College sex tribunal gets it right for a change

[JonA]

This isn't a constitutional issue.

Accusations of rape, where charges are brought should be tried in the courts, not the Universities.

What kind of charges?

 

[JonA]

Accusations of rape, where charges are brought should be tried in the courts, not the Universities.

universities, which can set whatever standard they want and expel students for whatever reason they want, are not putting people on trial or convicting anyone of anything.

this is the same sort of moronic right-wing shit-for-brains freakout that makes people say unbelievably stupid things like "cancelling glenn beck's show is a violation of the 1st amendment" or whatever utter pig-fucking stupidity gets spouted when some jackass says something retarded and doesn't get to be on TV anymore because of it.

It depends on what kind of power the university has and what effect their decision might have on those involved.

It is easy for a government to 'grant' rights simply by not infringing on them itself. It is more difficult, and more prudent, for a government to grant rights and secure them from those who might de facto take them from us. And the extent to which a government successfully does this is a measure of the quality of that government.

This is, in fact, the entire purpose behind libel and slander laws - what other people say about us impacts our ability to live full and free lives and the government is duty bound, as the ultimate possesser of the power to do so, to regulate this.

 

[J842P]

This isn't a constitutional issue.

Accusations of rape, where charges are brought should be tried in the courts, not the Universities.

May be, but it is still not a constitutional issue.

- - - Updated - - -

Accusations of rape, where charges are brought should be tried in the courts, not the Universities.

universities, which can set whatever standard they want and expel students for whatever reason they want, are not putting people on trial or convicting anyone of anything.

this is the same sort of moronic right-wing shit-for-brains freakout that makes people say unbelievably stupid things like "cancelling glenn beck's show is a violation of the 1st amendment" or whatever utter pig-fucking stupidity gets spouted when some jackass says something retarded and doesn't get to be on TV anymore because of it.

Eh, I wouldn't go that far. Universities are held to the same standard that any other institution should be. Public Universities ought to be held to an even higher standard.

 

[laughing dog]

Eh, I wouldn't go that far. Universities are held to the same standard that any other institution should be. Public Universities ought to be held to an even higher standard.

What "held to an even higher standard" mean in this situation?

 

[Derec]

universities, which can set whatever standard they want and expel students for whatever reason they want, are not putting people on trial or convicting anyone of anything.

Part of the problem is that universities are no longer allowed to use whatever standard they want. Instead, the federal government mandates (since 2011) that universities must use the lowest standard possible for sexual accusations (and only those). The mandate also strips accused students of some due process protections they enjoyed hitherto. That increased the rate of expulsions in cases where the male accused students were very likely innocent, like Vassar, Amherst etc.

this is the same sort of moronic right-wing shit-for-brains freakout

No, the federal mandate is the result of moronic left-wing shit-for brains freak-out over fictional "rape culture" on US campuses (the myth of "1 in 4" for example).

- - - Updated - - -

This isn't a constitutional issue.

Why not? At least at public universities but also at private ones that receive federal funding constitutional protections should still apply.

 

[Derec]

And, of course, we've seen recently how even "completely passed out" doesn't mean squat to rape apologists (including the Judge in that case)

The guy in that case was given jail time (more jail time than some murderers), three years probation and has to register as sex offender. The judge definitely didn't say that being passed out "doesn't mean squat".
It is inconceivable to me that the same people who like to harp on how US incarcerates people too long want longer and longer sentences for sex crimes and only sex crimes.

 

[Derec]

Certainly blacked out is beyond the line, but can one be beyond the line but still remember it?

Blacked out means that one cannot remember it. It does not mean that one was passed out or incoherent at the time.

 

[laughing dog]

Why not? At least at public universities but also at private ones that receive federal funding constitutional protections should still apply.

What constitutional issues are at stake in non-criminal proceedings?

 

[Derec]

They are not acting as "legal tribunals". They are deciding whether their has been a violation of their own university code of ethics/conduct policies - same as if someone is plagiarizing or stealing from the university.

Quasilegal then. In any case, students accused of such violations deserve due process. Often in these kangaroo cases their ability to defend themselves is severely curtailed and the deck is stacked in favor of the accuser. I guess UVA learned from the Jackie Coakley debacle.

Of course, we (this board in general, not you personally) have this exchange every.single.time this situation comes up, but next time - guaranteed - someone of you will bitch and moan about the "legal tribunals" again.

And feminazis will be fine with colleges capriciously and arbitrarily expelling students as long as it affects male students accused of sexual assault (often falsely). If colleges started expelling false rape accusers using the same standard of evidence (preponderance of evidence) they would sing a completely different tune. Words like "war on women" would be uttered million-fold.

 

[Derec]

Why not? At least at public universities but also at private ones that receive federal funding constitutional protections should still apply.

What constitutional issues are at stake in non-criminal proceedings?

SCOTUS frequently decides on all sorts of non-criminal issues, including civil litigation, contractual disputes, labor law etc. The fact that these universities receive federal funding that is contingent on adopting draconian policies on handing sexual assault claims certainly makes it something SCOTUS could review if it chose to.

 

[Playball40]

The alleged rapist seems to have a pretty good memory of what happened which suggests that maybe he was not true drunk to give consent.

The problem lies in determining where the line is for "too drunk to give consent". Certainly blacked out is beyond the line, but can one be beyond the line but still remember it?

There are some people that 'black out' with little alcohol and may not even appear heavily intoxicated. It clearly makes situations like this difficult.

 

[Derec]

Is "blacked out" an accurate term here. Just because the memory is blacked out doesn't mean there isn't a case of a person being conscious. Kind of like driving on the highway and you are thinking about something. Then all of a sudden you can't recall driving the last minute or two, but you clearly had. There is 'passed out' or 'incapacitated' like the last case raised here.

She wasn't passed out or incapacitated. So "blacked out" is the correct term even though many confuse it with "passed out".

High schools need to step sex ed / alcohol ed up a notch to really get this shit down kids throats. As the article notes, it is a mess, which often can not be corroborated because sex is usually behind closed doors.

Although there is in this case some corroboration of her behavior that backed up his story that the sex was consensual.

Yup, guy musn't be a Muslim.

I don't know if the guy was a Muslim, Christian, atheist and I don't much care. Unlike the girl he chose to remain anonymous. We only know that he is a freshman student athlete.
The cases of Muslim rapes in Europe were pretty clear cut, like the guy in Sweden raping a 13 year old girl and getting no jail time or the guy in Austria raping a 10 year old boy. Those cases were not two drunk college students having consensual sex (at the time) at a wild party.

Also, what is the basis for the "for a change" part? Do you subscribe to Campus Allegation weekly or something? Or perhaps you are omnipresent?

Since the Obama/Biden policy went into effect many colleges have been erring on the side of expelling accused male students even if the cases were weak at best. See Amherst or Vassar or University of North Dakota. In that last one, the girl was even charged with filing a false report but the college didn't care and clung to their erroneous decision. I think what is different for UVA is that they went through the Jackie Coakley false accusation clusterfuck.

 

[Toni]

because their campus is their responsibility and it's up to them to decide what is or isn't behavior which justifies expelling you.
they're not sending anyone to prison so it's not them pretending to be the law, so i don't get what you're on about - are you suggesting that universities shouldn't have any say or input into the conduct of the students on their school grounds?

I am saying that they should cooperate and aid the police. If this was an actual rape, then this man should be facing actual rape charges and if found guilty, go to jail. They should not be conducting some kangaroo court at the school and they should not be making any declaration that he raped her or not. That is not up to them. That is up to a court of competent jurisdiction. The most they should do is say he acted inappropriately (if he did) and against school rules (if he did). These accusations put a giant black mark on him, his reputation, his future, etc, which he can't fairly argue against, since this isn't a real court with real protections for the accused. They are playing with fire in cases like this if they go and say anything about her being "raped" by him unless and until that is found by an actual court.

Article appears to be behind a pay wall. Was this on school grounds?

Whether the accused student should face disciplinary charges at the university and whether the accused student should face criminal charges are different issues. There certainly are cases where a student might engage in perfectly legal conduct that violated a university's code of conduct. A student who engaged in such acts--let's say: cheating on a test--this is definitely something that is against a university's code of conduct but it is not illegal. There should be university disciplinary procedures filed and followed. However, such a student should not face criminal charges. It isn't against the law to cheat on a test, no matter how much it is against a university's code of conduct.

But we are talking about sexual assault. It seems clear that the young woman was 'too drunk.' She had difficulty walking, passed out, wet herself while passed out, blacked out. Anyone in such a condition is clearly past the point of being able to consent to anything in any meaningful way.

How drunk the young man was is a bit more debatable, although it seems clear to me that he was also quite drunk. We don't have reports of him passing out, having difficulty walking unassisted, etc. It seems he was more sober than she was.

Here's the thing: it is perfectly possible for a person to become extremely intoxicated and to seem to agree to or to even attempt to initiate sex--and for a less drunk person to recognize the impossibility of the the extremely intoxicated person to know what he or she was doing in any meaningful way. The sober or even just less drunk person has a moral and I believe a legal obligation to refuse advances from someone who is impaired.

 

[Derec]

Being blacked out is not consent. If a woman is blacked out, don't touch her, rapist.

Blacked out != passed out or incapacitated. Did you even read the whole story?

Now send nudes.

Of me or her? I don't have hers and mine would traumatize you for life (think naked wrestling scene in Borat), and I wish you no ill, so I'll have to decline.

 

[laughing dog]

What constitutional issues are at stake in non-criminal proceedings?

SCOTUS frequently decides on all sorts of non-criminal issues, including civil litigation, contractual disputes, labor law etc. The fact that these universities receive federal funding that is contingent on adopting draconian policies on handing sexual assault claims certainly makes it something SCOTUS could review if it chose to.

I will rephrase - what constitutional issues are at stake in this non-criminal proceedings? The SCOTUS does not pluck issues out to the air - someone has to make a constitutional argument. What are those arguments here?

 

[Playball40]

I am saying that they should cooperate and aid the police. If this was an actual rape, then this man should be facing actual rape charges and if found guilty, go to jail. They should not be conducting some kangaroo court at the school and they should not be making any declaration that he raped her or not. That is not up to them. That is up to a court of competent jurisdiction. The most they should do is say he acted inappropriately (if he did) and against school rules (if he did). These accusations put a giant black mark on him, his reputation, his future, etc, which he can't fairly argue against, since this isn't a real court with real protections for the accused. They are playing with fire in cases like this if they go and say anything about her being "raped" by him unless and until that is found by an actual court.

Article appears to be behind a pay wall. Was this on school grounds?

Whether the accused student should face disciplinary charges at the university and whether the accused student should face criminal charges are different issues. There certainly are cases where a student might engage in perfectly legal conduct that violated a university's code of conduct. A student who engaged in such acts--let's say: cheating on a test--this is definitely something that is against a university's code of conduct but it is not illegal. There should be university disciplinary procedures filed and followed. However, such a student should not face criminal charges. It isn't against the law to cheat on a test, no matter how much it is against a university's code of conduct.

But we are talking about sexual assault. It seems clear that the young woman was 'too drunk.' She had difficulty walking, passed out, wet herself while passed out, blacked out. Anyone in such a condition is clearly past the point of being able to consent to anything in any meaningful way.

How drunk the young man was is a bit more debatable, although it seems clear to me that he was also quite drunk. We don't have reports of him passing out, having difficulty walking unassisted, etc. It seems he was more sober than she was.

Here's the thing: it is perfectly possible for a person to become extremely intoxicated and to seem to agree to or to even attempt to initiate sex--and for a less drunk person to recognize the impossibility of the the extremely intoxicated person to know what he or she was doing in any meaningful way. The sober or even just less drunk person has a moral and I believe a legal obligation to refuse advances from someone who is impaired.

I agree with you Toni. But what about those people that don't "appear" too intoxicated? And if that person is hitting on someone that doesn't know them well enough to know theyre drunk, what then? I think it can really be a tough call in some situations. NOW passed out? Completely different story. No excuse.

 

[Arctish]

What constitutional issues are at stake in non-criminal proceedings?

SCOTUS frequently decides on all sorts of non-criminal issues, including civil litigation, contractual disputes, labor law etc. The fact that these universities receive federal funding that is contingent on adopting draconian policies on handing sexual assault claims certainly makes it something SCOTUS could review if it chose to.

A Federal Court should review it. Not because there's anything wrong with colleges and universities enforcing their rules, or because students who sign an agreement to abide by those rules are somehow being treated unfairly if they are found to have violated them and are subject to the consequences which were spelled out in detail in the very same document. The court should indicate if 'preponderance of evidence' is indeed the correct standard or if it should be 'beyond a reasonable doubt'.

It seems like a no-brainer that the civil standard should be used in civil matters such as college and university disciplinary proceedings, while the criminal standard be used in criminal proceedings, but it's good to get confirmation.

 

[Derec]

Since we do not know what happened, we cannot judge whether they got it "right" or not.

We are not omniscient, sure. But we can judge the decision based on what we, and they, knew. And there were many indications that she consented at the time.

He told The Post that he and Lind were flirting, and he believed she was attracted to him — witnesses said they saw the two kissing, holding hands and caressing. He said Lind asked him back to her apartment, an invitation another student overheard. Instead, the freshman athlete suggested finding a room inside the house. She smiled, he told investigators, and agreed. They headed upstairs.

Certainly looks like a consenting couple, and not a rapist and a victim.

On the second floor, the athlete said, Lind walked into a bathroom and led him inside by the hand. They discussed using a condom, he said, and he took one out of his wallet. She unwrapped the condom and placed it on him, he said. At one point, according to the report, the freshman athlete attempted to stop because he believed he heard someone try to enter the bathroom. He told investigators that Lind put her arm around his waist and said “keep going.”

Since they were alone, this part cannot be corroborated by witnesses, but it sure sounds like a consensual encounter.
However this part can be corroborated.

According to the U-Va. report, an older resident of the house became aware that Lind and the freshman athlete were inside the bathroom and angrily climbed out onto a second story roof to slam on the window and get their attention. He yelled at them to break it up. “Would you just give us a minute?” Lind said, the older resident told investigators.

Seems she was able to articulate the desire to keep going with the sexual encounter at the time. I.e. consent. Even ongoing, affirmative consent.
It seems that the full force of alcohol they consumed (the sprayer) only hit her after they had sex. So that is not relevant to whether she was able to consent at the time.

There does not seem to be any dispute that Ms. Lind (the victim) was so drunk that she did not know what was going on when the other person came into the bathroom.'

It also seems beyond dispute that Ms. Lind (the accuser) was drunk but still capable of knowing what she was doing immediately before and during the time she had sex. And that is the relevant time period.

That suggests she was too drunk to give consent. The alleged rapist seems to have a pretty good memory of what happened which suggests that maybe he was not true drunk to give consent.

So I guess you think anybody who has sex with the Memento guy is a rapist because they remember it afterwards and he doesn't.

In any event, there is simply no way to know whether U. of Va got it "right" or "wrong".

According to the available evidence there is not even a preponderance of evidence that he sexually assaulted her. Therefore, they made the right decision. Failure to remember does not mean that she could not consent at the time.

 

[laughing dog]

We are not omniscient, sure. But we can judge the decision based on what we, and they, knew. And there were many indications that she consented at the time.

And there are indications she was not capable of consenting. And if you bothered to read the article, the fact she could not remember what happened worked in favor of the young man - it was only his rendition that eventually mattered.

 

[Derec]

And there are indications she was not capable of consenting.

All of those indications occur some time after she consented and after they had sex. Evidence suggests she was coherent and ambulatory when they actually had sex.