be embedded in the institutions of our society. People who want to work for change must deal with the details of complex laws and regulations.

Originally posted to Richard Lyon on Sun Feb 02, 2014 at 12:12 PM PST.

Also republished by This Week in the War on Women and Community Spotlight.

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Comment Preferences

  •  An accusation of rape should certainly (2+ / 0-)
    Recommended by:
    patbahn, Sparhawk

    be handled as a criminal investigation. I'm not sure it needs to be "exclusive" though, I can see why a school would want to have its own policy as well (assuming the alleged incident occurred on campus).

    That said, I'm not so sure about this:

    Arrangements may need to be made to protect the victim from having to confront the accused rapist in the course of daily activities.
    This sounds a bit like guilty until proven innocent, no? Very scarlett-letterish. There are false accusations of rape, it's tough to be accused when you're actually innocent, it's even worse to then be told you can't go certain places. That's like a shaming sentence when you haven't even been convicted.

    Some kind of restraining-order type thing does sound like it should be handled strictly by the courts.

    •  That is why a separate title IX proceeding (7+ / 0-)

      is required. This is not something new. It has been around since 1972. Many colleges have been lax in following its provisions. Deal with a rape accusation administratively does not require a court conviction. Changes can be made in living arrangements and class schedules. If a person has been the subject of repeated complaints, the college would be entitled to consider suspension.

    •  Rape is a crime, therefore, should be investigated (2+ / 0-)
      Recommended by:
      dicentra, koNko

      and prosecuted, if so indicated, in the legal system, not in some college officials' gathering that's more worried about the U's reputation.  That kind of process is what landed Penn State in its current situation.

      Because a (likely small) percentage of rape accusations are 'false', no victim should be protected?  Sorry, can't come close to agreeing with that.

      Conservatism is a function of age - Rousseau
      I've been 19 longer'n you've been alive - me

      by watercarrier4diogenes on Sun Feb 02, 2014 at 12:45:29 PM PST

      [ Parent ]

      •  One of the problems with trying (4+ / 0-)

        to make such a clearcut distinction is when campus police have investigatory jurisdiction. There is also the problem that many victims do not trust the way that rape complaints are handled by the municipal criminal process and actually prefer a college administrative process.

        The reality is that the available options for rape victims leave a great deal to be desired.  

        •  A concurrent investigation by campus police, (4+ / 0-)

          with consent of the local police, would help assure that fewer cases get 'swept under the rug' by either organization, but allowing any of them to just shrug the complaint off is a big part of 'why' victims don't trust the way rape complaints are handled.

          Conservatism is a function of age - Rousseau
          I've been 19 longer'n you've been alive - me

          by watercarrier4diogenes on Sun Feb 02, 2014 at 12:53:42 PM PST

          [ Parent ]

        •  these are always tough cases (3+ / 0-)

          1) Lots of alcohol involved

          2) the two parties know each other.

          3) They are of the same background

          so the prosecutors and juries are very
          loath to try and figure this out.

          With the rise in electronic surveillance it's a lot easier,
          if there is a hallway camera that shows the girl unable to walk, well, then it's good evidence for "Lack of Consent",
          if the camera shows them both walking and kissing
          and being very affectionate, that's evidence that at least
          some part of the event was consensual.

          The steubenville case had a lot of camera pics and the girl involved was unconscious and being carried, sure did a lot to show lack of consent, and make a case.

          i suspect in a lot of future cases we will see, collating of instragram and cell phone pics, and that will let a reasonable picture get built.

          •  That raises lots of possibilities (0+ / 0-)

            for new tech apps.

            •  maybe a Party Down app? (2+ / 0-)
              Recommended by:
              Richard Lyon, sethtriggs

              if the phone detects you've spent 2-3 hours in a bar,
              it turns on the camera and audio and records it all for 24 hours before deletion?

              I'm not sure if you could reliably determine if the owner is drunk, maybe a Voice recognition app to tell if someone is slurring their words and then go into record mode for a few hours and delete after 24 hours?

              of course it'd have to be a required app by the school,
              to get any level of ubiquity, most students wouldn't load it otherwise.  Maybe build it into a mandatory school app which you use for buying meals or getting into buildings, but,
              that's about it

          •  Sometimes (2+ / 0-)
            Recommended by:
            Richard Lyon, Lost and Found

            But suggesting that is always the case or even typical is really nonsense.

            No one is coming to save us, the future is in our hands.

            by koNko on Mon Feb 03, 2014 at 08:45:20 AM PST

            [ Parent ]

            •  It's more commonly the case (1+ / 0-)
              Recommended by:
              julifolo

              than you would think.

              The woman gets raped, calls police afterwards, gets a rape kit taken. That's evidence #1.

              Someone, maybe even multiple people, saw the woman falling-down drunk around the same time. That's evidence #2.

              There was a case in Virginia recently where a probably rapist was let off by the college administrative process. He didn't even deny having sex with the victim, which should have been a lucky break for the victim since no rape kit was taken at the time. His only excuse at the hearing was that it was simply "bad sex" or "sex she regretted". But there was a second witness who saw the victim falling-down drunk right around the time of the alleged rape. There was no way she could have sobered up enough to be capable of giving consent for hours after that observation.

              Now, I wasn't on the board and have nothing to do with this case; I read about it in the news afterwards. And I'd be loath to apply the "preponderance of the evidence" standard toward getting someone kicked out of college or worse, or even suspended. Arguably public colleges can't do that because they are an agency of the government, and it violates due process. The federal government can't mandate it of private colleges, for the same reason, regardless of what the staff lawyers for the DoE want to believe. It might be a sufficient standard to justify measures such as ongoing restraining orders, and requiring the alleged perpetrator to bear the burden of avoiding taking the same classes, etc.

              But given the evidence in the news media, and that's a hard thing to say since I don't have first-hand knowledge of what evidence was presented to the hearing board, I would have found him guilty. Responsible. On clear and convincing evidence, perhaps even beyond a reasonable doubt. Why didn't the board find this, even on a lesser evidentiary standard? Arguably because they simply did not want to state that the victim was incapable of giving consent because she was drunk. He wasn't let off because of the burden of proof, he was let off because the board believed in myths from rape culture.

      •  I didn't say "no victim should be protected" (2+ / 0-)
        Recommended by:
        patbahn, Sparhawk

        I said things like restraining orders should be handled by courts. It seems like the school would be declaring guilt before innocence if it forced the accused into some bunker without any finding by a court. If the accuser would like a restraining order, she is free to request that in court.

    •  You know what's tough? (16+ / 0-)

      Being raped and having to face your rapist day in and day out because you share classes together. Rather than trying to protect those victims you instead sympathize with the very small amount of men who didn't actually rape anyone? Seriously?

      How about it's a smart idea to make arrangements to protect the person alleging rape from the get go just in case? It doesn't presume guilt on the accused, it's just making sure that if the person was indeed raped he or she does not have to face the accuser anymore.

      Time is of no account with great thoughts, which are as fresh to-day as when they first passed through their authors' minds ages ago. - Samuel Smiles

      by moviemeister76 on Sun Feb 02, 2014 at 12:46:12 PM PST

      [ Parent ]

      •  It's not a "very small amount of men" (5+ / 0-)

        A 2009 Slate article (written by two women) cite the Bureau of Justice Statistics to estimate 20,000 false accusations of rape per year, given a rate of 8-10 percent of rape charges being false.

        http://www.slate.com/...

        An older report, by the Department of Justice in 1996, put it at 25 percent:

        Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained (primarily by State and local law enforcement), the primary suspect has been excluded by forensic DNA testing.
        https://www.ncjrs.gov/...

        These aren't "very small" numbers. How about instead of scarlett-lettering people without a conviction, we let the courts decide if a restraining order should be issued in the normal course?

        •  Um, that's not a false rape report (14+ / 0-)
          Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained (primarily by State and local law enforcement), the primary suspect has been excluded by forensic DNA testing.
          That's a bad ID.  While most rapes are committed by acquaintances, the rape cases that get reported to law enforcement skew heavily toward ones where the rapist and victim were strangers to each other.  They skew even further at each step along the way (arrest, prosecution, conviction).  

          The problems with witness ID's of strangers are well known; similar numbers have been found in DNA studies on men convicted of murder.  That doesn't mean the murder victims are lying about being dead; it means the wrong person was convicted, a very different problem.  In the case of rape, the low reporting rate of acquaintance rapes also artificially inflates this statistic.

          Studies on false reports of rape generally put the numbers at 2 to 8 percent; the recent British study put it at 3%.  The other finding from that one was that most false reports don't have a named suspect, so the rate of false accusations was under 2%.

          And if the accuser in any given case was one of the one to two percent  who made a false accusation, it would still be a good idea to make sure the two weren't forced to cross paths in class or on their way to the shower.

          I shall die, but that is all that I shall do for Death; I am not on his payroll. - Edna St. Vincent Millay

          by Tara the Antisocial Social Worker on Sun Feb 02, 2014 at 05:22:25 PM PST

          [ Parent ]

      •  it's not about sympathy, it's about due process (4+ / 0-)

        if you don't have due process, you blow your
        chances to enforce later.

        you could do something quick pending a probable cause hearing, and if the state finds Probable cause, and particularly indicts immediately, then issue temporary orders
        but if the thing is grinding out, such as the Duke Lacrosse
        case, well, work out a plan that puts burden on both parties.
        One moves to a new dorm, the other moves class sections
        and if you can't move a class offer both the free opportunity to drop a class without cost

        •  A precautionary ban would violate due process? (3+ / 0-)
          Recommended by:
          Richard Lyon, Lost and Found, Smoh

          In what respect? Be specific about the statutes of case law.

          Universities and other organizations can take all kinds of precautionary measures.

          Or are you just making things up to further an argument.

          Frankly, your comments here seem to be based on anecdotes and assumptions that make you sound a bit uninformed, might be a good idea to exercise some self-criticism before hitting the post button, you are digging a hole here.

          No one is coming to save us, the future is in our hands.

          by koNko on Mon Feb 03, 2014 at 08:55:01 AM PST

          [ Parent ]

          •  depends, public universities or private colleges (0+ / 0-)

            You have public universities which are bound by
            due process and private universities that are
            bound by contract law,

            it gets more complex from there.

            Let me ask you this :

                "If a white woman were to accuse a black man of sexual misconduct, would you want the school to on a precautionary
            basis order the black man to move out of dorms, be removed
            from his classes and lose a year pending action"

            •  OK, let me ask you this: (1+ / 0-)
              Recommended by:
              Richard Lyon

              "What does race have to do with it?"

              Seriously, black, white and combinations of every color in-between include rapists and victims and what we are talking about is whether schools would take measures to protect assumed victims while active cases grind through the system, not branding a scarlet letter on anyone's forehead.

              If you really need a detailed explanation about the situation actual (verses theoretical) rape victims experience reporting their cases, going through the process and even facing their assailants in court, then maybe you should seek information outside this thread.

              When it comes to trials, both parties are obliged to participate and can get due process, and that's good, but up to that there is room to protect assumed victims from assumed perps as a protective and precautionary measure with authorities given responsibility and authority to exercise them.

              Have you ever heard of a preliminary hearing, bail (or refusal of it) and protective custody?  Happens all the time.

              Statistics suggest:

              (a) a majority of rapes are not reported
              (b) of those that do, a minority result in convictions for various reasons
              (c) actual rapists tend to repeat their crimes because they like it

              Therefore, it seems to suggest a pretty low probability that innocent  people will be convicted of rape although I'm sure that occasionally happens.

              No one is coming to save us, the future is in our hands.

              by koNko on Tue Feb 04, 2014 at 01:11:19 AM PST

              [ Parent ]

              •  The funny thing about Due Process (0+ / 0-)

                is that it doesn't work on statistics or probability
                or likelihood, it works on a process.

                You follow the process, and it works the same way
                every time.

                and if someone doesn't get bail the school won't have to
                do anything about it. The Defendant will be in jail
                and not in dorms or class, so, if the case isn't strong
                enough to make a Probable Cause hearing but has to
                go to a grand jury, or is sitting there while the police
                and State's Attorney try to work up a bill, well, it's
                probably not as open and shut as you would like.
                And those are the people who deserve due process.

                The one good thing is the rise in DNA technology is helping
                out a lot here.

                •  Due process does not require (1+ / 0-)
                  Recommended by:
                  pasadena beggar

                  a standard of evidence of beyond reasonable doubt.

                •  Yes, it is a process. (0+ / 0-)
                  You follow the process, and it works the same way
                  every time.
                  That I am not so sure about, but if you believe it then I don't understand why you object to the process we are discussing.

                  Personally, I think it should be mandatory the criminal investigation be done by the legal system and not school authorites of police beyond a preliminary investigation, but what we are discussing here is protection of assumed victims in a daily setting where protection might be appropriate and should be a option that can be exercised.

                  And that is equally important since, if victims are not supported, then the process is never initiated or may fail and then justice cannot be done.

                  And statistics suggest that is actually the predominant trend, a fact your attempt to dismiss statistics does nothing to change.

                  No one is coming to save us, the future is in our hands.

                  by koNko on Tue Feb 04, 2014 at 10:36:11 PM PST

                  [ Parent ]

    •  Regardless of what happened (15+ / 0-)

      the accusation itself creates tension and trauma between two people, and it most likely benefits both if they don't have to live in the same hallway, share the same bathroom facilities, and constantly interact with each other.

      Fry, don't be a hero! It's not covered by our health plan!

      by elfling on Sun Feb 02, 2014 at 01:04:49 PM PST

      [ Parent ]

    •  A precaution does not constitute a judgment. (5+ / 0-)

      If you think keeping the accused away from the accuser constitutes a "guilty" judgment, do you think that's really all that should be done if he's actually guilty?

      In the judicial system, you can be arrested, held prisoner until you make bail (or without bail!), and have your movements legally restricted (e.g., not being permitted to leave the country) until such time as you can be brought to trial -- all for something you haven't yet been found guilty of doing, and may in fact be innocent of.

      That's not being found guilty.  That's being charged with a crime.  It really sucks to be charged with a crime you haven't committed, but if there's enough evidence to suspect you ...

      Maybe college men shouldn't put themselves in situations where they're alone with a woman.  It's sad, but there's not much you can do if a guy isn't more careful.

  •  Not sure I agree with this... (2+ / 0-)
    Recommended by:
    patbahn, Sparhawk
    For example, the new guidance makes it clear that institutions must resolve Title IX disciplinary matters using the "preponderance of the evidence" standard (meaning it is more likely than not that sexual harassment or violence occurred). Disciplinary procedures should not use the higher "beyond a reasonable doubt" standard required in criminal proceedings or the intermediate "clear and convincing" standard (meaning it is highly probable or reasonably certain that the sexual harassment or violence occurred).
    In other words, rape will have its own exclusive standard, and not one I agree with: it is more likely than not that sexual harassment or violence occurred. This is way too close to guilty before tried to me. I can understand separating the accused and the victim while the investigation is ongoing but to assume that the violence occurred doesn't sound impartial or like justice to me at all.
    •  This is the same standard of evidence (6+ / 0-)

      that would be used in a civil suit. It is sufficient for an administrative proceeding that does not have the power to convict someone of a criminal offence.

      People enroll in college voluntarily. In doing so they agree to abide by a variety of administrative rules and procedures.  Should they decide thay they no longer want to follow them they have the option of withdrawing. The college also has the power to suspend or expel them. It is not a criminal proceeding.

      •  So you are saying that the same standard of (1+ / 0-)
        Recommended by:
        Sparhawk

        evidence for a civil suit is now used for criminal acts? So someone who is only accused of rape can be suspended or expelled, regardless of their proven guilt in a court of law? If so, how is that justice?

      •  it is true that students agree to abide (3+ / 0-)

        by the rules of the university and thus have to accept the outcome.

        But a finding of guilt in a college administrative proceeding can follow the accused around for life, preventing them from being employed, etc. even if they don't have to do prison time or pay damages.

        Rape differs from many other offenses in that it is uniquely repugnant and a special stigma attaches to it. In the eyes of a prospective employer, how much difference between a conviction in a court of law and an adverse finding by a college administrative panel? Either way the accused is blackballed, in a way that, say, a person found guilty of plagiarizing a term paper is not.

        Comparing an administrative proceeding to a civil suit in a court is misleading, even if the purported standards of evidence are the same. College administrative boards are not equipped to provide the rigorous, impartial examination of the evidence that a court is.

        Such loosening of the standards for guilt is thus problematic. It could affect an accused student in very profound ways.

        No one's life is ruined just because they're kicked out of college. But if they're kicked out of college because a college administrative panel found that they had raped someone--that's a whole different kettle of fish.

        "In America, the law is king." --Thomas Paine

        by limpidglass on Sun Feb 02, 2014 at 03:01:49 PM PST

        [ Parent ]

        •  Bearing the main burden of that stigma (5+ / 0-)

          is what women have historically had to do to a disproportionate extent. If young men felt that they were at risk on a 50/50 basis, they would likely be a lot more careful about making very sure that they had full and willing consent.

          The title IX regs are not a new loosening of standards of guilt. They do not apply to criminal trials. They have been in place since 1972. People are just increasingly asking that colleges abide by them.  

          •  "full and willing consent" can be a difficult (2+ / 0-)
            Recommended by:
            Sparhawk, Justanothernyer

            concept to define. Especially if alcohol and drugs are involved--which, college kids being college kids, will happen a lot of the time.

            If there's no physical evidence of rape, nor any other evidence to provide context about the nature of the sexual encounter, then it boils down to the credibility of the accuser vs. the accused. This is a sticky point even in a court of law; how much more so in a college administrative panel.

            There was a controversial op-ed regarding college rape by a former ESPN vice president, in which she gave the following advice to her son:

            But lately, I've been worried that I left out one important piece of advice that is a must-do today:

            Never have sex with a girl unless she's sent you a text that proves the sexual relationship is consensual beforehand. And it's a good idea to even follow up any sexual encounter with a tasteful text message saying how you both enjoyed being with one another -- even if you never plan on hooking up again.

            If relations between the sexes have indeed come to such a pass that young men have to protect themselves by preemptively obtaining documentary evidence that their sexual encounters were consensual, then I think the problem runs deeper than requiring colleges to abide by Title IX.

            "In America, the law is king." --Thomas Paine

            by limpidglass on Sun Feb 02, 2014 at 03:55:40 PM PST

            [ Parent ]

            •  The pass that it is coming to (10+ / 0-)

              is that women not longer have to submit or suffer the full consequences. The fact that men might have to deal with the burden of proving consent strikes me as real cultural progress.

              •  No it isn't (0+ / 0-)

                (-5.50,-6.67): Left Libertarian
                Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                by Sparhawk on Sun Feb 02, 2014 at 05:10:49 PM PST

                [ Parent ]

              •  one can support the progress that has been (2+ / 0-)
                Recommended by:
                Whatithink, cville townie

                made in protecting rape victims and progressing past Old Testament conceptions of female responsibility for rape, while being also concerned about the rights of the accused.

                women not longer have to submit or suffer the full consequences.
                Excuse me, but no one said that women should have to "submit or suffer the full consequences." Those are words you are putting in my mouth.

                Whether a sexual encounter was consensual is, in fact, not always clear-cut. We try to educate people to not let it get to that point, to communicate more clearly, but people being people, sometimes that doesn't work.

                Suppose the accused gives every indication of consent--there is no evidence that she/he said no or indicated no in any way, shape, or form during the actual sexual encounter--but apparently changes her/his mind a week or a month or a year later and then claims an encounter was not consensual, then what? Was it rape?

                What was the nature of the encounter? Were the parties intoxicated? Was one sober and one intoxicated? Were they happy, or did one of them seem sad, not wanting to be there, nervous, etc.

                This is the sort of thing juries debate fairly regularly. In a court of law, all these issues would presumably be dealt with by professional lawyers under the eye of an experienced judge. In an administrative hearing, all bets are off.

                In our legal system, the accused have certain rights, including the presumption of innocence. In a non-legal hearing, the accused have no such guarantees.

                Legal definitions of rape and sexual assault are established by the elected representatives of the people. The definitions of rape or sexual assault used by a college may not be as rigorous as the legal definitions--and they vary widely from college to college. Some administrative flack writes those definitions, and no one elected him/her.

                I have real trouble with the idea--implicit in many of these discussions--that extrajudicial proceedings should be used to compensate for the shortcomings of the legal process in cases of alleged rape or sexual assault. If the legal system is deficient, then it should be fixed. There is no substitute for justice--certainly some kind of college administrative process doesn't cut it.

                Rape is very different from other crimes because it's considered so abhorrent that even a guilty verdict in a non-legal procedure has enormous, enormous force. An organization can deal with other forms of wrongdoing internally and publicize their findings, no problem. You can be kicked out for cheating on a test and it won't follow you.

                OTOH, anyone who is found guilty of sexual assault/rape, even in a non-legal setting, is finished. Therefore it behooves people to be extra-careful in creating procedures regarding it.

                "In America, the law is king." --Thomas Paine

                by limpidglass on Mon Feb 03, 2014 at 01:09:50 PM PST

                [ Parent ]

          •  The age of the Title IX rule doesn't mean that it (3+ / 0-)
            Recommended by:
            Sparhawk, Whatithink, cville townie

            is a good idea. Accusations of rape belong in a real court of law, not some kangaroo court with flexible rules of evidence.
               The accuser can make a complaint to the relevant police department, which should investigate it as a criminal complaint. Or, the accuser could file a civil suit, or get a restraining order.
               The American judicial system is designed to protect the rights of the accused (although it isn't very good at it.) You, and apparently the President, want mere accusation to override evidence.

        •  And if they did it, the shoe fits. (1+ / 0-)
          Recommended by:
          Smoh

          Any statistics on the rate bad rulings in such cases?

          Seems to me if one is falsely convicted in such a procedure there would be recourse in civil law.

          If you have any statistics, why not post them to make the case because if it's anywhere close to the rates of unreported rapes, you'll have a pretty strong argument.

          No one is coming to save us, the future is in our hands.

          by koNko on Mon Feb 03, 2014 at 09:01:00 AM PST

          [ Parent ]

      •  all parties agree to rules and procedures. (2+ / 0-)
        Recommended by:
        Richard Lyon, dicentra

        drinking on campus is usually a violation for both.

  •  Part of the problem (10+ / 0-)

    is that school administrators are often motivated to "make the problem go away," because it makes the school look bad.  So they discourage the victim from going to the police, and take little or no action toward the perpetrator.

    So I flog this statistic whenever I can:  while rapists are a single-digit portion of the male population, two-thirds of rapists are repeat offenders, with an average of six victims each.  Lisak & Miller's study of college students found that for every 100 men in the study, six were rapists (by self-report).  McWhorter's study in the Navy (discussed at the same link) found a higher rate (13%, which I think is above the general population), but near-identical numbers on repeat offenders.  Taking Lisak's lower numbers for the moment, out of 100 men, 6 are rapists, but they're collectively responsible for 26 rapes.

    You don't make the problem go away by ignoring the victim, because the same rapist is going to send you another one, and another.

    I shall die, but that is all that I shall do for Death; I am not on his payroll. - Edna St. Vincent Millay

    by Tara the Antisocial Social Worker on Sun Feb 02, 2014 at 05:50:52 PM PST

    •  Those are very useful studies. (3+ / 0-)

      Most of the ones that I have seen have been on convicted rapist and of those most were incarcerated. That is of course the most obvious and easiest group to study. However, it is a very selective group for a number of reasons and it is difficult to generalize from them to a broader population. If people have been able to get confidential information from men who have not been prosecuted, that is very useful.

    •  I liken them to professional thieves (2+ / 0-)
      Recommended by:
      turn blue, Smoh

      or other professional criminals. Even if they don't do it for money, they operate like pros.

      They systematically look for the most available targets, and they know all the tricks to isolate their victim, "groom" them, and avoid detection. They don't use violence wantonly; they use just enough to get the job done or to gratify themselves and they use drugs and alcohol to weaken resistance.

      This suggests that they are much harder to catch than the stereotype of the dumb drunk fratboy suggests.

      I don't think colleges are generally equipped to handle investigations of this depth. I don't think many municipal police departments are, frankly. Law enforcement must be as systematic as the criminals: gather data, sort it for patterns. Data will be sparse, because unlike professional thieves, the serial rapists may not leave very much physical evidence.

      As I said, I don't agree that administrative hearings, where the procedures are laxer than the legal system, are the venue to combat these sexual predators. I think smarter, data-driven police work is needed.

      "In America, the law is king." --Thomas Paine

      by limpidglass on Sun Feb 02, 2014 at 06:39:20 PM PST

      [ Parent ]

  •  Getting the college administrations involved is a (0+ / 0-)

    mistake. That's what led to the Sandusky fiasco. Rape is a violent felony. Report it to the police and let the criminal justice system handle it. It's as simple as that.
       Give administrations quasi-judiciary powers and you will have rape accusations against athletes swept under the rug or innocent men suspended and their reputations ruined without recourse.
       There are real courts. We don't need a layer of kangaroo courts.
       And rape is a criminal offense that has traditionally handled by the states. The federal government has enough to do.
       The President should focus on actually accomplishing something, preferably something within the normal purview of the federal government.

  •  This is starting to get global attention (2+ / 0-)
    Recommended by:
    Richard Lyon, Smoh

    Which is good because it's a global epidemic.

    About 2 weeks ago in was in Hong Kong for a couple of day and noticed a new public service announcement running on the marquee between Metro lines in the TST MTR station "REPORT RAPE".

    May have been a result of this recent activity:


    Slutwalk 2013 Protests Victim Blaming & Rape Myths

    No one is coming to save us, the future is in our hands.

    by koNko on Mon Feb 03, 2014 at 08:42:27 AM PST

  •  Providing due process does not (1+ / 0-)
    Recommended by:
    pasadena beggar

    require the use of a beyond reasonable doubt standard of evidence. It's basic components are:

    right of notice

    right to grieve

    right to appeal

    http://en.wikipedia.org/...

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