Col­leges should change how they han­dle sex­ual as­sault

The Register Citizen (Torrington, CT) - - OPINION - By Lara Bazelon and John Vil­lasenor

This month, Ed­u­ca­tion Sec­re­tary Betsy DeVos sig­naled that her depart­ment will likely re­vise an Obama ad­min­is­tra­tion pol­icy on how col­leges and univer­si­ties han­dle cam­pus sex­ual as­saults.

DeVos, who ob­served that “a sys­tem with­out due process ul­ti­mately serves no one in the end,” is right to ad­dress this topic. And she has her work cut out for her. The rhetoric that dom­i­nates the de­bate of­ten ob­scures the no­tion of en­sur­ing fun­da­men­tal fair­ness - to both sides - when ad­ju­di­cat­ing a sex­ual as­sault ac­cu­sa­tion.

The Obama ad­min­is­tra­tion’s Ti­tle IX pol­icy, es­tab­lished in 2011 through a let­ter is­sued by the Ed­u­ca­tion Depart­ment’s Of­fice for Civil Rights, came on the heels of re­ports that col­leges and univer­si­ties were giv­ing sex­ual as­sault ac­cu­sa­tions in­suf­fi­cient at­ten­tion or ig­nor­ing them al­to­gether. The pol­icy re­quires all col­leges and univer­si­ties that re­ceive fed­eral fund­ing to con­vene in­ves­tiga­tive pro­ceed­ings to ad­ju­di­cate al­le­ga­tions of sex­ual vi­o­lence and sex­ual ha­rass­ment made by stu­dents.

It is vi­tally im­por­tant to pro­vide jus­tice to sex­ual as­sault sur­vivors, but in pur­su­ing that goal, the Obama ad­min­is­tra­tion’s pol­icy has cre­ated ex­tra­or­di­nary risks for the sub­set of ac­cused stu­dents who are in­no­cent. Un­der the 2011 pol­icy, ac­cu­sa­tions must be eval­u­ated not un­der the “be­yond a rea­son­able doubt” bur­den of proof used in crim­i­nal courts, but in­stead un­der the much lower “pre­pon­der­ance of the ev­i­dence” stan­dard, which re­quires a find­ing against the ac­cused if the prob­a­bil­ity of guilt is more than 50 per­cent. This means that, even if the tri­bunal re­view­ing the ev­i­dence con­cludes there is a 49 per­cent chance that ac­cused stu­dents - the over­whelm­ing ma­jor­ity of whom are male - did not en­gage in the al­leged con­duct, the ac­cused will nonethe­less be found re­spon­si­ble and, in some cases, ex­pelled.

In ad­di­tion to the low stan­dard of proof, the 2011 pol­icy con­tains fun­da­men­tal flaws of due process. It rec­om­mends, but does not re­quire, the avail­abil­ity of an ap­peals process, and it im­poses no re­quire­ment that ap­peals be heard by an in­de­pen­dent en­tity. As a re­sult, many cam­puses man­age ap­peals through the same of­fice that over­saw the ini­tial pro­ceed­ing, cre­at­ing a bias in fa­vor of af­firm­ing the orig­i­nal find­ing.

The cur­rent ap­proach also fails to guar­an­tee the ac­cused ac­cess to a hear­ing, a right to re­view ev­i­dence against him or the right to ask ques­tions through a lawyer or other ap­pro­pri­ately qual­i­fied rep­re­sen­ta­tive. Un­sur­pris­ingly, this can lead to the kinds of sham pro­ceed­ings that have at­tracted na­tional head­lines in re­cent years.

Ac­tions at the fed­eral level alone may not be enough to ad­dress the flaws in this pol­icy. Sup­port­ers of the cur­rent frame­work are al­ready de­vis­ing plans at the state level to com­pen­sate for a po­ten­tial fed­eral roll­back. In Cal­i­for­nia, for ex­am­ple, state leg­is­la­tors have drafted leg­is­la­tion that would, in ef­fect, turn the 2011 fed­eral pol­icy into a state law.

This would be a mis­take. If ac­cu­sa­tions of sex­ual vi­o­lence are in­deed to con­tinue to be ad­ju­di­cated by on-cam­pus tri­bunals - and we note that the crim­i­nal courts are in many ways much bet­ter equipped than cam­pus ad­min­is­tra­tors to man­age tri­als re­gard­ing acts that con­sti­tute vi­o­lent felonies - then the 2011 pol­icy re­quires a ma­jor over­haul.

Prob­a­bil­ity mod­els show that low stan­dards of proof risk un­ac­cept­able re­sults: If the “pre­pon­der­ance of the ev­i­dence” stan­dard were used in the reg­u­lar crim­i­naljus­tice sys­tem, in­no­cent de­fen­dants would face a chance of false con­vic­tion as high as 33 per­cent. There is no rea­son to be­lieve the er­ror rate is less in an on-cam­pus pro­ceed­ing; in­deed, given that an ac­cused stu­dent has far fewer pro­tec­tions than a crim­i­nal de­fen­dant, it is likely to be higher.

A higher bur­den of proof is nec­es­sary, and so are more ro­bust pro­ce­dures to en­sure that pro­ceed­ings are fair, bal­anced and trans­par­ent. Us­ing a stan­dard of “clear and con­vinc­ing ev­i­dence” - a stan­dard less strin­gent than “be­yond a rea­son­able doubt” but more strin­gent than “pre­pon­der­ance of the ev­i­dence” - would help re­duce (though cer­tainly not elim­i­nate) risk to wrongly ac­cused stu­dents.

Due process must be the core com­po­nent of any cam­pus ad­ju­di­ca­tory sys­tem. Oth­er­wise, on­cam­pus sex­ual as­sault pro­ceed­ings will con­tinue to be rightly chal­lenged as lack­ing in fair­ness and le­git­i­macy.

Due process must be the core com­po­nent of any cam­pus ad­ju­di­ca­tory sys­tem. Oth­er­wise, on-cam­pus sex­ual as­sault pro­ceed­ings will con­tinue to be rightly chal­lenged as lack­ing in fair­ness and le­git­i­macy.

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