October 30, 2014

"Rather than try to train their provosts and professors to act like prosecutors," colleges are outsourcing their investigation of sexual assault to former prosecutors.

NPR reports:
"The phone starts ringing, you know, the first day after Labor Day, and I sort of joke that I'm like legal 911," Perkins says. The schools are "stressed like you cannot believe," [said Djuna Perkins is a former prosecutor who is now an investigator-for-hire]. They would rather have someone else handle the investigations, she adds, "because they, at a certain point, might feel a little bit out of their element."...
Perkins interrogates the students:
That means asking questions like, "Well, when you did this particular thing was she making pleasurable moans? Was she lifting her pelvis to get clothes off? That all sort of goes into the mix," Perkins explains...

Perkins has had several cases that involved S&M that was at least initially consensual; she says it takes a lot of experience and training to remain consistently fair and nonjudgmental.

"'Cause my real reaction when students are talking about stuff like that — I'm like, 'oh my God, these kids, what are they doing?' " Perkins says with a laugh.
NPR interviews lawprof John Banzhaf, a George Washington University law professor, who says that hiring an outside investigator is better than using the schools' own staff, but that it would be better to have what NPR refers to as "a totally independent consortium of professionals to both investigate and judge cases." But then why not use the existing civil and criminal legal system and let actual prosecutors decide who to prosecute and have all the safeguards of due process for the accused?

NPR interviews Leora Joseph, "a sex crimes prosecutor in Denver" who thinks "it's important for campuses to punish misconduct that prosecutors would be unable to prove beyond a reasonable doubt, or that might not rise to the level of a felony."
"Just because someone did not commit a crime, it doesn't mean they shouldn't be forced to suffer some consequences for their bad behavior," she says.

But campuses and prosecutors also can get in each other's way, Joseph says. When students face criminal charges, they usually stop talking to their school's investigators. And when schools go first, Joseph says, it can really muck things up for prosecutors.

"You've lost the element of surprise, you may have lost forensic evidence and physical evidence, and you cant [sic] unring a bell. That can forever damage law enforcement's ability to do their job," she says.
From the comments over there:
I still can't figure out how countering the argument of "I was blacked out drunk and can't remember anything, but I think I was raped" with the argument "I was blacked out drunk and don't remember anything, but I don't think I raped anybody" doesn't result in a wash. Truly scary for parents of sons. How can one, in good conscience, send an 18 year old boy into an environment of blacked out drunken debauchery where guilt is assumed upon accusation, and prosecution (persecution?) is carried out by private court systems, staffed by for-profit private investigators, against which there is no recourse for the accused?
Why are people raising their sons and daughters to mix heavy drinking and sex? Why doesn't that weigh upon your supposed "good conscience"? I'm not minimizing the need for due process in these investigations, but one way to deal with the risks that exist now would be for everyone to adopt a strict personal ethic against sex while drunk or with a drunk.

45 comments:

Michael K said...

They couldn't use the criminal justice system as they would never get enough real cases.

Unknown said...

I would think some kind of positive or negative comments about the concept by a lawyer who is also a prof would be inspiring.

Brando said...

Ah the element of surprise--I recall that being a key part of the Bill of Rights.

Clayton Hennesey said...

How can any authority seriously be expected to get inside the ring and referee human sexuality? Stuff like, "Was she as enthusiastic when you decided to put your finger/penis/marmot up there instead of up there?

It's one thing to legislate and adjudicate externalities - someone being attacked from the outside and explicitly groped or raped. But when any authority, campus or law enforcement proper, gets cajoled into policing the bed itself, it puts itself in the position of adopting that stereotypically endlessly needy person who inevitably tries to offload every one of their own person life challenges onto others. That's ultimately a booger which can't be thumped off.

Shanna said...

S&M that was at least initially consensual

Sounds like they need to add training on safe words to orientation!

Doug said...

but one way to deal with the risks that exist now would be for everyone to adopt a strict personal ethic against sex while drunk or with a drunk.

You DO know that they are talking about college students, don't you?

mccullough said...

On-line education will moot the problem before 18-year-olds stop binge drinking.

A school that was serious about the problem would have a conduct code that expelled any underage consumption of alcohol. But schools aren't serious. They are big businesses that want money.

CWJ said...

Because if colleges need anything, it's more non-teaching staff.

Ignorance is Bliss said...

...but one way to deal with the risks that exist now would be for everyone to adopt a strict personal ethic against sex while drunk or with a drunk.

That seems a rather silly statement.

Drinking alcohol reduces inhibitions and screws up decision-making ability. You can't get blacking-out-drunk around people you are sexually attracted to and expect your strict personal ethic to have any effect.

Michael said...

If my son got caught up in one of these kangaroo courts because he could not be jailed or charged with a real crime I would sue the pants off the participants. I would sue the accuser, the university and each and every member of the kangaroo court as a group and individually. I would hire private investigators to dig into every one of their lives. I would sue them broke.

Tank said...

@Michael

As I Lay Dying?

Whew, that's bleak. Is it bleaker than Bleak House?

MadisonMan said...

NPR interviews Leora Joseph, "a sex crimes prosecutor in Denver" who thinks "it's important for campuses to punish misconduct that prosecutors would be unable to prove beyond a reasonable doubt, or that might not rise to the level of a felony."

"Just because someone did not commit a crime, it doesn't mean they shouldn't be forced to suffer some consequences for their bad behavior," she says.

Wow. And who gets to decide what behavior is bad?

Show me the man, and I will show you the crime.

Fritz said...

I'll bet a lot of prosecutors would welcome a "predominance of evidence" standard.

Chuck said...

NPR didn't indicate it in this story but should have; this new wave of dubious collegiate administrative cases in supposed sexual assaults is explicit Obama Administration policy.

Per a letter from the Department of Education Office of Civil Rights, in April of 2011.

This is not some social phenomenon; it's not something over which colleges ought to have to "struggle."

It is the Obama Administration, catering to feminist interest groups and pandering for single-female votes, using federal funding pursuant to Title IX, to extort certain administrative activities by colleges who are all beholden to the federal government for funding.

chuck said...

Where are the faculty while all this crap goes down? Cowering behind their desks? Or maybe cheering from the side lines.

Michael said...

Tank:

Bleak House would be Sunny Brook Farm compared to what I would spend my last dime on extending until I had total surrender. It would be particularly appealing to send a former prosecutor into the poor house, a person so very used to a blank check in pursuit of racking up his score.

It is going to take a few like me to put a stop to this stupidity.

MadisonMan said...

Michael, I think it will take just one.

The house of cards would quickly crumble in the face of well-deserved financial judgements.

HoodlumDoodlum said...

I heard the story yesterday and wondered if Prof A would blog it, I'm glad she did!

The story never mentioned why colleges are suddenly putting so much emphasis on "prosecuting" these types of incidents, but the answer is clearly the Obama Admin's Dept. Of Ed. The story talks about the explosion of cases but doesn't give any stats/raw #s about the case load, number of reports compared to prior years, etc.--like almost every story referencing the campus sexual assualt epidemic it's completely devoid of context so we're left to trust the characterization given by wholly interested parties. The investigator's comments were interesting but at no point did either of them (the investigator nor prosecutor) address the "due process" concerns of the accused. A person making an allegation was referred to as a survivor and not an accuser.

I hesitate to point it out (and only do so because if the genders were reversed it would certainly be an issue) but the principal interview subjects (as far as I remember) were women.

damikesc said...

Again, until they advocate banning alcohol, I don't buy this recent mania.

Alcohol is the biggest contributor to women regretting sexual decisions. But they don't want to dispose of that.

Drago said...

chuck: "Where are the faculty while all this crap goes down? Cowering behind their desks? Or maybe cheering from the side lines."

As the Duke 88 proved, the leftist professors are 4-square behind the removal of due process and presumption of innocence afforded individuals accused of crimes.

Of course, leftists have never been in favor of due process for their political enemies and those they need to "other" so there really isn't anything new happening here.

RecChief said...

maybe they should just outsource it to, you know, the already established law enforcement and criminal prosecutors in place?

How is this a function of universities? looks like my advice to kids to go to a trade school is right on the money.

Anonymous said...

And where are the former public defenders in all this, you ask? Don't be silly.

Unknown said...

New rule, I think trade schools only, repayment for school loans cannot be more than 8% of salary.

SJ said...

@Ann,

Why are people raising their sons and daughters to mix heavy drinking and sex?

Two thoughts.

1: if the drinking age is 21, and there is no tradition of parents introducing their children to responsible drinking*, then the children enter drinking-age with no training.

*If not "responsible drinking", then experience that helps the children avoid the condition of blackout-drunk.

2: the cultural mores about sexual intercourse have changed from "nice girls don't sleep around" to "just do it" over the course of the past century.

I think you're looking at a combination of these two factors.

MayBee said...

Why do so many people focus on the drinking aspect with these laws? Yeah, that's bad, but the laws apply the same way whether you are sober or drunk.

I really hate the implication that these rules might be good because they might bring about a new way of behaving, enforcing a new morality. Althouse kind of implies this, Ezra Klein said it explicitly. We don't want people to get drunk and have sex, so lets think of a way besides threatening Hell to punish them.

MarkW said...

"I'm not minimizing the need for due process in these investigations, but one way to deal with the risks that exist now would be for everyone to adopt a strict personal ethic against sex while drunk or with a drunk."

That doesn't really help very much. Short of a breathalyzer, how do you know if your partner is 'drunk' or only had a drink or two? And even THAT doesn't help against false complaints lodged weeks later where the scorned-woman-after-a-bad-breakup accuser now claims to have been drunk. How could you possible prove she wasn't drunk at the time? Nobody at the party saw her drinking? Ah, but she claims they shared a couple of bottles of wine after they went back to his place and then...she doesn't remember what happened. It's still her word against his and, in the current climate, her word is all it takes for a finding of guilt.

campy said...

"Michael, I think it will take just one.

The house of cards would quickly crumble in the face of well-deserved financial judgements."

OTOH, a couple more feminist votes on the SCOTUS and these "reforms" will get a total judicial imprimatur.

traditionalguy said...

Field Marshalls in the Grand Women's Army of the War on Men want power to to convict and sentence POW men on the strength of the "seriousness of the Charges" made by females rather than beyond a reasonable doubt that it was committed.

Sralinists do love their Show Trials of the purged folks before thet are destroyed as a warning to all the other unbelievers out there.

MikeDC said...

Why are people raising their sons and daughters to mix heavy drinking and sex?

I demand an "Althouse is like Falwell" tag.

David said...

It's kind of gratifying that "feminist" has become synonymous with "Victorian."

Skyler said...

I heard this report on the radio and couldn't believe I was still in the United States.

Owen said...

Michael at 10/30/14 11:11 AM:

"If my son got caught up in one of these kangaroo courts because he could not be jailed or charged with a real crime I would sue the pants off the participants. I would sue the accuser, the university and each and every member of the kangaroo court as a group and individually. I would hire private investigators to dig into every one of their lives. I would sue them broke."

Word. Don't forget to sue the "outside investigator" who "found the facts" and reported them to the tribunal. Plus any "consultants" who helped shape the policies and procedures.

The beauty of these kangaroo courts is that nobody will have immunity from suit. After a few good cases that tear holes in college endowments and insurance policies, the hysteria will begin to abate.

Jim said...

Back in the 60s and early 70s, students had to live in dorms, and the dorms had hours, and you had to be back in the dorms on time. The liberals got rid of this practice because it was overly intrusive. There are reasons for social conventions that liberals can't see and want to destroy. Maybe they aren't necessarily fair or optimal, but they were created for a reason. Now you are reaping the whirlwind. Hope you like how it tastes.

clint said...

Wouldn't it be easier to turn these matters over to current prosecutors and police departments?

David said...

But then why not use the existing civil and criminal legal system and let actual prosecutors decide who to prosecute and have all the safeguards of due process for the accused?

Professor, your questions are usually more difficult than this.

The legal system and actual prosecutors would not produce enough convictions.

Big Mike said...

Why are people raising their sons and daughters to mix heavy drinking and sex?

When my sons were still in high school I wanted to introduce them gradually to alcohol so that they could learn to drink responsibly. However I could not do so. Wife and I learned that the school personnel were working with the State of Maryland to find out who was allowing their underage children to drink in their homes so that the parents could be charged with a criminal violation and the children possibly removed from the home. (I since moved to Virginia.) Fortunately our sons learned to drink responsibly without our support.

But chalk that up to yet another reason I have to regard liberals with contempt.

Big Mike said...

I might add that I do not regard seduction as being equivalent to rape. The young woman might look back at her seduction with remorse, but I do not believe in retroactive upgrading of consensual sex to rape due to an increase in level of remorse over time.

Would I feel the same way if I had daughters instead of sons. I think I would.

Marty Keller said...

The "othering" of America--the left's neotribalism project--continues apace. It is the logical destination of the postmodernist dethroning of Reason as the method for social inquiry and replacing it with Emotion. Those unwilling to go along must be herded, by whatever method, into the Re-education Camps. And since our campuses have been the locus of this mania since the 70s, it's only the logical next step. But Mike is right: the more outre the imposition, the more effective a punch in the gut will be.

MadisonMan said...

Wife and I learned that the school personnel were working with the State of Maryland to find out who was allowing their underage children to drink in their homes so that the parents could be charged with a criminal violation and the children possibly removed from the home.

Move to Wisconsin where you can buy your underage kids a beer in any bar.

The complication we had in having our kids learn to drink: They were doing sports in High School, and there's a strict policy of zero thinking, er, tolerance towards drinking in student athletes, even if the parents supervise and condone.

Puritanical thinking is everywhere.

SteveR said...

Why are people raising their sons and daughters to mix heavy drinking and sex?

At that stage in my life, heavy drinking only happened when sex was ruled out. Which occurred often enough.

Jupiter said...

"Why are people raising their sons and daughters to mix heavy drinking and sex?"

You mean, why do people own televisions, and send their kids to public schools? Beats the Hell out of me. Sick, I'd guess. Sick in the head. Or maybe just bone stupid.

Anonymous said...

Black-Out Drunk Guy says:

I was so drunk it wasn't until the morning when I realized I had been fucking her armpit. She was so drunk she thought my cock was a marmoset. There are different levels of Black-Out Drunk.

I have to admit: the armpit was pretty amazing. Now -- when I am sober -- I fantasize about the armpits of the women who walk by. There is the bra strap above the shoulder and then beneath: armpit. Oh Armpit of Sexual Desire, I cannot stop thinking about you. Oh, softball-playing girls, you basketball women: raise the trophy -- Raise the Trophy!

J said...

"everyone to adopt a strict personal ethic against sex while drunk or with a drunk."

lol. Anne, do you know how much marital sex you will be doing away with? And conceptions?

By the way, how many times have you raped Meade while he was drunk?

And what is your definition of 'drunk' vs other people's definitions of tipsy, buzzed, etc.?

Unknown said...

Come on, we all know that while young and pretty, Ann herself was the biggest slut since Eve. However she never took a drop, hence regards the drunkettes with contempt.

You want to stop drunk-fucking, Ann, make it legal. Give the woman no recourse on remorse, any more than if while high she had bought a chocolate ice cream cone with sardines, licked it, shoved it back at Mr Softee and demanded vanilla with sprinkles.

You want to put the onus on men, I say put the onus on women. Once they know no free pass, they'll stop giving it up and/or getting drunk.

Zach said...

Oh, that's wonderful. Let's duplicate absolutely everything about the criminal justice system, except due process and the presumption of innocence.

Interesting question: are there any innovations in the English or American civil justice systems that would be worth keeping if you didn't have those two things?