Results of our Title IX poll: take accusations of sexual assault to the courts

A few days ago I wrote a piece about the Title IX mess: the confusion and lawsuits that resulted when the Office of Civil Rights (OCR) wrote to colleges “asking” them to adjudicate accusations of sexual assault or harassment according to the lowest possible standard: “preponderance of the evidence”—the accused more likely than not to have done it. (That is, probability of guilt greater than 50%.) While the letter was touted as advisory, nearly every college adopted those standards (though some, like Harvard, beefed), for fear that they’d lose federal money or be inspected by the OCR.

This is way below the standards by which these crimes would be adjudicated in the courts, who rely on a “beyond reasonable doubt” criterion. Since then, Education Secretary Betsy DeVos has scrapped the “Dear Colleague” letter of the Obama years, giving several months for people to weigh in before new standards of justice, which she sees as having more “fairness”, will be promulgated. Those will presumably raise the bar of guilt for those accused in college.

I doubt DeVos will force colleges to adopt higher standards of evidence, but she might, using threats of withholding federal monies or of inspection by the OCR if they don’t give the accused more rights. But something needs to be fixed: a point that Emily Yoffe made eloquently in her three-part series on the Title IX mess in The Atlantic (links here).

Most of us pretty much despise the Trump Administration, as do I, but we can’t simply reject everything they do simply because it devolves to Trump. That’s the same kind of mistake Republicans made when rejecting anything that was suggested by Obama. In this case, I do think those accused of sexual assault in college need more rights and a clearer system of how accusations are dealt with and punished. Or maybe colleges shouldn’t be in this business at all, but should hand over such accusations, which involve criminal behavior, to the courts—for that system is set up to adjudicate crimes like these.

I asked readers to choose between the following alternatives:

And here’s the outcome as of this morning:

While I was disappointed that only 355 people voted (after all, we have over 50,600 subscribers, and you can go back and vote here), the overwhelming response was “take it to the courts”. And when colleges do adjudicate the issues, most people voted for using the toughest standard, equivalent to “beyond reasonable doubt.” I’m coming around to the view that colleges have no right to punish students for sexual assault unless those students have been found guilty by the courts. But colleges do have a right to impose sanctions beyond those leveled by courts, like expelling a student found guilty. I don’t think a student should be suspended before they go to trial unless the bail conditions prohibit entry to campus.

Several readers brought up one issue though: what do we do with students (let’s assume they’re men) who are found sufficiently suspicious by the police to have their cases go to court? Do we want them roaming around on campus?

To me that’s a no-brainer. If the courts have deemed them sufficiently unlikely to flee or re-offend so that they get bail, then of course they should go back to campus. For if the courts deem them able to be free in society, why shouldn’t they be free to go back to campus? Of course they’d be demonized, and probably wouldn’t want to return to campus, but bail is bail, and if there are conditions, like not leaving your house, those could also apply to campus rules.  I wonder, though, whether “bail on condition student doesn’t return to campus” is a legal thing to do.

And, if a student isn’t found guilty, should the college, using lower standards of evidence, still sanction him? I don’t think so, for I don’t think colleges should even use those lower standards of evidence. The reason they do is, of course, because parents rightfully don’t want to send their students to a college that looks soft on sexual assault. But sexual assault is a crime, and I can think of nothing more reassuring to a parent of either a male or female student than a college saying, “All cases of sexual assault, being crimes, will be immediately reported to the police, and any college action will follow the outcome of the judiciary process.”

Weigh in below, and don’t forget to vote!

 

48 Comments

  1. Posted September 24, 2017 at 11:08 am | Permalink

    I doubt DeVos will force colleges to adopt higher standards of evidence, …

    The detail of the new “interim” rules says that colleges may not use a lower standard for sexual misconduct than for other forms of misconduct, such as cheating in exams. That could likely force colleges to move to a higher standard.

  2. ddpalmer
    Posted September 24, 2017 at 11:16 am | Permalink

    Bail conditions often prohibit the accused to have any contact with the accuser. So if the accuser is still a student then the bail conditions would probably prevent the accused from being on campus.

    • Flaffer
      Posted September 24, 2017 at 11:45 am | Permalink

      Exactly. Not to mention that sexual assault is usually by someone known by the victim and they will be forced to relive the act again and again. It is like someone was guilty of spousal abuse and allowed to go back to cohabiting with the spouse!

      • Carey Haug
        Posted September 24, 2017 at 1:31 pm | Permalink

        What about the falsely accused? Surely the experience is traumatic for them as well.

        • Posted September 24, 2017 at 4:30 pm | Permalink

          Before the case has been tried in a court of law, you don’t know if the suspect is falsely accused or not. It would seem prudent to me to keep the suspect and victim apart until after the trial.

          • Travis
            Posted September 24, 2017 at 4:32 pm | Permalink

            Then who should be kept out of school if no one is determined to be guilty, yet?

            • Posted September 24, 2017 at 4:45 pm | Permalink

              It would have to be the suspect even though they are presumed innocent under the law. Telling rape victims “if you report the rape, we’ll have to exclude you from college for a while” is a no-no for obvious reasons.

              It’s not like there is no precedent for restricting the freedom of the accused in the run up to the trial.

              • Carey Haug
                Posted September 24, 2017 at 5:26 pm | Permalink

                It could probably be arranged for them both to stay on campus although one or both might need to change dorms or take a different class.

                In middle school, my son was bullied. They changed the bully’s lunch schedule and assigned each boy to separate stairwells. I wished they would suspend the bully, but I realized the bully had a right to be educated.

              • Travis
                Posted September 24, 2017 at 5:30 pm | Permalink

                I feel similarly to Carey Haug. Unless the accuser and accused are in the same, little change is needed except perhaps an explicit direction that they should avoid each other when possible. If they share classes just don’t sit together, etc.

                I think suspension is a very extreme measure, personally

        • Ben Ricker
          Posted September 24, 2017 at 4:40 pm | Permalink

          I would add to the points above that even IF one is found not guilty, it does not mean they are falsely accused! In fact, it says little about one’s true guilt if they do not meet the high bar of evidence.

          • Travis
            Posted September 24, 2017 at 4:55 pm | Permalink

            Yes, I wish more people would realize this

  3. Travis
    Posted September 24, 2017 at 11:37 am | Permalink

    I’m still just shocked that something which has been used as a bludgeon against men (we know this is how it’s used, even though it does cost the accuser justice as well since they aren’t seeking immediate police services) has been lifted.

    What will happen to the “rape culture” hysteria, I wonder? Will this be used as proof that rape culture is more severe than ever before? Do we need more “affirmative consent” lectures and pledges to not be violent against women* (for men)?

    *Something already taught to us at every level of society

    • Flaffer
      Posted September 24, 2017 at 11:45 am | Permalink

      How dare women bludgeon those who sexually assault them!

      • Randy schenck
        Posted September 24, 2017 at 11:56 am | Permalink

        I could be mistaken here but is Travis saying the accused is primarily the victim? If so, this would be crazy or at minimum just wrong.

        • pck
          Posted September 24, 2017 at 12:33 pm | Permalink

          That appears to be what he is saying. Quite disgusting if you ask me.

          • Travis
            Posted September 24, 2017 at 12:38 pm | Permalink

            It’s not what I’m saying. What I’m saying is that men are being disproportionately punished and at a very low standard of evidence. I’m talking primarily about false accusations, here, not the real ones.

            Though, I would add that even the real ones are being unjust if they go to the university before/instead of the authorities. They have the ability to use the system and abuse it that way, but I wouldn’t consider it just. On the other hand I understand why someone would abuse such a system if they feel like they deserve it.

          • Michael Waterhouse
            Posted September 24, 2017 at 12:39 pm | Permalink

            He is obviously saying the falsely accused.
            I think I know what is quite disgusting.

        • Travis
          Posted September 24, 2017 at 12:43 pm | Permalink

          In a legal system that is biased against the accused, the accused is ALWAYS a victim, even if the accuser is also a victim.

          That said, read my other comments for clarification. I was speaking mostly of false accusations

      • Travis
        Posted September 24, 2017 at 12:40 pm | Permalink

        1) Real victims should use proper legal procedures rather than abuse a broken part of the system
        2) I’m primarily worried about false accusations. If you keep “believing the victim” you’re never going to see where I’m coming from. Not all accusations are due to rape/sexual assault.

        Try being more charitable to what you think someone’s position is. Ask for clarification if needed

        • Randy schenck
          Posted September 24, 2017 at 12:58 pm | Permalink

          I am a believer in actual justice and proper investigation by the authorities who are trained for this purpose. Not the schools or campus cops. However, your concern for the accused is just a bit rich for me. I am concerned about all the people who get raped in this country and receive little justice because the legal system is often set up to undermine them. I do not know the actual numbers of rapes that go without prosecution or of the guilty who get off and rape again but I am far more worried about this than the falsely accused.

          You act as if it were a national pastime of women falsely accusing people of rape. That would be nonsense.

          • Travis
            Posted September 24, 2017 at 1:06 pm | Permalink

            “However, your concern for the accused is just a bit rich for me. ”

            Well this is why we’ll probably never see eye to eye.

            I don’t think the justice system is set up to undermine rape victims… well unless you’re talking about children and school and female teachers/caretakers who get away with it or with minimal punishment over and over and over. After all, these are usually referred to as “sex romps” or “affairs” rather than rape in the media and the victims are minimized by almost everyone who voices an opinion.

            I’m concerned for those that don’t receive justice for all crimes, not just rape. One of those crimes is false accusations which is often not punished at all even when it is obviously false. We know that at a bare minimum, according to the stats cited by feminists that at least 2-10% of rape/assault accusations are false. I say at least because these are the ones PROVEN false (feminists usually say it as if this is the maximum, rather than the minimum). Either way, those are scary numbers!

            We also have to keep in mind that rape is necessarily a he-said she-said crime so it’s going to be hard to prosecute in all but the best of circumstances.

          • Travis
            Posted September 24, 2017 at 1:11 pm | Permalink

            “You act as if it were a national pastime of women falsely accusing people of rape. That would be nonsense.”

            Forgot to respond to this. It’s not a national past-time BUT as mentioned we’re talking greater than 2-10%, here, and that’s just in this area. It’s well known by now that the family court system favors women in every way and if she wants to make things just a bit easier she can always just claim there was abuse. We also know the duluth model for violence is that of “men beat women” and so there is a high probability that if a man is abused and calls the police then he will be arrested instead… it’s part of their training protocol. Look at what White Ribbon says about violence and if you look even a little beyond the surface it becomes obvious that they frame domestic violence under the duluth model, despite most (I think 80%) of domestic violence being reciprocal.

            What I see when I look around is several systems built up that women can and do leverage against men whether justified or not.

            Now, I don’t think most women are like this, in case you somehow got the opposite impression from me.

  4. simonchicago
    Posted September 24, 2017 at 11:43 am | Permalink

    Many colleges have “codes of conduct” that can impose much lower bars for punishment. There are behaviors that may border on the criminal, but not necessarily lead to conviction, yet be forbidden by the code of conduct. Universities can act in these cases, and the method for determining whether the code of conduct has been violated is to a large extent determined by the university.
    It is up to the institution to establish procedures that do not violate local law — members of the academic community give up many rights by being at the institution.

    • denise
      Posted September 24, 2017 at 3:45 pm | Permalink

      It seems that many of them have set up inquisitions in which the investigators are overtly biased, the accused are not told what they are being charged with or shown the evidence, and there are no transcripts taken.

      I don’t know if this is how the schools conduct tribunals for infractions that don’t involve sex, but if it is then they really need to be reformed. Whether in a court of law or not no one should have judgment passed on him in such an unfair process – especially not if the outcome is going to label him as a criminal.

  5. Torbjörn Larsson
    Posted September 24, 2017 at 12:05 pm | Permalink

    let’s assume they’re men

    Let’s not. The current definition of sexual assault in Sweden incorporates unwanted touching, which seems a rather low bridge to pass for both sexes.

    • Randy schenck
      Posted September 24, 2017 at 12:19 pm | Permalink

      What difference does the sex make? Over here the standard definition is – Any type of sexual contact or behavior that occurs without consent. Your definition sounds more like assault than sexual assault.

  6. Gregory Kusnick
    Posted September 24, 2017 at 12:17 pm | Permalink

    Most of us pretty much despise the Trump Administration, as do I, but we can’t simply reject everything they do simply because it devolves to Trump. That’s the same kind of mistake Republicans made when rejecting anything that was suggested by Obama.

    I reject this false equivalence. By now we have ample evidence that Trump is a mean-spirited con man with no clue how to govern effectively. We have not just the right but the duty to be deeply suspicious of anything his administration proposes. No matter how benign a policy may appear, his track record gives us all the justification we need to wonder where the catch is and how he’s going to use it to hurt somebody.

    • Carey Haug
      Posted September 24, 2017 at 1:47 pm | Permalink

      Nobody is completely evil and wrong about everything. Hitler is said to have loved animals. Even a stopped digital clock is right once a day.

      This is about fair procedures and not about the character of President Trump which is obviously abysmal.

      • Travis
        Posted September 24, 2017 at 2:34 pm | Permalink

        Right. We should be skeptical of Trump’s administration because it has power, not just because it’s Trump.

        • Gregory Kusnick
          Posted September 24, 2017 at 2:56 pm | Permalink

          The fact that Trump has power makes him dangerous, but what warrants our skepticism is not his power, but his palpable dishonesty and obvious contempt for facts.

      • Gregory Kusnick
        Posted September 24, 2017 at 3:00 pm | Permalink

        I agree that the poll is not about Trump’s character. I’m objecting to Jerry’s claim that liberal suspicion of Trump’s motives is morally equivalent to Republican obstructionism during Obama’s term.

        • Carey Haug
          Posted September 24, 2017 at 5:33 pm | Permalink

          I think it’s more an issue of logic than morality. Assuming a loathsome person always has bad motives is a cognitive error. Even if Trumps motives and actions are bad 99% of the time, he still might do a good thing once in a while.

          • Gregory Kusnick
            Posted September 24, 2017 at 6:19 pm | Permalink

            “Assuming a loathsome person always has bad motives is a cognitive error.”

            Not necessarily. If (hypothetically) a brain injury has rendered someone physically incapable of caring about other people’s welfare, it would be a mistake not to assume their motives are bad, even in rare cases where they happen to do something good.

            Whether Trump displays that degree of sociopathy is something I’m not qualified to diagnose. But again, that’s not the point. The point is that we’re justified in suspecting Trump’s policy initiatives in a way that Republicans were not justified in obstructing Obama’s. The two situations are not equivalent.

            • Carey Haug
              Posted September 24, 2017 at 7:07 pm | Permalink

              Rescinding the Dear Collegue Letter and having the required notice and comment period is the right thing to do. Trump’s motives might not be benign, but it is still Necessary to correct the travesty that the defacto regulations were put in place without the notice and comment period.

              • Gregory Kusnick
                Posted September 24, 2017 at 8:14 pm | Permalink

                We seem to be talking at cross purposes. My comments here are addressed specifically to the remark of Jerry’s that I quoted, not to the Dear Colleague letter.

                If you want to know how I voted in the poll, see my comments in the other thread.

    • Posted September 24, 2017 at 5:51 pm | Permalink

      I would not be surprised in the least that this administration is reversing everything for all the wrong reasons but I am fine with it because these policies had to be changed and my side was never going to do it. Hell half of party has already gone well beyond condoning the change in policy to downright making up stories.

  7. Fré Hoogendoorn
    Posted September 24, 2017 at 12:26 pm | Permalink

    I didn’t vote at first, because I didn’t see that there was a way to vote. Then I realised my ad blocker must be blocking it, and indeed, once I opened the page in another browser, I could see the voting box.

    I’m sure I’m not unique in blocking ads, so maybe that’s why you got fewer votes than you might otherwise have expected.

    • Posted September 24, 2017 at 1:26 pm | Permalink

      I didn’t vote because I do not know enough about this to formulate an opinion. I’m sure there are others.

    • Travis
      Posted September 24, 2017 at 1:46 pm | Permalink

      I had to reload without ghostery for it to work for me. This probably happened to a lot of people without them even realizing. Others simply wouldn’t bother

  8. Posted September 24, 2017 at 12:47 pm | Permalink

    I thought colleges were classed as places of work? If I was stabbed at work I wouldn’t take the matter to my team leader. If there was a fire that wouldn’t just be a matter for management. Where did the idea come from that laws are suspended inside the ‘factory gates’?

  9. Heather Hastie
    Posted September 24, 2017 at 1:24 pm | Permalink

    I wasn’t around when you did the first post so didn’t vote, but I have now.

    I agree that all cases of sexual assault should be handled by the proper authorities. People have been contacting me about this given that I’m a strong feminist, I’ve written in opposition to Betsy De Vos, and I’ve written extensively in opposition to Trump. They therefore expect me to oppose this move.

    However, I think it’s something the Obama administration got wrong.

    There is a rape culture (though I certainly don’t think all men are rapists) and women still suffer because they’re women. However, the Title IX thing was not the way to go. It did damage to the cause of women’s equality, and it wasn’t fair.

    As a woman I don’t want special rights, I want equal rights, treatment etc. Although of course there are men who are the victims of sexual assault too, it is mostly women. There were women who took advantage of the lower bar for proof to make men suffer and they do the cause of women’s equality untold damage.

    A lower bar for proof to me is also another example of the prejudice of lower expectations. The idea that being attacked is something to be ashamed of is the biggest problem for both men and women, and the current situation carries that attitude on. People don’t have to suffer shame when they’re the victim of robbery, burglary, common assault etc, so why do they with sexual assault?

    Calling a man a perpetrator of sexual assault if he’s not is about the worst thing anyone can do. The accusation is always there and virtually impossible to get away from. The problem is that there are a lot of men who get away with it because of attitudes and it’s all too likely an accusation is real. The whole thing needs to be made more fair with victims feeling able to come forward and perpetrators only labelled as such via a proper legal process.

    • Travis
      Posted September 24, 2017 at 1:49 pm | Permalink

      What do you define as a rape culture?

      And when you say there “is a rape culture” do you mean the US (for example) is a rape culture or are do you mean specific areas of the US (such as prison)?

      “A lower bar for proof to me is also another example of the prejudice of lower expectations.”

      I don’t understand what this means. Can you reword it?

    • eric
      Posted September 24, 2017 at 6:55 pm | Permalink

      A lower bar for proof to me is also another example of the prejudice of lower expectations.

      I agree with you in most everything but not necessarily in this. A hundred years ago they had the same standard and advice for juries, but essentially no forensic science. So how did anyone get found guilty? Because those folks recognized that when you can’t know the physical proof, testimony and nonphysical sources of argument must at least allow one to reach the ‘without a reasonable doubt’ conclusion. This was not a lowered expectation applied to women, it was a realistic expectation of what sort of evidence could possibly be available to decide the case. If ‘beyond a reasonable doubt’ is to be applied, it can’t require an impossible level of proof to meet it. For he says/she says types of crimes (was it date rape or consensual?), it is probably not possible for physical confirmable evidence to decide the case. So we can’t make that standard the requirement for conviction…unless we’re willing to say no such crime exists in practice.

      I don’t support any lowered standard for proof of a crime based on sex. But I do support the notion that criminal conviction does not necessarily require the sort of physical, confirmable evidence that only became available in the latter half of the 20th century.

  10. Gordon
    Posted September 24, 2017 at 3:27 pm | Permalink

    I would think that in many jurisdictions that there is a clear difference between the criminal system which requires ‘proof beyond reasonable doubt’ and civil law which relies on the ‘balance of probabilities/preponderance of evidence’.
    While sexual assault should properly be dealt with as a criminal matter the reality will often be that the evidence is not clear enough to establish guilt but may be strong enough to justify a non-criminal penalty (dismissal).
    This is particularly the case with persistent and unwelcome conduct, sexual harassment, bullying etc in an employment context. In employment cases (at least where it is not ‘at-will’ as in the US) the employer’s decision, as it would be in any case of employee misconduct, is likely to be judged on the balance of probabilities or a lesser standard of ‘what a fair and reasonable employer’ might be expected to do.
    These problems become particularly acute of course where there is some ambiguity, for example what looks like a consensual relationship has been/becomes perceived as coerced by an imbalance of power.
    It also needs to be recognised that the courts are likely to also be influenced by the property interests of the employer -ie the ‘right’ to control its workplace as it sees fit.
    Unfortunately the law can be complex and justice difficult to achieve.

  11. eric
    Posted September 24, 2017 at 3:35 pm | Permalink

    While I was disappointed that only 355 people voted (after all, we have over 50,600 subscribers, and you can go back and vote here

    I’m using Firefox and I don’t see the voting box shown in the screen shot at all. Not even when I go right to the post by clicking your hyperlink. So maybe one reason for the low response rate is that not everyone sees it.

    • Posted September 25, 2017 at 3:29 am | Permalink

      I’m using Firefox and Adblock Plus, and was able to see the box and vote without any problem. I just tested that out by going back, and was pleased to note that although I could still go through the voting process, I was informed that my extra vote would not count, as I had already voted. Number of voters now over 400.

  12. Posted September 25, 2017 at 11:50 am | Permalink

    I’ve concluded that this answer only makes sense for the accusations that are in fact crimes. It does not follow from this that there cannot be lower standards for “codes of conduct”, and that can include comportment and those “attitudinal” aspects in addition to the purely academic ones.

  13. Posted September 25, 2017 at 8:18 pm | Permalink

    First, what Keith Douglas said in #12. But second, it’s reasonable for a college to “quarantine” (not *punish*) someone who is reasonably likely to pose a danger to others. Precisely because the criminal code has, and should have, such a high bar of evidence, there needs to be a second layer of protection that an accuser can turn to, in their university, or for that matter their workplace. I voted for “college … clear and convincing evidence.”


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