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    (Original post by NYU2012)
    You can go on WestLaw UK and look for yourself. I highly doubt you went to law school given what profound and troubling errors you've made in your posts. It's quite well-known, in fact common knowledge among lawyers, that an action for rape/sexual assault can be brought under tort law. Assuming you actually went to law school, did you ever actually go to the lectures or pass the class?
    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.

    (Original post by NYU2012)
    Even if we were to assume that no one were yet held liable for rape under tort, the multitude of US cases offer a high amount of persuasive authority and it's not like the UK Supreme Court (at the time HL) hasn't cited US case law as establishing a principle of English tort law (Palsgraf v Long Island Railrod).
    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.

    (Original post by NYU2012)
    And, even if we were to assume that I was completely wrong as the applicability of tort law in this instance, the theory argument advanced would still hold true. The 'defendant' isn't being charged of a crime, so criminal court and criminal procedure aren't necessary. It's no different than being fired for sexual harassment or expelled for punching someone in the face.
    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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    (Original post by Underscore__)
    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.
    Pte v Gillis (1911) and a whole plethora since then. The tort of rape has been established for well over a century in American common 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.
    Yes, I've never said they wouldn't need evidence. I said that they would need evidence that led to the conclusion "on the balance of probabilities;" but not "beyond a reasonable doubt" contrary to the assertions of multiple posters here who have insisted that it were a criminal issue and must be handled in a criminal manner.

    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.
    That only strengthens the argument that Universities ought to be able to handle their own internal affairs, including cases of sexual assault or rape. But again, they would only need evidence "on the balance of probabilities."
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    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.
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    (Original post by NYU2012)
    Pte v Gillis (1911) and a whole plethora since then. The tort of rape has been established for well over a century in American common law.


    Yes, I've never said they wouldn't need evidence. I said that they would need evidence that led to the conclusion "on the balance of probabilities;" but not "beyond a reasonable doubt" contrary to the assertions of multiple posters here who have insisted that it were a criminal issue and must be handled in a criminal manner.


    That only strengthens the argument that Universities ought to be able to handle their own internal affairs, including cases of sexual assault or rape. But again, they would only need evidence "on the balance of probabilities."
    You're so hung up on what's legal that you've neglected to consider what's right.
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    (Original post by Dandaman1)
    You're so hung up on what's legal that you've neglected to consider what's right.
    False. I firmly believe in the rightness of it - if there were an injustice occurring, then lawyers would be acutely aware of it. Procedure and rights are kind of our 'thing'.

    I think it's perfectly right that an employer, university, etc. can fire employees without having to go to either a civil or criminal court - that's a huge expense, increases the burden on courts, involves the state in what are purely private matters, etc. If an employer can fire an employee for sexual harassment, then a University is equally justified in expelling a student for sexual harassment. There's no reason to think that a University cannot also do the same for sexual assault or rape.

    The alternative position, which is what you're advocating, would mean that disputes of any nature where a crime has occurred must necessarily go through a criminal court; and an employer may not act until after the findings of the trial. Suppose it's a case of rape and the defendant posted bail - now the employer (or University) isn't able to fire the defendant, which is creating a hostile work environment, which means that the victim of the rape can sue the employer (or University). So, on your model, Universities get to be sued either way - excellent idea. Furthermore, what you're arguing for flies in the face of all legal doctrine (which follows from concepts of equity, fairness and justice). A company doesn't have to go to contract court to fire an employee for contract violation - they can do so internally. If the employee has been wrongfully fired, they can bring a claim for wrongful termination.

    The courts are there as an appeals process to ensure fairness in private transactions; their job is not to govern over all private transactions.
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    (Original post by NYU2012)
    False. I firmly believe in the rightness of it - if there were an injustice occurring, then lawyers would be acutely aware of it. Procedure and rights are kind of our 'thing'.

    I think it's perfectly right that an employee, university, etc. can fire employees without having to go to either a civil or criminal court - that's a huge expense, increases the burden on courts, involves the state in what are purely private matters, etc. If an employer can fire an employee for sexual harassment, then a University is equally justified in expelling a student for sexual harassment. There's no reason to think that a University cannot also do the same for sexual assault or rape.
    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.
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    (Original post by Dandaman1)
    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?
    Firstly, I've assumed no such thing. I've repeatedly stated that, if innocent, the individual can appeal. Secondly, the individual isn't being accused a crime so attempting to pull from criminal theory isn't useful. Criminal theory applies to criminal law and criminal procedure. A University isn't a criminal Court, they therefore cannot hear 'cases' where an individual is being prosecuted for a crime. Not only does the University body lack jurisdictional standing for anything related to a crime, only the State may bring charges of a crime.

    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.
    A University tribunal is just like a private company 'tribunal.' A private company can fire an employee, with a burden of proof "on the balance of probabilities" for sexual harassment, contract violation, assaulting a fellow employee, etc. without ever having to first go to Court. It's a private matter, and as such, the company in question has the main authority.

    A University operates in mostly the same way. If the trial wasn't fair and the defendant didn't likely commit the accused action "on the balance of probabilities", then the University has acted negligently and will, at the very least, owe damages.
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    (Original post by NYU2012)
    Firstly, I've assumed no such thing. I've repeatedly stated that, if innocent, the individual can appeal. Secondly, the individual isn't being accused a crime so attempting to pull from criminal theory isn't useful. Criminal theory applies to criminal law and criminal procedure. A University isn't a criminal Court, they therefore cannot hear 'cases' where an individual is being prosecuted for a crime. Not only does the University body lack jurisdictional standing for anything related to a crime, only the State may bring charges of a crime.


    A University tribunal is just like a private company 'tribunal.' A private company can fire an employee, with a burden of proof "on the balance of probabilities" for sexual harassment, contract violation, assaulting a fellow employee, etc. without ever having to first go to Court. It's a private matter, and as such, the company in question has the main authority.

    A University operates in mostly the same way. If the trial wasn't fair and the defendant didn't likely commit the accused action "on the balance of probabilities", then the University has acted negligently and will, at the very least, owe damages.
    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.
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    (Original post by NYU2012)
    Firstly, I've assumed no such thing. I've repeatedly stated that, if innocent, the individual can appeal. Secondly, the individual isn't being accused a crime so attempting to pull from criminal theory isn't useful. Criminal theory applies to criminal law and criminal procedure. A University isn't a criminal Court, they therefore cannot hear 'cases' where an individual is being prosecuted for a crime. Not only does the University body lack jurisdictional standing for anything related to a crime, only the State may bring charges of a crime.
    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.

    (Original post by NYU2012)
    A University tribunal is just like a private company 'tribunal.' A private company can fire an employee, with a burden of proof "on the balance of probabilities" for sexual harassment, contract violation, assaulting a fellow employee, etc. without ever having to first go to Court. It's a private matter, and as such, the company in question has the main authority.

    A University operates in mostly the same way. If the trial wasn't fair and the defendant didn't likely commit the accused action "on the balance of probabilities", then the University has acted negligently and will, at the very least, owe damages.
    (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.
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    (Original post by Dandaman1)
    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 potential ruin their education and affect their life considerably. A serious accusation needs serious evidence.
    They are not being accused a of a crime, they are being accused of act contrary to the University's rules. The accusation is "You broke university rules." Hardly a criminal matter. You don't go to criminal court for breaking University rules.

    As far as your "serious accusation needs serious evidence" - all of tort law is based on the legal burden of "on the balance of probabilities", and in tort you can be liable for millions of dollars of damages. Hardly a non-serious accusation of, usually, negligence.

    (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.
    This is all very nice conjecture, but you've not offered a single argument as to why the process is 'unethical'.

    (1) A University isn't a state body, it's far more akin to a private body. It has its own set of rules, regulations, etc. The University/student relationship is almost identical to that of employer/employee.

    (2) The "balance of probabilities" is how it would be assessed in civil court (tort). So even if we were to take your route of going to Court, as the University isn't accusing the individual of a crime, then it would go to civil court, where the legal burden is still "on the the balance of probabilities", so your argument here is null for lack of accuracy.

    (3) Supposing that the University did have to send all accusations of sexual assault or rape to the police to bring a criminal trial:
    (A) Supposing the victim didn't want a criminal trial, this violates his or her right to autonomy and privacy - so the University gets to be sued for that.
    (B) If the defendant posts bail and the University is prevented from taking action, then the victim, assuming the defendant is guilty, gets to sue the University for creating a hostile environment, negligently not looking out for well-being, etc.

    So, on your argument the University gets sued for potentially (A) breaching privacy rights; (B) failing to protect the victim; (C) wrongfully expelling the accused student. BUT, in every instance of an accusation of rape or sexual assault, the University ends up getting sued. So now you're not only not looking out for the victim of actual crimes, but you're also placing huge financial burdens on Universities.

    (4) If an employer can determine whether or not sexual harassment has occurred, then there's no reason to suspect that a University has any less capacity to do so. The same goes for sexual assault or rape. You've yet to provide anything close to a reason as to why sexual assault and rape are special cases, deserving of special treatment, because something about their special nature differentiates them from other things, somehow rendering the University's institutional capacities ineffective.

    (5) Yet again, this isn't a criminal trial and the individual isn't being accused of a crime. They're being accused of a violation of University policy. That's what they're 'standing trial' for in the 'University tribunal.' It just so happens that the nature of their breach was one of sexual assault or rape.

    (6) A court of law will not permit you to sue a University for expelling you for rape even if you were factually innocent, so long as the University did not act negligently and complied with a legal burden of "on the balance of probabilities." Not even the civil law supports your argument.
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    (Original post by NYU2012)
    Not only does the University body lack jurisdictional standing for anything related to a crime, only the State may bring charges of a crime.
    Didn't they teach you about private prosecutions at Durham?
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    (Original post by NYU2012)
    (6) A court of law will not permit you to sue a University for expelling you for rape even if you were factually innocent, so long as the University did not act negligently and complied with a legal burden of "on the balance of probabilities." Not even the civil law supports your argument.
    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.
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    (Original post by 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.
    They're required to prove that someone is guilty "on the balance of probabilities"; the same as a tort law case. It could be the case that the individual wasn't guilty, but the evidence demonstrated that "on the balance of probabilities" that they were guilty (something that even happens in criminal courts sometimes). In such an instance, the University wouldn't be liable to pay damages because they didn't act improperly. The student may be entitled to re-enter the University, and certainly the proceedings would remain a private matter for which the individual could not later in life be held accountable.

    The system as you describe it sounds utterly terrifying.
    This is the same system that is used by employers and Universities for all sorts of breaches of internal policy. Don't see anyone protesting its application in other areas. It's also the same system used by all of tort law, don't see you protesting it there either.
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    (Original post by callum_law)
    Didn't they teach you about private prosecutions at Durham?
    No. But at a quick glance, the CPS has to implicitly permit all prosecutions in England and Wales - they have a right to overtake and drop any and all private prosecutions.

    Tangentially, a private prosecution under criminal law is quite absurd and I side with SCOTUS that " a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."
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    (Original post by NYU2012)
    No. But at a quick glance, the CPS has to implicitly permit all prosecutions in England and Wales - they have a right to overtake and drop any and all private prosecutions.

    Tangentially, a private prosecution under criminal law is quite absurd and I side with SCOTUS that " a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."
    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.
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    (Original post by 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.
    The right to private prosecution is overriden by the CPS. If they're unwilling to bring the prosecution, it's unlikely that they think there is enough evidence to warrant bringing a prosecution. And, they will likely take over the prosecution and discontinue it. Or, perhaps they think there is enough evidence and don't want to spend resources on the matter, and so permit it to continue. In this way, CPS has to implicitly permit all prosecutions - they're entitled to overtake and discontinue private prosecutions; meaning that a private prosecution isn't de facto permitted. One has no right to private prosecution beyond what the CPS allows you to do; theoretically speaking, to claim this as a 'right' is a rather contentious argument.

    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.
    Not really - the University isn't accusing criminal activity; they're not acting as a criminal body; they're not using criminal law; they're not bringing it to criminal court.

    There's no pragmatic reason a University would ever do any of those things either - they would simply turn it over. But, that doesn't solve any of the relevant issues.

    As far as the relevant legal theory here is concerned, the University is acting just like an employer. It is entitled to terminate 'employment' under specified reasons, and this falls under one of those reasons. It has an obligation to ensure that the appropriate legal burden of proof is met, which there is no inherent reason to prevent.

    Any claim of 'injustice' fundamentally misunderstand the differentiation between types of law and non-law/quasi-law. Moreover, any claimed injustice can be remedied by appeal to a Court - the University could be forced to pay damages, reinstate the student, erase or 'seal' record of the proceedings, etc.
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    (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.
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    (Original post by NYU2012)
    Any claim of 'injustice' fundamentally misunderstand the differentiation between types of law and non-law/quasi-law. Moreover, any claimed injustice can be remedied by appeal to a Court - the University could be forced to pay damages, reinstate the student, erase or 'seal' record of the proceedings, etc.
    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?
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    (Original post by Studentus-anonymous)
    Nothing confirms the image of "young and dumb" than a gathering of students who seem to think they have all the answers.
    In relation to the topic actually at hand, how is this relevant? Students don't make these decisions.

    Universities are to educate, not to police.
    Correct. And part of the job of educating is ensuring that students are in an appropriate environment. Additionally, they aren't 'policing' in any formal state sense. They're merely ensuring that students follow the rules of the University.
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    (Original post by Nolofinwë)
    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?
    I did. Though, I'm unsure what you mean by 'Justinianic.' Loosely speaking 'law' is a set of rules which are commonly followed, etc. etc. (basics of positivism). If I call it 'law' people will confuse this use of the word 'law' for state law, when in fact I mean 'University law.' So, if we take 'law' to mean only 'State law,' then University rules are a quasi-law, as they operate in a theoretically fundamentally similar way.
 
 
 
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