The student accused of punching his girlfriend and throwing her down the stairs will remain a student at Clemson and on the football team’s roster for the time being. Why, you might ask? Because, according to her lawyers, the woman who was assaulted was advised by the police department not to participate in his disciplinary hearing, as it might interfere with her criminal case. The police department won’t say that they said that, exactly, but
“I didn’t deal with that,” [Central police chief Kerry Avery] said. “But I’m not 100 percent for having a mini-trial before the criminal trial anyway. … Why go to something and you haven’t had any sort of criminal trial?”
Why go to something like that? So that he is not walking around campus for the year or more it will probably take for the criminal case to go to court, potentially threatening her again or threatening another student? So that other students at Clemson see that the university takes accusations of assault, against intimate partners and otherwise, seriously? So that, if the disciplinary panel thinks he did not do what he is accused of (as two witnesses apparently testified on his behalf), their decision in his favor is treated with respect, rather than perceived as an empty show to allow him to continue to play football? (So that, the cynic in me whispers, he is not exploited by the system into having one last good season for Clemson football before the system sends him to prison? (Don’t believe police and prosecutors bend the rules to help out the local football team? See this story.)
There’s an important misconception at work here that extends well beyond this case and into U.S. thinking in general, the idea that the only way communities can discipline their members is through the state or federal court system. Admittance to a college or university is granted in exchange for an agreement to abide by that community’s rules and that community’s means of administering its rules while part of that community. The student rights and responsibilities packet that most students receive at their freshman orientation is handed out for a reason – even if most students don’t quite get it at the time.
A community has the right to remove or sanction (such as forbidding a student to participate in a sports team) a member that has violated its ethics as long as it has reached its decision fairly and without arbitrary (race/class/gender/etc. based) discrimination – but doing so fairly does not mean that it will necessarily decide in the same way a court would. A community has an obligation to its other members, and just because we, at the U.S. wide level, have chosen the court system, with the attendant delays, adversarial approach, and limited range of disciplinary options of our current system, does not mean that other communities cannot decide that a different system better meets their needs. So a university’s disciplinary hearing is not a “mini-trial” – it serves a function specific to the university community within which an attack is alleged to have occurred, and can do things that the criminal process cannot, as well as being unable to do things a criminal process can.
I’ve just begun doing some reading about approaches to community accountability that work outside the court system, and I still have a lot to learn. (Check out INCITE! and Safe Outside the System for organizations working on developing alternatives to the criminal system, for reading try the Color of Violence anthology.) So I’m not going to comment too much more on this now, but I do regret that the young woman in this case got some very bad advice from the local police department. All students have the right to pursue justice both through their school and their local police, and the decision as to whether one system or both is better for them needs to be left up to the student.
I can tell you from my experience as an attorney that the academic disciplinary process is generally wanting, to say the least, in terms of affording a fair hearing for the accused. Evidentiary rules forged and honed for centuries in the cauldron of the common law are ignored; due process rights that every citizen of this nation takes for granted are blithely disregarded; and even young men who are ultimately adjudged not guilty of sexual offenses or other offenses involving an intimate partner are often treated with disdain because of a culture that seeks to “correct” perceived past gender injustices. That is reality, not an assertion of a political agenda.
The judicial system, on the other hand, furnishes a far less political, far more dispassionate, arena to get at the truth.
No one — not even the dreaded, cocky, arrogant, misogynistic, privileged male athlete — should have his life turned upside down on the basis of nothing more than a refuted accusation for which there is no corroboration or supporting evidence beyond the accuser’s serene ipse dixit. While any such claim should be treated with objectivity and seriousness, the accused should not be pre-adjudicated in the blogosphere (with all due respect) but should be afforded the entire panoply of due process protections guaranteed to any other citizen of this nation when a naked allegation of wrongdoing is lodged against him.
Cowards.
I print notes that disagree with me. But I forget — your purpose isn’t to enlighten. It’s to preach to your choir.
Cowards.
Dear Archivist-
I struggled a little bit with whether to approve your comment, as I’m sure the regular readers of this blog will understand. Clearly your comment is directed to spreading certain prevalent rape myths, and therefore violates our comments policy. Also, I am loath to send traffic to your site, which is clearly designed to perpetuate myths about both rape and our judicial system. (Readers be warned.) And calling me a coward really didn’t weight things on your side. However, you framed your concerns politely, and there may be others who have a similar misunderstanding of our legal system and of our position towards the college judicial process.
First, the judicial system in this country has always favored white men of property – for many years those were in fact the only people who could constitute “a jury of ones peers,” even when the defendant was black or female. That it still does so is clearly demonstrated by the percentage of African-Americans in prison in proportion to their percentage in the population and by, as one example among many, the recently overturned difference in cocaine and crack sentencing. (For anyone unfamiliar, the two have the same effects and are trafficked by the same type of criminals, but one was favored by wealthy whites and one by poor blacks, and you can guess which one was mandated to receive much higher sentences.)
In terms of rape, specifically, the common law cauldron you hold so dear treated it as a crime against the property of the father or husband of the woman, not a crime against her autonomy. Although we have finally dispensed with that “common law” in this country, it is unsurprising that the centuries of patriarchy built into our legal system have not entirely dispersed in the mere decades since that understanding of rape has been replaced.
Our judicial system is a work in progress, and while I certainly respect what it does accomplish, to tout it as apolitical or dispassionate is an unsupportable idealization. If it were truly either of those things, among other refutations, the appointment of justices to the federal courts would not be one of the hottest political issues of this presidential election.
Moreover, the underlying assumption of complaints such as yours seems to be that if it is one person’s word against another’s, there is something inherently unfair in believing the victim. That’s a nonsense argument however, as the credibility of the two people involved is something that people can evaluate. There are many kinds of disputes that essentially rest on only the word of two people – the presidential election again comes to mind – and we judge ourselves capable of deciding between the two.
Second, the campus judicial process is equally flawed but, as I said in the original post, has somewhat different intentions and, I would add, is more easily improved in many ways than the current state judicial apparatus which changes at a very slow pace.
At SAFER, we strongly advocate for schools to formalize their campus hearing process. We suggest that they make sure that both the original hearing and the appeal are heard by several individuals, at least one of whom is a fellow student, that they have clear statements about what kind of evidence can be used in the hearing and who is responsible for finding the evidence, and both parties know the rules on which the hearing will operate. We also encourage universities to provide training to those faculty, staff, and students who will sit on the hearing board, so that they understand the process and have a better background to evaluate the evidence.
The point is not, however, to replicate our judicial process. First, these students are not being deprived of their liberty if found in violation of the school’s conduct policy as they would be if found guilty in a criminal trial. Second, most universities do not have a security force capable of doing the kind of intensive physical investigation that a good (and they certainly aren’t all this thorough) police department would conduct. Which is fine, because they are not there to determine guilt beyond a reasonable doubt and send the accused to prison for years. They are there to determine if the accused violated school policy (and school policy can, and usually should be, stricter than state law) and if the accused poses a continued danger to other students. The worst thing a school can do is expel a student, and while I admit that such an event is embarrassing, it is not life shattering in the way that a prison sentence is, and thus a clear and compelling or a preponderance of the evidence standard are appropriate. As even the Archivist will admit, the regular judicial system uses a range of evidence standards in cases other than the criminal, because in those cases no one risks prison.
As I said above, organizations can set codes of conduct for their members that are different than those in society at large, and then chose to discipline or remove those members. To take your longer historical view, that has traditionally been one of the functions of communities, and it is symptomatic of the changes brought by a century of increased urbanization that we now think it illegitimate for a voluntary community to impose standards of conduct that are different than the law of the state.
I could and should keep going, but I have to get back to my job – the downside of running this blog as a volunteer and, for future reference, when your comments take a while to be approved, please keep in mind that everyone working on this is doing many other things too.
Dear Archivist,
You probably feel a little silly now about calling us cowards, since Nora not only posted your comment, but rhetorically wiped the floor with you. Sharp as a tack, that one (she doesn’t go to Stanford for nothin’).
But, for future reference, when we don’t publish a comment, it’s because we hate kittens.
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