In the past, I've made the point that universities shouldn't be adjudicating sexual assault claims. Now, Oklahoma State has provided an object lesson, by showing how much can go wrong when you let a bunch of amateur investigators pretend to do the jobs of police and courts.
In the last two years, the Department of Education's concern has been that not enough people are found liable of sexual assault by disciplinary committees, so they lowered the standard of proof. Instead of "clear and convincing evidence," most institutions now require only a "preponderance of the evidence" to find someone guilty of sexual assault.
But something the Department of Education hasn't bothered to ask is whether these committees are even capable of punishing someone adequately for sexual assault.
Because they're not, in case you're wondering. Consider what happened at Oklahoma State.
You would assume that a disciplinary committee at an institution faced with multiple reports of sexual assault by one person might say to themselves, "Gee, the training video we watched didn't really prepare us to do the proper investigation of sexual assault at this scale, so maybe we ought to call police."
Surely a bunch of amateurs, with no authority to subpoena, no ability to collect or test forensics -- certainly they wouldn't attempt to identify and punish a possible serial attacker, would they? From the Student Press Law Center's story:
The university conducted the first of five interviews with victims on Nov. 12 and held a hearing on Nov. 30. OSU's Student Conduct committee is made up of students, faculty and staff, according to its website. Each hearing is heard by a panel of one representative from each group.
[The alleged perpetrator] Cochran's hearing was what the school calls a "level three hearing," held in instances where suspension or expulsion is a potential outcome. Both sides are allowed to present witnesses and evidence before taking questions from the panel and the other party.
Oh. Well, but the good news is, they didn't need to bother with any of that nasty objective gathering of evidence. Because they found him "responsible" for four counts of sexual assault. And they issued what is almost the strongest sanction they could issue. The alleged perpetrator:
was found responsible for four violations of Section III(D)(21) (sexual misconduct) of the OSU Student Code of Conduct and was suspended for three years commencing December 14, 2012 (end of semester) and was ordered to have no contact with any of the complainants.
Yes, that's right. The punishment for being found liable for four counts of sexual misconduct was to finish out the semester with the victims and then come back after they've graduated, and we won't tell anybody. Because it's not like serial sexual attackers do this ever again. (Wait, what does "serial" mean again?)
At this point, the story never would have gone public, except for a tip to The Daily O'Collegian. They called the police, and the police called the University, who refused to turn information over to the police until they were shamed into releasing their final report.
Meanwhile, the police did their own investigation. As it turns out, the number of victims, according to the Stillwater police, is in the dozens: "Based on interviews with other witnesses who have come forward, [Stillwater Police Capt. Randy] Dickerson said he believes there could be as many as three dozen victims."
There are a number of possible morals to this story.
One is that, if you find someone you believe to have committed four sexual assaults, there are probably other claims, if you bother to look.
Another is that Oklahoma State was wrong when it claimed it was unable to turn this information over to investigators, and the Student Press Law Center's Executive Director Frank LoMonte addresses the legal problems with their rationale on our FERPA FACT blog. So I wanted to use this space to make a different, but related point.
The moral I want to talk about is this: Campus disciplinary processes ought to be adjudicating plagiarism and library fines and basically nothing else. The idea that these processes could be used to meaningfully adjudicate claims of sexual assault is a joke.
Universities don't have prisons. The only thing a university conduct board can create when finding a claim of sexual assault has merit is a rapist with free time on his hands.
Recently, our friends at the Foundation for Individual Rights in Education have been involved in a debate over that lower standard of proof the Department of Education set for sexual assault cases. While they're right on the standard, fixing the standard won't fix the problem.
To me, this is like saying we have a gun, and we're handing it to an infant, and we're arguing over whether to take the safety off first. I suppose it's safer to leave the safety on, yes. But babies shouldn't have guns.
Similarly, universities should not be creating substitute mock justice systems to adjudicate serious crimes. They're no more qualified than the baby. And perhaps the fact that schools like Oklahoma State choose to do so is a vestige of a society that, historically, has not treated sexual assault seriously in the academic context.
If a university declined to tell the police about murder, or arson, or kidnapping, or armed robbery, we would be rightly disgusted. We would not entertain the university's defenses that the amateur investigators on its conduct board attended an hour-long training session on arson evidence, or that they held a mock kidnapping trial and thus should be considered adequate substitutes for real law enforcement.
Why is it, then, that we permit universities to investigate sexual assaults -- let alone serial sexual assaults? Why do we permit them to impose a sanction like, "walk away from here scot-free and come back in three years, presumably because we don't think sexual violence is a crime anyone performs more than four times?"
Is rape really less serious than armed robbery? Should we feel better about amateur investigators dabbling in sexual assault investigations than we would about shrugging and saying, "Oh, don't worry about that gang violence, I told student conduct?"
Or is it time to admit that universities are poor substitutes for law enforcement when the sanction for being found liable for multiple sexual assaults is being told to return in three years, to join a fresh crop of potential victims?
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