Sexual assault and universities

Had you read and understood what I'd said you wouldn't be posting that response


Posted from TSR Mobile

This American had long gone off the point into tangentville. Yes there are torts for deaths...but these are not negligence torts as such, from what i remember these relate to estate by the person's family. In England, Wales, there are no substantive torts beyond death except pain/ suffering that am aware of. if the person were to survive then the torts are potentially major.

The US tort system in terms of vicarious liability for murder, I for one would like to see that case's ratio in concise words as i can no longer access Westlaw since finishing the degree. I do not believe that this would be persuasive authority for the jurisdiction of England and Wales as it would potentially reform its entire tort system. What, logically speaking, could you claim for against a dead man/ woman except for their relatives' loss. It is only his estate which is alive after the person has died.

I’m not sure why we are debating whether an action in tort lies for wrongful death (I’ve checked back through the thread, but can’t fully identify why). As far as I see it, the matter is a simple as this.

Facts: there is a sexual encounter between A and B, both students of C University. B accuses A of a serious sexual offence. C University learns of this accusation, conducts their own hearing of the matter, and, finding that A did commit the offence, suspends or expels them. The following consequences could follow:

The initial accusation

Between A and C
A will be aggrieved that they have been expelled, so wants to sue C. The relationship between student and university is contractual. Therefore, A brings an action against C for breach of contract because C is now refusing to provide the education which A contracted for. C responds to the action by pointing to a clause in the contract which allows them to conduct the hearing and issue penalties, including suspension/expulsion, based on their finding. There has not, therefore, been a breach of contract."

The relationship between university (A) & student (B) lies in public law, contract and tort, notwithstanding a private criminal prosecution.


"Between A and B
B wants a remedy against A for the sexual assault. They sue in the tort of trespass to the person (using the two authorities which I cited earlier in this thread + any others which may exist), and, before a civil court, have their action determined."

Property law

Charge order for a stake in A's parents property.

Contract: A argues the clause terms are unfair and are not incorporated under common law etc so the clause may not be legally valid.

Tort: Unless the student A has rich parents they're not worth suing. C instead will be held either directly liable for negligence or vicarious liability where it successfully argues it is not directly liable.

University Ombudsman

The powers of a high court but unlikely to use them as its board of directors/ trustees are all pro academic except one for students. Unlikely to consider tort type claims, will use its powers to exit early resolutions.

Between the Crown and A
A can be tried for the alleged offence before a criminal court, and have their criminal culpability determined in accordance with ordinary criminal procedure. "

Public prosecution by CPS

Police will work with the CPS to decide if there is sufficient evidence for conviction after deciding whether there were sufficient grounds for police charges.

Private prosecution

A could start a private prosecution at a magistrates or be escalated to the Crown Court if the offence is deemed very serious.

"If it turns out that A did not commit the offence

Between A and C
There has been no breach of contract, even if the outcome is factually wrong, as the terms of the university contract permit such a university tribunal to make its own determinations absolutely. Therefore, C is not liable for suspending or expelling A."

A judge will decide whether there has been contractual breach, thankfully in this country universities are not judges in that they decide if they have breached a contract.

Between A and B
A may be able to sue B for defamation. (Although it not unheard of to initiate a private prosecution for criminal matters, this is dealt with under ‘Between the Crown and B’)"

What the allegations of defamation how could A say they have been defamed?

Between the Crown and B
The Crown may have a number of offences, including potentially perjury and wasting police time, with which it can charge C."

The prosecution start with the highest offence and where there is not sufficient evidence they work their way down to lower offences.

"If you still want a discussion of suing for death, I think the following propositions are helpful to note:

1. The victim (deceased) cannot sue for being killed because ‘they’ cease to be a person at the same time that they suffer the loss (death), and hence cease to be an object before the law by the very act of the wrong. Actions can only accrue in people, and they are no longer a person once the course of events amounting to a wrong have completed (since the damage, their death, will occur at some time at or before the action arises). Their estate is merely a hereditament, a collection of assets, so cannot suffer ‘damage’ by the death of the deceased, as that death causes no reduction in the pot of assets.

This used to be the full extent of the law. However, to assist dependents, we have statutory intervention

2. Under the Law Reform (Miscellaneous Provisions) Act 1934, actions which previously subsisted in (or against) the deceased are maintained for (or against) his estate. While granting a sum based on the wrong of causing death to cover funeral expenses, all other damages for loss or gain consequent on the death are excluded.

3. Under the Fatal Accidents Act 1976, certain relatives are given a claim based on the death for (i) dependency (i.e. to cover the financial loss they make as they no longer receive financial support from the deceased) and (ii) bereavement.

"

The latter quoted section is too complex to discuss here and it irrelevant to the immediate facts, but you're broadly correct in general tort law.

In bankruptcy people lose their homes when it's not their debt, it could be a father's or mother's unreasonable behaviour, regardless the law will seek a remedy wherever it can. It does not matter whether the issue rose through bankruptcy law, criminal or property law, as long's as the remedy is available the law will avail a remedy.

The standard for the university is the reasonable university...if the reasonable university by act or omission would never have done this, then neither ought the university in question. The university simply owes A duty of care and where by its neglect B suffers in consequence, B's remedy can be against any university staff or the university collectively.

Again, if this is a reply to me, I find this only slightly easier to follow. I assume what you are saying is that the university owes a duty of care in negligence to its (adult) students to protect them from (criminal) harms inflicted by other students. This is, once again, omissions liability. I understand that there is a specific exception for schools owing duties of car to minors in their charge, but do you have any authority for this extending to adults in the charge of a university?

read the official receiver's rules..

Could you please cite the relevant section to me?

in law a company is person, ie individual as is a company...universities do not get special treatment in tort...if it is a tortious act then it is possibly liable. Crim law or tort law...omissions are relevant. Parent has duty for children, family in tort....parents have duties towards children/ family in crim law..ie omissions

Have you studied law, if so what level?

Insolvency Act 1986 like any other statute deals with situation but other materials deal with detail.

Sorry, thought I'd step in and point out that this thread has gone on a bit of a tangent discussing the legality of universities conducting their own investigations into rape and implementing their own punishments. I don't really doubt all that much that what universities are doing is legal. The question is over whether that is right, whether that should be going on, and whether we should expect it to go on.

I personally would not want, either as a victim or as someone accused of an offence, a university to be investigating a crime, and dishing out sanctions as a result. On a purely practical basis I don't think it can do it properly. I understand the idea that organisations can and should implement sanctions for misconduct, but in the cases of serious crimes I don't think they can carry out a good and fair investigation.

What worries me in all this is that some (mainly radical feminists) want to use universities as tools for punishing those accused of rape in circumstances where the courts can't find enough evidence to convict. Legal or not there is something distasteful about that and it is something we should be worried about. This isn't a question of is there legal justification for this? But one of is it right?

I don't disagree with your general observations, but I think the legal debate remains focused on this point in its general tenor, if its details have occasionally diverged. My argument is that the universities are justified in adopting such tribunals because the students agree to them through contract. If a person consents to potentially submit themselves to investigation by the university should any accusations be made against them, then I consider that a sufficient justification for the universities adopting such procedures, in the same way that a person agreeing to sell their house is sufficient justification to force them to transfer their house to the buyer. Therefore, I see the legal argument as key, as the legal reason and the justification for the procedure are, to me, the same thing.

I think an additional practical problem you come up against with universities though is the fact that practically nobody who has worked hard to gain admission into one as a student is going to refuse to sign the paperwork they're told they have to to matriculate. There is at least some sense of coercion going on here, what that means legally I've no idea but practically I think this is an issue.

Further, IF Universities are going to be enacting sanctions for misconduct I think they should be clear what those sanctions are and how they are investigated. The oath taken (practically signed online) at my university is as follow:

"We students who set down our names hereunder in all good faith make a solemn promise that we shall show due deference to our teachers in all matters relating to order and good conduct; that we shall be subject to the authority of the Senatus Academicus and shall, whatever be the position we attain hereafter, promote, so far as lies in our power, the profit and the interest of our University of St Andrews. Further, we recognise that, if any of us conducts themselves in an unbecoming or disorderly manner or shows insufficient diligence in their studies and, though admonished, does not improve, it is within the power of the Senatus Academicus to inflict on such students a fitting penalty or even expel them from the University."

I personally find that a bit concerning. It does not specify how misconduct will be investigated, and it does not specify what a fitting penalty is. It muddies the waters between conduct within the university and conduct outside it. It is far too vague and does make me uncomfortable. Would you not agree that if Universities are going to implement sanctions they have to be more specific than this?

Also, this point aside I still think the question of how effectively a university can investigate serious crimes etc. is still important.

I understand that universities are (normally established as) legal persons, and never sought to dispute that.

However, I still disagree because:
1. The university has not committed a tortious act, indeed it has not committed any act at all.
2. There is no general liability for omissions in negligence - Smith v Littlewoods [1987] 2 WLR 480. The cases concerning children a specific exception premised on the prior assumption of responsibility undertaken by a parent or legal guardian when taking the child into their care.

Again, if this is a reply to me, I find this only slightly easier to follow. I assume what you are saying is that the university owes a duty of care in negligence to its (adult) students to protect them from (criminal) harms inflicted by other students. This is, once again, omissions liability. I understand that there is a specific exception for schools owing duties of car to minors in their charge, but do you have any authority for this extending to adults in the charge of a university?

there are several exceptions actually...

you're not using neutral citations...

High Court, Court of Appeal, Supreme Court......are the legal authorities based on the ratios (rulings).