College sexual assault tribunals back in the news

Philip Greenspun's Weblog 2017-07-13

Betsy DeVos is taking a break from running what is essentially a massive financial services enterprise (the Department of “Education” spends the vast majority of its money on student loans to subsidize American colleges and universities). She’s contemplating dismantling the Obama Administration regulation that forced schools to set up amateur-run sexual assault tribunals with a 51-percent standard of proof. See “Campus Rape Policies Get a New Look as the Accused Get DeVos’s Ear” (nytimes) for example.

I think the best source of information about this topic is found in Missoula: Rape and the Justice System in a College Town (a.k.a. majoring in partying and football), a book by John Krakauer. The book gives the texture of modern campus life (debauched to the extent that the Roman would have been shocked) as well as the texture of the tribunals and regular criminal courts handling sexual assault allegations. You can learn a lot from the book even if you don’t agree with Krakauer that standards for convicting men should be much lower (he does not like either presumption of innocence or “beyond a reasonable doubt” when it comes to litigation following heterosexual sex).

It turns out the government has figured out the same thing that you will after reading Krakauer’s book, i.e., not every American is addicted to OxyContin… college students are usually too drunk to get through the child-proof pill bottle caps:

“Rather, the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right,’” [Candice E. Jackson, the top civil rights official at the Department of Education] said.

I’m wondering if the Trump Administration can have any practical influence in this area. There are currently three systems that operate in parallel. A person accused of rape can be prosecuted criminally in a criminal court (penalty if guilty = prison; penalty if found innocent = $1 million spent on legal fees) and simultaneously prosecuted within the university (penalty = being kicked out without a degree and forfeiting $200,000+ in tuition and fees paid) and simultaneously sued in civil court (penalty = paying a guaranteed $1 million in legal fees to defend the lawsuit through trial and then, if a jury finds 51% likelihood of assault, paying additional money to the plaintiff). The civil and criminal courts aren’t going anywhere. But suppose that Secretary DeVos writes a “Dear Colleague” letter saying “You don’t have to run these tribunals anymore. You can tell people who’ve been assaulted to call 911.” Which universities are going to say “we will tear down this administrative process because we don’t care about rape anymore”?

Some comments from the Times article for the Zeitgeist (at least among Hillary Clinton supporters):

[soxared] It says here that Betsy DeVos is far less interested in sexual assaults on college campuses. She’s more interested in aiding and abetting her boss’s determination to chop down every and any Obama administrative rule, regulation, executive order or directive. She isn’t fooling anyone. Why should she care about victims of sexual predation in academic settings? Her job is to Christianize every American school in America and this charade is the merest show.

[gordy] This woman, DeVos, makes me ashamed to call myself Christian. There is nothing Christin about her shameless attitudes.

[pjswfla] There is something profoundly wrong and evil lurking in the alleged mind of Betsy Devos. She seems to be against anything that makes common sense for students, their decent education, their finances and their well being. Makes sense, come to think of it, when you consider the idiot who appointed her who denies truths – who would not know a truthful statement if it hit him in his orange mug like a brick.

[AP] During undergrad at a huge Big Ten school, I watched the ineptitude of faculty/administrators trying to manage basic behavioral issues with suboptimal results let alone rape cases. … As a woman I take offense at those who refuse to acknowledge the poor judgement and party culture of college life helps foster these crimes. While my friends and I hit the books for our honors degrees and grad school, we watched girl after girl weekend after weekend get amazingly drunk and with horror see them laugh over it and the compromising sexual situations that arose from it. …  Drop the idea that young adults are “entitled” to be in college, the notion that college means partying and some voyage of exploration that focuses on gratification and pulverize the thought that a woman is unable to use her cerebral cortex to comprehend that alcohol plus a dark room at 3am with equally drunk men is a potential set up for mayhem.

[Barry] I think maybe more women ought to be armed. That might cause some males to have second thoughts before proceeding. [Now there will be alcohol, sex, and guns at the party!]

[SD]  Campuses don’t generally share their outcome rates, but Stanford did on May 31: 24% of allegations were thrown out as invalid before ever getting to the investigation stage, and 50% of accused students tried in a hearing were found “not responsible”. Under a preponderance standard, that is equivalent to saying the accused was likely to be innocent. In other words, over half of the accusations were false, unfounded, or just too dubious to be investigated or to receive a decision of “responsible.” NCHERM [ National Center for Higher Education Risk Management!] reports rates of 60% (see their 2017 white paper, page 15). And those are under DCL conditions discouraging cross examination and participation by an attorney, and where there are no penalties for false testimony.

[aeg] [college students] may consider NOT proceeding with intimate behavior before a 24 or 48 hour “get acquainted” or cooling off period…or longer? Hum…no more “one night stands?” [Given the 48-hour interval, assuming that Lover N+1 is not contacted until one day after the student is finished with Lover N, this would limit a college student to no more than approximately 487 sex partners over a 4-year period.]

[Elly] My daughter’s first night away at school… Four drunk people in her dorm room have sex most of the night. [Consistent with Krakauer’s book.]

[William Case] The comments reveal that many readers think that Title IX investigations involve sexual assaults that take place on campus, but almost all take place off campus at private residences. Colleges and universities should not be held responsible for investigating crimes their students commit away from campus during non-school events.

[GSA101] Title IX, as written, prohibits Universities from failing to provide equal educational access on the basis of gender. Since extramarital sex is NOT part of the curriculum of any University that I know of, the Universities are simply not responsible for their students’ activities in that regard. Therefore, they are NOT required to investigate or adjudicate such activities.

[AMarie] Is there a reason the women can’t use the court system to get a restraining order? Those already exist, the burden of proof is much more reasonable (it isn’t a conviction, after all) and it would prevent the assailant, I mean, “accused,” from going on the campus. [Certainly this works for alimony and child support plaintiffs!]

[TOM] It is about time that people realize that perjury does occur for many reasons and no reason at all, and due process is the only way we have a hope of having justice, even if it is a slim hope. [See our litigation chapter for an attorney’s point of view on whether judges can discern the truth: “People who are crazy and sociopathic are great witnesses. They can lie without batting an eye and sound completely credible. That’s why con artists thrive. If we were good at assessing credibility none of us would ever get ripped off.”]

[Jon] I think Donald Trump is destroying this country and an oppose everything I have heard associated with him and his administration. I work towards preventing his policies being implemented. He must be stopped. But this could be the only exception among his policies… if this policy gets rescinded, then perhaps one single good thing would come out of Trump’s election. I never thought I would write something like that. [!]

[Michael] Ms. DeVos, like the man who appointed her, is manifestly unqualified for her role in government; that said, it is a huge relief that the Education Department is finally taking action to rein in the excesses of college sexual assault proceedings. In an effort to comply with the Dept’s Title IX guidelines, universities have adopted policies that would provoke alarm and outrage in any other setting: the accused are denied access to evidence in the cases levied against them; most are denied the right to counsel. Administrators who adjudicate these cases are vulnerable to campaigns of influence and intimidation by students or faculty members with a stated political interest in a guilty “verdict.” Even if exonerated, the accused are routinely forced out of their dorms and even their majors.

[Alina Starkov] Disgusting that those accused of rape are getting any sort of lenience from the government with regards to the schools.

[Deb] Somehow this doesn’t surprise. Betsy Devos’ boss publicly stated his fondness for and skill at successfully committing sexual assault, and how easily he got away with it.

It seems that even in a community of readers where nearly all could agree on the superior virtues of Hillary Clinton, they can’t agree on this issue. The commenters are divided and there seem to be almost as many rationales as commenters.

[You might ask what is my personal perspective? I wrote it up for the Times:

Stepping back from this I’m surprised that nobody asks (1) Why do colleges run dorms and sponsor fraternities/sororities and thereby take on responsibility for what happens during these parties? Why not run classrooms and labs and concentrate on education per se? (2) Why do Americans invest so much money in parking young people for four years in an environment so undemanding intellectually that they can be drunk every night?

]

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