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Sexual assault and universities watch

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    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.
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    (Original post by Underscore__)
    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
    What part of Acts of Parliament providing for wrongful death clearly demonstrate that your contention about murder and civil liability was blatantly wrong are you not understanding?
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    (Original post by NYU2012)
    What part of Acts of Parliament providing for wrongful death clearly demonstrate that your contention about murder and civil liability was blatantly wrong are you not understanding?
    Had you read and understood what I'd said you wouldn't be posting that response


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    (Original post by Underscore__)
    Had you read and understood what I'd said you wouldn't be posting that response


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    (Original post by NYU2012)
    What part of Acts of Parliament providing for wrongful death clearly demonstrate that your contention about murder and civil liability was blatantly wrong are you not understanding?
    (Original post by Democracy2013)
    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.

    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.

    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.

    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.

    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’)

    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.



    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.
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    (Original post by Nolofinwë)
    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.
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    (Original post by Democracy2013)
    "

    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.
    Generally agree, but I don't understand why you are:
    1. commencing any proceedings against A's parents
    2. commencing an action against the university in negligence

    What are the grounds for either of these actions?
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    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.
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    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.
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    (Original post by Democracy2013)
    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.
    If this is a reply to me, then I understand that you are making two separate propositions about the parent's liability, but I still don't completely follow either of them:

    (i) 'it could be a father's or mother's unreasonable behaviour' - i.e. you are saying that A's parent(s) could be held liable in negligence for A raping/sexually assaulting someone. I find this fairly extraordinary. Do parents have a general duty in tort to stop their adult children from committing a criminal offence? I am aware of no authority for this fairly surprising suggestion of omissions liability in negligence

    (ii) analogously with/by the same operation as in bankruptcy law, if the adult wrongdoer does not have sufficient assets to meet the liability in question, the law will instead fasten the liability onto their close relations. Again, I am surprised by this proposition. Do you (i) have a citation for 'bankruptcy' law operating in this way and (ii) for that doctrine being transferable to tort? I would greatly benefit from seeing both, for in the absence of such authority I would be minded to disagree with your proposition
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    (Original post by Democracy2013)
    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?
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    (Original post by Nolofinwë)
    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..
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    (Original post by Democracy2013)
    read the official receiver's rules..
    Could you please cite the relevant section to me?
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    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
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    (Original post by Nolofinwë)
    Could you please cite the relevant section to me?
    Insolvency Act 1986 like any other statute deals with situation but other materials deal with detail. Have you studied law, if so what level?
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    (Original post by Democracy2013)
    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
    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.
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    (Original post by Democracy2013)
    Have you studied law, if so what level?
    I don't discuss that. I prefer to conduct legal debates based on the quality of the argument, not the credentials of the opposing sides. I'm not aware of any accepted legal tradition since Theodosius II which has accorded value to legal arguments on the basis of the esteem in which its proponents are held.

    (Original post by Democracy2013)
    Insolvency Act 1986 like any other statute deals with situation but other materials deal with detail.
    I expected this is what you were going to cite for the comment 'In bankruptcy people lose their homes when it's not their debt'. I will have to respectfully suggest, however, that you have misunderstood how the s335A of the Insolvency Act 1986 works. s335A is incorporated into the law of coownership trusts of property through s15 TLATA 1996, providing different rules governing the court's discretion to grant sale in the case of a dispute between the co-owners. It arises in the following model scenario. X and Y co-owner a house. Y takes out a loan secured against his share in the house. He fails to repay, and the lender seeks to exercise their charge through obtaining sale of the property. X, however, wants to keep the property. The court is therefore asked to determine whether sale should be ordered or not, which is when the s15 discretion, guided by s335A, operates. Assuming that they have order sale, this does not entail any loss to X. Although the house will be sold, so they will lose their share in the title to the freehold/leasehold, that share will be substituted for the equivalent proportion of the proceeds of sale. Therefore, they do not suffer any loss in fact: they keep the exact same value.

    Such reasoning is not, therefore, analogous to imposing liability on relatives for A's tort, for two reasons:
    (1) there is no legal mechanism for doing so. TLATA 1996 and IA 1986 are statutes limited to co-ownership trusts over real property. In no way can they, therefore, extend to tort.
    (2) by simply requiring A's relatives to pay the damage, you make them incur a loss, as they lose money to meet the liability. That is materially distinct from the operation of the IA1986, where, as demonstrated above, X does not suffer any loss.
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    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?
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    (Original post by limetang)
    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.
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    (Original post by Nolofinwë)
    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.
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    (Original post by limetang)
    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.
    Fully agreed.

    As to the coercion point, it's a practical problem generally in the law: nobody is going to refuse to operate a computer which they just bought when they read the full terms and conditions; nobody is going to refuse a holiday when they are presented with the terms. I still think there is a consent though - I think most people would are sufficiently unconcerned by the procedure that they're happy to agree to it, especially when they understand that their opportunity to attend the uni is conditional upon them accepting it. It is circumstantial pressure, but in the lightest sense: they will not suffer physical harm or a loss if they refuse to accept the terms, but only lose the chance to obtain a benefit (attend the university). I note the pressure, therefore, but it doesn't worry me too much.

    The vaguary is more of an issue, both legally and morally. I note it's St Andrews, so I can't comment on Scots law, but it's still important that people are clear what the situation is, so the vaguery of that clause worries me. Since my university is collegiate, I signed two agreements:
    (1) on the pastoral side, I signed one with my college, which incorporated a book of upwards of of 60 pages long and which laying out everything in detail, including the composition and operation of every potential tribunal.
    (2) on the academic side, I signed a separate contract which incorporated a book which is almost 1,200 pages long and, once again, sets out all the rules.
    I wonder if St Andrews has something similar which is referred to somewhere in the contract? I'd certainly hope they do, otherwise I fully subscribe to your concern.

    There is also the practical problem about how effective the investigation can be, but, again, I'd say that the student has agreed to the procedure, however (in)effective it turns out to be.

    My bigger worry would be the effect on the victim. Victims, especially in the context of sexual offence, receive a number of special safeguards in criminal procedure in order to protect protect their well-being, and it does concern me that universities may be ill-equipped to provide these, or else simply neglect to do so.
 
 
 
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