Wednesday, November 26, 2014

UVA "Pledges Zero Tolerance Policy In Rape Cases"

   This, uh, highlights the question: what degree of tolerance did they think was ok before? And how can anyone think that a less-than-zero tolerance policy toward rape is a reasonable thing?
   I'm torn when I hear this sort of thing. Of course, I think we ought to have a "zero tolerance" policy toward rape and sexual assault. I think we ought to have a "zero tolerance" policy toward all assault, for that matter. (Though I do agree that sexual assault is a particularly heinous category of assault.) However, I also think we're in the grip of a kind of rape crisis hysteria (hardly an original thought). And some institutions seem to have begun listening to extremist feminists, SJW/neo-PCs and the like, and, consequently, begun defining rape downward--e.g. characterizing ordinary drunken sex is rape. (And not mutual rape, incidentally...only males seem to be classified as perpetrators...)
   As often seems to be the case, people are justifiably incensed by a terrible crime, but they can't catch the actual criminals, so they settle for catching catchable people and characterizing them as criminals. Liberals are totally against this...except in the case of which case they seem to be...rather more open to the strategy...
   So...promising as it sounds, I can't emit three robust cheers for UVA just yet. I do hope that they've seen the light...but that means that I hope that they're planning to crack down on actual perpetrators, rather than doing the other thing.


Blogger tehr0x0r said...

I Share similar concerns, I'm all for a zero tolerance policy for those convicted of rape, sexual assault, etc... I'm even Ok with suspension after indictment/changes (though as we recently touched on, indictments are a bit of a joke), but I cannot understand why universities somehow think they should be involved in the investigation, or that we classify what universities classify as rape to be rape.

If a murder happened on campus, the university judicial system wouldn't be near the case. Universities don't have subpoena power, don't have police forces trained to deal with significant crimes (lets be clear, campus police are generally glorified RAs), students charged often are denied legal counsel at any proceedings, and the standard for guilt is generally closer to preponderance of the evidence (50% +1) than beyond a reasonable doubt, or even clear and convincing (generally see as somewhere between 65-75%). I would argue, that a student expelled or disciplined (by a public university such as UVA), though a fact finding investigation like the judicial affairs office (or whatever UVA calls it) who didn't have an attorney has a 5th/6th Amendment claim against the state (I'm sure this has been litigated and I just don't know about it, but if it hasn't or if it has and it came out the other way I think its time for a review of the system and I'd be happy to represent a student in that situation).

Moving past the role of universities in investigating this sort of case, the rape charges for drunken sex are a tough question. When you are dunk, you cannot consent to sex, that is fairly well established law, and when one person is drunk and the other is sober its easy to understand/reasonable to apply (in 99% of cases, I suppose those in long term relationships might occasionally go into a gray area here). But these college cases invariably involve people who are both drunk, so neither one of them can consent. Now, in these cases we have to make some hard choices:
(1) Do we institute a rule that in such a case we never charge either party? That seems inequitable, often there are going to be cases were one party clearly knew what was happening and the other didn’t.
(2) Do we say both parties are guilty unless there is some clear evidence of force by one party? That’s not going to go over well with much of anyone.
(3) Do we make a rule that the guy, as the party doing the penetrating/as the stronger party is always the one guilty of rape? That presents some issues for same sex cases, but I suppose if we make it clear that it’s the rule it would work most of the time and in the cases where it wouldn’t you probably have clearer evidence as to what’s going on (for example a woman who forces another woman to perform oral sex on her is the rapist, though again, this wouldn’t be 100%).
(4) Do we do a comparative thing were we look to see who was more intoxicated and then say that the less intoxicated person has the duty to not have sex? This would present a lot of gray areas, would be hard for people in the moment to know how to deal with, and would still need an exception for the case where the more intoxicated person clearly forced themselves on the other party. The law does comparative stuff, but I’ll be honest, it’s messy. I don’t really like this option either.

So, I don’t know, I don’t really have a good answer, but I’d like to hear what anyone else has to say about the topic.

7:47 PM  

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