Third-party evidence is usually helpful, but is not always available. Since the evidence comes, typically, from two impaired individuals, it is hard for them to remember how impaired they were. Many cases before campus tribunals concern the thorny and as yet unresolved question of how impaired a person must be in order not to be capable of decision-making. The standard, however, is far from clear in application. This is a species of my point about affirmative consent, but it needs to be repeated again and again. If the drinking age were reduced to eighteen, adults could attend parties and be prepared to give assistance.Īnother alcohol-related issue that needs addressing, in both education and adjudication: sex with a person who has passed out or is close to that point is an assault. So they refrain from providing badly needed supervision, including help for students who have passed out. Right now, if adults are present where there is under-age drinking (and most students are under twenty-one), they can be charged with contributing to the delinquency of a minor. This approach seems counterintuitive, but it is really sensible. But one recommendation that most college administrators would support is: lower the drinking age. In general campuses need to do much better with alcohol education and treatment. Heavy drinking makes memory gappy and adjudication very difficult. 3 AlcoholĪ large proportion of sexual assaults and alleged sexual assaults occur when one party, or usually both parties, have been drinking heavily. Thus the intention of this brief discussion is to indicate, in a general way, how my overall view in this book’s detailed chapters would approach campus cases, rather than to construct a comprehensive argument. I’ll cover the salient issues briefly, without discussing all the ins and outs of all the controversies. Thus the group of Harvard Law School professors who protested against the Obama guidelines as unfair to accused men, anticipating the DeVos critique (I’ll describe their intervention as Stage Two below) included some conservatives, but also faculty from the left and even extreme left of the faculty. However, the controversies cross political lines. The literature on this topic is vast and controversies are heated, in part because the Obama administration guidelines have now been replaced by different guidelines developed by the Department of Education under the aegis of Secretary of Education Betsy DeVos. In this Interlude I focus on student-student assault and harassment. Thus, Chapter 5 has already basically dealt with these cases. Sexual harassment and sexual assault have long included abuses of power between faculty and students, but on the whole, these cases have been understood as workplace abuses of power, and are dealt with under clear public rules, in much the manner of other workplaces. It would appear, however, that attending college does not make a woman more likely to suffer sexual assault. Although there are disputes over methodology and definition, there’s no doubt about the severity of the issue. 1 Other studies have found frequent sexual abuse of males as well, amounting to 6 to 8 percent. Nobody knows exactly how large a problem this is, but one recent survey by the Association of American Universities found that around 20 percent of female undergraduates are victims of sexual assault or sexual misconduct at some point during their college life. Yet, because the institutional structures are different, the topic of campus assault requires separate treatment, albeit briefly. One of the great strengths of the traditions I have described is the fact that working-class and minority women (for example Cheryl Araujo, Mechelle Vinson, Mary Carr) have been among their salient plaintiffs. There is no reason to perpetuate the injustice by paying more attention to the problems of those women who have managed to arrive at a college or university. Unequal access to higher education is already a major problem of justice in our society, compounding other disadvantages based on race and class. Because my previous discussions have covered the most salient issues in each area of law, I need not devote a full chapter to this case, nor do I wish such a disproportionate focus to suggest that women who attend college deserve more attention than women who do not. There is, however, a significant area of our national discussion that is not fully covered by these discussions, because it involves a complex and uneasy mixture of federal law (Title IX, discussed in Chapter 5) and informal tribunals: sexual assault and harassment on college campuses. So far we have traced the evolution of legal standards for sexual assault and sexual harassment, and their current defects and challenges.
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