Students accused of rape at university bringing lawyers to hearings

Original post by Fullofsurprises

Parents of students accused of rape at university have started bringing lawyers to hearings, to help them avoid expulsion, reports the Guardian today.
https://www.theguardian.com/society/2023/sep/17/its-a-power-game-students-accused-in-university-hearings-call-in-lawyers

"Prof Sir Steve West, the vice-chancellor of the University of the West of England and president of Universities UK until earlier this year, said: “As expulsion is a penalty, parents of the accused often start to raise the stakes by hiring a lawyer. It is a power game, because usually the victim has no representation, and I think it is completely unacceptable and unfair.” "

This is understandable, but it does imply that things are getting more intense in this area and that the chances of female students being believed and treated respectfully in such circumstances are likely to diminish. Inevitably, some will be put off reporting if they believe they are going to end up being quizzed by a lawyer in a semi-legal setting.

Of course it is a power 'game' - what would you do if you were a student accused of rape or assault? What do Universities expect where the stakes are so high? Those who allege rape or sexual assault should be believed, but the reality is usually one against one evidence combined with circumstantial evidence which is often difficult to prove.

Sexual assault is a minefield. It is very easy to allege but far more difficult to prove. Many cases of rape involve someone who is known to the victim, and ends up with one persons word against another, usually over an issue of consent. Those consent signals are often blurred and distorted with drink, drugs and other intoxicants affecting behaviour and human responses can be misconstrued.

A student defending an allegation can expect to have their future career completely destroyed by someone making an allegation if it is proven. Are we expecting Universities to play judge and jury in such cases? What experience do those at University have of overseeing sexual assault allegations in a civil hearing and what is their experience of handling such sensitive information? I am not sure Universities should be the official body managing these allegations. How would Universities handle highly sensitive confidential medical records, phone records, cross examinations etc

If the police have declined to prosecute, a victim has an option to bring a matter to court through a civil action with all of the safeguards that brings. That is why we have civil court cases, and any evidence can be tested in court. Sidestepping this and using trial by social media or trial by other means is totally wrong. Expecting Universities to be judge and jury in such serious matters is one fraught with all sorts of danger when the University is not adequately equipped to deal with such matters. The victim should be advised to go to civil court. Until there is a proven case against the alleged offender they should be free to continue their studies. If the case is proven at civil court the University can act on the findings and dismiss the student.

Reply 2

Kurt23

4

A very sad situation. Apparently, money decides everything.

Reply 3

StriderHort

Original post by Muttly

Of course it is a power 'game' - what would you do if you were a student accused of rape or assault? What do Universities expect where the stakes are so high?

Yeah pretty much agree

If you accuse someone of such a serious crime as this to the police they will have the ability and right for legal advice and representation pretty much instantly, whether they pay or the state has to provide, so I really don't think you should be able to sidestep that defence by choosing to pursue a complaint through a university instead where it's highly questionable whether they should be dealing with or investigating the situation themselves at all. If the defending student can afford a professional to advise and represent them and the complaining one can't, that's sort of too bad, as they've chosen to make their complaint to a body that doesn't provide them with these things by default

"A student conduct panel, often comprising academics, support staff and students, takes evidence from both sides and decides whether a student has broken the rules by committing sexual misconduct and should be suspended or expelled" yea the idea that such a panel independently investigates and judges guilt in such a crime as rape seems preposterous to me, summed up nicely with "Universities stress this is not like a court of law.".. yeah maybe a court of law would be the more obviously appropriate place?

Original post by Fullofsurprises

Inevitably, some will be put off reporting if they believe they are going to end up being quizzed by a lawyer in a semi-legal setting.

It's a very serious accusation with wide ranging consequences for the accused, they absolutely should expect to be quizzed whether in a legal or semi legal setting and as above, I don't think accusers should be able to sidestep that by choosing to use a uni rather than the courts yet still expecting results.

(edited 7 months ago)

Reply 4

Euapp

Original post by Kurt23

A very sad situation. Apparently, money decides everything.

I don’t agree. There is a legal system that exists for a reason. Universities are not equipped to deal with these kind of cases and are far too likely to act under pressure from social media than consider the cases based on facts. As a mother of sons and daughters I can appreciate the horror experienced by rape victims, but I also know the reality of situations where all concerned were blindly drunk and girls have gone to bed with guys perfectly willingly but have then felt ashamed of their behaviour the next morning and tried to take back their consent. Not all cases are clear cut and all parties concerned should be entitled to a real hearing and a proper defence.

Reply 5

Muttley79

Original post by Euapp

I don’t agree. There is a legal system that exists for a reason. Universities are not equipped to deal with these kind of cases and are far too likely to act under pressure from social media than consider the cases based on facts. As a mother of sons and daughters I can appreciate the horror experienced by rape victims, but I also know the reality of situations where all concerned were blindly drunk

Legally in the UK you CANNOT give consent if you are drunk!

Reply 6

Genesiss

in all likelihood whether a student can bring in legal representation would be limited to the most serious allegations and the most complex of cases. see AB v The University of XYZ if interested, particularly paragraph 56 going forward:

https://www.bailii.org/ew/cases/EWHC/QB/2020/2978.html

note para 58-59: ex p Hone it was held that whether the common law gave rise to a right to legal representation would depend upon the circumstances. there was no right to legal representation in every case.

Original post by Fullofsurprises

Inevitably, some will be put off reporting if they believe they are going to end up being quizzed by a lawyer in a semi-legal setting.

everyone who has ever experienced any form of sexual misconduct knows re reporting - you are damned if you do, damned if you don't. if you don't, the person gets off scot-free. if you do report and then lose, then half the internet cries 'fAlSe aCCuSaTiOnS', feminists ruining lives. cuz the average person doesn't know crap about law or that there's a difference between not guilty and innocent.

if it's any consolation, there is no unrestricted right to cross-examination. see judgment above para 70-71. it doesn't even have to be direct.

also the standard of proof in a university investigation for sexual misconduct is on the ‘balance of probabilities’ (51% over 49%). that's hardly an impossible threshold for a claimant to meet as it is in a criminal court (beyond reasonable doubt, 99%).

a student conduct panel 'often comprising academics, support staff and students', as stated in the guardian above, is also hardly an impartial judge or jury like in real court. no doubt university staff has an interest in preserving the institution's reputation. probably safer to expel a student for misconduct and take the heat later when the expelled student sues em; surely a university can afford it's own legal representation.

Reply 7

Euapp

Original post by Muttley79

Legally in the UK you CANNOT give consent if you are drunk!

I am well aware of that thank you!! But the reality of the situation is that both parties to the act are often drunk, so one party gets to say after the fact that their participation, often more than active, was not consensual because they were drunk, but the other party can be held 100% responsible even though he was drunk as well. Not exactly an egalitarian situation and hence the need for a proper legal case and not a university kangaroo court.

(edited 7 months ago)

Reply 8

gjd800

I've had lawyers on the phone when students have been booted for failing a year twice. This is no surprise at all.

Reply 9

OP

Original post by gjd800

I've had lawyers on the phone when students have been booted for failing a year twice. This is no surprise at all.

How did your college deal with that out if interest?

Reply 10

gjd800

Original post by Fullofsurprises

How did your college deal with that out if interest?

No idea, I laughed at them and palmed them off to the School. There is zero legal recourse available for withdrawals based on performance anyway so it's a nonstarter. They just hope that the mere fact they are a lawyer will scare you into changing your mind, I think.

Reply 11

OP

Original post by Genesiss

a student conduct panel 'often comprising academics, support staff and students', as stated in the guardian above, is also hardly an impartial judge or jury like in real court. no doubt university staff has an interest in preserving the institution's reputation. probably safer to expel a student for misconduct and take the heat later when the expelled student sues em; surely a university can afford it's own legal representation.

I can see why some of the other posters feel that something this serious shouldn't be up a university committee to decide on. However, universities have a long tradition of independence and self-government. Obviously if it's a criminal accusation and the intention is to prosecute, that's a matter for the police and the courts, but if it's about excluding from a course or a college - that's another matter. I think the problem really is that universities are not properly geared up for quasi-judicial hearings on things like this, expulsion is severe and can have a drastic effect on someone's life chances. On the other hand, so can rape.

Not sure what the solution is, but if lawyers are being brought in at family cost for the rapist, then really the university should be providing legal representation for the complainant as well.

Reply 12

OP

Original post by gjd800

No idea, I laughed at them and palmed them off to the School. There is zero legal recourse available for withdrawals based on performance anyway so it's a nonstarter. They just hope that the mere fact they are a lawyer will scare you into changing your mind, I think.

I know of one or two legal cases that went to court where the plaintiff was suing the university for not giving them sufficient course quality, tuition, etc. There's a big class action against UCL over their pandemic teaching standards (the 5000-strong Student Group Claim) currently making its way in the courts and they recently got leave from the High Court to proceed.
https://inews.co.uk/news/politics/thousands-students-sue-universities-pandemic-disruption-high-court-2483749

I can easily picture families suing universities for expelling their child after a rape allegation against them on the grounds of improper process, undue harshness, etc.

Reply 13

gjd800

Universities Forum Helper

Original post by Fullofsurprises

I know of one or two legal cases that went to court where the plaintiff was suing the university for not giving them sufficient course quality, tuition, etc. There's a big class action against UCL over their pandemic teaching standards (the 5000-strong Student Group Claim) currently making its way in the courts and they recently got leave from the High Court to proceed.
https://inews.co.uk/news/politics/thousands-students-sue-universities-pandemic-disruption-high-court-2483749

I can easily picture families suing universities for expelling their child after a rape allegation against them on the grounds of improper process, undue harshness, etc.

Yeah none of that is applicable in this kids case, they are just incredibly lazy. Nothing to worry about, pass it on and forget about it.

Reply 14

artful_lounger

The legal definition apparently refers to them being incapacitated by alcohol which it seems does not mean "close to unconsciousness" but can apply to anyone that was sick from drinking, having trouble walking, is confused, having trouble standing up etc. So it's actually a lot less high than you are implying.

It seems it also cuts both ways, and if the perpetrator is sufficiently drunk then they can't have "reasonable belief" that there is consent either. So the perpetrator also being drunk (or the only one who is drunk potentially) is also not a defence.

https://alcoholchange.org.uk/alcohol-facts/fact-sheets/alcohol-and-sex

https://www.themix.org.uk/crime-and-safety/victims-of-crime/sexual-consent-and-the-law-18821.html

Reply 15

OP

Original post by Trinculo

Neither of you have the slightest clue what you are talking about.

Drunken consent is still consent. The legal standard for being so intoxicated as to be unable to consent is very, very high. Essentially close to unconsciousness.

Interesting to see what the CPS legal guidance is on this.
https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent#:~:text=drink%20or%20drugs.-,Intoxication%20and%20consent,they%20are%20incapacitated%20through%20drink.

"A complainant does not consent if they are incapacitated through drink"

"Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine."

In other words, it's a judgement call.

Reply 16

Trinculo

Original post by Fullofsurprises

Interesting to see what the CPS legal guidance is on this.
https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent#:~:text=drink%20or%20drugs.-,Intoxication%20and%20consent,they%20are%20incapacitated%20through%20drink.

"A complainant does not consent if they are incapacitated through drink"

"Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine."

In other words, it's a judgement call.

No, it's not. The key word there is "incapacitated". It is well established that you have to be basically unable to speak. This isn't some novel rogue idea, but well-established case law. The leading authority on this would be Jonathan Herring who has written extensively on drunken consent and capacity, and it really isn't something that is ever left to a jury.

Reply 17

Trinculo

Original post by artful_lounger

The legal definition apparently refers to them being incapacitated by alcohol which it seems does not mean "close to unconsciousness" but can apply to anyone that was sick from drinking, having trouble walking, is confused, having trouble standing up etc. So it's actually a lot less high than you are implying.

It seems it also cuts both ways, and if the perpetrator is sufficiently drunk then they can't have "reasonable belief" that there is consent either. So the perpetrator also being drunk (or the only one who is drunk potentially) is also not a defence.

https://alcoholchange.org.uk/alcohol-facts/fact-sheets/alcohol-and-sex

https://www.themix.org.uk/crime-and-safety/victims-of-crime/sexual-consent-and-the-law-18821.html

So your authority on this is a few Google searches and some think tanks? I really think you should refer to the criminal law and leading jurists on the issue. Read R v Bree.

Imagine what you are suggesting here. Essentially the infantilising of women and the notion that they lose all agency once they have consumed more than a few drinks, such that the state has to step in and strip them of their self-determination. It's absurd. You would be suggesting that likely tens of thousands of perfectly normal human interactions per day are actually serious crimes.

Reply 18

Guru Jason

Original post by Muttley79

Legally in the UK you CANNOT give consent if you are drunk!

I hope this applies to both sexes.

Reply 19

OP