Colleges, assaults and carrying the weight
February 6, 2015 12:09 PM   Subscribe

A look at Emma Sulkowicz's (The Columbia University student who carried a mattress around campus as a statement and art project) accused rapist, Jean-Paul Nungesser (who was found innocent by the university, but branded as guilty by the public) and the messy intersection of colleges handling assault cases themselves, instead of police dealing with the reported crimes. The Columbia University student newspaper weighs in.
posted by Brandon Blatcher (166 comments total) 21 users marked this as a favorite
 


Universities absolutely should not be handling cases of rape and sexual assault themselves, either through internal disciplinary measures or the campus police. Anytime there's an accusation of sexual assault it should be handed over to the actual police and crimially prosecuted if there's found to be a case to answer. University handling of sexual assault cases is frequently shoddy and it's not at all surprising how ready a LOT of university officials are to overlook cases of sexual assault against student athletes, or to punish them with what amounts to a rap on the knuckles. Case in point: one Jesse Matthew, accused of the abduction, rape and murder of at least two women who were students at the University of Virginia. He attended Liberty University on a football scholarship, and was expelled after being accused of rape (for which charges were never brought). He then went to Christopher Newport University (where he was also on the football team), and was again accused of sexual assault...and again, no charges filed; he quit the football team and left the school (presumably under pressure). So here's at least one case where lax enforcement by university officials led to a serial rapist (and future multiple murderer) escaping prosecution.
posted by Pseudonymous Cognomen at 12:21 PM on February 6, 2015 [15 favorites]


When I read the Daily Beast article (the Nungesser link) I thought it was pretty damning, drawing parallels to the Rolling Stone fiasco. However, I think Jezebel's response today, with some excellent reporting, raises many issues with the Daily Beast coverage that I wasn't aware of.
posted by blahblahblah at 12:21 PM on February 6, 2015 [3 favorites]


Universities absolutely should not be handling cases of rape and sexual assault themselves, either through internal disciplinary measures or the campus police.

Whether or not they should be, they are currently required to by federal law.
posted by KathrynT at 12:25 PM on February 6, 2015 [21 favorites]


It shouldn't be a choice between higher education institutions "handling assault cases themselves" and "police dealing with the reported crimes." People who have been assaulted can choose to report investigations to police, and assaults can always be investigated and advanced through the criminal justice system to the same extent as they were before. This is the same method that has been used for forever, and it hasn't been effective. So now, higher ed institutions are required to have their own processes for addressing sexual assault allegations as well. This would be in addition to any investigation and prosecution that occurs outside of the institution.

For people who are primarily concerned with the rights and feelings of the people accused of committing sexual assaults (see, for example, the linked Daily Beast article), this is no doubt alarming. But for people who are primarily concerned with the rights and feelings of the victims of sexual assault, this is very positive.
posted by MoonOrb at 12:25 PM on February 6, 2015 [7 favorites]


Yeah, the Jezebel article paints a different picture of the story from the Daily Beast and Newspaper op-ed for me. They talked to three accusers, it sounds pretty damning. While the guy can show some flirty texts after the incident, someone that suffered an attack is not necessarily going to act in predictable ways afterwards so it doesn't feel like a "she's acting like nothing happened so nothing happened" kind of thing.

The Jezebel article really fills out more of the story and explains why it seems the Daily Beast article is aiming to discredit the victim while having the attacker play the victim at the same time.
posted by mathowie at 12:25 PM on February 6, 2015 [23 favorites]


Universities absolutely should not be handling cases of rape and sexual assault themselves, either through internal disciplinary measures or the campus police.

Whether or not they should be, they are currently required to by federal law.


They aren't bound to INVESTIGATE these, they are bound by statute to respond to them. They could respond by contacting the local police and giving over all info...

But I guess institutions like to institute.
posted by hal_c_on at 12:28 PM on February 6, 2015 [6 favorites]


Both the feministwire and capital new york piece engage in this bewildering obfuscation of the facts. Universities do not deal with rape "instead of" the police. There's this frequent analogy thrown around that if you raped someone at a bar/wal-mart/whatever, that you wouldn't expect the private security guards to conduct the investigation. Yes, of course, you wouldn't want them to be responsible for the criminal investigation of a rape charge . . . Good news, they're not! Universities investigations and disciplinary procedures are completely separate and in addition to any done by the police. Which makes sense, because if I were raped in a Wal-mart, I wouldn't want the security to be in charge of putting the rapist in jail, but I would be pissed if they didn't do anything to figure out whether maybe they should be banned from the premises. In many cases, that's all there is to be done, if a victim doesn't want to press charges with the police (as is frequently the case), the only thing that can be done is discipline from the university.

There's tons of work to be done about making campuses safer, and making universities respond better to allegations of sexual assault, but this idea that universities are encroaching on police domain is borderline disingenuous. When a rape on a campus happens, there are two groups that have a problem they need to address, the police, and the university. But since it's the victim's choice which ones get involved, it could be either, just the university, or both.
posted by skewed at 12:30 PM on February 6, 2015 [21 favorites]


The Daily Beast piece is written by Cathy Young, who (as Jezebel points out) can almost always be depended on to take the "But what if feminists and 'victims' really are as bad as MRAs make them out to be?" approach to sexual assault, and campus rape in particular. Her article here is hardly any different.
posted by zombieflanders at 12:31 PM on February 6, 2015 [17 favorites]


The Facebook messages were meaningless in terms of evidence, but it's surprising how much they can affect one, even when one knows about emotional responses and how irrational they can be. My gut reaction was to feel like there must have been some sort of misunderstanding, even though I know they're inapplicable.

I'm not surprised he'd have been very anxious to have them presented as evidence and be mad when they were rightfully excluded.
posted by Scattercat at 12:31 PM on February 6, 2015 [1 favorite]


They could respond by contacting the local police and giving over all info...

They can't, actually.

There is apparently a substantial misunderstanding about the state of the law in this area.

Universities and colleges don't investigate sexual assaults "instead of" police investigations. They are required to investigate whether or not the police investigate. They are no longer permitted to simply rely on police investigations. They can't just "turn it over to the police," or "let the police do their thing" and call it a day.
posted by MoonOrb at 12:32 PM on February 6, 2015 [14 favorites]


The Jezebel article really fills out more of the story and explains why it seems the Daily Beast article is aiming to discredit the victim

It also makes Sulkowicz look even better, and smarter, than she already did, which is something. You can watch, step-by-step, just how quickly and how far she gets ahead of Young's disingenuous attempts to spin the story. It's like a clinic in how to deal with journalistic sleaze.
posted by RogerB at 12:32 PM on February 6, 2015 [22 favorites]


University handling of sexual assault cases is frequently shoddy and it's not at all surprising how ready a LOT of university officials are to overlook cases of sexual assault against student athletes, or to punish them with what amounts to a rap on the knuckles.

Your belief that the real police in a college town would do differently is not supported by the available evidence.
posted by mhoye at 12:33 PM on February 6, 2015 [9 favorites]


They aren't bound to INVESTIGATE these, they are bound by statute to respond to them. They could respond by contacting the local police and giving over all info...

Do you really thing universities should hand over investigation lock, stock and barrel? That would mean requiring a criminal conviction before the university could take *any* disciplinary action. That means a rapist who was (rightly) found not guilty because there was only pretty good evidence that he's guilty would face zero consequences from his university.

The alternative is to actually allow universities to decide that some student conduct is unacceptable even when they are not criminally culpable. Pretty much every other voluntary organization of people adheres to this guideline, be it your place of work or a a book club.
posted by skewed at 12:35 PM on February 6, 2015 [7 favorites]


I was assaulted in a similar manner, by a coworker who offered to give me a ride home since I was too drunk to drive. At the time, I hadn't even explored the ethical issues of having sex with someone who is so drunk they can't drive when you are sober (especially someone you've never dated or had any indication liked you prior to them being drunk and like for example mostly disagreed about things and not gotten along). I knew it was fucked up that things had turned violent and nonconsensual rather suddenly, but in the morning he acted like everything was fine so I acted like everything was fine.

I thought, maybe this is normal? Maybe there was some miscommunication or something so that even though I specifically said I hated anal sex and never wanted to have it, maybe he like, accidentally started doing that while I tried to fight him off? Like "OOPS! I didn't realize it was the wrong place, or that you were screaming and trying to push me off!" I also thought that sense I had said yes, it couldn't be rape. It was just a fucked up thing that happened, that was fucked up. If you go home with a guy, you are saying yes to anything they do to you anyways, and I knew this is the way it is already, I had already been trained.

I was friendly and nice in the morning, he drove me back to my car. I cried in the car on the way home. I know he could see it but he didn't say anything. I tried to cover it up.

I still worked with him so I acted like everything was cool. It still feels surreal to me. I remember I ran into him at a party and he said, sounding genuinely friendly "Hey it's good to see you, didn't know you would be here!"

And I was like, does he think I don't know what happened? Does he think what happened was just normal sex? Has he done that to others? I still feel like, based on his reaction, I think maybe he doesn't even know, like he just thought that is normal sex and didn't mean anything abusive by it. I don't even expect anyone to believe me.

It's just another anecdata in the fact that trying to act like everything is cool and it's no big deal is probably a pretty common response for survivors.
posted by xarnop at 12:39 PM on February 6, 2015 [118 favorites]


I've said this before:

Letting colleges adjudicate rape cases internally is the same as letting the Catholic Church adjudicate pedophilia cases internally. The laws that require them to carry out investigations are misguided.

As the linked Spectator editorial says, colleges should educate, and the police should prosecute.
posted by beagle at 12:41 PM on February 6, 2015 [1 favorite]


Letting colleges adjudicate rape cases internally is the same as letting the Catholic Church adjudicate pedophilia cases internally. The laws that require them to carry out investigations are misguided.

Again, this has been repeated so often, I really don't understand. Does the Church's investigation preclude the possibility of a separate police investigation? Do you think the catholic church should do nothing if a priest is not convicted of molestation? After all, he's not guilty beyond a reasonable doubt, so there's nothing to investigate?
posted by skewed at 12:46 PM on February 6, 2015 [2 favorites]


What universities are required to do under Title IX is outlined in the 2011 Dear Colleague letter, which you can find here (pdf). This is the framework, mandated by the government, that universities must use to deliberate sexual assaults.

Specifically, see pg 9 which requires an "Adequate, reliable, and impartial investigation of complaints".

Considering that this letter is the framework almost all college are adjudicating sexual assault under, the fact that it comes up in so few of the articles about college sexual assault I find very unsettling.
posted by yeahwhatever at 12:46 PM on February 6, 2015 [7 favorites]


Letting colleges adjudicate rape cases internally is the same as letting the Catholic Church adjudicate pedophilia cases internally.

If your concern is that higher ed institutions will not take assault accusations seriously, doesn't a law that requires them to address the allegations make it more likely that the accusations will be taken seriously? And if the accusations then aren't taken seriously, wouldn't such a law allow you to hold the institution accountable?

Also, I can't help but think of your point of view as relying on a pollyanna-ish conception of our police and prosecutorial system, some kind of wonderland where sex assaults are always taken seriously, investigated thoroughly, and convictions secured.

As skewed was alluding to above, what about the situation where a person has been sexually assaulted goes to the police, and there is no conviction despite evidence that shows the person was more likely than not to have committed the rape? You'd prefer that the college takes no action then?
posted by MoonOrb at 12:47 PM on February 6, 2015 [2 favorites]


Your belief that the real police in a college town would do differently is not supported by the available evidence.

Probably not, no, considering how the Jerry Sandusky case was handled, among others. There are some pretty serious problems in the way police in general (and campus authorities and other investigators, sadly) treat sexual assault victims: "what were you wearing? How many drinks did you have? Why were you in his room?" All too often the attitude is "well, you clearly got yourself into this situation, and this young man says that what happened was consensual, if you'd really been raped you wouldn't have taken so long to report it and we can't press charges because there's no evidence and anyway we wouldn't get a conviction so hopefully you'll learn from your mistake." (Which is part of the reason that 20% of women attending US colleges report having been sexually assaulted).
posted by Pseudonymous Cognomen at 12:48 PM on February 6, 2015


Letting colleges adjudicate rape cases internally is the same as letting the Catholic Church adjudicate pedophilia cases internally. The laws that require them to carry out investigations are misguided.

What should be the alternative? The university cannot require the victim to report to the police. The police cannot investigate if the complainant doesn't file charges (and the university can't be the complainant, since the university was not the victim). Should they also not be allowed to kick students out for violating university rules on drinking, or academic matters?

If you work in the US, your workplace has a procedure for handling sexual harassment complaints. Do you think they shouldn't? Should they instead have a policy of requiring the complainant to file criminal charges? What about when the incidents don't rise to level of criminal? Should they be forbidden from taking any action against the alleged harasser unless the alleged victim files a complaint with the cops?
posted by rtha at 12:49 PM on February 6, 2015 [13 favorites]


Columbia Spectator: The university adjudication system, especially the concept of due process that is meant to protect all of us, failed Paul Nungesser, who was officially found innocent and yet still presumed guilty by the masses.

what
posted by OmieWise at 12:51 PM on February 6, 2015 [11 favorites]


"PALO ALTO -- Appearing in court for the first time since his arrest garnered national attention, former Stanford student-athlete Brock Turner pleaded not guilty Monday to sexually assaulting an unconscious, half-nude woman earlier this month outside a campus fraternity party."

This guy was literally caught in the act by two students who happened by, and who chased him down. He voluntarily withdrew from Stanford, but should Stanford not be allowed to separate him unless there is a criminal investigation, or a trial finding him guilty?
posted by rtha at 12:53 PM on February 6, 2015 [4 favorites]


Columbia Spectator: The university adjudication system, especially the concept of due process that is meant to protect all of us, failed Paul Nungesser, who was officially found innocent and yet still presumed guilty by the masses.

Just like the California criminal justice system failed OJ Simpson, I suppose?
posted by Pseudonymous Cognomen at 12:53 PM on February 6, 2015


who was officially found innocent

I was unaware of this exciting and dramatic development in constitutional law and our criminal justice system!
posted by MoonOrb at 12:55 PM on February 6, 2015 [35 favorites]


I don't understand this Title IX bit at ALL. Somebody please explain because there seems to be confusion even within this thread.

Had universities previously been botching these investigations (I wouldn't even call it botching, I'd call it covering up), I'd take AWAY all power from them being involved.

To me, it seems like the next step is to have employers do their own internal investigation before deciding that an employee who alleged rape is credible and reporting it to the police.

The university cannot put rapists in prison. Why are they involved? They couldn't do anything to stop the rape, and in some cases they even create or cultivate an environment conducive to sexual assaults taking place.

Why the fuck are they involved?

Then I see shit like Stanford.

Not only are they doing their own sanctions, but they have the police involved as well. Because why the fuck not?
posted by hal_c_on at 12:57 PM on February 6, 2015 [1 favorite]


What should be the alternative? The university cannot require the victim to report to the police. The police cannot investigate if the complainant doesn't file charges (and the university can't be the complainant, since the university was not the victim). Should they also not be allowed to kick students out for violating university rules on drinking, or academic matters?

Yes, I think that students should not be punished for copying off another student's test unless the police first charge that student with plagiarism.

Also this should apply in high school too, and students should not be given detention for talking in class unless they are first criminally charged with disorderly conduct.
posted by Myca at 1:00 PM on February 6, 2015 [2 favorites]


The linked opinion piece that ran in the Columbia Spectator isn't the editorial position of the paper, it's an op-ed by one undergraduate named Caroline Williamson. It's inaccurate to say that the Spectator weighed in on the matter (at least by linking to that op-ed; they may well have weighed in elsewhere), and it's inaccurate to attribute Williamson's words to the Spectator.
posted by burden at 1:02 PM on February 6, 2015 [7 favorites]


> Not only are they doing their own sanctions, but they have the police involved as well. Because why the fuck not?

Title IX does not prevent the police from investigating. Does. Not. Never has.

Separate, but related: Police are not a shining example of How to Investigate Sexual Assault.

Title IX in does a lot of things, and one of the things it does is require universities and colleges to have a policy on campus for dealing with (including educating, preventing, investigating) sexual assault and harassment.

> Yes, I think that students should not be punished for copying off another student's test unless the police first charge that student with plagiarism.

Plagiarism is not a criminal matter. A lot of things you could get fired from your job for doing (or not doing) are also not criminal matters. So you shouldn't be fired because it's not criminal?

Workplaces and educational institutions are allowed to set policies for what they will fire or separate people for. Even if those things aren't criminal matters. This isn't new, or unusual.
posted by rtha at 1:06 PM on February 6, 2015 [6 favorites]


There was never enough evidence presented to the public to expel Nungesser from school or convict him in court, so there should not have been enough to convict him in the media.

Usually people don't explicity conflate the legal and the moral, or insist that we subsume our private judgments to the courts. Unfortunately, it seems that Columbia doesn't require ethics.

Clearly a second-rate institution.

Also, I'm unsurprised that more people have stepped up with accusations against Jean-Paul Nungesser.
Repeat Rape And Multiple Offending Among Undetected Rapists[PDF], David Lisak and Paul M. Miller
Pooling data from four samples in which 1,882 men were assessed for acts of interpersonal violence, we report on 120 men whose self-reported acts met legal definitions of rape or attempted rape, but who were never prosecuted by criminal justice authorities. A majority of these undetected rapists were repeat rapists, and a majority also committed other acts of interpersonal violence. The repeat rapists averaged 5.8 rapes each.
posted by the man of twists and turns at 1:06 PM on February 6, 2015 [12 favorites]


Lugging a mattress around campus is a hell of a lot of effort to go to for a so-called "false accusation."
posted by Gelatin at 1:07 PM on February 6, 2015 [16 favorites]


Relevant to this discussion:

Sexual assault on campus: How too many institutions of higher learning are failing to protect students (Congressional report, PDF)

Major takeaways:


More than 40 percent of schools have not conducted a single investigation of a sexual assault in the last five years;

More than 21 percent of the nation’s largest private institutions conducted fewer investigations than the number of incidents they reported to the Department of Education, with some institutions reporting as many as seven times more incidents of sexual violence than they have investigated;

21 percent of schools provide no sexual assault response training to faculty and staff;

More than 10 percent of institutions surveyed do not have a Title IX coordinator, as required by federal law;

33 percent of schools failed to provide basic training to the people adjudicating claims in campus judicial proceedings. 43 percent of the nation’s largest public schools let students help adjudicate cases. 22 percent of institutions give athletic departments oversight of cases involving athletes;

Only 16 percent of schools conduct climate surveys;

Law enforcement officials at 30 percent of institutions receive no training on how to respond to reports of sexual violence, and 73 percent of institutions have no protocols on how the institution & law enforcement work together to respond to such violence.

posted by Pseudonymous Cognomen at 1:08 PM on February 6, 2015 [7 favorites]


To me, it seems like the next step is to have employers do their own internal investigation before deciding that an employee who alleged rape is credible and reporting it to the police.

Can you point to what's making you think this is true? Because I'd love to figure it out. Universities don't get to decide whether or not to report a sexual assault to the police. The victim makes the decision whether or not to press charges. Under title IX, universities have to report incidents of sexual harrasment, assault, etc. to the school community and keep records. (this was previously posted by yeahwhatever, read page 9). They are not required to report these to the police, although it's unclear if they can or if that is exclusively the victim's right. Again, it's definitely the victim's exclusive right to press charges or not. Beyond that, universities often take steps to discipline their students outside of the criminal justice system. There is no either/or choice here.
posted by skewed at 1:15 PM on February 6, 2015 [6 favorites]


I don't understand this Title IX bit at ALL. Somebody please explain because there seems to be confusion even within this thread.

Here are some resources people can check out that might help them in participating in the conversation here:

NotAlone.gov

2011 Department of Education "Dear Colleague Letter" (pdf).

Questions and Answers on Title IX and Sexual Violence (pdf).

Generally, Title IX prevents sex discrimination in education. Sexual assault is a form of sex discrimination, because it is an action that is based on sex and denies the assaulted student equal access to education. When a school is made aware of an assault allegation, Title IX requires the school to "take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment,
prevent its recurrence, and, as appropriate, remedy its effects." Consequently, this means that schools are required to do things like conduct fair and impartial investigations, have defined processes for handling assault accusations, and use a uniform standard of evaluating the sufficiency of the evidence (which is a preponderance of the evidence).

This is all in addition to whatever investigation a police department might do. Here are some examples of how this can play out:

A. A student reports to her local police department that she has been raped by another student. She tells no one at the university and the university doesn't otherwise have reason to know this has occurred. The university is not obligated by Title IX to take any action, unless and until it becomes aware of the accusation. The case will proceed through the criminal justice system.

B. A student reports to her university that she has been raped by another student. She also reports this to her local police department. The university elects to take no action, and abide by whatever outcome the criminal justice system yields: if there is a conviction, they will expel the convicted rapist. Whatever the outcome is, the university has violated Title IX by failing to take any steps until finally waiting for the result of the criminal justice proceedings.

C. A student reports to her university that she has been raped by another student. She does not report this to the police. The university declines to take action because it believes that it is the responsibility of the criminal justice system to address sexual assault allegations and refuses to investigate or to move the alleged attacker to another dormitory. The university has violated Title IX.

D. A student reports to her university that she has been raped by another student. She does not report this to the police. The university convenes a hearing before 2 professors and a student, and allows the student who has been accused to have a lawyer, but the student-victim is given no lawyer. The standard of evidence is "clear and convincing," and the panel concludes that the evidence falls short of this standard. The university will have violated Title IX because its process falls short of what is required at least in two respects--not allowing her equal access to the process (not letting her have legal representation) and using the improper burden of proof (clear and convincing vs. preponderance of the evidence).

E. A student reports to her university that she has been raped by another student. She reports this to the police and she reports this to the university. The university appoints an independent investigator, who conducts a number of interviews and concludes that a preponderance supports the allegations. In the meantime, the police investigate and there is a trial in which the other student is acquitted. The university expels him based on its own investigation. The university has not violated Title IX. The university likely would also not have violated Title IX had its independent investigation concluded that a preponderance of evidence did not support the allegations.
posted by MoonOrb at 1:23 PM on February 6, 2015 [31 favorites]


It's interesfing how all these hypotheticals and objections to the additional investigation only come out when the discussion is about rape.

There's really no justification for taking issue with it, unless you believe to some degree in the whole false accusations gambit. Whether you're going to admit it or not, it's an ethics in gaming journalism sort of thing. What's sooo concerning about these additional investigations? I mean other than that they almost always find the guy innocent, and it's usually pretty kangaroo court-ish. But this is never about improving them, it's more about "why do they exist?" Which is always pretty well established as soon as this horse gets ridden out.

People just seem way too invested in the idea that false accusations and unjust punishment is a thing, when reality seems to demonstrate that these guys walk nearly every time. Persecution complex much?
posted by emptythought at 1:24 PM on February 6, 2015 [7 favorites]


How to Make an Accused Rapist Look Good

Thanks for linking to that!

The author of the Daily Beast article (second link in the post), is now Tweeting as shoddy reporting. Jesus, it's bad enough with he said/she said now it's "reporters" fighting over what really happened.
posted by Brandon Blatcher at 1:25 PM on February 6, 2015


Thanks for telling your story, xarnop. I'm so sorry that happened to you.

Reading about your experience right after reading through the stories people shared on the thread about disasters made it click in my mind. I've always heard (and believed) that it's not right to judge women for not responding to assault in the way we'd expect, and that people can act in unexpected ways that shouldn't be used to draw conclusions on the truth of what they went through. However, something about reading story after story about people's seemingly-illogical responses to earthquakes and car crashes and fires--where we're thrust into a dangerous context we've never been in before, and our brains can't quite process information fast enough to act in ways that seem obvious in hindsight--then reading your story made me understand on a much more gut level how reasonable and predictable it is for women to respond to unexpected violence with reactions (like acting as though nothing happened) that don't seem to make sense when you're calmly reading about it thousands of miles away.

Anyway. I didn't want to let your story get lost in the Title IX debate without acknowledging that it was really valuable for me to hear. I hope you're doing okay (or as okay as you can be) on the other side of it.
posted by iminurmefi at 1:28 PM on February 6, 2015 [18 favorites]


Plagiarism is not a criminal matter. A lot of things you could get fired from your job for doing (or not doing) are also not criminal matters. So you shouldn't be fired because it's not criminal?

Sorry, rtha, I may not have been clear enough that I was being a sarcastic ass there, and was pulling (what I thought to be an obvious) reducto ad absurdum on the "this is a job for the police only" position.

Totally my bad, but suffice it to say, I agree with you.
posted by Myca at 1:33 PM on February 6, 2015 [1 favorite]


Jean-Paul Nungesser (who was found innocent by the university, but branded as guilty by the public)

Just somewhat close to editorialising here
posted by ominous_paws at 1:34 PM on February 6, 2015 [5 favorites]


Cuomo and O'Driscoll are speaking from a position of deep ignorance (or active disinformation) about what disciplinary procedures are about.

Let me use an analogy. I'm staff at a college. I have a code of ethics and behavior. If I violate that code of ethics or behavior, my employment can be terminated at will regardless of whether those actions also involve the criminal justice system.

College disciplinary procedures are the student equivalent. If the student violates a code of ethics and behavior, they can be suspended or expelled. Until this happens, the student can attend class, live in student housing, and use campus facilities.

emptythought: It's interesfing how all these hypotheticals and objections to the additional investigation only come out when the discussion is about rape.

Yes, we can discipline a student for cheating, plagiarism, vandalism, and drinking beer. But apparently we can't discipline a student for sexual assault.
posted by CBrachyrhynchos at 1:38 PM on February 6, 2015 [6 favorites]


What's sooo concerning about these additional investigations?

I don't really have a problem with the fact that there are additional investigations, as such; what I have a problem with is that those additional investigations are very often poorly executed (see above re problems with sexual abuse reporting and adjudication processes on college campuses; when some institutions report seven times as many assaults as investigations, there's clearly something wrong with the system.)
posted by Pseudonymous Cognomen at 1:40 PM on February 6, 2015


Brandon Blatcher: “The author of the Daily Beast article (second link in the post), is now Tweeting as shoddy reporting. Jesus, it's bad enough with he said/she said now it's ‘reporters’ fighting over what really happened.”

Indeed! How nice it would be if Cathy Young hadn't dived in and written the terribly-researched and hideously biased pile of nonsense that started it, eh? It sounds distinctly as though Emma Sulkowicz has every right to be pissed off at her.
posted by koeselitz at 1:44 PM on February 6, 2015 [13 favorites]


For people who are primarily concerned with the rights and feelings of the people accused of committing sexual assaults (see, for example, the linked Daily Beast article), this is no doubt alarming. But for people who are primarily concerned with the rights and feelings of the victims of sexual assault, this is very positive.

How about we be "primarily concerned" with the truth?
posted by kgasmart at 1:50 PM on February 6, 2015 [4 favorites]


I understand the cognitive dissonance people have with the idea of universities investigating sexual assault.

Society has a mechanism for sorting people accused of serious crimes into the guilty and the not guilty. That mechanism is the police and the courts. If that mechanism is broken, fix the mechanism, don't jury rig some weird parallel system inside another structure (universities) serving completely different purposes. The parallel structure will be less effective at this task it is not designed for, add yet more layers of bureaucratic crud to universities, and will either be inefficient and replicate the results of the police and courts, or worse come to a different conclusion, finding a party guilty by one system and innocent by another which offends a desire for simplicity.

In principle I support this argument and would be opposed to universities getting involved. In practice the whole system is so terribly inadequate, sad, and resistant to change that even poorly conceived, designed, and executed patches such as this one are probably improvements.
posted by pseudonick at 1:56 PM on February 6, 2015 [1 favorite]


> Sorry, rtha, I may not have been clear enough that I was being a sarcastic ass there, and was pulling (what I thought to be an obvious) reducto ad absurdum on the "this is a job for the police only" position.

Whew! I did wonder, but then I decided that since other people have said similar things (not sarcastically!) in threads on this topic, that this was like that. Whew, again!
posted by rtha at 1:56 PM on February 6, 2015 [1 favorite]


Universities don't have crime labs or subpoena powers, they can't compel testimony from witnesses, and it's not illegal to lie to them; they also often use procedures that are byzantine, bizarre, and unfair (to one party or the other or both), with inadequate or nonexistent powers of appeal, making ad hoc decision not subject to precedent. The people running these tribunals often have no experience or training in either investigative procedure or in legal thinking.

The idea that university tribunals are an adequate substitute or supplement to the criminal justice system is just completely inscrutable to me, as a feminist. We've seen over and over again that this is a horror show both for victims and for the accused. Get universities out of the business and fix the cops and the courts instead.
posted by gerryblog at 2:06 PM on February 6, 2015 [9 favorites]


How about we be "primarily concerned" with the truth?

Young doesn't seem to be particularly interested in that.
posted by zombieflanders at 2:07 PM on February 6, 2015 [8 favorites]


Yes, we can discipline a student for cheating, plagiarism, vandalism, and drinking beer. But apparently we can't discipline a student for sexual assault.

Apparently not. Just not in the way you mean; of sexual assault cases subject to university adjuducation, only 10-25% result in the offender, after having been found "responsible", being expelled.
posted by Pseudonymous Cognomen at 2:16 PM on February 6, 2015 [1 favorite]


An interesting and depressing Guardian article was linked in the comments on the Jezebel piece. Just remember that a lot of the statements in the first paragraphs sort of follow Betteridge's Law, and link to event coverage, not studies. There is a link later on to a depressing study.
posted by halifix at 2:18 PM on February 6, 2015 [1 favorite]


Just somewhat close to editorialising here

Had I seen the Jezebel link, I would have probably kept that phrase and contrasted it with the info from JBell. What's fascinating to me about all this is the back and forth of who's innocent/guilty and the college holding "court" on the matter.
posted by Brandon Blatcher at 2:25 PM on February 6, 2015


What's fascinating about that? Aren't those the central issues?
posted by fivebells at 2:27 PM on February 6, 2015


What's fascinating about that? Isn't that the central issue?

Human perceptions, motives and reactions to events and situations. Why do people those things I can't imagine? How do others react to those things done? Where's the truth in the different accounts? And how a university's "court" differs from judicial court in methods, fact finding and sentencing.
posted by Brandon Blatcher at 2:31 PM on February 6, 2015


Using the term "found innocent" is a major error that hurt the credibility of the entire post. The correct wordage SHOULD be "found not guilty", but even that gives the wrong impression. How about "not found guilty"?

And can ANYBODY find me an example of ANYBODY who ever used a false rape accusation to (a) make themselves popular or (b) to make money? I mean, besides a couple MRA dudes, but lying is their Business Model.
posted by oneswellfoop at 2:33 PM on February 6, 2015 [15 favorites]


MoonOrb's examples are illuminating ones, I think. And they help to solidify my thinking that schools simply need to avail themselves of professional investigators when things like this come up.
posted by slkinsey at 2:36 PM on February 6, 2015


And can ANYBODY find me an example of ANYBODY who ever used a false rape accusation to (a) make themselves popular or (b) to make money?

That's not exactly a question one can answer. There are plenty of athletes, celebrities, or just plain rich types who have paid rape accusers off. But how can we know whether they paid them off to avoid having their names smeared and a costly court fight or whether they paid them off because they were guilty? So I don't think your question is answerable.
posted by Justinian at 2:36 PM on February 6, 2015 [2 favorites]


> The idea that university tribunals are an adequate substitute or supplement to the criminal justice system is just completely inscrutable to me, as a feminist.

The idea that universities should have no policy on handling sexual assault or harassment is, to me as a feminist and just a person, also inscrutable, and yet it keeps coming up in threads like this and when I ask what they should do when a student is accused of a violent crime, in terms of kicking the student out (or not), I don't get answers.

Maybe people who say the universities should "get out of the business" of investigating assault don't mean there should be no policy? But if you don't mean that, then what do you mean?

And...given the link upthread about the number of universities that don't investigate (in violation of federal law), well, you see the result. No investigations - that is what you want, yes? That doesn't seem to work, though. So what do you propose instead? If you say "go to the cops", please be specific: who should go? If the police won't take a report from the university, then what? Etc.
posted by rtha at 2:46 PM on February 6, 2015 [8 favorites]


Human perceptions, motives and reactions to events and situations.

Ah, right, I agree.
posted by fivebells at 2:55 PM on February 6, 2015


Maybe people who say the universities should "get out of the business" of investigating assault don't mean there should be no policy? But if you don't mean that, then what do you mean?

I don't think that any institution should be trusted to self-police; the fact that 22% of universities make the athletics department part of the adjudication process when an accused sexual offender is a student athlete is pretty much the opposite of "fair and impartial", for instance. The system of investigation and adjudication of sexual assault on American university campuses as currently implemented and executed is pretty clearly broken in a lot of ways (so is investigation and prosecution of sexual assault by the police and criminal justice system, but that's another although related topic); there's an argument that the sanctions imposed by university tribunals on students found responsible for sexual assault (one-semester suspensions, non-academic suspensions, suspension from sports teams, etc) are a Title IX violation in themselves, since keeping sex offenders on campus where they'll have contact with their victims creates a hostile environment for those victims.
posted by Pseudonymous Cognomen at 3:06 PM on February 6, 2015


Letting colleges adjudicate rape cases internally is the same as letting the Catholic Church adjudicate pedophilia cases internally. The laws that require them to carry out investigations are misguided.

I'm the author of that comment upthread, which got several responses ( 1, 2, 3)

1. Do you think the catholic church should do nothing if a priest is not convicted of molestation? The point is that today the police do in fact get brought in from the start in this kind of case, because after the horrors of trying it the other way, everybody agrees they should be. If the priest is not ultimately convicted, the church can make its own decision about how to proceed. I didn't say they should do nothing. The parallel in colleges is that the college is in a conflict; it has a reputation, and a business, to protect — same as the church did. And, they don't have the necessary tools and expertise to investigate and adjudicate.

2. As skewed was alluding to above, what about the situation where a person has been sexually assaulted goes to the police, and there is no conviction despite evidence that shows the person was more likely than not to have committed the rape? You'd prefer that the college takes no action then? Same as the church, the college could do what it thinks is best. But the case would have gotten the professional investigation it should have, first. Wouldn't you have the cops be the primary investigators of a campus murder, or even a non-sexual assault? Why should rape or sexual assault be different?

3. What should be the alternative? The university cannot require the victim to report to the police. The police cannot investigate if the complainant doesn't file charges (and the university can't be the complainant, since the university was not the victim). Should they also not be allowed to kick students out for violating university rules on drinking, or academic matters? If you work in the US, your workplace has a procedure for handling sexual harassment complaints. Do you think they shouldn't? Should they instead have a policy of requiring the complainant to file criminal charges? What about when the incidents don't rise to level of criminal? Should they be forbidden from taking any action against the alleged harasser unless the alleged victim files a complaint with the cops? Too many questions to address, but rape is not the same as workplace sexual harassment (which is not a crime per se, although it can involve acts that are themselves crimes). Rape in the office — the cops would be called, wouldn't they?

Regarding that plagiarism detour: Sure, you can reductio ad absurdum down to the petty crime level, but we're talking about felonies here, and people's lives.

The argument for making the police be the primary investigators is best laid out in this article, which was linked in the original post, but seems to have escaped attention from many here.
posted by beagle at 3:08 PM on February 6, 2015 [3 favorites]


hal_c_on: "The university cannot put rapists in prison. Why are they involved? They couldn't do anything to stop the rape, and in some cases they even create or cultivate an environment conducive to sexual assaults taking place."

They are required to create a safe and equal environment for female students, or lose federal funding (both direct and indirect), pursuant to Title IX. The federal government has informed colleges that their failure to protect female students from sexual assault is a massive failure to provide equal educational opportunities for women. If they wish to retain their federal funding, they must correct this problem so that female students may attend federally-funded universities safely and on equal footing with their male peers.

Colleges do not, in fact, have to do a damn thing to try to reduce sexual assault on campus, or to investigate sexual assault accusations. They just have to give up federal funds and not allow tuition to be paid with federal financial aid. If, however, they choose to accept federal funding, they are required to provide female students a safe educational environment.
posted by Eyebrows McGee at 3:19 PM on February 6, 2015 [29 favorites]


To add to what beagle said, we have to recognize that the primary reason universities are being leaned on to investigate sexual assault is because the federal government has such direct governing power over them via federal education spending, not because they're the smartest or best place to intervene in their own terms. Separation of powers makes it much easier to require policy of universities than of local police departments, so that's what the federal government does. But this is a kludge that comes from despairing of any possibility of direct reform of police agencies and state and local courts; you'd never "start with the colleges" except for the unhappy belief that there's no hope anywhere else.

If I were in charge of everything I'd abolish incarceration for drug convictions and petty crimes and use the cost savings to have (reformed) local police agencies investigate crimes like sexual assault fairly, promptly, and responsibly. I'd have university consequences following criminal convictions rather than trying to anticipate or preempt them. That's what I mean when I say "fix the courts" instead; I don't think Title IX can ever be an adequate substitute for a functioning legal system and the results of the last decade of trying demonstrate that quite clearly.
posted by gerryblog at 3:20 PM on February 6, 2015


There is apparently a substantial misunderstanding about the state of the law in this area.

There's some ignorance, but there is an awful lot of deliberate misstating of the facts as a way to attack Title IX.
posted by Dip Flash at 3:24 PM on February 6, 2015 [6 favorites]


It seems to me that people taking the position that universities shouldn't investigate rape allegations are advocating for a world where rape victims have to continue to be on campus with their rapists, or transfer, unless and until the rapist is convicted or takes a plea. Even setting aside the well-known problems with police investigations of rape, this is condemning the rape victim to spend a year (or longer, if the accused has an aggressive defense attorney) seeing the person she regards as a rapist on the quad, in class, even in the dorm.

I think that world is worse than the world we have, and a heck of a lot worse than the world we'd have if universities took their responsibilities to protect their students from sexual assault as seriously as they take their responsibilities to protect their students from fighting, underage drinking, or plagiarism.
posted by burden at 3:29 PM on February 6, 2015 [7 favorites]


The Facebook transcript felt a little funny, but I bought into the original article a bit as I was reading it.

That is, right up until the inclusion of the offhand (public, listserv) email containing the (horrors!) dildo joke. It reminded me that it was more than just one person making the accusation (strike one) and referring to it as "evidence" just smacked too much of desperation (strike two). Now I'm suspicious.

Then the reporter goes on to talk about the accused's family (strike three). If you have to go to the family for bona fides, you're either not digging very deep, or you have no where to dig.
posted by smidgen at 3:30 PM on February 6, 2015 [7 favorites]


> Too many questions to address,

Then I'll pick just one: Universities can kick students out or suspend them for non-sexual violent acts, even if police are not involved. Are you saying that the university should not do anything unless the police are involved?

In the workplace, if Bob and Tom get in an argument in a meeting and Bob punches Tom, work can fire Bob even if Tom doesn't want to call the cops and file charges. Is it your feeling that that shouldn't be the case? That's assault. It may be a felonious assault, depending on the circumstances and jurisdiction.

Rape and sexual assault are terrible things, terrible crimes. But I am always very uncomfortable in threads like this when it seems like some people want to put them on such a Special Crimes Pedestal that nothing should be done about them unless the heaviest guns are brought to bear on them. "They're different, not like Bob punching Tom at all" doesn't feel like it holds water, when the result is often "Well, work could and should discipline for assault, but not if it's sexual assault, then they shouldn't do anything unless cops are involved." Why is okay if Tom doesn't want to call the cops, but somehow not okay if Alice doesn't want to because Bob groped her?
posted by rtha at 3:32 PM on February 6, 2015 [23 favorites]


It seems to me that people taking the position that universities shouldn't investigate rape allegations are advocating for a world where rape victims have to continue to be on campus with their rapists, or transfer, unless and until the rapist is convicted or takes a plea.

But you could say the same thing of a rape victim (or a victim of any other crime) in any other context. I think for better or worse that's how the presumption of innocence works and has to work. We can't preemptively punish the accused on the name of victim protection.
posted by gerryblog at 3:33 PM on February 6, 2015 [4 favorites]


In the workplace, if Bob and Tom get in an argument in a meeting and Bob punches Tom, work can fire Bob even if Tom doesn't want to call the cops and file charges.

But that's a clear cut case of an assault in public, in front of many witnesses: it's using a higher standard of evidence than criminal courts, not a lower one. A closer example would be that Bob claims Tom mugged him in the parking lot after closing, which Tom denies. Do I think the employer should convene a tribunal with its own self-generated procedures and rules of evidence to try to get to the bottom of it? No, not really. Do I think Tom should be preemptively fired purely on the basis of the accusation? Also no. And in most contexts I think MetaFilter would share in my suspicion of increasing the arbitrary power of institutions outside the law and outside the possibility of appeal.
posted by gerryblog at 3:46 PM on February 6, 2015 [6 favorites]


Except that's not how the presumption of innocence works on college campuses with respect to many other types of infractions, both criminal and non-criminal. Colleges expel and suspend students for fighting, drinking in the dorms, selling pot, cheating on tests, getting bad grades, etc., whether or not a court of law has (or could) convict a student of the same.

Carving out rape and saying that colleges can't ever discipline students for it until the student has been convicted in criminal court is inconsistent with what colleges do all the time, and that carve-out benefits rapists and harms rape victims.
posted by burden at 3:48 PM on February 6, 2015 [20 favorites]


But I am always very uncomfortable in threads like this when it seems like some people want to put them on such a Special Crimes Pedestal that nothing should be done about them unless the heaviest guns are brought to bear on them.

I get the feeling from responses here that since the campus investigation went so badly, people are advocating for automatic police involvement to hopefully get a better chance at justice for the victim, to make the accusation/crime/investigation have real legal teeth to it.

I haven't seen mentions of what the police did in this specific case, did Sulkowicz go to the police after the campus failed her?
posted by mathowie at 3:52 PM on February 6, 2015


A closer example would be that Bob claims Tom mugged him in the parking lot after closing, which Tom denies. Do I think the employer should convene a tribunal with its own self-generated procedures and rules of evidence to try to get to the bottom of it? No, not really.

Do you not have a job? If two of my employees come in and claim that one mugged the other, I'll be spending the next month in meetings with them and HR, effectively being part of an internal tribunal to determine if a violation of our personnel code of conduct occurred. That will happen whether or not anyone calls the police and irrespective of any conviction in a court of law.
posted by Dip Flash at 3:55 PM on February 6, 2015 [25 favorites]


Same as the church, the college could do what it thinks is best. But the case would have gotten the professional investigation it should have, first. Wouldn't you have the cops be the primary investigators of a campus murder, or even a non-sexual assault? Why should rape or sexual assault be different?

I feel as if your solution ignores the distinction between the level of proof required to convict someone of sexual assault (beyond a reasonable doubt) and the level of proof that Title IX requires higher ed institutions to use in determining whether a sexual assault occurred (a preponderance of evidence). This differential has consequences--few people are convicted of sexual assault even when there is significant evidence of their guilt. As a result, there could be enough evidence to demonstrate that they more probably than not raped someone, but not enough to convict--permitting the student to return to campus.

Also, I think you're confused about the process because you bring up the idea of a "primary" investigator. If you're relying on the linked article you referred to in order to reach your ideas about this matter, I guess that makes sense--I have read the article and the article likewise is confused on this issue. It's been pointed out a number of times already in this thread--the investigatory process is not "given over entirely" to a university as the article claims. The article you linked from the FPP is just simply wrong on this point.

The two investigatory processes are independent. One of them is not primary--you are the one insisting on naming a "primary" investigator here; that's not actually the way the law works (or should work, in my opinion). It's not like I'm asserting that a university's investigation takes precedence over any police investigation. I absolutely think the police should investigate sexual assaults, just like they should investigate murders and other assaults.

The reason why universities are not required to conduct their own investigation into things like murder is because murder is not an institutional problem with colleges and universities the same way that sexual assault is.

The are other important considerations here, too, like if you were to refuse to let universities investigate sexual assaults of their students, the criminal justice process could take many months to even years to reach a conclusion; it also bears thinking about that the criminal justice system hasn't exactly had a great track record of handling sexual assaults to begin with, so the whole "leave it to the experts" argument isn't as compelling.
posted by MoonOrb at 3:56 PM on February 6, 2015 [6 favorites]


Generally speaking colleges are using not using a preponderance of the evidence standard to expel students for fighting or selling drugs in the dorms. If you're getting kicked out those things it's because you got caught red-handed doing it by campus authorities, not because a tribunal has concluded it's more likely you did it than not. Plagiarism is adjudicated at a very high standard of evidence. Bad grades is also "beyond a reasonable doubt," by definition. The current interpretation of Title IX is requiring campuses to use a standard of evidence much lower than the criminal courts or the typical standards for expulsion. I doubt anyone would say that a campus is powerless to expel someone whose participation in a rape is beyond dispute, but those represent very few cases.

I haven't seen mentions of what the police did in this specific case, did Sulkowicz go to the police after the campus failed her?

The Daily Beast article says she hasn't gone to the police because she feels it would be too draining, which it uses as a point of evidence against her.
posted by gerryblog at 3:58 PM on February 6, 2015 [2 favorites]


It took me two years to cut ties with my rapist because I loved him. I will never go to the police because there's no point. Many men and women raped by people they care about are in a similar position.

That doesn't make it any less a rape.
posted by Deoridhe at 4:00 PM on February 6, 2015 [17 favorites]


How about we be "primarily concerned" with the truth?

Yes, right--it's a given that we should be primarily concerned with the truth. I'm assuming that. But if the discussion is about whether we should be more concerned about the rights and feelings of people who are accused of sexual assault or the rights and feelings of people who have alleged they have been sexually assaulted, it's okay to use the phrase "primarily concerned with"--I meant "primarily concerned with between those two particular choices that I was discussing," and I feel you were playing gotcha with me there by acting as if that is mutually exclusive with considering The Truth. It isn't.
posted by MoonOrb at 4:02 PM on February 6, 2015 [4 favorites]


Same as the church, the college could do what it thinks is best. But the case would have gotten the professional investigation it should have, first. Wouldn't you have the cops be the primary investigators of a campus murder, or even a non-sexual assault? Why should rape or sexual assault be different?

Jesus, I don't even know what to say at this point, since it's all been said before. POLICE ARE ALWAYS THE PRIMARY INVESTIGATORS FOR A CRIME. The university investigation/punishment is IN ADDITION TO, not "instead of". When a victim decides to report a rape to the police, THE POLICE ARE ALWAYS INVOLVED. If she decides not to report to the police, she can choose to report it to the university. Or, she can choose to REPORT TO BOTH. The only way a university is the "primary investigator" is if there is no CRIMINAL investigation, and that would happen if the victim chooses not to report the crime.
posted by skewed at 4:03 PM on February 6, 2015


Generally speaking colleges are using not using a preponderance of the evidence standard to expel students for fighting or selling drugs in the dorms.

Here's Columbia University's website discussing disciplinary procedures. Section 447(k), which sets forth procedures for serious violations (not just sexual assault) states as follows:

The Hearing Officer promptly after the conclusion of the hearing shall prepare and send to the Rules Admin­istrator and the respondent and such respondent's adviser, by hand delivery or registered mail, a written decision with an explanation of the reasons therefore, either acquitting the respondent of the charges or finding the respondent guilty of the charges on the basis of the clear preponderance of the evidence.

So, preponderance of the evidence is indeed the standard at Columbia for all accusations of serious violations. Why should it apply a higher, "beyond dispute," standard for accusations of rape?
posted by burden at 4:09 PM on February 6, 2015 [6 favorites]


There is another scenario that MoonOrb didn't articulate, and this scenario is currently being played out in the real justice system:

A student informs the University that they were raped. The University assembles the internal tribunal consisting of faculty, students, administrators. The accused student is not allowed to have any assistance or representation, is not able to question the accuser, and is not allowed to present any relevant evidence that may be supportive. The tribunal hears the accusers version of events, questions the accused within the above parameters, finds that the accused student likely committed the assault (preponderance of the evidence), and expels student. The expelled student then sues the University under Title IX for not providing a fair and equitable process in which the accused could defend themselves. In other words, while some universities barely respond to reported rapes, others have reacted to the Feds with internal overreach in terms of process and procedures.

I get the feeling from responses here that since the campus investigation went so badly, people are advocating for automatic police involvement to hopefully get a better chance at justice for the victim, to make the accusation/crime/investigation have real legal teeth to it.

What is the evidence that the campus process went badly? Is it because they didn't have a preponderance of the evidence to find him guilty? A finding of not guilty is not evidence of a failed process.
posted by Seymour Zamboni at 4:18 PM on February 6, 2015 [6 favorites]


The other angle on this is what I was saying above, which is that colleges don't have the evidentiary powers to investigate rapes fully because they lack various things that actual courts have, like forensics labs and subpoena powers. I would suspect that university tribunals actually have a lower conviction rate than you'd expect because accusers are able to marshall less and less convincing evidence than they could in a criminal investigation.

So, preponderance of the evidence is indeed the standard at Columbia for all accusations of serious violations. Why should it apply a higher, "beyond dispute," standard for accusations of rape?

I see what it says and maybe Columbia is special or maybe I'm behind the times on current residence life procedures, but I am skeptical that very many people are being thrown out of college because someone has concluded there is a 50.001% chance they were drinking or fighting, even as they protest their innocence. I don't think it makes sense to compare how we judge responsibility for felonious assaults to how we judge responsibility to those types of infractions; it's a category error.

To be very clear, though, my claim is not that colleges are expelling too many or too few sexual assaulters but that procedures that rely on colleges to investigate crimes outside a legal context are going to produce perverse results no matter how careful to try to be about it. They just don't have the resources and the authority to do it right.
posted by gerryblog at 4:20 PM on February 6, 2015 [2 favorites]


Here's Columbia University's website discussing disciplinary procedures. Section 447(k), which sets forth procedures for serious violations (not just sexual assault) states as follows:

What a wacky coincidence, because UCLA, the very first university I checked for also uses a preponderance standard for disciplinary matters.

Oh, also at the second university I checked, Ohio State.

And also at the third university I checked, University of Wisconsin. I literally just thought up of large school names and found the first three all use the preponderance standard. Weird stuff.

gerryblog, are you sure about that "generally speaking colleges are using not using a preponderance of the evidence standard"?
posted by skewed at 4:20 PM on February 6, 2015 [8 favorites]


We can't preemptively punish the accused on the name of victim protection.

So the university should not be concerned either for the safety of fellow students, or the maintenance of a non-hostile environment? Should a university not deal with sexual harassment that doesn't break the law?

Consider a non-university example: take the science fiction convention WisCon. They had a problem where multiple women reported being harassed by Jim Frenkel. Going by your notion, should the correct response of WisCon have been "Well, he's not arrested, so there's nothing we can do"?

Likewise, was BayCon's attitude of "Well, Walter Breen isn't currently in jail, so keys not warn parents to keep their children away from him" the correct action to take?

Bite if you would agree that these organizations could and should take action to protect people and promote a non-toxic environment, even absent convictions went does this not apply to universities?

Are you really contending that a student could repeatedly attend up in lecture and scream "show us your tits!" and the university shouldn't take action? Or is it OK if he just does it outside to female students?

In an open carry state, would it be OK in your book if a man carried a shotgun and told women to disrobe? As long as he's not breaking the law that is...what should female students have to put up with to make you happy?

Seriously, what is your solution, if universities should have no say in the behavior of students? Is it that women should avoid universities altogether?
posted by happyroach at 4:23 PM on February 6, 2015 [4 favorites]


To be very clear, though, my claim is not that colleges are expelling too many or too few sexual assaults but that procedures that rely on colleges to investigate crimes outside a legal context are going to produce perverse results no matter how careful to try to be about it. They just don't have the resources and the authority to do it right.

You have struck a fatal blow to the arguments of the zero people who are arguing that we should let the university disciplinary procedures take the place of the normal criminal investigative process rather than complement it.
posted by tonycpsu at 4:25 PM on February 6, 2015 [7 favorites]


Here is the disciplinary procedure manual for sexual assault (PDF) from my alma mater. It says a whole lot, in part:
2. Standard of Proof.
All findings and determinations of responsibility under this policy will be made using a preponderance of the evidence standard. With respect to any factual issue, this standard requires the determination of whether it is more likely than not that a fact exists or an event or violation of this policy occurred.
posted by rtha at 4:29 PM on February 6, 2015 [2 favorites]


skewed, like I said, perhaps times have changed, but I do not recall people being thrown out of college because there was a slightly greater chance that they were drinking than not when I was an undergraduate fifteen years ago. The (very) limited number of people I know of who got suspended or expelled were caught completely dead to rights.

Seriously, what is your solution, if universities should have no say in the behavior of students? Is it that women should avoid universities altogether?

The examples in your post are again examples of being doing things in public in front of many witnesses. Rape and sexual assault very rarely have that level of undeniability, which means (1) accusers need access to more evidence than they can get outside a police context (2) we risk railroading the accused if we take the 50.0001% standard seriously. Both are true and both are bad in my opinion.

I am a professor at a university and perhaps being skeptical of university administrators is in my DNA but I have very little faith in the ability of colleges to adjudicate these processes properly.

You have struck a fatal blow to the arguments of the zero people who are arguing that we should let the university disciplinary procedures take the place of the normal criminal investigative process rather than complement it.

Then truly my work is done.
posted by gerryblog at 4:30 PM on February 6, 2015


Also, here (again, PDF) is what is called the Dear Colleague Letter from the U.S. Dept of Education, Office of Civil Rights, which requires institutions to use the preponderance of evidence standard:
A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
posted by rtha at 4:34 PM on February 6, 2015 [3 favorites]


There is another scenario that MoonOrb didn't articulate, and this scenario is currently being played out in the real justice system:

A student informs the University that they were raped. The University assembles the internal tribunal consisting of faculty, students, administrators. The accused student is not allowed to have any assistance or representation, is not able to question the accuser, and is not allowed to present any relevant evidence that may be supportive. The tribunal hears the accusers version of events, questions the accused within the above parameters, finds that the accused student likely committed the assault (preponderance of the evidence), and expels student. The expelled student then sues the University under Title IX for not providing a fair and equitable process in which the accused could defend themselves. In other words, while some universities barely respond to reported rapes, others have reacted to the Feds with internal overreach in terms of process and procedures.

When you say "this scenario is currently being played out in the real world," do you mean that it could happen in the real world or that it has actually happened? If it's actually happened I'd be interested in being pointed to the news articles and/or court pleadings that would accompany that kind of lawsuit, because that scenario is an interesting one to me, if it is one that really exists. I know that Harvard, for example, has come under criticism--some from its own faculty--suggesting that it has tilted the balance too far toward the accuser and too far away from the accused, but I haven't heard of any actual examples of this happening, I've only heard of people raising this situation as part of a parade of horribles of what could happen as universities alter their processes to attempt to comply with Title IX.
posted by MoonOrb at 4:35 PM on February 6, 2015 [2 favorites]


Then truly my work is done.

Actually, if you're a professor who admits that he might be "behind the times on current residence life procedures", I would say that you might still have some work to do.
posted by tonycpsu at 4:35 PM on February 6, 2015 [5 favorites]


do you mean that it could happen in the real world or that it has actually happened?

They are actually happening. Here is a quick review. Google "Title IX lawsuits by accused rapists" for more.
posted by Seymour Zamboni at 4:41 PM on February 6, 2015 [2 favorites]


rtha, I feel like we've looped around to my first two comments in this thread: that's the legal requirement I'm responding to that I think is an error. Colleges can't investigate rape claims to a prepondence of the evidence standard with any reliability because they don't have the resources: asking them to do so hurts both victims and the accused.

MoonOrb, here's a recent IHE piece on men suing universities under Title IX after what they say are botched rape investigations.

tonycpsu, I absolutely take your point, but part of the origin of my frustration with these procedures is precisely that professors are being conscripted into this process as mandatory reporters. I tend to agree with those who say that this is a mistake that will hurt victims by cutting off their ability to discuss their assaults with professors in confidence, and will likely have the opposite of the intended effect (less reporting, not more). I don't think rape or sexual assault is special in this regard, but it isn't very amenable to black-and-white thinking or automatic procedures; it definitely isn't something that we should be confident colleges can just take up without really thinking through how that's actually going to work.

I've been speaking too much in this thread, in part out of a feeling that I've been much too inarticulate about a subject I take very seriously, and I apologize. I'll back off now.
posted by gerryblog at 4:44 PM on February 6, 2015 [2 favorites]


Thanks Seymour Zamboni and gerryblog! I'm surprised I hadn't heard of those instances, considering Title IX has been such a hot topic in the last few years. I'd love to sometime read the pleadings in those lawsuits. I think it's wacky that schools would not allow an accused to have legal representation.
posted by MoonOrb at 4:47 PM on February 6, 2015


but part of the origin of my frustration with these procedures is precisely that professors are being conscripted into this process as mandatory reporters.

I was caught in this last year on my campus. How this works for faculty is nuanced, as determined by the Clery Act. A student informed me that they were raped. I didn't know what to do. I contacted the University Counselling Center for advice. They informed me that the Clery Act states that if your relationship with the student is just "professor-student" in the context of a regular course, then no, I am not mandated to report the rape to my University. However, if my relationship with the student includes advising or mentoring in some capacity outside of the normal classroom, then yes, I am mandated to report the rape, but I am not required to give the University the name of the student who told me. In my case, I was the student's academic adviser so I was mandated to report it to the Campus police. So I called the campus police and told them. They then talked to me about why I should reveal her name to them. An investigation can't happen without a name. And such an investigation might yield evidence of a repeat offender on campus, or perhaps the incident didn't occur on campus at all, etc. So I revealed the name. They assured me that I did the right thing but I felt uneasy about it, even though the student never asked me to keep the information private.
posted by Seymour Zamboni at 5:01 PM on February 6, 2015 [9 favorites]


One thing that I think colleges CAN actually reasonably address, that has been largely left out of the current discussion, is multiply-accused individuals. This young man has had FOUR accusations of rape leveled against him -- let's pretend none of his victims had gone public or to the police but instead had all made Title IX complaints and then declined to follow up. At the very least, Columbia is now aware that this guy has a very serious problem in interpersonal relationships and, even if it's not clear-cut rape, is making very bad choices about sex in situations where consent is questionable. A lot of research lately has focused on how a small number of men perform a huge number of rapes. On college campuses where alcohol, age, hormones, social norms, etc., make consent issues somewhat more complicated than in regular adult life, a guy who has FOUR sexual assault complaints against him is a guy who needs to be addressed.

And maybe the college does that by requiring him to live in off-campus housing, or only allowing him on campus for the hours his classes are in session, or requiring him to take a semester or two off, or sending him to mandatory counseling, or putting him on a behavior plan, or probation. It doesn't necessarily have to be expulsion. But you hear all the time about these guys who have five and six and seven sexual assault complaints against them, but none of them are ever quite clear-cut enough for a criminal case to go forward or the local police are terrible or the girls are afraid to come forward, and the university is the only institution aware that this guy is a serial offender, and ALL THE TIME when a student-athlete gets criminally charged with sexual assault (because those cases get the press), it comes out in the press that the university had had half a dozen complaints lodged against him and did nothing. That's a serious problem, and that's low-hanging fruit for colleges to start addressing.
posted by Eyebrows McGee at 5:26 PM on February 6, 2015 [23 favorites]


> Colleges can't investigate rape claims to a prepondence of the evidence standard with any reliability because they don't have the resources: asking them to do so hurts both victims and the accused.

It seems like asking them to hold to "beyond a reasonable doubt" would make it even more burdensome. But they must do something, have some standard or policy.

From my alma mater - not a hotbed of radicalism or out on the cutting edge of student affairs, so this is probably not that unusual in terms of student discipline - here is their policy for violations of university rules and policies of the more mundane sort (academic, e.g.), and it reads in part:
22. Formal rules of evidence and courtroom procedures are inapplicable. The COS may hear and consider any information it considers to be trustworthy and to have probative value. As set forth above, the Chair is empowered to make all procedural rulings, including rulings on relevance and admissibility of information.
posted by rtha at 6:00 PM on February 6, 2015 [1 favorite]


Universities absolutely should not be handling cases of rape and sexual assault themselves, either through internal disciplinary measures or the campus police.

It is absolutely nonsensical to me that this happens at all. If someone is guilty of rape, there is almost always mandatory jail time, at least within the California penal code. As serious as this consequence is, it's uncoscionable that anything but a dedicated legal system investigate to determine the outcome of such a serious accusation. Can a university impose jail time? If no, then GTFO of here. Additionally, universities have a built-in conflict of interest on more than one level. For just one example, universities are required by law to report crimes on campus. Crimes on campus have a negative effect on enrollment, especially crimes of rape. I'd like to think that the administration could be objective, but the scales of justice should be blind, not hopefully unconflicted without knowing for sure.
posted by SpacemanStix at 6:27 PM on February 6, 2015


If someone is guilty of rape, there is almost always mandatory jail time

You mean if someone is FOUND guilty of rape.

There are a whole lot of people who ARE guilty of rape who have nevertheless not been found guilty. Due to the nature of the crime, there are some cases where people who are obviously guilty of rape can't be found guilty in a criminal sense, because the burden of proof in criminal court is so high. To argue that colleges should have no power to punish people who haven't been found guilty of rape is nonsensical.
posted by KathrynT at 6:35 PM on February 6, 2015 [20 favorites]


beagle: Same as the church, the college could do what it thinks is best. But the case would have gotten the professional investigation it should have, first. Wouldn't you have the cops be the primary investigators of a campus murder, or even a non-sexual assault? Why should rape or sexual assault be different?

We have this little thing in the United States called freedom of religion. Ecclesiastical courts (or elders, or committees) can't make felony convictions; but the criminal justice system can't defrock. And that's kind of a big deal because clergy like the Rev. Martin Luther King sometimes engage in civil disobedience. We have similar independence for academic institutions, who can expel for misdemeanors or offer degrees to convicted felons.

My (probably unpopular) opinion is that churches and academic institutions should have a zero tolerance policy regarding violent felonies on property or against staff and students/members/etc. To use Jerry Sandusky as an example, Penn State should have:

1. Reported to police and assisted with any investigatory procedures.
2. Suspended him, escorted him off campus, and barred him from campus.

Which is about what I'd get if I assaulted a co-worker or student. My employer would escort me out, my termination would be processed by the end of the day, and they probably wouldn't apologize if I was found not guilty by a jury later. And I have no problem with that standard.

I don't buy the notion that a high level of evidence or a criminal conviction is required for church or academic sanctions. The high standards of the criminal justice system exist because the defendant can lose life, liberty, or property as a result.

Credentials and use of property are privileges of association. A student deprived of credit for Anthropology 101 at Old Ivy may end up taking the equivalent course at Enormous State. A minister dismissed from a position from one church can sometimes go to another. A person may be rejected by one organization and accepted by a different one. Associations can expect certain things from their members (show up, don't rape). And they can deny membership when those expectations are not met.

Universities are privileged institutions that routinely deny an education to applicants on the basis of interview questions and SAT scores. Many more students drop out of the college due to poor performance or pre-college preparation than are expelled. Treating suspension or expulsion as a life-ruining action equivalent to felony conviction betrays an astounding lack of perspective.
posted by CBrachyrhynchos at 8:09 PM on February 6, 2015 [18 favorites]


To argue that colleges should have no power to punish people who haven't been found guilty of rape is nonsensical.

No, of course they should. I was arguing that it is severely minimizing to the seriousness of the crime to suggest that this be a primary mode of assessing guilt. The default response should not be that it be left up to a university decision making process to handle internally.

Universities absolutely should not be handling cases of rape and sexual assault themselves,

It's the "themselves" part that grates and is nonsensical, and to which I'm responding. I'm all for universities adding additional punitive responses to a more formal legal process. A formal legal process shouldn't be a backup in case the university process didn't go well. From what I gather, this sometimes happens and doesn't make sense to me.
posted by SpacemanStix at 8:31 PM on February 6, 2015


I'll turn the work situation around. I don't think I would be able to work in the same building as a person who assaulted me. That's not who I am, that's not the nature of the job I trained for. Either they go, or I go.

Failing to take active steps to provide a safe and secure learning environment for rape survivors means that that you will force some of them out. Which is why it's a Title IX issue.
posted by CBrachyrhynchos at 8:35 PM on February 6, 2015 [2 favorites]


For people who are primarily concerned with the rights and feelings of the people accused of committing sexual assaults (see, for example, the linked Daily Beast article), this is no doubt alarming.

What a choice. I think civil liberties and due process of law trump feelings here, of anyone.
posted by raysmj at 8:35 PM on February 6, 2015 [1 favorite]


No, of course they should. I was arguing that it is severely minimizing to the seriousness of the crime to suggest that this be a primary mode of assessing guilt. The default response should not be that it be left up to a university decision making process to handle internally.

Would you then compel a rape victim to take the case to the police, even knowing that such cases are invasive, dehumanizing, rarely done well or fairly, and have a burden of proof so high that there's almost no likelihood of getting a conviction?
posted by KathrynT at 8:41 PM on February 6, 2015 [1 favorite]


A formal legal process shouldn't be a backup in case the university process didn't go well. From what I gather, this sometimes happens and doesn't make sense to me.

Victims sometimes choose not to report to police, which is a reasonable choice given how badly the police deal with these matters most of the time. A lot of sexual-assault survivors just want their rapist to be moved to a different dorm, or to be able to change their schedule so they're not in the same classes, and those are not things the police can do, which is why sometimes survivors report to a university official but not to the police.

It would be like asking your landlord to take your abusive partner off the lease but not calling the police to press charges.
posted by jaguar at 8:47 PM on February 6, 2015 [7 favorites]


What a choice. I think civil liberties and due process of law trump feelings here, of anyone.

I wasn't suggesting a choice between "civil liberties and due process of law" and "feelings." What I was describing had to do with the reactions of people who do care about the feelings of people--for people who care most about the feelings of those accused of sexual assault, yes, the requirements of Title IX will indeed be alarming.

That's not the same thing, though, as saying that "the feelings of people who make sexual assault allegations are so significant that we should forego due process," which is how it looks as if you interpreted my comments.

People are free to argue that Title IX denies due process to people accused of sexual assault, I guess. I mean, it's a thin argument, and one that's apparently failed so far--see the linked articles provided by Seymour Zamboni and gerryblog upthread which allude to this.
posted by MoonOrb at 8:52 PM on February 6, 2015


for people who care most about the feelings of those accused of sexual assault, yes, the requirements of Title IX will indeed be alarming.

Why are you bringing "feelings" into it? I can see some of the preponderance of the evidence talk above as reasonable (although comparing rape charges to plagiarism charges is asinine). Still, I do care about the rights of those accused of major felonies, always, no matter what they're charged with. Feelings have nothing to do with it.
posted by raysmj at 8:58 PM on February 6, 2015


Do you care as much about the rights of those who are alleged to be victims of major felonies, raysmj?
posted by KathrynT at 9:03 PM on February 6, 2015 [2 favorites]


Would you then compel a rape victim to take the case to the police, even knowing that such cases are invasive, dehumanizing, rarely done well or fairly, and have a burden of proof so high that there's almost no likelihood of getting a conviction?

No, I wouldn't, and I should have considered that.

I am sorry, I think my response came across as a bit stronger than I intended, and I could have been a lot more careful in the way that I worded it. My (poorly worded) comments were (supposed to be narrowly) in response to victims who felt compelled to go through a process that is less likely to convict of assault and can be seriously wanting, for whatever reason. (Hence my GTFO was in response to universities that misplay their authority, not that people shouldn't use it as their best-weighed option). I was hoping to convey sympathy to those subjected to a university process that to me is often less than adequate. A victim should pursue whatever they think is their best course of action. I assumed (probably incorrectly) that there may be better options than what I've seen at universities. Thanks for bringing this to my attention.

This was perhaps a place where I shouldn't have said much, but yeah, I am basically just frustrated by those who were genuinely victimized by a system that doesn't leave many good options for justice at all for whatever reasons, and on whichever side of the fence. I couldn't imagine for a second how difficult that is for those who have been victims. I do know, though, that many universities aren't well enough equipped to do this right, even if it seems the lesser of the evils. I shudder to think that our universities are the best options for justice in some scenarios, but it could be that's a situation I didn't give enough consideration.

Again, sorry for my poor wording. I have no voice to say what is best for people. I just know some injustice when I see it, and I find it frustrating.
posted by SpacemanStix at 9:10 PM on February 6, 2015 [4 favorites]


Why are you bringing "feelings" into it? I can see some of the preponderance of the evidence talk above as reasonable (although comparing rape charges to plagiarism charges is asinine). Still, I do care about the rights of those accused of major felonies, always, no matter what they're charged with. Feelings have nothing to do with it.

I could make a similar observation without using the word feelings, maybe? Like, if I were to say "there are some people concerned with the treatment of people accused of sexual assaults. These people don't like the changes imposed by Title IX. They think that the accused are afforded too little protection and they are at risk of being unfairly expelled from school or otherwise sanctioned. On the other hand, advocates for sexual assault victims embrace the new changes because they see them as instrumental in ensuring that sexual assault victims have equal access to education, when for so long the process has been tilted heavily in favor of the accused."

I didn't mean to confuse the issue by using the word "feelings." I was not suggesting that "feelings" are the basis upon which these important policies should be made. I do think, however, that people do have strong emotional reactions to the issue, and I was expressing generally that people who are concerned about the rights of the accused thinks this sucks and people who are concerned about the rights of victims think this is positive.
posted by MoonOrb at 9:11 PM on February 6, 2015


A victim should pursue whatever they think is their best course of action. I assumed (probably incorrectly) that there may be better options than what I've seen at universities.

Yeah, pretty much all available options suck. There are definite advantages to survivors having a way of addressing the day-to-day crisis issues without having to deal with the entire legal system.

Ideally, of course, the legal system wouldn't be so awful. But I tend to think, as someone who does value protections put in place for accused criminals, that I'd much rather that the legal system have higher burdens of proof than a college system trying to decide if a kid should be allowed to stay on campus. Even at their most punitive, the punishment options available to colleges are much less severe than those available to law enforcement; getting kicked out of a college is not even in the same ballpark as being imprisoned.
posted by jaguar at 9:27 PM on February 6, 2015 [5 favorites]


I assumed (probably incorrectly) that there may be better options than what I've seen at universities.

I really wish there were. I really, really wish there were. Sadly, from what I've seen, the process that I went through at my university (the Dean listened to my story, then listened to his, then called us into a meeting and told us to each apologize to each other for our part in the situation, then gave me the option of moving out of the dorm I shared with him into the shitty dorm on the ass end of campus with a black mold problem, then threw me out of school when my grades plummeted) is, in fact, a lot better than what happens when you take this stuff to the police.
posted by KathrynT at 9:28 PM on February 6, 2015 [18 favorites]


I really wish there were. I really, really wish there were. Sadly, from what I've seen, the process that I went through at my university (the Dean listened to my story, then listened to his, then called us into a meeting and told us to each apologize to each other for our part in the situation, then gave me the option of moving out of the dorm I shared with him into the shitty dorm on the ass end of campus with a black mold problem, then threw me out of school when my grades plummeted) is, in fact, a lot better than what happens when you take this stuff to the police.

Thanks for sharing this with me, and I'm really sorry this happened to you. I regret even more that I wasn't more careful in my wording, as sometimes it's easy to forget that there are people who have been affected by similar things during our discussion as we throw words out there. My outrage at lame university processes was perhaps a bit too simplified. Your perspective has helped me think about it in a more nuanced way (although I'm not sure I'm overly comforted by that, as now all the options seem to suck).
posted by SpacemanStix at 9:42 PM on February 6, 2015 [2 favorites]


What rights? The rights protected by criminal due process: life, liberty, and property, are not at stake here. Neither are any of the other rights which felons often lose by statute: gun ownership, anonymity for some crimes, or the ability to vote.

What is at stake? Enrollment, academic credit, and academic credentials. Any of these are more likely to be denied or awarded by scantron machines and SQL queries. Making decisions about these three privileges of university life are among the essential functions of the university. If a university is too liberal with enrollment, they're not picky enough. If a university is too liberal with academic credit, we complain about grade inflation. If a university doesn't kick out a significant fraction of students prior to earning a degree, we complain it lacks competitive rigor.

If you take away that decision-making function, there's a good argument that you should just close down the campuses and provide a grotesquely expensive mail-order catalog for diplomas. I don't know I entirely agree with that argument, but a neo-Marxist critique of the university system is beyond the scope of this discussion.

No rights are at stake here. The privileges at stake here are routinely withdrawn or delayed on the basis of SQL queries as part of the normal and expected function of the university system. My alma mater had a policy of delaying degrees if you had a library fine balance.

What makes ethics violations distinct from the positively banal and bureaucratic mass misery of SQL scripts kicking or delaying the education of hundreds of students a year, is that ethics violations require human review. Therefore, we have due process. But since the sanctions at stake are, in effect, routine and unexceptional, I don't think the standard of evidence needs to be very high. Title IX includes hostile-environment sexual harassment, so the proceedings don't have to prove rape, only an excessive degree of caddishness that a reasonable person would agree created a hostile environment.

The student may or may not walk away with a black mark, which may or may not include detail about the charges in question. But I'm not sure I see that as a rights issue either. You don't have a right to a good reputation, or a good reference from your former college. But since the priority of Title IX is discrimination and harassment in the educational environment rather than criminal justice, I'm comfortable with keeping those records sealed.
posted by CBrachyrhynchos at 10:44 PM on February 6, 2015 [14 favorites]


I think I have two problems with the University adjudication thing.

The first, and to me most important because it reaches well off University campuses into the world, is that the problem isn't that the University is investigating, it's that so few assaults even get that far. Because the police are terrible at investigating, and the justice system is almost designed to revictimize. Those things need to change. Until they do, the focus needs to be on making the tribunals work better, because in so many cases that's as far as it's going.

I seem to recall reading, though my memory might be mixing something up, that there's often a pressure from the administration--and sometimes other students--to not go to the police so as to avoid bad press, though. So I think what universities really need is a totally independent investigation service. Some sort of Federal agency with an office at each school--that's where complaints go, and they're then responsible for being advocates for victims with both police and administration to see justice done. Removing them from the school's control reduces or eliminates opportunities for pressure.

Basically, we need to make the process of charges and court much simpler and less traumatic for victims. University tribunals offer a necessary thing--there needs to be a way to handle certain students, and I'm pretty sure that without them, even fewer assaults would be reported--but they're not doing it properly, so someone independent needs to take over and reform the entire system, not piecemeal school by school. Give students independent advocates who can soften the worst of the process, and improve tribunals at the same time. And keep holding police feet to the fire, and the entire justice system.

That this only applies to Federally-funded universities is appalling. In Ontario, unless I misread, all post-secondary schools are covered by the Ontario Human Rights Code as providers of services

I mean obviously the most important thing to do is get guys to stop sexually assaulting people, but I'm assuming we're all taking that as read.
posted by feckless fecal fear mongering at 12:04 AM on February 7, 2015


That this only applies to Federally-funded universities is appalling.

Virtually every single American university receives some kind of federal funding and is therefore subject to Title IX, so its reach is actually quite extensive.
posted by MoonOrb at 12:11 AM on February 7, 2015 [1 favorite]


I think campus adjudication should at least come with a restraining order (and shuffling of classes if need be) with a zero tolerance policy for violations. If the accuser shows up at the same party in campus housing as the accused, the accused rapist has to leave. If the accused rapist sees their accuser in a dining hall, they have to find someplace else to eat.

If there are multiple accusations against a person, and thus multiple restraining orders keeping them from moving around the school? Kick them out if they won't leave voluntarily.
posted by elr at 1:32 AM on February 7, 2015


And I think that this encapsulates the problem with these sorts of discussions on Metafilter, as in life. For a lot of people, these are not just idle discussions and fun arguments, but conversations about things that happened or could have easily happened or might someday happen to them. It's worth remembering that - not for the sake of shutting down conversation, but maybe think about softening or re-aiming your Cold Hard True Facts and devil's advocacy away from people who have tried to do their best in a terrible situation with crappy options on all sides. For many mefites in these conversations, these are not just words being thrown around.
posted by ChuraChura at 3:19 AM on February 7, 2015 [13 favorites]


And really, it seems like these kinds of conversations have been had frequently enough on Metafilter that people shouldn't have to come out as sexual assault survivors in every single thread for the concerns and rights of survivors or "accusers" to be taken as seriously as the concerns and rights of perpetrators and the accused.
posted by ChuraChura at 3:24 AM on February 7, 2015 [20 favorites]


Indeed, I'd go so far as to say that if you are speaking to a group of people either on or offline you should take into account that almost certainly your audience includes people who have been sexually assaulted. In a group the size of Metafilter it is a certainty that many people in the conversation have been sexually assaulted; it'd be nice if everyone were to approach the discussion with that fact in mind.
posted by winna at 4:54 AM on February 7, 2015 [11 favorites]


People just seem way too invested in the idea that false accusations and unjust punishment is a thing [...]

I know a person who was falsely accused of rape. It quickly became clear that the accusation could not possibly have been true. The police handled it pretty well (i.e., they kept quiet about it while investigating it), but the papers got hold of the accusation and made a big deal of the fact that this alleged rapist hadn't been suspended. So he was suspended (for a couple of months, I think) until the police finally made a very unusual statement to the effect of "we're not going to investigate this one any further". He was un-suspended, but he was still out a lot of legal fees and it must have been a pretty unpleasant few months.
posted by Joe in Australia at 5:21 AM on February 7, 2015 [2 favorites]


My (probably unpopular) opinion is that churches and academic institutions should have a zero tolerance policy regarding violent felonies on property or against staff and students/members/etc.

CBrachyrhynchos: You say that, but the rest of your comment seems to suggest that what you actually mean is that there should be zero tolerance for being accused of a violent felony.

I mean, the current policy is that there's a hearing where a committee looks at the available evidence, and decides if 51% of it or more points towards the accused being guilty. If not, the person doesn't get punished. That seems pretty okay to me, even though it's obviously a system that, like literally any other system of justice/punishment, could lead to bad and unjust outcomes sometimes.

Are you suggesting a system where the accused doesn't get a hearing at all? Or are you suggesting that there should be a different standard of evidence? If so, what should be the bar for this "zero tolerance" of yours? Reasonable suspicion?
posted by tkfu at 5:34 AM on February 7, 2015


And really, it seems like these kinds of conversations have been had frequently enough on Metafilter that people shouldn't have to come out as sexual assault survivors in every single thread for the concerns and rights of survivors or "accusers" to be taken as seriously as the concerns and rights of perpetrators and the accused.

This is certainly true, and it was a good reminder for me. I will say though that at least for myself (as I'm linked to as an example of this), it wasn't an issue of not taking anyone seriously in the first place. I really was, and it was distressing to me. It was a matter of learning that the system was a lot more complicated than I thought, people were stuck in ways that I didn't know at face value, and for that reason, it was pretty helpful for me to hear people tell their story. If anything, it broadened my understanding in ways that, I think, more people should know (although I wish I wasn't so clunky about it). Maybe that was already part of the discussion, though, and I just missed it. In that case, I am sorry again that anyone had to be overly personal about something that should have been more obvious, or that I perhaps should have discerned that better from the articles/discussion.
posted by SpacemanStix at 7:44 AM on February 7, 2015 [1 favorite]


I know a person who was falsely accused of rape. [...] He was un-suspended, but he was still out a lot of legal fees and it must have been a pretty unpleasant few months.

Absolutely, and he has my sympathy, and also, so what? I don't want to seem heartless, but I don't know of a single reputable study that doesn't conclude that sexual assault is vastly under-reported. Nor do I know of reputable studies that conclude that anywhere close to a majority of sexual assault allegations are false. This is an issue where the power, both in word and deed, is clearly on the side of the sexual assaulters, and not on the side of those getting assaulted. Insisting that the outliers be taken seriously comes across as grossly minimizing of sexual assault to the point where one's motivations may be reasonably thought to be suspect.

If it is too inflammatory to think of it in the terms of rape and sexual assault, think of it as a public health issue. Evidence-based medicine makes several recommendations for what screenings are appropriate and when that are based on the statistical probability that the screenings will be accurate and will or will not return false positives or results that can safely be ignored. This doesn't mean the screenings don't save lives in individual cases (and I know someone who was very randomly saved from dying of lung cancer because of a non-approved chest x-ray), but it means that one the whole focusing on those cases where they screenings save lives overestimates their usefulness and underestimates the risk of poor outcomes from the screening. So, for instance, the US Preventive Services Task Force recommends against PSA screening for prostate cancer, even though it some cases it saves lives.
posted by OmieWise at 8:22 AM on February 7, 2015 [12 favorites]


Absolutely, and he has my sympathy, and also, so what?

This attitude worries me. Universities need to get their shit together in dealing with sexual assault, and I absolutely believe that, at the moment, at most universities, the bigger problem is currently not taking victims seriously.

But "getting their shit together" should not mean "Suspending and expelling anyone they can while denying them any semblance of due process to get their numbers up when they're under investigation for violation of Title IX". I think that that (judging by the cases linked to by others) is an issue to be concerned about, and should not be written off with a "So what?".

For a school not under investigation, the motivation is "Sweep rape accusations under the rug so we don't get bad publicity." So, the major worry is not false accusations, it's taking victims seriously.

For a school under investigation, though, the motivation is clearly "Deal with any accusations harshly, so the feds get off our backs". In those situations-- and, let me stress, not in the first, which, again, I agree, is more often the problem-- I think the schools over reaching is a reasonable concern, especially as we're starting to see some evidence of, e.g., accused students getting ineffectual council. And in those cases, we also have the additional worry about the school swinging back around the other way-- "Sweep this under the rug, because we don't want to get sued by an accused student that we expelled"-- or, say, picking and choosing which accused students to expel/suspend based on whether or not the school thinks they'd sue.
posted by damayanti at 9:57 AM on February 7, 2015 [3 favorites]


A couple relevant segments from MSNBC this morning:

Reporting on rape brings significant challenges

The Columbia University rape case in focus (with Cathy Young, author of the Daily Beast piece)

Sexual assault cases re-opened years later
posted by tonycpsu at 10:22 AM on February 7, 2015


tkfu: You say that, but the rest of your comment seems to suggest that what you actually mean is that there should be zero tolerance for being accused of a violent felony.

Well, yes. Use of facilities is a conditional privilege. If a person poses a credible threat to others, that privilege can be withdrawn on a temporary basis until the situation is resolved.
posted by CBrachyrhynchos at 12:29 PM on February 7, 2015 [1 favorite]


CBrachyrhynchos: Well, yes. Use of facilities is a conditional privilege. If a person poses a credible threat to others, that privilege can be withdrawn on a temporary basis until the situation is resolved.

All that statement does is kick the problem down the road to defining what constitutes a credible threat. Just any accusation, by anyone? I would worry that sociopaths would use that as a free "get rid of person I don't like" button.
posted by Mitrovarr at 12:35 PM on February 7, 2015


You're acting as though these institutions don't already have the capacity to evaluate threats for credibility all the time. I mean, what's to stop sociopaths from already using false threats to get rid of people they don't like?
posted by KathrynT at 12:46 PM on February 7, 2015 [5 favorites]


I would worry that without taking accusation seriously even without proof it would be used as a free "rape anyone you want" as long as you don't leave physical evidence or eyewitnesses. Which.. it is. Currently people who rape without leaving evidence can always claim it's a he said she said issues therefore there is some doubt, therefore such rapists can never be persecuted or held accountable by anyone anyone.

And many want to make sure that beyond that, communities and institutions aren't allowed to make decisions based on the knowledge our system currently protects rapists from persecution and therefore there are many rapists free among us.

People who claim there has to be "evidence" are upholding the rights to rape individuals as long as you make sure there's no video evidence or witnesses (other than the survivor whose testimony doesn't count!) to the event. I'm not saying this is done on purpose, it's just the reality of how that works. I do take all the concerns involved seriously, including false reports, but I think they need to be weight in context and there should be a priority given to the reality that without taking survivor tesitmony seriously we simply can't convict most rapes. Which means essentially, our culture protects rape and those who do it.
posted by xarnop at 12:57 PM on February 7, 2015 [6 favorites]


Title IX requires institutions to engage in interim measures, things like altering class schedules, temporarily barring people from campus, moving people to different dorms, etc. even before the institution has come to a conclusion about whether the assault has occurred:

Title IX requires a school to take steps to ensure equal access to its education
programs and activities and protect the complainant as necessary, including taking interim
measures before the final outcome of an investigation. The school should take these steps
promptly once it has notice of a sexual violence allegation and should provide the
complainant with periodic updates on the status of the investigation. The school should
notify the complainant of his or her options to avoid contact with the alleged perpetrator
and allow the complainant to change academic and extracurricular activities or his or her
living, transportation, dining, and working situation as appropriate. The school should also
ensure that the complainant is aware of his or her Title IX rights and any available
resources, such as victim advocacy, housing assistance, academic support, counseling,
disability services, health and mental health services, and legal assistance, and the right to
report a crime to campus or local law enforcement. If a school does not offer these
services on campus, it should enter into an MOU with a local victim services provider if
possible.

Even when a school has determined that it can respect a complainant’s request for
confidentiality and therefore may not be able to respond fully to an allegation of sexual
violence and initiate formal action against an alleged action against an alleged perpetrator, the school must take immediate action to protect the complainant while keeping the identity of the
complainant confidential. These actions may include: providing support services to the
complainant; changing living arrangements or course schedules, assignments, or tests;
and providing increased monitoring, supervision, or security at locations or activities
where the misconduct occurred.


This is from pp 32-33 of the Dep't of Ed's Questions and Answers on Title IX.
posted by MoonOrb at 1:00 PM on February 7, 2015 [3 favorites]


The justification of protecting victims is always given when someone wants to punish perpetrators without evidence or trials. I think it's pretty clear from history that this is a bad road to go down, at least for the criminal justice system. It's just too easy to abuse.

What colleges should do is more complicated. I think a superior implementation of the current system, where there is an effort to immediately protect the victim in ways that at least try to avoid being punitive to the accused is a good way to approach it.
posted by Mitrovarr at 1:05 PM on February 7, 2015 [1 favorite]


"The justification of protecting victims is always given when someone wants to punish perpetrators without evidence or trials."

Right IN THE COURT. This is why institutions and communities might have to have different standards given that rape is innately a crime that rarely leaves any physical evidence other than that sex took place.
posted by xarnop at 1:07 PM on February 7, 2015 [4 favorites]


Also, acting on accusations without establishing credibility or proof will allow immediate, successful retaliation against accusers via counter-accusation.
posted by Mitrovarr at 1:24 PM on February 7, 2015


Only if people decide to create a system that works like that. It's not innate that taking rape accusations seriously also means that those who make subsequent claims the accuser is lying should be handled the same way. Unless that's the world you want.
posted by xarnop at 1:29 PM on February 7, 2015


Well, I'm not saying they shouldn't be taken seriously, just that there should be some sort of verification process in place before major, punitive actions are taken against the accused. I think assisting the victim, attempting to collect more information, protecting the victim in ways that are not excessively punitive to the accused, and helping them to contact the police are all things that could be done without even checking for credibility. I also think instituting stronger protective measures could be done if the account is credible, and credible is a low standard. If the accused admits they slept together or there is any physical evidence, credibility is already reached.
posted by Mitrovarr at 1:37 PM on February 7, 2015


The justification of protecting victims is always given when someone wants to punish perpetrators without evidence or trials.

You might want to rethink the use of 'always' in that sentence. We do need to protect victims. That is not at all the same thing as punishment without evidence or trial.

You're also making a huge mistake, conflating criminal proceedings with what are essentially the university student equivalent of an HR investigation within a company.

Also, acting on accusations without establishing credibility or proof will allow immediate, successful retaliation against accusers via counter-accusation.

Could you show us where anyone is suggesting acting on accusations without establishing credibility?
posted by feckless fecal fear mongering at 1:46 PM on February 7, 2015 [2 favorites]


Well, it felt like people were at least implying it above. I suppose it's possible that they weren't.
posted by Mitrovarr at 1:56 PM on February 7, 2015


Title IX more or less requires that: there's no threshold "how credible is this accusation" bar that needs to be met in order to implement interim measures. The interim measures would feel punitive to the person who is affected by them-for instance if they were compelled to move out of their dormitory or were restricted from appearing on campus except when they had classes. I'm not sure what an institution would do if it were confronted with an allegation that was so facially suspect that you'd have reason to conclude that it lacked truthfulness even before undertaking any investigation. But it is the nature of interim measures now required under Title IX that an accused could be temporarily, say, barred from campus (or subject to lesser restrictions) without any credibility determination being made.

Interim measures are not, though, this automatic thing that happens without consultation with the accuser--they are done in a case by case manner in whatever way that is appropriate for that situation.
posted by MoonOrb at 1:59 PM on February 7, 2015 [5 favorites]


I know a person who was falsely accused of rape. [...]

Omiewise wrote: Absolutely, and he has my sympathy, and also, so what?

I was replying to a comment that said "People just seem way too invested in the idea that false accusations and unjust punishment is a thing [...]"

Well, they are a thing. There was no punishment, technically, in this case: it never got that far. I think their policy of suspending people accused of rape is prudent, but it imposes a cost on the people accused and that cost should not be dismissed.

Insisting that the outliers be taken seriously [...]

But of course they should be taken seriously! Most people accused of any crime are guilty. None the less, we presume (for legal purposes) that they are innocent, because things would be a lot worse if we didn't.
posted by Joe in Australia at 3:09 PM on February 7, 2015 [4 favorites]


Mitrovarr: The justification of protecting victims is always given when someone wants to punish perpetrators without evidence or trials.

I've asked people to leave the premises because they were were taking up excess resources when others were waiting. If I can do that, I don't see a problem with asking a person to leave on credible suspicion of violent or harassing behavior. I don't see it as "excessively punitive," to do so on a temporary basis while the case proceeds.

Well, it felt like people were at least implying it above.

No, I'm absolutely not implying that suspects under investigation be chained in the basement of a storage building with a pack of miniature giant space hamsters. I'm not implying that ethics violations should be adjudicated by cyclopean priests using the entrails of giant miniature space hamsters. Such a system wouldn't be fair, especially to the miniature giant space hamster.
posted by CBrachyrhynchos at 3:27 PM on February 7, 2015 [3 favorites]


Xarnop wrote: People who claim there has to be "evidence" are upholding the rights to rape individuals as long as you make sure there's no video evidence or witnesses [...]

I have two responses to those people. The first is that the testimony of a complainant is evidence in itself. Many legal issues come down to "this person said ... that person said ..."; rape isn't unique. A court has to weigh its assessment of each person's testimony, together with any other evidence. So if there's a complainant, there is evidence. Also, a lot of evidence is circumstantial, like evidence that an alleged thief has suddenly been spending a lot of money. A demand for direct evidence is a hurdle that we don't impose in other cases.

My second response is that there's a distinction between punishment and administrative actions. Punishment means that someone has been found guilty and the punishment in some way expiates or balances the crime. An administrative action is one that does not make a finding of guilt; it's an action taken because it's prudent or because it's a necessary part of the justice system. For instance, people can be locked up because they've been convicted, or locked up because they are facing charges and they are thought to be a flight risk or a danger to witnesses or whatever. The consequence (deprival of liberty) is the same, but the justification is different. Administrative actions do not presume that someone is guilty and they often don't require any justification beyond "reason to believe" (which is basically the lowest legal standard possible).

So I have no problem with a college rearranging classes or accommodation or even suspending or expelling a student where they think it's necessary and/or prudent: that's administrative action. I'm not especially happy about it being described as punishment, though. I'd like to ask anyone who does want it to be seen as punishment: do you think that suspending or expelling an (actual) rapist expiates their crime in any way? Does it "pay their debt to society"? Should they no longer face criminal charges?
posted by Joe in Australia at 3:42 PM on February 7, 2015 [2 favorites]


I feel like whenever the subject of how to deal with sexual assault arises, we always always always have to have this detour into "but false accusations" with hugely disproportionate assuaging, and it's like having to spend half of a discussion about voter ID laws talking about instances of voter fraud, and I wish there could at some point be a sense of perspective just as a given, but here we are having this discussion again.
posted by Aya Hirano on the Astral Plane at 3:42 PM on February 7, 2015 [11 favorites]


Voter fraud isn't really a problem unless it's on a massive scale. When it is on a massive scale it's always an institutional thing; it's never because individuals were voting without ID.

Punishment isn't like that: we need to act justly when punishing people, and even as we recognise that we will inevitably make mistakes we must always take our duty to do justice seriously. For my part, I don't see why people on both sides fixate on the question of guilt or innocence - and saying that the problem of false accusations can be dismissed is really a way of saying that we can presume guilt. Hardly anything that a college does comes down to guilt or innocence. In almost all cases it is quite sufficient for them to behave reasonably and prudently and with regard to the consequences of their decision.
posted by Joe in Australia at 3:58 PM on February 7, 2015 [1 favorite]


Voter fraud isn't really a problem unless it's on a massive scale.

Yes, that is entirely my point - if we were all talking about how voter ID laws were oppressive and exclusionary, but someone insisted on talking about how voter fraud does totally happen and if we get rid of these laws well won't everyone commit voter fraud, yeah. Wouldn't that be a strange discussion. So we have these discussions about how campuses should deal with sexual assault, and invariably "false accusations" are touted as some clear and pervasive problem element in this matter, when a) they just aren't, and b) the clear and pervasive problem element are the sexual assaults themselves. Absolutely no one here is saying campuses should be courts of law nor is anyone saying we should simply discard any discretion whatsoever, so the false accusation thing just seems like a red herring to me.
posted by Aya Hirano on the Astral Plane at 4:19 PM on February 7, 2015 [5 favorites]


It's just not a good comparison because the rate of false accusation is something like 1-2% while cases of in person voter fraud are so low as to be practically zero. It's still too much of a derail most of the time, but 1 in 100 is a lot different than 1 in a million or more.
posted by Drinky Die at 12:36 AM on February 8, 2015


(Although not really a derail for this thread, since one of the articles is presenting this case as a false accusation and looking at the impact on the life of someone who has very publicly been accused.)
posted by Drinky Die at 12:43 AM on February 8, 2015


And can ANYBODY find me an example of ANYBODY who ever used a false rape accusation to (a) make themselves popular or (b) to make money? I mean, besides a couple MRA dudes, but lying is their Business Model.

This is such a strangely gift-wrapped question; any example you come up with might well be underpinning an MRA argument somewhere, but that's not the same thing as being an MRA. That said, why not Conor Oberst for A (accuser Joanie Faircloth), and Brian Banks for B (accuser Wanetta Gibson, previously)? Banks is an advocate for (and a beneficiary of) the Innocence Project, and Oberst is, well, a country singer (and thus an old study of your Business Model), but I don't think either self-identifies as an MRA.
posted by kid ichorous at 2:26 AM on February 8, 2015 [1 favorite]


In the one case I know of personally, I believe the accuser had a delusional memory of having been raped. I have no reason to think they had any bad motive; if the memory had been real (it absolutely could not have been) they would have been doing the right thing by bringing a complaint.
posted by Joe in Australia at 4:10 AM on February 8, 2015 [1 favorite]


Can I ask that we take just a moment to consider that once again a conversation on MetaFilter about rape has become not about the many many people, men and women, who are raped every day, every week, every year, but about the comparatively tiny number of men who are falsely accused of rape? And note that a conversation that began with the involvement of many women, including one woman sharing her own experience of being assaulted in college (and dealing with exactly the experience outlined in the FPP and mathowie's much needed supplement to the FPP), has again ended with only men commenting?
posted by hydropsyche at 12:02 PM on February 8, 2015 [20 favorites]


Can I ask that we take just a moment to consider that once again a conversation on MetaFilter about rape has become not about the many many people, men and women, who are raped every day, every week, every year, but about the comparatively tiny number of men who are falsely accused of rape?

Maybe it's really a MeTa discussion, but this pattern is a really tiresome form of derailing and I am glad you are pointing it out so clearly.
posted by Dip Flash at 12:14 PM on February 8, 2015 [6 favorites]


I think that's inevitable (and not a derail) when the FPP is about such a disputed case and the main link in the FPP is more or less an apologia for an accused guy. Maybe it would have been the same with a different set of links and maybe not. But we have a discussion about the links we have and not the links we wish we had.
posted by Justinian at 1:38 PM on February 8, 2015 [3 favorites]


It happens every time, though.
posted by feckless fecal fear mongering at 2:49 PM on February 8, 2015 [4 favorites]


It's such a predictable thing that it's an item on my mental bingo card for threads about rape, and it almost always gets a check or a circle or whatever you use to mark a square on your bingo card.
posted by rtha at 2:55 PM on February 8, 2015 [5 favorites]


I can sort of intuit why it comes up even in FPPs that aren't predicated substantially on articles about the accused's point of view. I don't think it is worth talking about in every single thread, but I can at least imagine why it comes up so often.

The main reason is just sexism, so it would probably happen a lot, anyway, but I wonder if there might be characteristics of sexual assault that make it somewhat unique, especially when we're talking about the types of assaults that are committed by a friend, colleague, or romantic partner of the person who is assaulted. In those cases, the evidence of the crime is frequently going to consist almost entirely of the testimony of the person who was assaulted. This makes it different than situations where the commission of a crime can be demonstrated through evidence that is less subject to credibility concerns. It's a really vexing problem. And there's a related issue layered on top, which is that in situations where one party claims the encounter was consensual, the matter of consent is then front and center. And in the absence of evidence that lends itself to objectivity, we're confronted with a situation where demonstrating that a crime occurred means choosing one person's version over another.

The status quo tilts this balance enormously in favor of men. Because it is almost always men who are accused, I can imagine how discussions which contemplate altering this balance are uncomfortable. It would of course be scary or uncomfortable to be accused of sexual assault--the stakes are high, even if the environment is academic or the workplace and not a criminal prosecution--and I don't think it takes much imagination to see why men don't like the idea of moving from the status quo that is so protective of their interests to a new, less certain situation where they could face consequences in the absence of evidence other than a victim's testimony. And then this discomfort is compounded when they have fewer rights in the investigative/adjudication process itself. To use Title IX as an example, the Department of Education has expressed a preference for a "single investigator" model of determining whether an assault has occurred--instead of an investigation followed by a hearing where evidence is presented and the accused is represented by legal counsel and the person making the accusation can be questioned, etc., a university can make a decision to, say, expel someone from the university based on the findings of one investigator. Aside from the accused's interview with that investigator, the accused wouldn't have any input or insight into the process at all--they'd just wait for the investigator's results and institution's action.

(For anyone who thinks this is horrible, this is pretty much exactly what any workplace investigation would be like, or how any accusation of sexual harassment would be investigated, etc. This gets back to one of the major issues which is that a university's obligation to provide equal access to education for all of its students means that it needs to have the tools to be able to relatively quickly evaluate and then act on information that one of their students has more probably than not sexually assaulted another).
posted by MoonOrb at 3:27 PM on February 8, 2015 [2 favorites]


I wish we had some kind of publicly accountable entity that would investigate disputes, crimes, violations of civil rights, etc -- just plain old professional investigators, people who would look into a situation and say "This is a criminal matter and situation is clear-cut enough to make the criminal courts a good idea" or "this probably happened, but attaining a certainty beyond a reasonable doubt is going to be difficult, this might be best adjudicated as a civil matter to a preponderance of evidence standard" or "this probably happened, doesn't rise to the level where the courts would be appropriately involved, but we will happily work with an employer or institution or whatever to help them determine what actions they should take" or "This situation really needs a mediator, not a court" or "you people all need therapy, jesus h christ." The situation we have now where a lay person has to decide which venue is most appropriate for her complaint and most likely to bring about the desired outcome is terrible.
posted by KathrynT at 3:51 PM on February 8, 2015 [1 favorite]


We do sort of have that here: Centre Against Sexual Assault. I don't think they investigate, but they'll certainly talk a victim through their options. It ultimately has to come down to the victim, though: you don't want to deny people their day in court.
posted by Joe in Australia at 4:40 PM on February 8, 2015 [1 favorite]


My interest in the whole campus rape thing took a nose-dive after I read the US DoJ report that cut the ground from beneath that headline 20% rape figure that was supporting so much of the outrage. Even one rape is too many, but there is a gulf between "one in five" and "one in forty" that no amount of outrage will bridge.

As for the links in the FPP, I was not much impressed by the The Daily Beast article, but at least it nominally tried reaching out for feedback from the other side. The Jezebel one feels even less balanced. It feels like it was written as a partisan rebuttal deigned to scuttle the Beast piece.

"I love you Paul. Where are you?!?" (Annotation: I'm still open to having this talk with him)

Frankly, reading through those Facebook messages, it feels like I'm watching a routine college break-up in progress. I don't see an abrupt change at any single point, but I do see the relationship winding down during the latter half of August and bottoming in September.

Did he rape her? I don't know. Bad shit often happens during breakups so I'm open to the proposal that she honestly thinks she was raped. But however flawed the process may have been (and the sources indicate it was not a pleasant process for any of the parties, with all of them claiming to be hard done by), he was eventually cleared of all charges (only one of which was for rape). That means that he is innocent. Not just "presumed" innocent, he is innocent.

Now we have "Adam" coming forward with a rape accusation. I'll be interested to see where that goes.
posted by Autumn Leaf at 8:29 PM on February 8, 2015 [1 favorite]


Maybe it's really a MeTa discussion

It is. Discussing false accusations in this thread is not a derail.
posted by Drinky Die at 8:56 PM on February 8, 2015 [2 favorites]


Did he rape her? I don't know. Bad shit often happens during breakups so I'm open to the proposal that she honestly thinks she was raped.

Do you think that she's lying, or do you think that the actions she describes weren't rape? What about the other three complainants -- are they lying, or are the actions they describe not rape or assault?

That means that he is innocent. Not just "presumed" innocent, he is innocent.

That is not what that means.
posted by KathrynT at 8:59 PM on February 8, 2015 [7 favorites]


"That means that he is innocent."

Uh, no. That means he is "not guilty," which means there was inadequate evidence of guilt. Common Law systems do not declare innocence, just guilt or "not-quite-enough guilt."

Also FOUR people have now PUBLICLY accused him of rape in the past four years. We don't know how many have accused him through Columbia's process but not gone public with it.
posted by Eyebrows McGee at 9:29 PM on February 8, 2015 [10 favorites]


Common Law systems do not declare innocence, just guilt or "not-quite-enough guilt."

That's true, but we presume that people are innocent and we have things like the rule against double jeopardy to protect people against lingering suspicion.

I think this case shows why a pseudo-legal system isn't really a good solution. Let's suppose that none of the accusations against Nungesser would stand up in a tribunal, even at the "preponderance of evidence" level. Would anyone think that meant he was a safe and reliable person? I certainly wouldn't. I'd want the college to put a lot of conditions on his attendance, perhaps make him live off-campus and forbid him to go to student parties. This isn't about some technical level of guilt or innocence; this is about a prudent regard for student safety.
posted by Joe in Australia at 10:26 PM on February 8, 2015 [2 favorites]


It's sort of beside the point here to talk about this in terms of "guilt" or "innocence," because university factfinding and disciplinary procedures aren't intended to substitute for criminal proceedings. The intent is to ensure that higher ed institutions take action to provide equal access to educational opportunities to women and to men: sexual assaults interfere with this.
posted by MoonOrb at 10:35 PM on February 8, 2015 [2 favorites]


>Do you think that she's lying, or do you think that the actions she describes weren't rape? What about the other three complainants -- are they lying, or are the actions they describe not rape or assault?

She claims she was raped, and I am not calling her a liar. I'm saying that sometimes what we think happened, what we honestly remember happening, didn't happen exactly the way we remember it. Memory is not a videotape, we edit our memories continuously. I sincerely remember being asked for US$20 to get into the alcoves at Bamiyan in 2010. But when I checked what I wrote at the time, the actual demand was for 20 Afghanis.

I don't know exactly what happened on 27 August, nor do I know what happened with the other accusations. Neither do you. What I do know is that her alleged attacker was cleared of all charges. Not just of the rape charge, but of the other charges too. That doesn't make liars of his accusers, in my mind, it makes them human and fallible.

Let me turn your question around. What of Nungesser. Do you think he lied?

> Also FOUR people have now PUBLICLY accused him of rape in the past four years. We don't know how many have accused him through Columbia's process but not gone public with it.

Oh, FFS. Three of those "FOUR" accusations have already been heard and dismissed. The fourth is a new accusation still under consideration - it may prove to have merit or it may not, we don't know yet. As for how many other, unheard accusations there might be - it's irrelevant. You might as well ask how many murders Barack Obama has committed in the last four years that he hasn't yet been accused of. The answer is, who cares? We can only work with what we know about.

IMO, what the college needs to do now is whatever will best serve fairness and student safety. What they will probably do is go into damage control. What helps nobody is sanctioning someone based primarily on the fact that a lynch mob is baying for their (his in this case) blood.

Edited to add: (Of those FOUR accusations, only one (sorry, two now) was for rape.)
posted by Autumn Leaf at 12:27 AM on February 9, 2015 [1 favorite]


Okay, then. I will just let the men discuss rationally and logically how the world really is, and go comfort all of my friends who have been raped with the assurance that they are confused or misremembering because one survey that somebody did asked differently worded questions about rape and sexual assault than did other surveys other people did.
posted by hydropsyche at 3:21 AM on February 9, 2015 [16 favorites]


> My interest in the whole campus rape thing took a nose-dive after I read the US DoJ report that cut the ground from beneath that headline 20% rape figure that was supporting so much of the outrage. Even one rape is too many, but there is a gulf between "one in five" and "one in forty" that no amount of outrage will bridge.

Right at the front of that document they discuss the different methodologies used, different questions asked, and different contexts and scope. The survey authors themselves do not dismiss the results of other the other surveys, so it's possible your nose is diving for no actual good reason.
posted by rtha at 5:43 AM on February 9, 2015 [12 favorites]


What of Nungesser. Do you think he lied?

Yes, of course.

Three of those "FOUR" accusations have already been heard and dismissed.

By the very same system that Sulkowicz and the other students are alleging is insufficient to protect their right to an unfettered education under Title IX. That's the whole point of her complaint and her protest, that when they found him "not responsible" (NOT "innocent," as you previously said), they did so in a process that was highly unlikely to ascertain the truth of the matter.

Her version of events is that what began as a consensual sexual encounter ended as a violent, painful, and non-consensual rape. In my experience, women may misremember what their rapist was wearing, they may misremember the exact words he said or the exact order of events, but they do not misremember whether or not they were sodomized against their will and consent. To say "tee hee, it sounds like a bad breakup, maybe she THINKS she wasn't consenting but actually she was cooing and totally into it!" is insulting not just to Sulkowicz but frankly to women everywhere.
posted by KathrynT at 8:00 AM on February 9, 2015 [18 favorites]


What of Nungesser. Do you think he lied?

Yes. Four separate victims claiming extremely similar assaults? It beggars belief that none of them happened.
posted by feckless fecal fear mongering at 8:57 AM on February 9, 2015 [3 favorites]


I really hate the way that people get to offer "They talked later, and it was civil!" as evidence that no rape is real.

I was raped in the summer of 2009 by someone I considered a friend, after I had consensually agreed to some sexual activity. I genuinely believe he did not mean to rape me - he later said that he had cultural ideas that women said no when they wanted yes and that I was just "being coy." Eventually, mid rape, he realized that I was serious when I started not just hitting him to stop him, but actually full on fighting. It was immediately obvious that it was a rape. I started crying and he apologized and said he understood if I never wanted to talk to him again.

I was furious. I told all my friends and cried and drank a little too much and started fucking up at my job. It sent me into a mental health spiral that took me a year to get out of. My rape impacted me seriously and negatively.

But I am fortunate that my rapist at least accepts culpability and that I never tried to prosecute, because if I were trying to prosecute a case, my rapist would also have lots of emails "demonstrating civility" to show that I clearly hadn't been raped. Because that's what women do - we try to make the best of things. Because we expect and prepare for rape. Because when we show our emotions, people call us crazy. Because when we show our emotions, when we talk about our rapes, it hurts us more than it hurts our rapists. People don't like being around us. It makes them "uncomfortable." They "wish we could just get over it."

I worked with my rapist. I prided myself on my discipline, on my military bearing. Even as it was tearing me apart, I did my best to show that I was fine, that it wasn't affecting me, that I could still be tough. When I had to talk for work, I sent my rapist emails. Some of them, god forbid, may even have included humor. I was cool. I was tough. I didn't want people to start cutting me out of things because I couldn't get along with this guy who had a lot of power in my field.

This is what a rape can look like. This is a real rape. And people need to accept that this is just as common a response as an immediate vengeance ride.
posted by corb at 10:19 AM on February 9, 2015 [27 favorites]


I'm saying that sometimes what we think happened, what we honestly remember happening, didn't happen exactly the way we remember it.

It is, I promise you, extremely difficult to misremember someone sodomizing you without your consent.

(Of those FOUR accusations, only one (sorry, two now) was for rape.)

Oh well if it wasn't real rape then obviously it doesn't matter.

That's exactly why up here in Canada we use the legal term 'sexual assault.'
posted by feckless fecal fear mongering at 12:19 PM on February 9, 2015 [7 favorites]


Knowing people involved intimately in the story, there is no way Sulkowicz is lying. It is a tragedy for her and her family, and I am amazed at the strength that has enabled her to create something meaningful from the situation, and the bravery that has enabled her to bring her story to the world. My heart goes out to her.
posted by ch1x0r at 6:33 PM on February 21, 2015 [2 favorites]


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