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Sexual assault and universities watch

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    (Original post by Underscore__)
    Yes you provided a US case which you don't seem to understanding is not binding case law in the uk.
    I have repeatedly acknowledged that it is not binding.

    I think highly persuasive is a bit strong.
    Common law jurisdiction cases are highly persuasive authorities. I don't know how you don't know this.

    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
    No, it's saying you don't know anything. That rape can be brought under trespass against the is pretty much prima facie evident; it's not my fault you don't understand this.
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    (Original post by Underscore__)
    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
    And yet you're repeatedly asking questions that anyone with any understanding of tort law and its theory wouldn't even need to ask; and you're trying to make an argument without any foundation.

    Your argument is: Without a UK case directly demonstrating that rape can be brought as a tort claim, then it cannot be brought as a tort claim.

    But, anyone with any knowledge of tort law knows that this is false. It's a fallacious argument from ignorance. Even supposing it hasn't been done before, that doesn't mean one cannot do it.

    Furthermore, as has already been indicated to you, one can be vicariously liable for sexual assault/rape. There's absolutely no reason for thinking, therefore, that one couldn't be directly responsible.

    You lost the argument a long time ago.
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    (Original post by NYU2012)
    I have repeatedly acknowledged that it is not binding.
    Yet you still talk about u.s case law as though it's directly applicable


    (Original post by NYU2012)
    Common law jurisdiction cases are highly persuasive authorities. I don't know how you don't know this.
    You're taking a very sweeping view. Different judges would be swayed differently by foreign case law. To one it may be highly persuasive (although I doubt it) and another might not be interested in at all.

    (Original post by NYU2012)
    No, it's saying you don't know anything. That rape can be brought under trespass against the is pretty much prima facie evident; it's not my fault you don't understand this.
    And it's not my fault you think common law precedent exists where it doesn't. Your argument has simply been ad hominem


    (Original post by NYU2012)
    And yet you're repeatedly asking questions that anyone with any understanding of tort law and its theory wouldn't even need to ask; and you're trying to make an argument without any foundation.

    Your argument is: Without a UK case directly demonstrating that rape can be brought as a tort claim, then it cannot be brought as a tort claim.

    But, anyone with any knowledge of tort law knows that this is false. It's a fallacious argument from ignorance. Even supposing it hasn't been done before, that doesn't mean one cannot do it.

    Furthermore, as has already been indicated to you, one can be vicariously liable for sexual assault/rape. There's absolutely no reason for thinking, therefore, that one couldn't be directly responsible.

    You lost the argument a long time ago.
    There in lies your misunderstanding. I'm not arguing it cannot be brought under tort, I'm saying that you can't claim that an action for rape could be brought under tort as though that's factual when it's never been tested.






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    (Original post by NYU2012)
    Actual lawyers, who are far more familiar with the legal system, disagree with this - and for very good reasons.

    You're arguing, effectively, that institutional, corporate or business bodies should not be able to regulate the behavior of their employees according to their internal 'contractual rules' and instead must have all matters referred to a criminal court. This is a blatant breach of privacy and autonomy.

    Why should any body have to refer all matters to a court of law? And why a criminal court? The rules governing institutional decision-making bodies are the same rules of reasonableness that govern civil liability. You can sue someone in civil court for rape with a legal burden of "on the balance of probabilities." The same standard is used by Universities.

    Why should they be prohibited from enforcing their rules against their students?

    The op's point was that "universities are inadequately dealing with reports of sexual assault." Criminal law is a side issue and not substantive to the main point besides the op saying 'sex assault' ought to be a criminal punishment.
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    (Original post by NYU2012)
    Universities aren't creating courts. It's not legal dispute. It's something similar to arbitration. You're not dealing with 'law', you're dealing with University rules and regulations - it's a violation of University rules to commit sexual assault. The University is allowed to take disciplinary action against students that violate its rules.

    Companies do the exact same thing. I will repeat what I stated previously, you seem to have a profound misunderstanding of what's actually happening here.


    You're obviously not aware of the feminist literature or research conducted on victims of sexual assault. There are many individuals who refuse to bring criminal charges because they don't want to have to go through the process. By your alternative, the perpetrator should face no punishment (as you don't want Universities handling these issues).
    The universities in the UK are investigated under statute as to whether there's an institution's act or omission. Perhaps you could research this rather than spouting off the first thing that comes into your brain. So, it's not just Regulations which are secondary legislation, there is primary legislation (Parl. Act).
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    (Original post by Underscore__)
    There in lies your misunderstanding. I'm not arguing it cannot be brought under tort, I'm saying that you can't claim that an action for rape could be brought under tort as though that's factual when it's never been tested.
    You can be vicariously liable for rape - therefore rape falls under harms for which tortious liable can occur. It doesn't matter if it's been tested in the positive, it can be done because the principles to support it are already there, the common law of jurisdictions clearly support this for the past 100 years, you can be vicariously liable for such actions, etc.

    It's also incredibly pedantic and wrongheaded of you to even try to advance the argument you're making. Rape is prima facie a tort against the person. There are no requirements as to the types of trespass to the person that must occur to bring an action. The current state of the law permits such an action; the only way such an action would be impermissible would be if the Court overturned the doctrine of trespass to the person to include a requirement setting out specific types of trespass.

    Go on Westlaw and look for a case, I bet it's already happened.
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    (Original post by Democracy2013)
    The universities in the UK are investigated under statute as to whether there's an institution's act or omission. Perhaps you could research this rather than spouting off the first thing that comes into your brain. So, it's not just Regulations which are secondary legislation, there is primary legislation (Parl. Act).
    This, and your other post, don't affect anything I've said and aren't really relevant. In fact, it strengthens the analogy to the US because of the existence of Title IX in the US. All you've done is strengthen my argument, so thanks.
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    (Original post by NYU2012)
    This, and your other post, don't affect anything I've said and aren't really relevant. In fact, it strengthens the analogy to the US because of the existence of Title IX in the US. All you've done is strengthen my argument, so thanks.
    No, it was not a point in law (whether crim or tort law) in the OP's original question. You're just boring everyone with law, including whether various liability for rape (probably based on one case too - this is obiter..so please do not comment on this either)? Stick to the question! You seem to have a conventional lawyer mind-set, which to me is just boringly predictable and no different to the other machines. Read the Zombie Apocalypse journal. The OP's question was whether universities ought to have the qualified right to investigate 'sexual assault' and if that were the case, are their interventions qualified in terms of a substantive result? The OP appeared to be saying that their interventions are not very effective in terms of a suitable/ fair result (by the victim). The OP's opinion appears to be the universities should stick to educating students and leave the law to the legal authorities. Now, please stick to the point! Do not go on about a legal definition of a victim either as it's not material to the question.
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    (Original post by NYU2012)
    You can be vicariously liable for rape - therefore rape falls under harms for which tortious liable can occur. It doesn't matter if it's been tested in the positive, it can be done because the principles to support it are already there, the common law of jurisdictions clearly support this for the past 100 years, you can be vicariously liable for such actions, etc.

    It's also incredibly pedantic and wrongheaded of you to even try to advance the argument you're making. Rape is prima facie a tort against the person. There are no requirements as to the types of trespass to the person that must occur to bring an action. The current state of the law permits such an action; the only way such an action would be impermissible would be if the Court overturned the doctrine of trespass to the person to include a requirement setting out specific types of trespass.

    Go on Westlaw and look for a case, I bet it's already happened.
    It's funny that you're so sure that rape would be held as a trespass and the civil courts would allow you to sue yet, despite the doctrine of trespass being hundreds of years old, you can't point to a single case of someone being held liable.




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    (Original post by Democracy2013)
    No, it was not a point in law (whether crim or tort law) in the OP's original question. You're just boring everyone with law, including whether various liability for rape (probably based on one case too - this is obiter..so please do not comment on this either)? Stick to the question! You seem to have a conventional lawyer mind-set, which to me is just boringly predictable and no different to the other machines. Read the Zombie Apocalypse journal. The OP's question was whether universities ought to have the qualified right to investigate 'sexual assault' and if that were the case, are their interventions qualified in terms of a substantive result? The OP appeared to be saying that their interventions are not very effective in terms of a suitable/ fair result (by the victim). The OP's opinion appears to be the universities should stick to educating students and leave the law to the legal authorities. Now, please stick to the point! Do not go on about a legal definition of a victim either as it's not material to the question.
    My responses were to other posters about the propriety of this type of functioning of law and the levels of proof used, etc. The responses were perfectly on topic. Your attempt to refute the legality of a tortious claim was far more off-topic than my pointing to the current state of the law and propriety of the current process.
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    (Original post by Underscore__)
    It's funny that you're so sure that rape would be held as a trespass and the civil courts would allow you to sue yet, despite the doctrine of trespass being hundreds of years old, you can't point to a single case of someone being held liable.
    As I have repeatedly stated, I don't have access to UK westlaw. So I literally cannot look up the case law. If someone else has access, perhaps they could look it up. The doctrine of trespass has recognized liability for sexual assault/rape for over one hundred years in the US, there's no reason to think that it would not also so recognize in the UK; perhaps even cases have already come up proving that the doctrine does apply to sexual assault/rape. But, as I have repeatedly stated, I don't have access to Westlaw UK, so I cannot look it up.

    Moreover, civil courts have upheld liability for sexual assault/rape in cases of vicarious liability and you've been provided with those cases. Clearly, civil liability for rape/sexual assault can engage - otherwise you wouldn't be able to claim in a case of civil liability. To hold that one then couldn't claim directly for rape/sexual assault would amount to an absurdity. How could one be vicariously liable for rape/sexual assault without the ability for one to incur liability for sexual assault/rape themselves? This would prima facie violate all concepts of liability. Vicarious liability can only engage if the employee engaged in a course of conduct for which one can be civilly liable - ergo, it follows that, necessarily, one must be able to incur liability for sexual assault/rape as vicarious liability claims have been made in such instances.
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    (Original post by Bupdeeboowah)
    You're being incredibly semantic;
    Law is, by definition and necessity, incredibly semantic.
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    (Original post by NYU2012)
    No, it's hearsay. The 'victim' could claim that they consented in order to avoid having to go through a criminal trial.

    Here's a hypothetical: Suppose that the rapist knew that the victim didn't want a criminal trial and told relevant persons in the criminal justice system that she consented; you, however, testify that she did not. Suppose further that the rapist is aware of these facts. The arrest would be unlawful because, as far as the criminal justice system can tell, the victim's admission on consent is the absolute determinate factor. As such, the rapist could lawfully resist arrest and claim damages from the police for unlawful arrest.


    I'm a human rights lawyer. My sole concern in life is proper regard for rights law. As I have repeatedly stated, if the accused is innocent, they are free to bring the case for judicial review.


    Yet again, the standard of proof that a court will accept in a civil rape case is "on the balance on probabilities." If a University is brought to Court by a defendant who has been wrongly punished by the University body, the University has to show it used the same level of proof that the Court itself would accept.

    Again, you don't seem to actually understand how these various processes actually work; the relevant legal rules regarding proof; etc.


    As the research into sexual assault has virtually universally demonstrated, the justice system is a stumbling block to punishing bad people. Criminal trials are not desirable for a number of victims of sexual assault. Civil trials are a waste of time for many because the defendant has no money to pay damages.

    Your argument, taken to its logical conclusion, is that Universities shouldn't be able to punish/expel their own students without the involvement of a Court that, presumably, follows criminal standards.

    A student cheated on a test and we want to expel them? Take it to criminal court! How absurd. If a University can expel a student for cheating (a not very serious 'crime' on a "balance of probabilities standard"; how on earth does it make sense to say that for more serious crimes, which result in the same punishment, they cannot do so; that they must have it put to a criminal court.

    Finally, as I have repeatedly stated, decisions can be appealed to Court for judicial review. So, all of your concerns around rights are nullified by the appellate procedure.
    I cannot rep you enough =/.
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    (Original post by NYU2012)
    As I have repeatedly stated, I don't have access to UK westlaw. So I literally cannot look up the case law. If someone else has access, perhaps they could look it up. The doctrine of trespass has recognized liability for sexual assault/rape for over one hundred years in the US, there's no reason to think that it would not also so recognize in the UK; perhaps even cases have already come up proving that the doctrine does apply to sexual assault/rape. But, as I have repeatedly stated, I don't have access to Westlaw UK, so I cannot look it up.
    Because something seemingly works somewhere else and you can't see a reason it wouldn't work here isn't justification for saying its binding precedent. Until a successful case is brought it's an unknown.

    (Original post by NYU2012)
    Moreover, civil courts have upheld liability for sexual assault/rape in cases of vicarious liability and you've been provided with those cases. Clearly, civil liability for rape/sexual assault can engage - otherwise you wouldn't be able to claim in a case of civil liability. To hold that one then couldn't claim directly for rape/sexual assault would amount to an absurdity. How could one be vicariously liable for rape/sexual assault without the ability for one to incur liability for sexual assault/rape themselves? This would prima facie violate all concepts of liability. Vicarious liability can only engage if the employee engaged in a course of conduct for which one can be civilly liable - ergo, it follows that, necessarily, one must be able to incur liability for sexual assault/rape as vicarious liability claims have been made in such instances.
    You can be vicariously liable for murder among a lot of other things; can you sue for murder?


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    it would be better were the person to survive to benefit from tort than to die, where the only liability is pain/ suffering etc.
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    (Original post by NYU2012)
    My responses were to other posters about the propriety of this type of functioning of law and the levels of proof used, etc. The responses were perfectly on topic. Your attempt to refute the legality of a tortious claim was far more off-topic than my pointing to the current state of the law and propriety of the current process.
    Speak to the hand
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    (Original post by Underscore__)
    You can be vicariously liable for murder among a lot of other things; can you sue for murder?
    Do you not have any legal education whatsoever? I'm astounded by your complete and total ignorance of the law.

    Can you sue for murder - yes. Ever heard of O.J. Simpson? Or perhaps wrongful death? https://en.wikipedia.org/wiki/Wrongf...im#cite_note-2

    In fact, liability for murder comes from statute - the Fatal Accidents Act 1846; amended Fatal Accidents Act 1976. Do you lack Google? Or any legal knowledge whatsoever?

    https://en.wikipedia.org/wiki/Fatal_Accidents_Act_1976

    Perhaps you should learn law before continuing to comment?
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    (Original post by NYU2012)
    Do you not have any legal education whatsoever? I'm astounded by your complete and total ignorance of the law.

    Can you sue for murder - yes. Ever heard of O.J. Simpson? Or perhaps wrongful death? https://en.wikipedia.org/wiki/Wrongf...im#cite_note-2

    In fact, liability for murder comes from statute - the Fatal Accidents Act 1846; amended Fatal Accidents Act 1976. Do you lack Google? Or any legal knowledge whatsoever?

    https://en.wikipedia.org/wiki/Fatal_Accidents_Act_1976

    Perhaps you should learn law before continuing to comment?
    You have a real love of US law don't you? As I've already pointed out, it isn't binding here and thus the OJ case proves nothing. Again theoretically murder could be covered but I've never heard of it and I find it hard to imagine


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    (Original post by Underscore__)
    You have a real love of US law don't you? As I've already pointed out, it isn't binding here and thus the OJ case proves nothing. Again theoretically murder could be covered but I've never heard of it and I find it hard to imagine
    The OJ case is persuasive authority.

    Moreover, while you may find it 'hard to image,' it's factually permitted. You were presented with two Acts of Parliament specifically authorizing wrongful death.

    As I said, perhaps you should learn the law before continuing to make yourself look like a fool.
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    (Original post by NYU2012)
    The OJ case is persuasive authority.

    Moreover, while you may find it 'hard to image,' it's factually permitted. You were presented with two Acts of Parliament specifically authorizing wrongful death.

    As I said, perhaps you should learn the law before continuing to make yourself look like a fool.
    I really don't think it would be, we don't have the same suing culture that the Americans do.

    I could create fictitious scenarios that would fit the requirements of certain offences but would never even be listened to by a court. You're not drawing any distinction between what's theoretically possible and what's realistically likely and once again trying to be insulting as though that reinforces your opinion


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