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CrusaderForTruthinessAnna Merlan
6/19/15 10:13am
Federal courts have adjudicated several cases where students accused of crimes sued their schools for essentially conducting a criminal investigation without the standards of due process. The courts’ rationale for continuing to allow it is that a person is not entitled by law to a college education, and being expelled from school does not ruin ones life to the extent of a successful criminal prosecution. Therefore, a lower standard is acceptable.

Leaving aside that there are already big problems with this rationale, a law like the one in this post makes the argument even weaker. Colleges and universities have no business conducting major criminal investigations and trials. There is a criminal justice system in place. Yes, there are many, many issues with law enforcement. I’m not saying otherwise. But there are also built-in ways in which a person who finds themselves on the wrong side of the system can protect themselves. Systems of complaint, appeals, and required transparency. Things that ad hoc, completely opaque and byzantine system of campus disciplinary hearings do not have and should not be required to have.
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  benjaminalloverCrusaderForTruthiness
  6/19/15 10:25am
  I agree with everything you’re saying, but from a practical point of view do the rights of alleged rapists to have a clean transcript trump the safety of other students? If a serial rapist transferred to my university after raping 12 women at another school. There’s no way that a school would be allowed to know his past, because he won’t be convicted for years, if at all, in the criminal justice system. So during the following 4 years when he and his victims are all in school, what actions are the school taking to protect their students from what should be a known threat? If students could sue schools for violating due process in their investigations of rape, can’t they also sue schools for running a system that makes it easy to rape, transfer, and rape again? If I were a victim of a rapist on campus I found out had previously been kicked of another school for rape, I sure as shit would be lawyering the fuck up and suing the school for negligence.
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  CrusaderForTruthinessbenjaminallover
  6/19/15 10:43am
  I understand where you’re coming from, but unfortunately I don’t believe that what you’re describing can be implemented without further issues.
  
  Here’s the first part of the legal definition of negligence:
  
  n. failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not. Negligence is accidental as distinguished from “intentional torts” [...] or from crimes...
  [...]
  In making a claim for damages based on an allegation of another’s negligence, the injured party (plaintiff) must prove: a) that the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public, b) that the defendant’s action (or failure to act) was negligent-not what a reasonably prudent person would have done, c) that the damages were caused (“proximately caused”) by the negligence. An added factor in the formula for determining negligence is whether the damages were “reasonably foreseeable” at the time of the alleged carelessness.
  
  if a college admits a rapist, who then went on to rape Student A, does Student A have a claim for negligence? Condition a) is met. Colleges have a duty to their students to provide a safe environment. c) would usually hold. The rapist wouldn’t be there if they hadn’t been accepted into the university. Which leaves two things: “Reasonably foreseeable” is where this law helps most. If the record is on the transcript, the college definitely knew what was up. As of now, they could reasonably claim ignorance.
  
  b) is the tough one. Even if this law passes, b) is not always going to hold. Your scenario provides a clean break, for sure. A reasonable person would consider a serial rapist to be a threat, and would not allow them on campus. That might even be gross negligence, which is “carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people’s rights to safety.” But what about other scenarios? What about a person accused of a single sexual assault with no physical evidence beyond the victim’s testimony of lack of consent, who has not been convicted in a court of law? Would a “reasonable person” consider the accused to be a danger to everyone around them? Would allowing that person on campus be a breach of the university’s duty to the safety of their other students?
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andsmokeit is mrs tormund giantsbaneAnna Merlan
6/19/15 10:02am
anyone else think these reforms seem more like bullshit stopgap measures? i mean i guess its addressing some issues but it seems like the overall cultural problem is not being addressed at all
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  DennisReynoldsGoldenGodandsmokeit is mrs tormund giantsbane
  6/19/15 10:04am
  All punishment is a stopgap measure. If you could culturally stop crime, you would. You can culturally stop some crime, but some crime is unstoppable. Basically, you could lower the instances of assault, but it would be nigh impossible to do more than that.
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  TooSlick31andsmokeit is mrs tormund giantsbane
  6/19/15 10:06am
  Changing a cultural problem is an extremely slow process that is helped along by “stopgap” measures. Each little thing we do to try to address the issue shows the rest of society that we don’t feel these behaviors are acceptable. Legislation is one way to influence that cultural change. Little pieces of legislation pave the way for larger pieces. As the problems begin to lessen due to legislation put in place, culture begins to shift because we start seeing the benefits.
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AshleyAshesAnna Merlan
6/19/15 10:07am
For the life of me I entirely don’t understand why American Universities can investigate and try sex assaults in some weird thing that exists outside of the criminal justice system. o.O
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  ThisismyBurnerAshleyAshes
  6/19/15 10:55am
  Theres no punishment outside of expulsion. Think of it as a civil case. You could have a criminal case and a civil case for the same thing but the criminal case punishes the person with jail time while the civil case is for damages.
  
  Also criminal cases take a long time to reach a conclusion so by the times its all over the person could have transferred schools or graduated already. I was a witness to a shootout when I was about 16 and I didnt have to testify in court about it until I was 18.
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  hardcöre umlautAshleyAshes
  6/19/15 10:55am
  For the same reason that your employer can fire you for committing assault even if you have not been convicted in a court of law. Universities do not conduct criminal investigations. Students can report to their college and the police at the same time.
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HippoplatymooseAnna Merlan
6/19/15 10:07am
Why are schools investigating them at all? They are a criminal matter. The police should be handling it. If convicted, there is a permanent record. If acquitted, then the person is not guilty. Or is that just too logical?
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  CrusaderForTruthinessHippoplatymoose
  6/19/15 10:20am
  The problem is that criminal investigations can take years and the criminal justice system is deeply flawed in many ways. But I understand your point. I’m in favor of colleges taking steps to isolate an accused violent offender from their victims while crimes are being investigated, perhaps by required that they take online courses or live in different dorms, but I don’t think they should be allowed to basically hand down a conviction with no input from an actual legal agency.
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  hardcöre umlautHippoplatymoose
  6/19/15 10:48am
  Colleges do not investigate rape and sexual assault as criminal matters. They investigate them as violations of the student code of conduct, to which all students are held. Violations of the student code of conduct can and do result in punishments, ranging from small (taking an ethics course) to suspension and expulsion.
  
  If a student files a complaint with a college, he or she can also report their rape or assault as a crime to the police.
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PrincessMonsterTruckAnna Merlan
6/19/15 10:02am
Don’t colleges do criminal background checks? I also thought applications asked if you’ve been convicted of a crime? I would imagine this would come up during the admissions process, but I’m not opposed to putting it on the student’s school record. Although, in MA CORI checks are lamentably poor so putting it on the school record would be an advantage.
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  HauptjPrincessMonsterTruck
  6/19/15 10:08am
  This is for disiplinary charges filed by the school. Not criminal charges filed by the state.
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  SashaSuePrincessMonsterTruck
  6/19/15 10:13am
  I don’t think colleges do necessarily do criminal background checks. In any case, an offense that was handled on campus, rather than by outside law enforcement, wouldn’t show up on a criminal check. Nor would a student have been convicted of a crime, so he or she could legitimately answer no to any application questions on the subject.
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TayTayTrutherAnna Merlan
6/19/15 9:56am
I read that as “victims of sexual assaults” would have it noted on their records and briefly blacked out.
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  My dear, sweet brother Numsie!TayTayTruther
  6/19/15 10:33am
  I wouldn’t be surprised if it was =/
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Bob LeDrewAnna Merlan
6/19/15 10:12am
Jeez, the next thing you know someone’s going to suggest that sexual assault be treated like a CRIME or something. This PC shit has to STOP!
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  WhaaattBob LeDrew
  6/19/15 11:27am
  ...I feel like you just used this as an excuse to complain about being PC because nothing about this or the general conversation on sexual assault and sexual violence on college campuses is anything close to PC.
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  Bob LeDrewWhaaatt
  6/19/15 4:38pm
  Listen. You try to slip a pill into some girl’s drink and then have sex with her while she’s in an altered state of consciousness and then leave her... well, somewhere... to sober up, and see what happens. You’ll probably get CHARGED with a CRIME or something. I mean, the monkeys are running the zoo here.
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DennisReynoldsGoldenGodAnna Merlan
6/19/15 9:54am
Would this open up even more legal action for the lack of due process colleges show when adjudicating issues of sexual assault?
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