Hey there! Sign in to join this conversationNew here? Join for free
Turn on thread page Beta
    Offline

    3
    ReputationRep:
    (Original post by NYU2012)
    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.
    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.
    Offline

    17
    ReputationRep:
    (Original post by NYU2012)
    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.



    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.
    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.
    Offline

    17
    ReputationRep:
    (Original post by Dandaman1)
    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?
    So there seems to be a little bit a of misapprehension here, and perhaps that's due to my discussion of how the law functions taking note of Nolofinwë's criticism.

    Suppose that the University expelled you for violating the University rules (a violation of the contract between you and the University). In particular, they alleged that you had committed sexual assault against another student. They found this to be the case on the balance of probabilities.

    Let us further suppose that a criminal trial is ongoing; and that in the criminal trial, you were found not guilty "beyond a reasonable doubt."

    Finally, let us suppose that you brought an action against the University for expelling you (which they did prior to the finding of the criminal trial). Now, you can use as evidence of your innocence the finding of the criminal trial to show that you weren't guilty. The University could be obliged to 'unexpel' you and you permit you to continue your studies. However, you couldn't recover damages because the University didn't act wrongfully (negligently). They had good reason for expelling you - they had proof on the balance of probabilities that you had committed the alleged action. So, while you may be 'unexpelled', you cannot recover damages for your expulsion. The University acted for good reasons and in good faith.

    However, let's postulate an alternative: The University acted negligently; you went to criminal trial and were found not guilty. In this instance, because the University acted negligently or in bad faith, you could recover damages in addition to perhaps being reinstated.

    Another alternative: The University acted negligently; you went to civil trial and the judicial review procedure found negligence or bad faith on behalf of the University. Again, you could recover damages and perhaps be reinstated.

    Finally, there is a situation which 'trumps' all of the aforementioned. The University expelled you "on the balance of probabilities," did so in good faith and you were actually guilty. However, you went to criminal trial and were found not guilty. In certain situations you will not be able to be reinstated nor recover damages - and that's when the University can prove your guilt contrary to the criminal trial. There are strict rules of evidence, hearsay, procedure, etc. that don't apply to a University or, to a lesser extent, civil trials. I could have evidence that conclusively proves your guilt that wouldn't be admissible in a criminal court, but is permitted in a University tribunal. In these instances, the University wouldn't be liable even though a criminal court found you not guilty. Because, effectively, the civil law isn't allowing you to get away with an act that you were guilty of but the criminal procedure couldn't prove.
    Offline

    20
    ReputationRep:
    (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.
    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?

    (Original post by NYU2012)
    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.
    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.

    (Original post by NYU2012)
    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."
    But it also means that there should be considerable evidence before being expelled.


    Posted from TSR Mobile
    Offline

    17
    ReputationRep:
    (Original post by Underscore__)
    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?
    Simply look up the case. Ptv v Gillis 1911 in US Westlaw or HeinOnline. I have no idea about UK cases, as I cannot scour the UK databases. If you can, then you ought to have a look.

    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.
    I've never heard of a University waiting for a court's decision. They tend to act much faster courts, and that's their purpose. For example, a University waiting for a court trial (which could take years) would be a clear violation of Title IX in the US. They would be sued.

    Again, as I stated, if the individual was found not guilty, then in most instances, they would be able to sue and win. If, however, the University could demonstrate guilt which the criminal court could not, the University would not be liable.

    But it also means that there should be considerable evidence before being expelled.
    Why does it need to be 'considerable' and what even is 'considerable'? According to current legal rules, they have to have evidence that demonstrates guilt "on the balance of probabilities." A standard that is accepted across the board for all 'offenses' against University policy; and a standard accepted for civil liability in court for e.g. assault/battery/sexual harassment, etc.
    Offline

    20
    ReputationRep:
    (Original post by NYU2012)
    Simply look up the case. Ptv v Gillis 1911 in US Westlaw or HeinOnline. I have no idea about UK cases, as I cannot scour the UK databases. If you can, then you ought to have a look.
    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.

    (Original post by NYU2012)
    I've never heard of a University waiting for a court's decision. They tend to act much faster courts, and that's their purpose. For example, a University waiting for a court trial (which could take years) would be a clear violation of Title IX in the US. They would be sued.

    Again, as I stated, if the individual was found not guilty, then in most instances, they would be able to sue and win. If, however, the University could demonstrate guilt which the criminal court could not, the University would not be liable.
    We don't live in the USA so it doesn't really matter.

    (Original post by NYU2012)
    Why does it need to be 'considerable' and what even is 'considerable'? According to current legal rules, they have to have evidence that demonstrates guilt "on the balance of probabilities." A standard that is accepted across the board for all 'offenses' against University policy; and a standard accepted for civil liability in court for e.g. assault/battery/sexual harassment, etc.
    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.


    Posted from TSR Mobile
    Offline

    17
    ReputationRep:
    (Original post by Underscore__)
    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.
    I'm not a tort lawyer. In fact, I'm not a practicing lawyer. So memorization of case names isn't necessary, or most instances, useful to me. You're asking for a citation, so I assume you have access to Westlaw. Use it.

    We don't live in the USA so it doesn't really matter.
    It does matter - it's a common law jurisdiction. The same tort principles as to why you can sue a university in the US apply in the UK.

    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.
    They "want to prove" "on the balance of probabilities" because if they insist on a higher level of proof, the claimant (victim) can bring an action against them.
    Offline

    3
    ReputationRep:
    (Original post by NYU2012)
    I'm not a tort lawyer. In fact, I'm not a practicing lawyer. So memorization of case names isn't necessary, or most instances, useful to me. You're asking for a citation, so I assume you have access to Westlaw. Use it.


    It does matter - it's a common law jurisdiction. The same tort principles as to why you can sue a university in the US apply in the UK.


    They "want to prove" "on the balance of probabilities" because if they insist on a higher level of proof, the claimant (victim) can bring an action against them.
    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.
    Offline

    20
    ReputationRep:
    (Original post by NYU2012)
    I'm not a tort lawyer. In fact, I'm not a practicing lawyer. So memorization of case names isn't necessary, or most instances, useful to me. You're asking for a citation, so I assume you have access to Westlaw. Use it.
    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.

    (Original post by NYU2012)
    It does matter - it's a common law jurisdiction. The same tort principles as to why you can sue a university in the US apply in the UK.
    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.

    (Original post by NYU2012)
    They "want to prove" "on the balance of probabilities" because if they insist on a higher level of proof, the claimant (victim) can bring an action against them.
    Any precedent or legislation for that?


    Posted from TSR Mobile
    Offline

    17
    ReputationRep:
    (Original post by Underscore__)
    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.
    I cannot provide you an English case, because I don't have access to Westlaw UK. The case I gave you was a US example. The full citation of said US case isn't relevant, we aren't here to debate the fineries of tort law. All that we need to know is that there is a case from 1911 in which the common law recognized rape as tortious.

    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.
    I've never claimed or made any such comment that US cases serve as binding precedent. However, US and UK tort law are almost identical and, as I showed, US case have formed pieces of UK tort doctrine.

    Any precedent or legislation for that?
    You don't need legislation for that - you can simply point to the principles of tort law and procedure. In demanding a higher level of proof, the University fails to act appropriately with regards to the victim's (claimant's) rights. She is entitled to a finding on the balance of probabilities, as this is the standard of civil law. Anything more onerous is improper procedure.
    Offline

    17
    ReputationRep:
    (Original post by Nolofinwë)
    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.
    As I previously stated, it falls under torts against the person (see post #35 in this thread). I've been completely baffled as to how/why Underscore has entirely failed to grasp this concept; it's as though he has no functional understanding of tort law.
    Offline

    3
    ReputationRep:
    (Original post by NYU2012)
    As I previously stated, it falls under torts against the person (see post #35 in this thread). I've been completely baffled as to how/why Underscore has entirely failed to grasp this concept; it's as though he has no functional understanding of tort law.
    I know, I know. Could everyone just agree that it is a tort of some description - the name being irrelevant to the debate as far as I can tell - an progress with the debate without getting too hung up on this?

    Yes, American and English tort law might be similar in respects, and different in others. It doesn't matter. In both cases, it's simply a contractual agreement between student and university as part of the initial university contract to submit to a certain investigatory procedure when there is an allegation of conduct which is contrary to the university rules - be it plagiarism or sexual assault - those rules being incorporated into the contract.

    (Original post by Underscore__)
    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?


    Posted from TSR Mobile
    Offline

    20
    ReputationRep:
    (Original post by NYU2012)
    I cannot provide you an English case, because I don't have access to Westlaw UK. The case I gave you was a US example. The full citation of said US case isn't relevant, we aren't here to debate the fineries of tort law. All that we need to know is that there is a case from 1911 in which the common law recognized rape as tortious.
    So you're continuing to argue something you have no way of proving?

    (Original post by NYU2012)
    I've never claimed or made any such comment that US cases serve as binding precedent. However, US and UK tort law are almost identical and, as I showed, US case have formed pieces of UK tort doctrine.
    You haven't stated that explicitly but you've implied with you example of the US case and they way you've spoken about and by dragging up whatever it was you said someone can sue a university with

    (Original post by NYU2012)
    You don't need legislation for that - you can simply point to the principles of tort law and procedure. In demanding a higher level of proof, the University fails to act appropriately with regards to the victim's (claimant's) rights. She is entitled to a finding on the balance of probabilities, as this is the standard of civil law. Anything more onerous is improper procedure.
    What exactly would she be suing for?


    Posted from TSR Mobile
    Offline

    20
    ReputationRep:
    (Original post by Nolofinwë)
    I know, I know. Could everyone just agree that it is a tort of some description - the name being irrelevant to the debate as far as I can tell - an progress with the debate without getting too hung up on this?
    I'll concede it's a tort when someone provides a UK case that remains good law that says an action for rape can be brought under the tort of battery


    Posted from TSR Mobile
    Offline

    3
    ReputationRep:
    (Original post by Underscore__)
    I'll concede it's a tort when someone provides a UK case that remains good law that says an action for rape can be brought under the tort of battery


    Posted from TSR Mobile
    As I said above, it can be brought under trespass to the person Stubbings v Webb [1993] AC 498. If you did/are doing a law degree, you probably encountered the vicarious liability cases like Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 which impose vicarious liability for acts of sexual abuse, from which it follows that the acts of sexual abuse must constitute a tort. I don't know why we have to demonstrate that it must be brought specifically as a battery, as torts to the person exist more widely than that. However, if you want to draw that distinction, it probably could also be brought as a battery - if any contact suffices for battery, then a fortiori it follows that sexual contact is included. I'm not going to research it, though, because I consider that the above adequately demonstrate that it is a tort.
    Offline

    0
    ReputationRep:
    If my college is anything to go by, they are extremely ruthless with punishing accussed people even after finding them completely innocent.
    Offline

    17
    ReputationRep:
    (Original post by Underscore__)
    So you're continuing to argue something you have no way of proving?
    False. I've provided a US case as a tortious liability for rape dating to 1911; Nolofinwë has also provided you tort cases under rape as trespass against the person (battery).

    You haven't stated that explicitly but you've implied with you example of the US case and they way you've spoken about and by dragging up whatever it was you said someone can sue a university with
    Because it's highly persuasive authority.

    What exactly would she be suing for?
    Failure to comply with procedural rules; if she suffered continuing trauma, negligence.

    It seems you know very little about tort law, even though you've supposedly studied it. I think it's time for you to leave tort law to those who know more about it than yourself and realize that, actually, you were incorrect.
    Offline

    17
    ReputationRep:
    (Original post by Underscore__)
    I'll concede it's a tort when someone provides a UK case that remains good law that says an action for rape can be brought under the tort of battery
    I think this 'counter-argument' you're trying to make speaks volumes about how little you actually understand tort law.

    The tort of battery is the intentional and direct application of force to another person. Is rape intentional? Yes. Is it a direct application of force to another? Yes. No need to show damage was caused (though showing damage, such as the trauma of being raped will increase damages).

    See Collins; see R v F; see Nash v Sheen

    Your lack of understanding of tort is incredibly concerning and, it seems, you need remedial education in tort.
    Offline

    20
    ReputationRep:
    (Original post by NYU2012)
    False. I've provided a US case as a tortious liability for rape dating to 1911; Nolofinwë has also provided you tort cases under rape as trespass against the person (battery).
    Yes you provided a US case which you don't seem to understanding is not binding case law in the uk. It may be persuasive but that doesn't mean you can say it applies in the UK. Which case?

    (Original post by NYU2012)
    Because it's highly persuasive authority.
    I think highly persuasive is a bit strong.

    (Original post by NYU2012)
    Failure to comply with procedural rules; if she suffered continuing trauma, negligence.
    I think you'd have trouble establishing breach and causation in such a claim.

    (Original post by NYU2012)
    It seems you know very little about tort law, even though you've supposedly studied it. I think it's time for you to leave tort law to those who know more about it than yourself and realize that, actually, you were incorrect.
    That seems to be your default argument; I ask for something of substance and you tell me I don't know anything which is a completely nonsensical argument





    Posted from TSR Mobile
    Offline

    20
    ReputationRep:
    (Original post by NYU2012)
    I think this 'counter-argument' you're trying to make speaks volumes about how little you actually understand tort law.

    The tort of battery is the intentional and direct application of force to another person. Is rape intentional? Yes. Is it a direct application of force to another? Yes. No need to show damage was caused (though showing damage, such as the trauma of being raped will increase damages).

    See Collins; see R v F; see Nash v Sheen

    Your lack of understanding of tort is incredibly concerning and, it seems, you need remedial education in tort.
    I'm very aware of the elements of tortuous battery and at no point have I said anything incorrect.

    For most torts and crimes you could fit a particular set of circumstances into the mens rea and actus reus but a person wouldn't be indicted under that offence


    Posted from TSR Mobile
 
 
 
Poll
“Yanny” or “Laurel”
Useful resources

The Student Room, Get Revising and Marked by Teachers are trading names of The Student Room Group Ltd.

Register Number: 04666380 (England and Wales), VAT No. 806 8067 22 Registered Office: International House, Queens Road, Brighton, BN1 3XE

Write a reply...
Reply
Hide
Reputation gems: You get these gems as you gain rep from other members for making good contributions and giving helpful advice.