"... and as college officials across the country are rushing to meet new government standards, a specialized class of lawyers is raising its voice, too. They are speaking out on behalf of the students they describe as most vulnerable: not those who might be subjected to sexual assault, but those who have been accused of it. To do so, they have appropriated the legal tools most commonly used to fight sexual misconduct and turned them against the prosecution, confronting higher education’s whole approach to the issue, which they describe as a civil rights disaster."
From a NYT piece titled "New Factor in Campus Sexual Assault Cases: Counsel for the Accused."
Interesting usage of the word "appropriated"....
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Innocence is no defense to these accusations!
"From a NYT piece titled "New Factor in Campus Sexual Assault Cases: Counsel for the Accused.""
The idea that counsel for the accused is new kind of tells you everything you needed to know about how messed up the campus system is.
a better term that "appropriated" would have been "borrowed"...
@Drill SGT, or "adapted"
The federal government should not be involved in this. Just another example of overreach by and politicization of the DOJ. I am really sick of Eric Holder.
"a specialized class of lawyers is raising its voice, too"
By that Ms. Kaminer means defense attorneys?
It's so hard to run a good Star Chamber nowadays.
From Wikipedia:
Another function of the Court of Star Chamber was to act like a court of equity, which could impose punishment for actions which were deemed to be morally reprehensible but were not in violation of the letter of the law. This gave the Star Chamber great flexibility, as it could punish defendants for any action which the court felt should be unlawful, even when in fact it was technically lawful.
However, this meant that the justice meted out by the Star Chamber could be very arbitrary and subjective, and it enabled the court to be used later on in its history as an instrument of oppression rather than for the purpose of justice for which it was intended.
What do we need courts of law for? Don't we already know Bill Cosby is guilty?
Next thing you know, the accused are going to be demanding that facts and evidence be used to convict them, rather than unsubstantiated allegations.
The author presumes that a sexual assault has taken place simply upon the accusation -- "students who have been sexually assaulted . . ."
Why not use the same modifier "which they describe as" used with the alleged "civil rights disaster" when discussing the alleged sexual assault?
Because it shows how absurd it is to challenge the accused's right to counsel and defense when you say "students who experienced what they describe as sexual assault", that's why.
I can't read the Times article thanks to the firewall, but I presume that it is some sort of response to the comments by Alan Dershowitz.
Dershowitz may turn out to be a principled liberal after all.
I am really sick of Eric Holder.
The only question left is whether Holder is the worst Attorney General in history, having long since passed Nixon's Mitchell and giving Wilson's Palmer a run for his money.
Big Mike said...
@Drill SGT, or "adapted"
I selected 'borrowed' because of the sports metaphor. "borrowing a page from the civil rights playbook"
as for:
Dershowitz may turn out to be a principled liberal after all.
He's exactly that. A principled Liberal, one of the few around. He's also a Jew, which makes him something of a realist. He's got a good balance on civil liberties, under understands terrorism, the need to fight it. He's also of course solid on Israel...
The Times may also be trying to cover for their reporter's contemptible behavior in the case of smeared former Yale quarterback Patrick Witt.
Sexual assault is a crime; rape is a crime. Why do the colleges and universities have any business dealing with a criminal law process? All student accusations of assault and rape should be turned over to the local police and district attorney. Using the forensic tools at their disposal and giving the accused his due process rights afforded every other defendant we can let things fall out as they will. The current system is madness, and yes, a violation of the accused's civil rights
Invoking Title IX, the federal gender-equality statute that is typically used to protect the rights of female students,
Gentlemen! You can't protect the rights of both men and women in here, this is the gender-equality room!
From the article:
"The alternative, however, is not so easy to identify. Mr. Miltenberg said he thought colleges should leave the investigation of serious crimes to the police. But the judicial system moves slowly, he acknowledged, and if a daughter of his were assaulted he would not want her sharing a campus with her accused assailant for years as the case inched toward trial."
Check your privilege, college students. What do you think the townies do? If a townie accuses someone of sexual assault, do they get to banish that person from the neighborhood so as not to share it while the case inches forward?
"A week earlier, Dershowitz told Time magazine something similar.
“Harvard's policy was written by people who think sexual assault is so heinous a crime that even innocence is not a defense,” Dershowitz said."
http://www.washingtonexaminer.com/alan-dershowitz…/…/2556312
Freeman Hunt,
Check your privilege, college students. What do you think the townies do? If a townie accuses someone of sexual assault, do they get to banish that person from the neighborhood so as not to share it while the case inches forward?
Well, exactly. Does no one else, btw, think it odd that the chances of being sexually assaulted are reputedly four times higher on-campus than off-?
Sexual assault is a crime; rape is a crime. Why do the colleges and universities have any business dealing with a criminal law process?
Because campus "sexual assault" has been redefined to include ambiguous sexual activities that are probably not prosecutable in court, such as both parties being (often equally) drunk, or situations where the parties are already intimate, but possibly full consent has not been provided. Making things worse, the women making these allegations sometimes do so many months later.
Freeman Hunt said...
Check your privilege, college students.
11/19/14, 2:55 PM
That is pure gold right there!
dreams said...
"A week earlier, Dershowitz told Time magazine something similar.
“Harvard's policy was written by people who think sexual assault is so heinous a crime that even innocence is not a defense,” Dershowitz said."
11/19/14, 3:09 PM
Nailed it!
Hilarious. If my son were accused of one of these bogus "crimes" that the police won't touch I will be hiring a litigator and will be suing each individual involved in the process. Seeking damages. No apologies. Damages.
Frivolous? Perhaps. Expensive? Certainly. Intentionally.
I sense there is a split coming among those on the Left, between (1) those who favor collectivist policies and a strong state but at the same time value civil liberties, rule of law and process, and (2) those who have radicalized to the point that ends justify any means and no dissent can be tolerated. It is becoming harder for the former group to find common cause with the shrill neo-victorian social justice warriors (e.g., Jessica Valenti) who are displaying every ugly trait that the Left used to think existed only on the Right.
I for one welcome the former group--I can disagree with them on policy but they at least have decency and a willingness to engage on a human level. The latter are poisonous to civil society and should never be in any position of power. It's a shame they have had as much power as they do.
"Hilarious. If my son were accused of one of these bogus "crimes" that the police won't touch I will be hiring a litigator and will be suing each individual involved in the process. Seeking damages. No apologies. Damages.
Frivolous? Perhaps. Expensive? Certainly. Intentionally."
That's likely what's going to destroy these institutions (such as Harvard with its massive endowment, no microaggression intended). Lawsuits from the wrongly defamed who were provided no due process and denied educational opportunities will bring the whole rotten structure down.
Smartly run institutions will recognize that they are in no position to adjudicate crimes, and will let this be handled by actual government authorities.
"Check your privilege, college students. What do you think the townies do? If a townie accuses someone of sexual assault, do they get to banish that person from the neighborhood so as not to share it while the case inches forward?"
Exactly--try arguing to the police or a court of law that while the case is ongoing, the accused should have to move out of your neighborhood. They'll laugh you out of the room.
The answer these colleges will get is to lower demand for their services. I would call that a win, overall.
Also, if all the free sex provided by college students can be reined in, prostitutes will finally be able to earn a decent living in college towns.
Thanks, feminism!
"The Queen had only one way of settling all difficulties, great or small. `Off with his head!' she said, without even looking round."
During the Duke incident, some of my friends said "things like that never happened to my sons".
Recently the son of one of those pompous twits, now an adult, was accused of Inside Trading. Friend wants to know how this could happen in the USA to his son.
I refrained from saying "never happened to my children". 100 yrs off from in Purgatory for me -
The use of "appropriated" was deliberate. Powerful men appropriating a tool of vulnerable oppressed women.
NYT is telling us men are never the real victims. The real victims are members the larger oppressed group regardless of any specific situation.
college officials across the country are rushing to meet new government standards
What new standards??.....or did I miss something?
madAsHell:
The new standards were issued in a letter to the University of Montana. Basically, the standard of evidence was dropped to 50% (not even the typical preponderance standard as that would require he said - she said situations result in no punishment), no defense counsel is allowed, no confronting witnesses by the accused and the colleges handle the complaints instead of the police.
There's plenty to be mad about.
The jeopardy of free love. There must be a better way.
Planned Sexual Relations: release from legal and moral culpability. Located next to a Planned Parenthood near you.
I find it weird that the accused having representation is "New."
"What new standards?"
According to the CDC, "telling promises that weren't true" = sexual assault.
So does "acting sad" and "threatening to end a relationship."
If you stop sleeping with your boyfriend, or won't sleep with him, maybe you ended the relationship, and you want the force of law to keep him captive in the new one.
I agree on Dershowitz. He is authentically principled IMO
Big Mike said...
"I can't read the Times article thanks to the firewall..."
Open the link in a private browsing window, or google the headline and follow that link.
Islam has sexual socialism. Women have almost zero power to use the sexual charms God gave them. Mates assigned by deals with elders, who, you can be sure, know which of the burqa clad women are hot. I bet if these women got up off their fainting couch and donned a burqa, had their brother or cousin follow them wherever they go, problem would be solved.
Of course, avoiding compromising situations, and cowgirl up on some of the drama over what is often terra incognita for both parties would probably be a better way to live.
I've said it before. Video everything. Better than friends with benefits.
"To women’s rights activists, objections like those may have an oddly familiar ring."
One way to bring this situation under control is to apply the same rules to everybody. When some college administrator finds him/herself subject to a sex discrimination suit, that will concentrate his/her mind wonderfully.
The "we can't wait for due process of law" argument has been made by vigilantes and lynch mobs for ages. We don't buy it when they wear black hats, why buy it when they wear mortar boards?
Mark O:
Some states require the consent of both parties in order to record a conversation or sexual liaison. Your video may not be admissible evidence in court.
"Exactly--try arguing to the police or a court of law that while the case is ongoing, the accused should have to move out of your neighborhood. They'll laugh you out of the room."
They won't laugh if you request a restraining order. Not sure how that would work with classes. I suppose they would issue the order and the alleged assailant would be out of luck. Have to drop the class.
Ann Althouse's choice for president:
"Tomorrow promises to be a sad day for the United States, as the president will knowingly overstep his constitutional authority to regularize the immigration status of millions of illegals for narrow partisan purposes."
(Scott Johnson)
Nice job Ann.
I liked the writer's use of "appropriated" which connotes property, and a kind of property which, if used by men, would be less available to women. It has a whiff of stigma, of men invading womens' culture and space. A kind of assault itself.
Regarding the new rules which the schools are rushing to apply, David Bernstein of Volokh Conspiracy has some very good questions as to their legal grounding. Or, rather, the lack thereof. Maybe the whole enterprise, already quite theatrical (although with deadly consequences), is a legal fiction.
Jon Gruber was hired to sell these sex codes.
He explained that, if the college administrators, who are really stupid, heard guys like Dersh trying to bring up things like "due process", these codes would never be adopted.
But, actually, he acknowledged that intelligence really has nothing to do with it. He noted that fear of the "feminists" will make these PC administrators go along regardless.
In any event, to paraphrase a wise man: I would remind you that extremism in the defense of feminism is no vice! And let me remind you also that moderation in the pursuit of Wymyn's justice against sexual predators (all men) is no virtue!
Sorry, I should have included a link to Bernstein's questions.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/17/three-questions-about-the-legality-of-the-obama-administrations-anti-sexual-assault-on-campus-policies/
The CDC is issuing guidelines for sexual violence that are unconstitutional? Violence is described on the CDC web site as just about anything from harsh language to rape.
Some lawyer is going to have a BIG payday!....and I hope it is soon. In fact, I hope someone plays the system, and underscores exactly how foolish this is.
Thanks for the info!!
Hey, if they won't let us defend ourselves over fu NY shirts, why should they let us defend ourselves against rape charges.
n.n:
Not precisely so. If there is a warning that the premises are under audio and video surveillance then there may be no expectation of privacy. Place a sign at the entrance just like every gas station. Then all recordings are lawful.
Deleted duplicate post.
@Jupiter, thanks.
Althouse: Interesting usage of the word "appropriated"....
Very.
Why does seem that Harvard Law is the only one offering any pushback against the "new government standards"?
"Finding new ways to make their voices heard" is by getting a good attorney, a method that is as old as the typical Democrat leader.
The Magna Carta is still good law in England. They have to be tried by their peers.
A good lawyer is still in demand. Selah.
Since the tools used by universities in this regard seem to consist mostly of an iron rail, a bucket of tar, and some feathers liberally applied to the accused {along with "What you mean you villain, you want to offer a defense"?), it's hard to see how anyone would want to appropriate that.
The more enlightened universities these days use a variant of the old ducking stool. The accused is held under water. If he survives the attempted drowning, well then he is guilty. If he drowns, well then he was innocent.
Kangaroos in black robes anyone?
You over reach, you get reaction, and these university conduct codes deserve one--good and hard.
I was repeatedly sexually salted. The chick loved salt, would pour it in a trail from my neck, figure-eighted at my nipples and then down to the Chairman. She'd lick the salt like I was the rim of a tequila glass, salt salt salt lick lick lick. When she kiss me I felt like I was giving a rimjob to a bag of pork rinds -- she was THAT good.
...because everyone knows the accused should have to face the tribunal without counsel.
Then there was the girl who was obsessed with vanilla bean. I told her I was good with vanilla, but not so much with the bean: I did not want to be surprised with a bean. Then she said she was Neapolitan Ice Cream but I only liked one of the three flavors available. This is on topic because she was in college.
Apropos of another post's comments, I do not mean to bully Neapolitan Ice Cream: But I do have a story involving Rocky Road.
I am Laslo.
I don't really understand how they are getting away with this flabby-minded amateur bullshit. Do universities investigate murders that occur on campus? Do they send the Assistant Dean for Student Affairs to interview witnesses and collect evidence at the crime scene? How would the police feel about it if they did? That is, would the police merely forcibly exclude the AD from the scene, or would they haul him off in handcuffs?
If they take the DNA from her face it is not rape, it is bukkake. Generally.
By that I mean 'bukkake', not 'bukkake-bukkake'.
And when I say 'Sirhan' I do not mean "Sirhan-Sirhan."
To be clear.
I am Laslo.
"Due Process!!" is simply a slogan the left uses until they gain power and then out the window it goes.
Fens Law.
With regard to the Cosby case, a prosecutor who declined to prosecute him said;
"Castor also said the alleged victim’s delay in speaking out hurt the case.
“You lose the ability to test for blood or intoxicating agents, whether she was drugged,” he said."
Suppose that a University employee had advised her not to go to the police, but instead to have the matter handled in a toy court. And when she later tried to deal with the matter in a real court, they told her that was no longer possible, because she had followed the advice she was given, by a person with no legal training and no right to practice law, acting within the scope of his employment. How big is that endowment, by the way?
A university has the same responsibility that any entity has, which manages premises open to the public; namely to attempt to ensure the safety of those on the premises, and especially those with a business relation to the entity. But although many large corporations nowadays have campuses, and well-organized security forces, I can think of none that have their own courts. That would be asking for trouble, which would not be long in accepting the invitation.
From the article:
“That argument proceeds from both a misapprehension about the nature of university disciplinary proceedings — which are not criminal prosecutions — and a misunderstanding about Columbia’s definition of sexual misconduct — which is intended to protect students not only from forcible rape, but also from unreasonable pressure to accede to sexual advances,” Columbia’s lawyers wrote in a filing last month.
This is pure gold. The lawyer who wrote that sentence in the filing must have surely been aware of the irony. We all have the same view of rape-rape. Everything else is pretty much just trying to get laid.
- Krumhorn
This whole debacle makes me wish I had gone to law school.
Because a bunch of lawyers are going to make a TOM of money suing schools for violating the civil rights of male students with the "rape" witch hunt.
If the accused start winning cases against the universities, the damages would be huge, wouldn't they? If you're calculating loss of future earnings on someone at the very beginning of a career from a prestigious school. Yow!
By the time one of these lawsuits reaches the SCOTUS, democrat presidents will have appointed 3 or 4 new feminist justices.
Goodbye, lawsuits.
Jupiter:
"That would be asking for trouble, which would not be long in accepting the invitation."
Very well said, Jupiter. I cannot fully express how much I appreciated reading that particular sentence. Bravo!
Freeman Hunt:
Universities are going to lose most (and I will guess nearly all) of these cases. The judgments will be significant. A Republican president might be able to roll back some of this nonsense but the bureaucracy will,still be in place. The bureaucracy will not look favorably on universities that resist.
The judgments will be less valuable than the Department of Education funds.
And there we are...
campy:
The Court will not take these cases, I will wager, unless a Circuit gets very far out of line.
This is what got me:
Such policies are getting a workout these days. During the 12-month period it most recently tracked, the federal Education Department received 96 Title IX complaints related to sexual violence. In the previous period, that number was 32. The department does not track how many were lodged by women and how many by men.
What does this mean? Does this = the 1 in 5 so often referenced? Are these = to the same amount of complaints? Does someone know?
You know we're not talking about rape or even what most of us would consider sexual assault when the proposed solution is "only yes mean yes". No rape victim or sexual assault victim successfully defended herself/himself by saying to the attacker "I didn't say yes!"
"Only yes means yes" is an attempted solution to the problem of a drunken hook-up culture on campus. Maybe it will work on that problem, but not if it leads to kangaroo courts that equate it with rape and absolve young women of responsibility for their own actions.
Blogger Freeman Hunt said...
"If the accused start winning cases against the universities, the damages would be huge, wouldn't they?"
Let us hope so. The vermin infesting the upper reaches of university administration will not be dislodged by half-measures.
All this is being mandated by the Obama administration. The college rules are mandated by the feds. And believe it or not the DOJ is not the prime culprit here. Even liberal attorneys are, you know, attorneys.
So they went to the CDC instead. The CDC has no experience in criminal law whatsoever. So think for a minute how weird it is that the CDC is counting up rape statistics.
And doing it quite badly.
It's weird to redefine rape as a disease. Isn't it? Rape is a crime. It's always been a crime. And yet the CDC is counting up rapes and announcing that it's an "epidemic."
For starters, you are counting up rape accusations, not rape. Rape is a crime that has to be proven. It's really one-sided to make an assumption of guilt, without talking to the person who is being accused of a rape. The way you find out the truth is by hearing both sides, cross-examination, due process. The CDC skips all that. It's a rape epidemic and we must blot out the disease.
But even more bizarre, the vast majority of the CDC's "rape victims" are not making a rape accusation. They're not defining the sex as rape. The CDC is doing that.
Now contrast the CDC's fear and scare tactics vis-a-vis rape and the "everybody stay calm" rhetoric about ebola. Apparently a national freak out about an actual disease is very worrisome. But a national freak out about rape--while the violent crime has declined 10 percent--is just what the doctor ordered.
What new standards?
You can read about it here.
It reminds to what I read about the show processes in the "Gulag Archipel" where the "advocates" for the defense were in total agreement with the prosecution about the guilt of their clients.
But then, the article is from the "Duranty" Times.
"If the accused start winning cases against the universities, the damages would be huge, wouldn't they?"
Only against private university's I think. But perhaps I'm wrong.
Phil D: "It reminds to what I read about the show processes in the "Gulag Archipel" where the "advocates" for the defense were in total agreement with the prosecution about the guilt of their clients."
What you have to understand about the lefties is that Solzhenitsyn's Gulag Archipelago (3 volumes) is not (to the lefties) a critique of a totalitarian mass murdering operation.
Oh no.
To the lefties, the Gulag Archipelago is a "How To" manual.
Phil D:
You are precisely wrong about whether public universities will face significant judgments. Private universities may have a better defense because they're not acting under "color of state authority" and therefore the Bill of Rights should not apply -- no due process.
State universities will not have that option.
But that's just what I gather reading online sources. Ask the lawyers.
The concept of using ill-equipped institutions to investigate, adjudicate and penalize society's ills that are outside their bailiwicks is just a recipe for bad news. The NFL is perfectly equipped to investigate, rule on, and penalize a player who cheats in a game, or a team that gains an unfair advantage. It is poorly equipped to do anything about Ray Rice beating his girlfriend, or Ray Lewis taking part in a killing. Both actions were unrelated to the sport, and any suspension the League could dole out would be laughable as a punishment for a crime that normally equals prison time.
Likewise, a school can certainly investigate and adjudicate and penalize instances of alleged cheating or plagiarism, or classroom misconduct. That's in their zone, and their punishments (expulsion, revoking of degrees) can fit those infractions quite well. But schools simply are not the organizations that can handle investigating, adjudicating and punishing serious crimes like rape. Seriously--if someone commits a rape, all they get is kicked out of school? What moron would think that's a suitable punishment, unless the idea is that this person could not be convicted in a real court of law, in which case we're admitting that the schools should have a much lower standard of guilt and more falsely accused people get sacrificed?
This whole thing is a terrible idea, and anyone who cares a fig about civil liberties should be up in arms over this. If you think the current system of police and courts are not adequate to do the job of investigating and convicting actual rapists, then go ahead and make your proposal for how to fix it without destroying due process. Using inadequate institutions to pick up the slack (at the risk of some innocent parties' livelihoods) is not the answer.
These schools deserve the lawsuits they're going to get over this. They never should have waded in.
Jupiter said...
I don't really understand how they are getting away with this flabby-minded amateur bullshit. Do universities investigate murders that occur on campus? Do they send the Assistant Dean for Student Affairs to interview witnesses and collect evidence at the crime scene? How would the police feel about it if they did? That is, would the police merely forcibly exclude the AD from the scene, or would they haul him off in handcuffs?
11/19/14, 5:28 PM
Remember, we got to this place because women would report a sexual assault to the college and the college would call the police. The police would investigate and in many cases (not all but many) it came down to a he said/she said with no "real" evidence of a crime that could be proven in court. Over time, the government and colleges relaxed their definitions and policies until we are where we are today. A kind of double jeopardy. Regardless of if there is any criminal punishment against the accused, there can be college punishment. Even if someone is found not guilty in a criminal court, colleges can still find them guilty and sanction them.
"Remember, we got to this place because women would report a sexual assault to the college and the college would call the police. The police would investigate and in many cases (not all but many) it came down to a he said/she said with no "real" evidence of a crime that could be proven in court. Over time, the government and colleges relaxed their definitions and policies until we are where we are today. A kind of double jeopardy. Regardless of if there is any criminal punishment against the accused, there can be college punishment. Even if someone is found not guilty in a criminal court, colleges can still find them guilty and sanction them."
The problem is not just that the accused (if falsely accused) stands to lose his education and potential livelihood--this is also a matter of defamation. Contrary to what the social justice warriors would have you believe, we are NOT living in a "rape culture" because there is still a far greater stigma on being a rapist than a rape victim.
You are precisely wrong about whether public universities will face significant judgments. Private universities may have a better defense because they're not acting under "color of state authority" and therefore the Bill of Rights should not apply -- no due process.
Except that if they are doing this in response to federal govt requirements, in order to get federal funds, there is an argument that they are treated as an arm of the federal govt, and are thus subject to the Bill of Rights. I think this argument is in the pending Harvard case. Should be interesting.
The problem is not just that the accused (if falsely accused) stands to lose his education and potential livelihood--this is also a matter of defamation.
The great thing, from a lawyer's point of view, is that the primary defamer is the school. It is their actions of suspending, expelling, etc, and then putting it in writing (typically in the transcripts) that causes the real damage to the falsely accused and "convicted". And, coincidentally, the schools also are the ones typically with the deep pockets.
Brando said ...
"This whole thing is a terrible idea, and anyone who cares a fig about civil liberties should be up in arms over this."
I'm afraid I don't see that. This is the monsters who have taken over the federal bureaucracy in Washington, interacting with the monsters who have taken over the universities, to cause a lot of trouble at said universities. The monsters in Washington are part of a problem that is much larger than mere civil liberties, and the monsters running academia are a problem, but not a civil liberties problem.
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