There may be a Title IX issue if the video was not consensual. If said video were to get out or be released at the school, it could make it impossible for the accuser to continue seeking her education at the university and her reputation damaged by the players in question. Again, the line between education law and criminal law are muddied. The accuser no longer has the burden of proving that a crime was committed, but that the accused took part in an activity (videotaping without consent) that prevents her from continuing her education because of the condition of hostility it creates on campus. My guess is UM admin are proceeding with great caution and very conservatively. Baylor has set the example of exactly what not to do.
Briles as OC?
- Thread starter RealTUTypical
- Start date
Hearing UM has canceled its trip to San Diego. I wonder if there wil be any lawsuits from fans who have bought tickets, airfare, and hotels?
I will recant the top part. Evidently at the late night meeting last night the administration out the players in their place. UM players tucked tail and announced they will play.
I will recant the top part. Evidently at the late night meeting last night the administration out the players in their place. UM players tucked tail and announced they will play.
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The accused has the video in my example. I see no additional danger of it getting out of it is shown in private to the board.
Imagine that you are accused of sexual assault. You claim the encounter was consensual and have a video to prove it. In addition you have an evidentiary affidavit from law enforcement official stating that the video supports your claim. Under these guidelines the accuser can prevent you from using said tape to prove your innocence. Surely the danger of false accusations given the ability of the accuser to prevent the accused of presenting definitive evidence is obvious....right ?
Imagine that you are accused of sexual assault. You claim the encounter was consensual and have a video to prove it. In addition you have an evidentiary affidavit from law enforcement official stating that the video supports your claim. Under these guidelines the accuser can prevent you from using said tape to prove your innocence. Surely the danger of false accusations given the ability of the accuser to prevent the accused of presenting definitive evidence is obvious....right ?
A guilty accused often would push for the video to be viewed because many women would call it off rather than have that happen. My guess is that the videos are often not black or white and the decisionmaking on both sides virtually always much more complicated than you make it out to be.
The issue isn't whether the video would get out, tho of course that makes it vastly worse, but rather that the board sees it. I don't know how many people are on these boards but it doesn't matter - if it's one it's bad and it just gets worse.
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Former criminal prosecutor here. I've represented both victims of sexual assault and persons accused of it on the FSU campus in Title IX hearings. I was a witness after the fact to a rape at TU of a former girlfriend while I was a student. So, I've got a good handle on campus rape, the adjudicatory process for campus misconduct involving sex, athlete issues, and the applicable federal and state laws.
There are lots of problems with this case based on what is in that report, some of which are factual and others are procedural.
First, there is the standard of proof. The tribunal is clearly confused between evidentiary burdens and evidentiary conclusions. The evidentiary burden standard in the hearing is "a preponderance of the evidence". Which means "the greater weight of the evidence" This is the standard in civil court. However, what tribunals like this one don't know or refuse to acknowledge, and it's a frequent error, even with experienced academic (and not trial) lawyers advising these tribunals, is that the preponderance of evidence is based on a comparison of the probable truth and accuracy of the evidence presented, not the amount of evidence. On numerous occasions the report says something to the effect of: "she doesn't remember and was scared. He refused to answer the question. Therefore her version is conclusively proven". That is fine for some material facts to be concluded, but only when there is additional evidence supporting that inference. I don't see any in the report and they don't mention it. In other words, if you accuse me of A, and I refuse to say A is A and decline to answer why A isn't B, you can't automatically conclude that A is A, unless there is some other evidence, other than our testimony, that A is A. With the exception of some of the witness statements regarding the conduct of A5, there is simply no evidence she did not consent to sexual contact. Indeed, the absence of forensic evidence in the rape trauma protocol, which is glossed over in the report, directly contradicts her assertions of repeated rough sex. While it is permissible to draw conclusions from the silence of the players in the proceeding, you can't conclude that she is telling the truth simply because they are silent or there is conflicting testimony from them. Conversely, you cannot conclude that consent did not occur when substantive evidence of consent is offered by the accused but the accuser refuses to consent to the disclosure of that evidence.
Which brings me to the videotape. It's a felony in Minnesota to videotape someone in a private place like a bedroom with the intent to commit an act that could result in civil liability. In this case, it can be proven he filmed the sex act with the intent to disclose it to third parties. Public disclosure of private facts is a tort in MN. In regular people speech, most people know that truth is a defense to libel. But you can still be ordered to pay damages if you disclose facts that are damaging to a person's reputation if those are facts that an ordinary person would normally not disclose. So even if she consented to an unusually large number of sex partners, it may still be a tort to disclose the tape of it, even if she consented to the taping. ( In this case, it's clear at times that she understood she was being taped and consented to it. It's one of the more damaging parts of her story).
Even if he only intended to watch it himself, uploading it on the phone discloses the images to the phone provider and others with access to his phone, as well as anyone he sends it to, (the app creator and the recipients he sends it to).
So they are absolutely correct in demanding that she consent in writing to the further disclosure of the tape.
I've got more to say on this case, but I'm out of time right now. What the players are doing is absolutely wrong. But what happened in this case is absolutely flawed. It's an emotional response to conclude rape occurred here by anyone other than A5 and that's a jury question, not an academic adviser with no legal training, who is inherently vulnerable to bias and influence.
There are lots of problems with this case based on what is in that report, some of which are factual and others are procedural.
First, there is the standard of proof. The tribunal is clearly confused between evidentiary burdens and evidentiary conclusions. The evidentiary burden standard in the hearing is "a preponderance of the evidence". Which means "the greater weight of the evidence" This is the standard in civil court. However, what tribunals like this one don't know or refuse to acknowledge, and it's a frequent error, even with experienced academic (and not trial) lawyers advising these tribunals, is that the preponderance of evidence is based on a comparison of the probable truth and accuracy of the evidence presented, not the amount of evidence. On numerous occasions the report says something to the effect of: "she doesn't remember and was scared. He refused to answer the question. Therefore her version is conclusively proven". That is fine for some material facts to be concluded, but only when there is additional evidence supporting that inference. I don't see any in the report and they don't mention it. In other words, if you accuse me of A, and I refuse to say A is A and decline to answer why A isn't B, you can't automatically conclude that A is A, unless there is some other evidence, other than our testimony, that A is A. With the exception of some of the witness statements regarding the conduct of A5, there is simply no evidence she did not consent to sexual contact. Indeed, the absence of forensic evidence in the rape trauma protocol, which is glossed over in the report, directly contradicts her assertions of repeated rough sex. While it is permissible to draw conclusions from the silence of the players in the proceeding, you can't conclude that she is telling the truth simply because they are silent or there is conflicting testimony from them. Conversely, you cannot conclude that consent did not occur when substantive evidence of consent is offered by the accused but the accuser refuses to consent to the disclosure of that evidence.
Which brings me to the videotape. It's a felony in Minnesota to videotape someone in a private place like a bedroom with the intent to commit an act that could result in civil liability. In this case, it can be proven he filmed the sex act with the intent to disclose it to third parties. Public disclosure of private facts is a tort in MN. In regular people speech, most people know that truth is a defense to libel. But you can still be ordered to pay damages if you disclose facts that are damaging to a person's reputation if those are facts that an ordinary person would normally not disclose. So even if she consented to an unusually large number of sex partners, it may still be a tort to disclose the tape of it, even if she consented to the taping. ( In this case, it's clear at times that she understood she was being taped and consented to it. It's one of the more damaging parts of her story).
Even if he only intended to watch it himself, uploading it on the phone discloses the images to the phone provider and others with access to his phone, as well as anyone he sends it to, (the app creator and the recipients he sends it to).
So they are absolutely correct in demanding that she consent in writing to the further disclosure of the tape.
I've got more to say on this case, but I'm out of time right now. What the players are doing is absolutely wrong. But what happened in this case is absolutely flawed. It's an emotional response to conclude rape occurred here by anyone other than A5 and that's a jury question, not an academic adviser with no legal training, who is inherently vulnerable to bias and influence.
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When there is video that lasts forever, this type of thing will happen to save face when it gets out.
Back to the topic, I don't want Briles around. The end.
Back to the topic, I don't want Briles around. The end.
Minnesota coach fired today. And his players who contributed it still don't know when to be quiet.
Yeah, regardless of what the AD might say, Claeys firing has more to do with the chances of the new AD hitting a home run by hiring Fleck. IMO the combination of the assault scandal, Fleck, and a new AD wanting to make his mark = a bad break for Claeys who appears to be a good HC. The assault scandal simple gave the AD a reasonable excuse to dismiss Claeys.
In the long run this could back fire of UM when a job like Notre Dame comes open in a couple years and Fleck moves on, whereas Claeys would have likely stayed put longer.
It took Fleck 3-4 years to turn WMU into the top program in MAC, and sustaining such success in the MAC is very difficult when the bottom half of the Big Ten takes the best 3-star recruits from the upper midwest. Such an opportunity for Fleck may not come along again. No conference pays the price for losing good HC's like the MAC, historically this conference has seen programs win 10+ games then for a couple season, then drop back to the pack. (Miami, Toledo, NIU, BG, Ohio, WMU, etc.)
TX
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After today's report came out that there were 52 rapes over 4 years at Baylor including 5 gang rapes that allegedly involved Baylor football players, I'm not sure how Briles ever works in college or high school football again.
Add to that the report of the Baylor alum who says she was given a full tuition scholarship in exchange for signing a non-disclosure of her assault allegations means there are a whole lot more people involved beyond athletics. Someone in FinAid knew about this, Baylor's legal counsel knew about this. This individual I believe was a student athletic trainer and Kendall Briles allegedly helped facilitate the deal with her.
I know the NCAA wanted to stay out but that is flat out Lack of Institutional control at Baylor. NCAA would do well to kill Baylor athletics for 2 years to discourage this type of cavalier attitude athletic depts have taken towards a rape culture.
Add to that the report of the Baylor alum who says she was given a full tuition scholarship in exchange for signing a non-disclosure of her assault allegations means there are a whole lot more people involved beyond athletics. Someone in FinAid knew about this, Baylor's legal counsel knew about this. This individual I believe was a student athletic trainer and Kendall Briles allegedly helped facilitate the deal with her.
I know the NCAA wanted to stay out but that is flat out Lack of Institutional control at Baylor. NCAA would do well to kill Baylor athletics for 2 years to discourage this type of cavalier attitude athletic depts have taken towards a rape culture.
