A Philosopher's Blog

Colleges, Rape & Justice

Posted in Ethics, Law, Philosophy, Politics, Universities & Colleges by Michael LaBossiere on June 23, 2014
Justice

Justice (Photo credit: donsutherland1)

A thoughtful and well-reasoned article on the college rape crisis by Michelle Goldberg was recently published by the Nation. Reading through the article caused me to reflect on the various issues, most especially the matter of the role of colleges in handling sexual assault and rape cases.

When a student is alleged to have assaulted or raped another student, the purported victim can report the matter to the police or bring the matter to the attention of the college (or both). For legal (and moral) reasons, colleges should not ignore such reports and so a college has to take some action.

While colleges vary, it is common practice for colleges to handle allegations of sexual assault and rape internally in a manner rather similar to academic misconduct hearings: a hearing is held with a panel composed of faculty members and administrators. Since the panel is not a court of law, it (presumably) does not have the authority to impose criminal or civil penalties as an actual court could. Rather, the panel typically decides whether or not the accused student should be subject to disciplinary action, with the highest penalty usually being expulsion. As might be imagined, there are some obvious problems with this approach.

The first is a practical problem: while many schools do have their own police forces, faculty and administrators are generally not trained to properly investigate and judge such matters. To use myself as an example, while I can teach classes, serve on committees and so on, the skills needed to conduct a detailed and proper forensic investigation of an alleged assault/rape is not in my professional toolkit. I am a philosophy professor, not a detective or CSI professional. I would, if I was assigned to such a panel, do my best—just as a detective somehow assigned to teach my class would presumably do her best.

There seem to be two main solutions to this problem. One, which seems the most sensible, would be for colleges to cede authority over these crimes to the actual legal system. That is, the role of the college would be to assist the purported victim in reporting the alleged crime to the police. Naturally, the college can also have an important role in providing support to the purported victim. There is, however, the concern that such crimes are not always properly addressed by the authorities.

The other would be for the college to ensure that those handling the incidents would be properly trained professionals. This could be done by hiring such professionals or by training existing faculty and administrators in how to handle such cases. This would run into the practical concern regarding cost (schools would, in effect, have to support their own “CSI” staff and detectives).

The second is also a practical problem with a moral component. A college has a vested interest in protecting its reputation and protecting itself legally and financially. In a practical sense, this leads to a conflict of interest that can influence the rulings of a panel. In a moral sense, this can lead to justice not being done in regards to finding the truth and ensuring that wrongdoers are punished and the innocents are not.

As before, there seem to be two solutions to the problem. One is to remove the handling of such cases from colleges. The other is to take steps to ensure that such internal panels act for the sake of justice rather than trying to protect the reputation of the college. I would say that the former option is the better choice.

The third is a moral problem with two aspects. One aspect is that purported victims sometimes report that a college’s handling of the situation is yet another violation—a traumatic and harmful experience rather than a professionally conducted act of justice. Obviously enough, subjecting someone to such an awful experience is morally incorrect. The second aspect is that alleged perpetrators sometimes report that the college’s handling of the situation is a kangaroo court devoid of due process. If such charges are true, they would certainly be cases of wrongdoing.

Once again, there would seem to be two solutions. One is to have such cases handled by the actual legal system. There is, however, the problem that it is not uncommon for purported victims to report poor handling of such cases—which is yet another matter of moral concern and a very serious problem. Some have even argued that colleges should continue to handle such cases because the actual legal system has failed the purported victims so badly. That is, colleges might be bad at this, but they are sometimes better than the legal system. This certainly points to a clear need to address the legal system—there is little sense in handing off the handling of such cases to a system that is no better.

The second is to rework the college system to try to ensure that the purported victims are treated with proper respect while also ensuring that the alleged perpetrators are given a fair hearing in accord with due process. This, needless to say, would prove challenging—but it is a challenge that must be met if colleges are to continue in this role. If the legal system is doing a poor job, then it would be even more important for colleges to revamp their systems.

The third problem is also a moral problem with legal aspects as well. As many critics of the current system have noted, there is the moral and legal concern with the basis for the college’s authority to handle such cases. As the usual example goes, colleges do not handle cases in which a student murders another student—that is a matter for the police. By analogy, the same should apply to sexual assault and rape—those are actual crimes. While a college does have academic authority over students as well as a degree of disciplinary authority, a college would certainly seem to lack the legal and moral sovereignty needed to claim authority over serious crimes (even if it had the resource and competence to run its own legal system). As such, it would seem that a college would overreach its authority in attempting to handle criminal cases such as sexual assault and rape. That said, there can still be a legitimate role for colleges to play in such matters.

While a college certainly should not have the authority to impose criminal (or even civil) punishments on students (that is, a college should not be able to maintain jails or conduct executions), a college does have some legitimate authority over students. To be specific, a college has a (hopefully) clearly defined sphere of authority based on the agreement between the student and the institution, as spelled out in the rules and policies of the college. The college does also have the legitimate authority to impose certain penalties within a fairly limited sphere. The outer limit of these penalties is, of course, expulsion from the university.

Such authority is intended to allow colleges to have some degree of control over student behavior—after all, without the capacity to punish, authority does not amount to much. There is also presumably the purpose of maintaining a safe and non-threatening learning environment. This is what justifies punishing students who disrupt this environment. In some cases, maintaining this environment can require expelling students.

Because of this legitimate function, a college can justly claim the right to hold a hearing for a student accused of sexual assault or rape. However, this should not be in place of a criminal trial. Rather, it should be in addition to the criminal trial. The purpose of the college hearing would be to determine whether the alleged perpetrator should be, in addition to whatever punishment imposed by the legal system, subject to discipline by the college.

While it might be tempting to insist that an alleged perpetrator who is found innocent by a court of law should also be exempt from college discipline, it must be remembered that the requirements of a criminal court are supposed to be very rigorous, with an assumption of innocence and a standard of proof set at beyond a reasonable doubt.

It can be argued that the standard of proof for a college disciplinary hearing should be lower than that of a criminal court (as civil courts have a lower standard of proof). After all, the standard should be higher when a person might spend years in jail as opposed to being disciplined by a college. For example, an incident might be such that it seems reasonable to believe that something wrong occurred, yet the evidence is simply not enough to establish proof beyond a reasonable doubt. In such a case, an alleged perpetrator might avoid jail yet perhaps be justly expelled from college.

If this view is accepted, then there are the practical and moral problems of determining the standards of evidence and the appropriate punishments. At this time, many colleges accept a very weak standard—that of “more likely than not.” That is, if the panel members (who are, as noted above, usually not trained in such matters) believe that it is more likely that the alleged perpetrator committed the misdeed than did not, then the person is guilty. As might be imagined, some critics of this standard regard it as far too weak and in stark contrast with the usual principle that it is better for the guilty to go unpunished than for the innocent to be unjustly punished.

In regards to the punishments, there is also considerable controversy. It could be argued that even the worst punishment that a college can offer (most likely expulsion) would still not be enough. While this might be true, it would not be a good reason to grant colleges more power to punish—after all, if the punishments were sufficiently severe, then the standards would need to be equally high. It can also be contended that some punishments, such as expulsion, would be too harsh given the weak standard.

It must be noted that sorting out the standard and the punishments is distinct from the issue of whether or not a college has legitimate authority to discipline students accused of sexual assault or rape. I certainly hold that a college has the authority to impose disciplinary action even on a student found not guilty by a criminal court—much as a civil court can impose a penalty on someone found not guilty by a criminal court. However, I have not given sufficient thought to the standard to be used and the punishments that would be just. It might be the case that the punishment should be linked to the standard—that is, the weaker the standard, the weaker the punishment.

It can also be argued that there is behavior that is not covered by the law but can be justly covered by a college’s policies. For example, cheating on tests is usually not a criminal offense, but it does provide grounds for discipline in a college setting. Likewise, some sexual or sex-related behavior might not be considered criminal, yet still be legitimately regarded as problematic enough to warrant discipline from a college. That is, the behavior is perhaps not technically illegal, but not tolerable behavior for a student. To use an analogy, some colleges have dress-codes that forbid attire that would not violate the usual laws relating to public indecency.

To close, my considered position is that colleges should obviously not be handling criminal cases—these should be turned over to the police and the actual legal system. However, colleges can legitimately hold hearings on allegations of sexual assault or rape and subject students to disciplinary action up to and including expulsion. There are, however, important practical and moral considerations that must be addressed and these include:

 

  • Ensuring the competence and impartiality of the college panel members conducting the investigation and hearing.
  • Ensuring that the standard of proof adopted (such as “more likely than not”) is just.
  • Ensuring that the punishments are just.
  • Ensuring that the applications of the standards and punishments are just.
  • Ensuring that both the alleged perpetrator and purported victim are treated with respect and get due process.

 

If these considerations can be properly addressed, then such a system can be legitimately regarded as just—at least within the specific context.

 

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5 Responses

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  1. T. J. Babson said, on June 23, 2014 at 9:45 am

    If it is determined that the accuser lied, should the accuser face expulsion?

    Also, even in cases where the accused is found innocent, it is common to publish the name of the male and not publish the name of the female.

    • Michael LaBossiere said, on June 23, 2014 at 1:57 pm

      Interesting question and one that is part of the broader question about dealing with false accusations in general.

      On the one hand, I can see the appeal of a policy in which an accuser is protected from being expelled if the accused is found innocent. The usual argument would be that victims would be even more reluctant to come forward if they could be expelled by losing their case. If the accuser acted in good faith (that is, had reasonable grounds for making an accusation and did not lie), then the accuser should not be expelled.

      On the other hand, if a hearing showed that the accuser intentionally lied and acted with malice (that is, fabricated a story with the intent of causing harm), then the accuser should be expelled at the very least and perhaps subject to civil litigation. After all, if the accuser had succeeded in the lie, the person’s life could be ruined. The liar should be treated as an accused male would be treated in regard to publishing the name.

      It has been claimed that intentionally false accusations are rare (but do occur). What seems more likely these days is that a person is convinced that she has been assaulted, but the accused is not found guilty because the “more likely than not” level of proof was not reached. Of course, with such a low level of proof, guilty verdicts would seem quite likely.

  2. T. J. Babson said, on June 24, 2014 at 7:29 am

    Democrats at work:

    Cathy Young has an excellent column in Reason.com about a bill in California that would require universities in that state to use an “affirmative consent” standard for evaluating sexual assault complaints in the campus disciplinary system for complaints involving students. Two obvious questions arise: (1) Why just on campus? If this is a good idea, why not make it part the tort system? If that’s too drastic, let’s start, with say, members of the California legislature. For internal disciplinary purposes, their sexual activity should be governed by the same standard they want to impose on students. What plausible grounds could they have for rejecting application of a standard they would impose on students to themselves? (2) If we’re limiting things to campus, why just students? Why should students be judged under this standard, but not faculty and administrators? It’s hardly unheard of for professors, administrators, and even law school deans to engage in sexual relationships of dubious morality. The answer is that it’s not a good idea, and it’s a product of the current moral panic over the hookup culture.

    But at least the affirmative consent standard leaves room for a defense that the complainant provided appropriate non-verbal cues that signified consent. By contrast, the Office on Violence against Women, a U.S. Justice Department subsidiary, informs us on its home page that “sexual assault is any type of sexual contact or behavior that occurs without the *explicit consent* of the recipient.” This is not, in fact, the legal standard in any jurisdiction in the United States, and it’s not because it’s completely absurd. The vast, vast majority of “sexual contact or behavior” is initiated with only *implicit consent.* [UPDATE: There is one type of sexual relationship that, as I understand it, involves primarily explicit consent--the relationship between a prostitute and her (or his) clients, with exact sexual services to be provided determined by explicit agreement in advance.] The DOJ website definition makes almost every adult in the U.S. (men AND women)–and that likely includes you, dear reader–a perpetrator of sexual assault. Just leaning over to give your date (or your spouse) a kiss without asking first and receiving a yes comes within stated definition of sexual assault, regardless of how many times you’ve done it before without objection.

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/23/you-are-a-rapist-yes-you/

    • Michael LaBossiere said, on June 24, 2014 at 3:31 pm

      There is money to be made on an app for this: Consenter-it takes a short video clip of the two (or more…we should not judge) people consenting to the specific acts (check boxed options will be provided). The video is then uploaded to a secure server accessible by the police, the CA legislature (I assume they will want in), and colleges.

  3. T. J. Babson said, on June 24, 2014 at 7:31 am

    Dems are the party of trial lawyers.


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