New Title IX guidelines formalized by Betsy DeVos.

[Schadrach]

So, Betsy DeVos released finalized updated Title IX guidelines, which is something that's been in the making for a couple of years now.

Summary of the new guidelines.

So, what's everyone's opinion on this?

Personally, I see it as mostly positive. Specifically, the system under the Obama-era guidelines didn't have much respect for the ideas of due process or rights of the accused, and this revision goes to a lot of effort to address that. The most common complaints around it seem to be either intentionally vague or focus on the new guidelines allowing the complainant, respondent, and any witnesses be questioned by representatives of either the complainant or respondent, if the question is deemed relevant by the decision-maker.

Some media coverage of it:

https://www.cnn.com/2020/05/06/poli...y-betsy-devos-title-ix-regulations/index.html

https://www.latimes.com/california/...-stronger-protections-under-new-federal-rules

https://www.theguardian.com/us-news/2020/may/06/betsy-devos-sexual-assault-title-ix-rules

https://www.nytimes.com/2020/05/06/us/politics/campus-sexual-misconduct-betsy-devos.html

https://reason.com/2020/05/06/betsy-devos-title-ix-due-process-college-sexual-misconduct/

https://thehill.com/homenews/admini...s-for-sexual-misconduct-in-schools-bolstering

 

[Saelune]

So, you think this is good? You support Betsy DeVos here?

You also think those accused of sexual assault deserve more rights and protections?

I just want you to be clear here where you stand.

 

[Houseman]

You also think those accused of sexual assault deserve more rights and protections?

Do you think that someone's rights or protections should be taken away from them on the basis of an accusation?

 

[Silvanus]

Just went to try to read more on this topic, & headed first to the US Department of Education official website... to find the official press release openly gushing about the new guidelines and describing the previous administration's effort as "much criticised".

...Are you shitting me? Official US government sources, like departmental websites, just openly condemn the past administration and shill for the current one in the US? Here in the UK, official departmental sources & press releases have to at least keep up the pretence of impartiality. It might wear thin at times, but you wouldn't find a press release just transparently trashing the previous administration.

 

[CM156]

You also think those accused of sexual assault deserve more rights and protections?

Yes, those accused of crimes deserve rights, including the rights to face their accusers and present evidence in their favor. That is a bedrock foundation of every Western legal system I can think of.

 

[crimson5pheonix]

It's just a reflection of the times. Title IX under the Obama administration went along with the #MeToo movement about reexamining sexual assault, the burden of proof about it, and the rights of the accusers. But with the furor around #MeToo sputtering out, we're getting exactly what the populace wants, hard burdens of proof and favoring the accused.

 

[Agema]

I don't really understand why colleges were ever so free to make up their own shit in the first place. But that's the cockamamy shit the USA has for some bizarre reason and been flapping at for years, so...

Some issues:

1) "The final rule's definition of sexual harassment also differs from federal law's definition of what constitutes sexual harassment in the workplace."

Why the inconsistency? Isn't that a little bit bizarre, to run a policy supposed to improve due process, but to move the goalposts on what the offence is?

2) 'The new rules define sexual harassment as conduct so severe, pervasive and “objectively offensive” that it effectively denies a person equal access to the school’s educational program or activity. '

What constitutes denying someone equal access to educational programs or activity? Isn't that potentially quite a high bar?

3) "The new rules will also end the pernicious practice of universities initiating Title IX investigations in cases where the alleged victims are not interested in this course of action."

So perpetrators can pressurise or intimidate their victims into silence? Umm...

4) But the new rules allow schools to use a "clear and convincing" standard

Fine. I don't think "preponderance of evidence" is really sufficient for strong measures against an alleged perpetrator.

 

[CM156]

I don't really understand why colleges were ever so free to make up their own shit in the first place. But that's the cockamamy shit the USA has for some bizarre reason and been flapping at for years, so...

Colleges have always been ill suited to carry out what are functionally criminal investigations of their own students.

I agree with you on points 1 and 4 as well. "Clear and convincing" also seems to be the standard of proof most colleges use for disciplining students for academic misconduct like plagiarism, in my experience.

 

[Saelune]

Yes, those accused of crimes deserve rights, including the rights to face their accusers and present evidence in their favor. That is a bedrock foundation of every Western legal system I can think of.

Innocent until proven guilty is just Guilty until proven innocent for the other side.

The US legal system is not based on finding the truth, it is based on two sides taking biased sides and fighting tooth and nail and -hoping- the truth falls out of the debris.

 

[Saelune]

Do you think that someone's rights or protections should be taken away from them on the basis of an accusation?

I think every accusation of sexual assault should be taken seriously and investigated heavily.

But people who defend the so called rights of the accused seem to disaprove of actually investigating.

 

[CM156]

Innocent until proven guilty is just Guilty until proven innocent for the other side.

If a defendant is acquitted, the accuser does not face jail time or loss of liberty from the court system. This is not remotely the same. At most, someone could be prosecuted for making a false allegation, but then they would be entitled to a lawyer to advocate for them, the presumption of innocence, and for the prosecution to have to meet the burden of proof (beyond a reasonable doubt). This is a hurdle (and a good hurdle, too), and results in the fact that almost all sexual assault acquittals do not result in any criminal action against the accuser.

There's a reason Blackstone's ratio exists.

The US legal system is not based on finding the truth, it is based on two sides taking biased sides and fighting tooth and nail and -hoping- the truth falls out of the debris.

That may be true of civil actions, but criminal cases are a bit more complex than that. Criminal cases are based on determining whether or not the state has enough evidence to prove its case that the defendant has committed a crime. Prosecutors have certain rules they have to obey to prevent them from prosecuting factually innocent people (although they sometimes break these rules, which are grounds for appeal). Likewise, the best way to ensure the rights of the defendant are protected is to have at least one person in the court who is duty bound to advocate for them to the fullest. The fact that we have such zealous advocacy means that when someone is convicted despite the best efforts of their lawyer, there is more certainty of their guilt than if the defense is hamstrung. Look at Weinstein. He had some of the best lawyers in the nation advocating for him, throwing everything they could against the prosecution. And he was still convicted on several counts. Thus it is very safe to be certain of his factual guilt, especially after he exhausts his appeals.

 

[Houseman]

But people who defend the so called rights of the accused seem to disaprove of actually investigating.

How does it "seem" that way? Can you elaborate on that subject?

 

[Saelune]

If a defendant is acquitted, the accuser does not face jail time or loss of liberty from the court system. This is not remotely the same. At most, someone could be prosecuted for making a false allegation, but then they would be entitled to a lawyer to advocate for them, the presumption of innocence, and for the prosecution to have to meet the burden of proof (beyond a reasonable doubt). This is a hurdle (and a good hurdle, too), and results in the fact that almost all sexual assault acquittals do not result in any criminal action against the accuser.

There's a reason Blackstone's ratio exists.


That may be true of civil actions, but criminal cases are a bit more complex than that. Criminal cases are based on determining whether or not the state has enough evidence to prove its case that the defendant has committed a crime. Prosecutors have certain rules they have to obey to prevent them from prosecuting factually innocent people (although they sometimes break these rules, which are grounds for appeal). Likewise, the best way to ensure the rights of the defendant are protected is to have at least one person in the court who is duty bound to advocate for them to the fullest. The fact that we have such zealous advocacy means that when someone is convicted despite the best efforts of their lawyer, there is more certainty of their guilt than if the defense is hamstrung. Look at Weinstein. He had some of the best lawyers in the nation advocating for him, throwing everything they could against the prosecution. And he was still convicted on several counts. Thus it is very safe to be certain of his factual guilt, especially after he exhausts his appeals.

Blackstone's ratio is good on paper, but usually what happens is that guilty get away and innocents still suffer.

The legal system should operate on the goal of justice and truth. Both Innocent until Proven Guilty and Guilty until Proven Innocent are faulty and ultimately bias things.

There is a third option. 'We don't know, but will work to find out'. Ie making no assumptions at all.

As long as Kavanaugh sits on the Supreme Court, there is no justice.

 

[Saelune]

How does it "seem" that way? Can you elaborate on that subject?

The people most adamant on defending the rights of the accused tend to be dismissive of sexual assault altogether and would prefer to call every accuser a liar than actually support processes to prevent and punish sexual assault when it does happen.

There is a strong overlap with so-called 'Men's Rights Activists' who really just use actual issues as an excuse to hate and oppress women.

Tons of people like to claim they have a certain political view, but their actions show that is a lie.

 

[Houseman]

There is a third option. 'We don't know, but will work to find out'. Ie making no assumptions at all.

How is that any different than "innocent until proven guilty"?

The people most adamant on defending the rights of the accused tend to be dismissive of sexual assault altogether and would prefer to call every accuser a liar than actually support processes to prevent and punish sexual assault when it does happen.

There is a strong overlap with so-called 'Men's Rights Activists' who really just use actual issues as an excuse to hate and oppress women.

Tons of people like to claim they have a certain political view, but their actions show that is a lie.

Do you have data to support this, or is it just your opinion?

 

[Saelune]

How is that any different than "innocent until proven guilty"?



Do you have data to support this, or is it just your opinion?

Innocent until proven guilty begins with an assumption.

You ignored my data last time rather blatantly. Do you have any data that proves you won't do so again now?

 

[Houseman]

Innocent until proven guilty begins with an assumption.

If one is not assumed to be guilty, then doesn't that mean they're assumed to be innocent? It's either-or isn't it? There's no third state of being, is there?

You ignored my data last time rather blatantly. Do you have any data that proves you won't do so again now?

If you don't want to prove your assertion, you don't have to. I'm not going to dredge up old arguments.

 

[CM156]

Blackstone's ratio is good on paper, but usually what happens is that guilty get away and innocents still suffer.

And you're basing this "usually" off of what, exactly?

The conviction rate in the USA is very high, if anything. The innocents who suffer are those who are unable to get access to a quality lawyer and are forced to plea. Numbers vary across jurisdiction, but about 90-95% of all felony charges are disposed of in a plea. What say you to that?

The legal system should operate on the goal of justice and truth. Both Innocent until Proven Guilty and Guilty until Proven Innocent are faulty and ultimately bias things.

Bias is not inherently bad. In fact, it can be good. For example, I have a bias against people who have committed crimes against humanity. This is a good bias. I have a bias in favor of western medicine and against "traditional medicine." This is also a good bias. I have a bias in favor of people have been accused of crimes, until such time as evidence is presented that proves their guilt. This is also a good bias.

There is a third option. 'We don't know, but will work to find out'. Ie making no assumptions at all.

It is literally not possible to make no assumptions in a court. If things hang in a 50/50 balance, you have to have some policy on how to break that deadlock that will inherently favor one side over the other. In our system, we have a maxim that states "in dubio pro reo" which means "in doubt, for the accused". You could form a legal system that operates on the principle of "in doubt, for the accuser" but that will still be making an assumption. You also have to make assumptions about the credibility of witnesses, the weights to put on evidence, etc.

We try to stack the deck in favor of the accused with regards to their right to an attorney and right to be zealously advocated for specifically because the deck comes pre-stacked against them (the state and all of its resources are bearing down on them, and most people have no comprehension of how the legal system works, compared to a seasoned prosecutor or even a greenhorn lawyer working for the DA.)

This is all covered in your basic 1L Criminal Law class, including the debates between students on if this system is effective. The reason why we have the system that we do (and why other suggestions for systems remain thinkpieces at most) is that this system works, and other proposed replacements either violate the rights of the defendants or are entirely unrealistic. Your proposal, while vague, looks like it would fall into at least one (if not both) of these camps.

 

[Trunkage]

And you're basing this "usually" off of what, exactly?

The conviction rate in the USA is very high, if anything. The innocents who suffer are those who are unable to get access to a quality lawyer and are forced to plea. Numbers vary across jurisdiction, but about 90-95% of all felony charges are disposed of in a plea. What say you to that?

I’d point out that a lot of these plea deals end up with dramatically reduced charges and sentences and usually no requirement to register on the sex offenders list. Unfortunately, a lot of this is he said, she said and physical evidence is usually dismissed as circumstantial so it makes the whole process rather toothless

 

[Thaluikhain]

If one is not assumed to be guilty, then doesn't that mean they're assumed to be innocent? It's either-or isn't it? There's no third state of being, is there?

Not exactly. If, for example, you go to trial, you either get found guilty, or not guilty. That is, not guilty beyond reasonable doubt. Which covers both innocent and "dunno".

Innocent until proven guilty and "not guilty beyond reasonable doubt" until proven guilty...well, there's some semantic differences there, don't know if you'd consider it important.