
College Sex-Assault Trials Belong in Court, Not Campus (2014) - jseliger
http://chronicle.com/article/College-Sex-Assault-Trials/150805
======
CthulhuOvermind
"The legal verdict on whether sex is non consensual still often rests on the
perspective of the alleged perpetrator rather than the experience of the
victim."

I'm not sure I entirely understand this quote to its fullest. It is being
argued that it is the experience of the victim that matters if sex is
consensual. Isn't this quote logically wrong? Consensual by definitions means
both parties agreed. But is the author arguing that it is the victim's opinion
that makes it consensual only?

How would that work in a situation where both parties start having sex, then
it stops being consensual half way (from the victim changing their mind). The
victim changes their minds but says nothing, and continues as before during
the act. From the authors opinion, the victim experienced rape, hence the
perpetrator should be convicted. But from the perpetrator's perspective they
have no knowledge the partner's consent was revoked.

As far as I understand, an accusation should examine a perpetrator's
perspective more, since that person is being charged with a crime. Why is the
author arguing that the victim's experience is what the trial should hinge
upon? If the victim raised an accusation, that is enough! It is the
perpetrator that is being tried and attempted to be found guilty, hence the
trial focuses on the perpetrator's actions and perspective.

Can someone better weigh in? This seems like one of those thoughts that sounds
profound, but does not stand up to scrutiny.

~~~
reso
No other comments have directly addressed the quote you referenced. My
interpretation is it is saying that rape cases are prosecuted about the intent
of the perpetrator. Aka, they are convicted if it can be shown that they
intended to commit rape, or knowingly committed rape, and acquited otherwise.

This puts the standard of conviction much higher than other crimes, because
lots of crimes can be committed unknowingly (theft, embezzlement, even
homicide), the intent of the criminal having no bearing on their guilt or not.
In these cases the experience of the victim bears strongly on the case: the
person who's car was stolen, the company who's funds were embezzled or the
(deceased) victim of negligent homicide. The speaker is saying that courts do
not weight victims' experiences appropriately, if at all, in rape cases.

~~~
DanBC
You can't "unknowingly" commit theft (intent to dishonestly permanently
deprive), emezzlement (intent to deceive) or murder (intent to unlawfully kill
someone).

~~~
reso
As a clear counterexample: you can certainly commit negligent homicide without
intending to.

~~~
anu_gupta
Negligent homicide is not murder.

~~~
reso
The language my top comment used was "homocide" and "negligent homocide" while
the responder changed it to "murder". The point is that in the view of the
justice system, sometimes it doesn't matter if you meant to kill someone or
not--you still killed someone.

~~~
anu_gupta
It does matter. The charges are different, the sentencing is different.

------
cperciva
_We live under laws on sexual assault that, in large part, were not written
with women’s interests in mind. [...] The legal verdict on whether sex is
nonconsensual still often rests on the perspective of the alleged perpetrator
rather than the experience of the victim._

It would be contrary to the principles of fundamental justice to imprison
someone who has done nothing wrong. If the alleged perpetrator of an offence
has taken all reasonable steps to ascertain consent (and believes that consent
exists) then any lack of consent is a tragic mistake, not a criminal offence.

As far as I can see, this was written with _everybody 's_ interests in mind.

~~~
ZeroGravitas
Isn't taking all reasonable steps to ascertain consent what the affirmative
consent thing is all about?

It's one of those sensible things, like recycling, renewable energy, belief in
evolution, or decent medical coverage, that somehow becomes a very bitter
political issue for no logical reason.

~~~
tomp
I don't think affirmative consent is sensible at all.

If it were made law, then I would have been raped, and been raping at the same
time, during pretty much all sex I've had in my life!

Obviously it's possible to have amazing consensual sex _without_ affirmative
consent.

~~~
ZeroGravitas
I think you've just been misled (or are actively trying to mislead) about what
affirmative consent involves.

This is the rhetorical equivalent of "but it's snowing, so much for global
warming!", a ha-ha-gotcha cliché, maybe you should try to engage with the
topic on a deeper level.

~~~
tomp
Maybe we need a clearer definition then...

------
jmspring
I'll risk down votes...but...this is one of those posts that doesn't fair well
here in the sense of balanced conversation...and the comments I have already
read...I hope it disappears soon...

~~~
mikekchar
I'll vote you up mainly because I also wonder a bit about why this article is
here. I haven't been around HN for that long, but even a year ago I seem to
remember that the articles voted up were mainly technical in nature or related
to startups. I have noticed that as discussion boards get more popular they
seem to move to being platforms for expressing opinion on political subjects.
It may be my imagination, but these kinds of topics seem to be becoming
prevalent to the point where I'm seriously thinking of not checking in any
more.

One may wonder why I am looking at the comments for such a topic, if I am not
interested. To be honest, I'm wondering if I am the only such person. Possibly
not.

~~~
zorpner
Social/political issues are not orthogonal to technical issues -- in fact, the
_belief that they are orthogonal_ is fundamentally conservative (protective of
the status quo).

~~~
zyx321
You do have a point. It's conservative in the sense that it has been this way
for a long time and that it's been working out well enough. _Why do we need to
change it?_

And no, rehashing the old ">2011" meme for the millionth time is not a valid
argument.

~~~
cauterized
Working out well enough for whom?

~~~
zyx321
I would like to posit a variation of the anthropic principle:

We are currently alive to have this discussion, therefore the things we've
done to get here are not the worst we could have done.

I recognize that's not the strongest argument, but it sure as heck beats the
stupid "it's 2016, therefore you are on the wrong side of history" meme that
people seem so fond of throwing around.

To answer your question: Working out well enough for you, me, and everyone
here.

So can we _please_ stop trying to force the latest political fad into
everything ever?

~~~
cauterized
It's been working out well enough that we're alive? That's a pretty low
standard for whether we should discuss the intersection of social/political
issues and the tech industry. Surely in that case, we shouldn't be discussing
any regulations or taxation of the tech industry either?

~~~
zyx321
That was more intended as a defense of conservatism in general, since the post
I was replying to gave the impression that "conservative" was synonymous with
"wrong, evil or stupid" \- maybe I'm reading too much into it.

Still, humor me. Can you tell me why we should be wasting time with the ever
more outlandish demands of the politically correct language police? Can you
tell me why we should replace merit-based hiring with some variation of the
progressive stack? Can you tell me why we should be expelling people from
conferences and open source projects over things they say on their private
twitter accounts?

Because when I see someone advocating for "intersectionality" those are the
kinds of suggestions they seem to come up with.

------
cm3
There should only be one legal system to make rulings, nothing secret, nothing
private. The only exception is that private councils or mediators should be
opt-out, no strings attached, no questions asked, in order to easily gain
access to a real court. This may be unpopular, and I've never been part of the
military, so I don't know the drill there, but just as secret courts for the
likes of Snowden, there is no place for a military tribunal. And just like a
normal court has to rule on parking tickets and serial murders, it shall also
rule on war crimes. Think Den Hague as somewhat of an example. I'm perhaps
repeating myself, but a secret court nobody can discuss, attend or scrutinize,
does not exist in the real world and is something else misusing the existing
name (court). I think of it as good marketing for a system that wants to get
rid of dissidents and is basically no different than any other show trial
under dictatorships. If you cannot defend yourself properly, it's not a trial.
If you're sure you're in the right, you have no justification to hide behind
closed doors whose existence is denied as well.

------
chris_wot
Uh, isn't the headline obvious? Crime such as sexual abuse should never be
prosecuted by anyone other than the government!

This is precisely the reason why the Roman Catholic Church and other
institutions were able to cover up child sexual abuse on a massive scale!

Australia is learning the extent of this now because the much maligned former
Australian PM, Julia Gillard, established a Royal Commission into child sexual
abuse within Institutions. This has been painful but cathartic for Australia -
and a key thing that is emerging is that institutions who investigate the
incidents themselves almost always cover up the abuse. This isn't just the
Catholic Church - it's the YMCA, Buddhist organisations, dance schools, the
Salvation Army, and numerous boys and girls homes. The Catholic Church is
probably the most egregious offender, and its illustrative to note that rather
than report serious sexual crimes to police, they shamed the victims and moved
the offenders to different parts of the country (or overseas!) thus spreading
the abuse.

I wonder how many Colleges have done similar cover ups?

------
deciplex
It wasn't long ago that I would have agreed with this article in full. I may
have even posted here on HN to that effect before. I am still sympathetic to
the point it makes. However:

Universities boot people out for other reasons which are not actionable in a
criminal (or even civil) court _all the time_. Getting shitty grades, being a
disruptive asshole in a class on a regular basis, and so on, can end your
university career.

So, with that in mind, "creeps everyone the fuck out and is probably a
rapist", _isn 't such a stretch_. I would not put someone in jail for that for
any length of time. But, I don't know if "deserves jail time" is the right
comparison. Maybe "I would fire this person, if they worked for me" or "I
would kick this person out of my social club" are more apt.

Now, I think that someone so expelled should have an easier time getting into
another university than they currently do. Right now it seems that getting
expelled because a university tribunal found you responsible for an alleged
rape carries, for the purposes of college admissions elsewhere, nearly the
same consequences as being an actual convicted rapist. This puts too much
faith in the judgement of some other university's tribunal, which bring me to
my next concern:

These tribunals are too often full of shit. There are a few horror stories
going around and you've probably read a few. Some places I think are not
requiring a high enough burden of proof. The regulations and standards at the
federal and state levels ought to be improved, and in light of the fact that
sexual violence on campuses is on the _decline_ , the improvements should
result in fewer students being expelled, not more.

But, in principle, I think it's fine for a university to do this, even if the
accused rapist could not possibly be convicted in a court of law.

~~~
marcoperaza
> _These tribunals are too often full of shit. There are a few horror stories
> going around and you 've probably read a few. Some places I think are not
> requiring a high enough burden of proof. The regulations and standards at
> the federal and state levels ought to be improved, and in light of the fact
> that sexual violence on campuses is on the decline, the improvements should
> result in fewer students being expelled, not more._

Part of the problem is that the Obama administration has been issuing new
"legal interpretations" (i.e. making up new laws) that require colleges to
apply a preponderance standard to sexual assault proceedings, based on a very
contorted reading of Title IX, which requires equal treatment of genders by
universities receiving federal funds. "Preponderance of the evidence" means
that whoever is more likely to be right wins, even if its 51-49. So in a "he
said, she said" situation you have to convict if the accuser's story is even a
bit more plausible. Additionally, accused are denied the right to have
counsel, to confront their accusers, to remain silent. Such rules are
particularly egregious when you realize that the contents of the proceedings
could prejudice the result of a subsequent criminal trial.

~~~
cperciva
_the contents of the proceedings could prejudice the result of a subsequent
criminal trial._

To the extent that universities coerce testimony from their students,
shouldn't it be inadmissible in court?

------
forrestthewoods
Title IX requires schools to perform some level of investigation. This is
backwards. Title IX should FORBID schools for investigating and mandate
forwarding of information to the police.

~~~
superuser2
The purpose of internal disciplinary systems is to have a weaker burden of
proof.

Meeting "beyond a reasonable doubt" is very difficult when the victim and
perpetrator are in something resembling a romantic relationship and behind
closed doors, to the point that almost no rapists would be found guilty.

Schools instead use the standard of "more likely than not" to return a finding
of "responsible," which means the school can get rid of the rapist, even if
there's not enough evidence to put him in prison. Lower certainty required for
a less drastic action.

If only cases that DAs think are winners get acted on, the vast majority of
campus rapes are immune from punishment.

~~~
zo1
>" _Lower certainty required for a less drastic action._ "

If you consider what happens to male college students if they are accused of
rape and found "guilty" to any degree by the university, then you wouldn't say
it's a "less drastic action".

They get expelled, likely have their reputations and lives ruined. This is the
reason we have courts, and it is the reason we don't give judge/execution
rights to police.

~~~
Avshalom
Getting expelled is less drastic than being put in prison.

------
nickysielicki
Same author, more recent post [1]

I really like the way that he expanded on this theory and talks about the
authority that universities have accumulated and the effect that it is having
on students. For more on this topic, I really recommend an article, Campus
Protesters Aren’t Reliving the 1960s -- ( _Yesterday’s student activists
wanted to be treated like adults. Today’s want to be treated like children._ )
[2]

[1]:
[https://familyinequality.wordpress.com/2015/11/09/university...](https://familyinequality.wordpress.com/2015/11/09/university-
paternalism-and-the-outwardly-focused-student-movement/)

[2]: [http://www.politico.com/magazine/story/2015/12/campus-
protes...](http://www.politico.com/magazine/story/2015/12/campus-
protests-1960s-213450)

------
elcapitan
Not completely off-topic, but: Is there an api-based HN client/site that can
filter out certain topics?

~~~
n72
I've been mulling over creating such a thing. I would like something just
about programming. No valley gossip and other off topic stuff. The biggest
problem as I see it is that posts aren't tagged/categorized. I suppose one
solution is applying some kind of bayseian filter to the linked article to
figure out whether its a programming article or not.

~~~
elcapitan
Yeah, I was contemplating the same.

I think for just filtering out, having rule-based blacklisting of keywords
would suffice for 95%. Of course it would be much nicer to have classification
and then also be able to positively switch between certain categories (say,
AI, programming languages etc).

------
mc32
Should more of the disciplinary action [involving criminal activity] be moved
from the purview of colleges to the courts? I can see this making sense not
only for cases of allegations of rape but also allegations of censorship,
bias, underage drinking, etc. Sometimes colleges exercise a little too much
discretion in adjudication. On the other hand, if we move not only grievous
allegations but other less grave cases to the courts altogether, the caseload
may overwhelm courts.

Is there a divide between commuter campuses vs more residential campuses?

~~~
prdonahue
Yes, because what we really need right now is the courts bogged down deciding
whether Johnny Fratboy cribbed a few too many quotes without properly citing
them.

~~~
mc32
I've amended the comment to refer to criminal accusations --which is what I
mean to specify.

------
ck2
Of course they do, just like when it occurs in the military.

That's why we have a justice system.

Anywhere else is a matter of other people trying to exercise political power
over outcomes and corrupt the process so it has lesser impact.

That's why when you pour money into third party systems like the VA, you
weaken the original system (public hospitals) by taking funding away from them
that could have helped everyone. Stop making circumventions.

------
roywiggins
(2014)

~~~
striking
With all the hoopla going on about it nowadays, you'd think this article was
published in reaction to what just happened.

No, apparently someone saw this coming. I wonder what we could have done to
avoid this.

~~~
lagadu
It seems I'm out of the loop: what just happened?

------
known
[http://www.wired.co.uk/magazine/archive/2009/06/features/gui...](http://www.wired.co.uk/magazine/archive/2009/06/features/guilty/viewall)
is better to solve such cases in campus

------
smegel
> why not impose a simple set of rules to work with the criminal-justice
> system

It's really simple. First you just need to figure out who's telling the truth.

~~~
lmm
Which is the justice system's whole job, and they've gotten pretty ok at it.

~~~
vlehto
In rape cases about 1,5% proven guilty, about 1% proven false. But I guess
~97% failure rate can be considered OK in such situation?

~~~
qaq
Could you show source for the stats. I've seen 5 to 7% but 1,5% seems
extremely low.

