Sexual assault and universities

I haven't made any errors. You said sexual offences come under battery in civil law and I conceded that's true in theory but not in practice. You can't argue something has happened but then expect someone else to do the research.

US cases such as? Their case law can be persuasive but even if there are cases from the US (which you're yet to demonstrate) that doesn't mean we'd instantly include it into our law.

And in both of those situations the student or employee would be able to appeal the decision and the employer or school would need evidence.

Universities I would say are different because you're paying to be there. I would say they would want enough evidence to be sure before they threw away a students tuition and I think they'd need more evidence if it were appealed.

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Reply 23

Universities (especially those in the US) have only shown themselves to respond poorly to these situations and operate tribunals that fail to ensure any kind of fair trial. A student should not have the power to levee serious accusations of criminal acts against another and have them expelled from university without that person having legal representation or the right to face their accuser. This isn't the way justice is supposed to operate. These are, in effect, legally permissible Kangaroo courts, and it's reprehensible.

A university should only have the right to expel a student for a serious criminal act if they have actually been found guilty of that criminal act in a court of law.

(edited 8 years ago)

Reply 24

You're so hung up on what's legal that you've neglected to consider what's right.

Reply 25

You're instantly assuming that the accused is actually guilty. Have you forgotten the very reason why 'innocent until proven guilty' is such an important concept in Anglo-Saxon law? Do you not understand why the burden of proof in a criminal court is so high and lies on the accuser, not the accused?

But university tribunals don't exactly operate this way. They have low standards, questionable regard for the rights of the accused, and they would rather expel a student to avoid hassle than actually investigate in a fair, impartial manner.

Reply 26

I think the disagreement here is down to speaking at cross purposes about why the University is allowed to expel its students. The way the debate has been phrased thus far, it seems as if the university simply unilaterally imposes a ‘court’ on its students. However, I think it’s quite easy to solve the conflict when you consider why, in fact, the university, or the employer, who whatever other body, has jurisdiction. It does not have jurisdiction qua private body: a person cannot simply walk up to another on the street and declare that they are a court, and that they wish to hear a case against that other person. Instead, it is because there is a contractual relationship between the university (or employer etc.) and the student (/employee etc.). The contract entitles the student to attend the university, use their accommodation etc. In return, they submit to a number of rules. I remember my contract for university referred explicitly to the founding statute, which prohibited any activity unlawful by the general law (plus a number of additional stipulations, like 'no cheating', 'no plagiarism', 'nothing immoral or improper'), but set up its own procedure for monitoring breaches in this regard. Therefore, the student can be ‘tried’ by the university because, when signing the contract to attend, they agreed to the procedure.

(edited 8 years ago)

Reply 27

But they are being accused of a crime. Not in the legal sense, but in the sense that they committed an act which would otherwise be considered criminal. Rape, for example, is a serious accusation that will potentially ruin their education and affect their life considerably. A serious accusation needs serious evidence.

(Most) universities are public institutions where students exercise their right to pursue an education. A student isn't an employee at some private company. The 'balance of probabilities' be damned - that's not how we should be determining guilt. Rape and sexual assaults - which are serious matters with serious consequences for the accused and the accuser - are beyond the scope of a university's capabilities to reasonably determine. The way this is operating is completely backwards. If someone is thrown out of university for rape, but they were never actually found guilty of any crime in the first place, they were treated unethically.

Reply 28

callum_law

Didn't they teach you about private prosecutions at Durham?

(edited 8 years ago)

Reply 29

Chief Wiggum

Well if the university can get it factually wrong and not be held accountable, I wouldn't say they're capable of determining whether someone is guilty or not.

The system as you describe it sounds utterly terrifying.

Reply 30

callum_law

I'd not say they implicitly permit. CPS generally are notified, for it is not sensible for a private individual to start a private prosecution without first clarifying that the CPS are absolutely unwilling to provide it. CPS can take over the prosecution, indeed, but there ultimately is a right to bring private prosecutions as a private individual and the CPS do not hold the right to prosecute exclusively.

Saying that you'd like the law to be X does not make the law X. You'd like for the CPS to provide all prosecutions, but it does make it the case that CPS provides all prosecutions. Indeed, it's not simply a question of "individuals" (such as Terry who lives at the bottom of my street) bringing prosecution privately, but more so that organisations with a vested interest in the subject providing non-CPS prosecutions.

This insight does not matter at all to the OP, but to the debate you're having which is grounded largely in theory, I think it's relevant.

Reply 31

Studentus-anonymous

Original post by Chief Wiggum

I agree with most of that. The university should be agreeing with the court of law's judgement, not coming up with its own judgement in some type of "kangaroo court".

However, I think universities often have counselling systems etc? I feel that it would be entirely appropriate for the university to support a student's welfare and health in such a way. Things like personal tutors at universities can also help to support a student's mental health needs.

I strongly believe that a university should not take disciplinary action against an accused unless they have been found guilty in a court of law though.

This.

Shame universities seem to be where many people's common sense goes to die.

Nothing confirms the image of "young and dumb" than a gathering of students who seem to think they have all the answers.

Universities are to educate, not to police.

Reply 32

I'm really not sure about the terminology 'non-law/quasi-law'. 'quasi-' makes it sound troublingly Justinianic. Did you get chance to read my post, 48?

Reply 33

Justinianic was a reference to the 'quasi-contracts' and 'quasi-delicts' of Justinian's Institutes, i.e. when Tribonian's compilers seemingly gave up any attempt to understand the nature of the obligations with which they were dealing.

I appreciate the attempt to distinguish terminology, but my point is that 'contractual terms' may be closer to the mark than 'university law', 'quasi-law', 'non-law' etc.

Reply 34

Okay, I'll extend an olive branch here and say that I can see where you're coming from. The university may not be comfortable with having somebody accused of a serious crime on their campus, as in their eyes it is risking other students' safety, and there can be potential lawsuits involved as a result. Very well.

What I still have a problem with, however, is that a person can be a murderer in one place and innocent in another - in the very same land, no less. Surely what the Crown considers you to be should trump the university in something like this? If the decision of court of law, which operates on stricter, more established principles there for a very good reason can be trumped and rendered utterly meaningless by a university tribunal and stance of "eh, maybe he did it, that's enough for us - you're expelled", something isn't quite right. No? Does this not compute?

Regardless, I still appreciate the time you took to type all that.

(edited 8 years ago)

Reply 35

Not sure what you've been taught but a citation would be helpful. So my initial statement was right? There have been a few cases in the US and nothing in the UK?

A university would likely wait on the courts decision. Realistically if the student was found not guilty by the courts they'd have a good chance in an appeal or suit against the university if they were kicked out.

But it also means that there should be considerable evidence before being expelled.

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Reply 36

If I ask for a citation it shouldn't be hard for you to give. After all that debate you say you know of no precedent in the UK which says that rape can be a civil offence, bit of a waste of time.

We don't live in the USA so it doesn't really matter.

I'm talking about the standard they would want to prove to. If they're accepting they're throwing away money they'll want to be pretty sure there's good reason.

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Reply 37

If it's any help, I'm not convinced that rape/sexual abuse is a separate tort in England. I've certainly never heard of it (weak evidence, I know). I've just looked through Burrow's English Private Law and there is no mention of it, and 10 minutes of research suggests to me that it does not exist independently in English law, but can be sued for under trespass to the person - see, for instance, Stubbings v Webb [1993] AC 498. I can fully understand the lack of authority. I imagine it's normally the equivalent of res ipsa loquitur at trial, and I can't see any reason to appeal it - sexual abuse of any kind is obviously a wrong to the person and hence no appellate court would deny that, so it would make little difference to the claimant, aside from special facts, as to exactly how their tort was classified.

Reply 38

You criticised my research skills, yet you can't find a citation for a case that you've obviously looked up somewhere? That seems odd seeing as the names of the parties are followed by the citation.

Pakistan and Uganda are also common law jurisdictions it doesn't mean you can say their law will apply here. It seems you've been told that US cases can be persuasive in UK courts but taken that point so far as to think they serve as binding precedent.

Any precedent or legislation for that?

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Reply 39