It is no secret to anyone who occasionally picks up a newspaper or magazine that we are in the middle of a cultural sea change regarding sexual assault on college campuses, a movement that one prominent lawyer has even called "one of the most important civil rights movements of our time." Debates are swirling about whether universities should handle sexual assault cases at all or refer them straight to the criminal justice system, about whether women ever make false sexual assault claims, and whether the definition of consent for these cases should or should not require affirmative consent (whether verbal or non-verbal) to sexual acts. As a feminist and a lawyer who represents male students accused of sexual assault by their colleges and universities, I find myself in a unique position to watch the media explode with these stories. In college I would have been one of the women attending the rallies, holding the signs, and celebrating the wave of expulsions and suspensions of men accused of sexual assault. In my first job as a lawyer I worked on issues surrounding how schools handled dating violence among students, and used Title IX, the law that addresses sexual assault in schools and universities, to sue an upstate New York school district for failing to protect my client from gender-based harassment. And then I joined a firm known for handling student discipline cases, started representing students accused of sexual assault, and soon realized what an insane, Kafkaesque world these student disciplinary proceedings are.
In response to the wave of activism, the White House started the "Not Alone" and "It's on Us" campaigns, and the U.S. Department of Education (DOE) not only has issued revised guidance on how schools should be handling these cases, but also recently opened investigations into at least 85 colleges and universities who are alleged to have mishandled sexual assault complaints. As a result, universities are scrambling to overhaul their sexual assault policies to comply with, or go beyond, what DOE has "recommended", lest they lose their federal funding. All of this sounds like a win for victims of sexual assault and those of us who strive for gender equality on campus.
Except, as those of us who work with students embroiled in these university sexual assault cases know, the appearance that the problem is finally being addressed is just that: appearance. These campus activists are right to point out that the campus systems for handling these cases are broken. They are right that universities have not -- and still do not -- address the needs of victims of sexual assault. But these campus policies are also broken because they completely abandon any semblance of due process or fairness to the accused student. In the current rush to overhaul these policies to make them more "victim friendly" the federal government and the universities are further stripping them of procedural protections for students accused of sexual assault.
What are some of the procedural failings my clients and students around the country face? First, many schools have moved away from separate investigators presenting to a hearing committee, toward a "single investigator" model whereby one investigator (usually a school administrator), interviews the parties and witnesses, gather the evidence, and then makes a finding or recommendation as to whether a sexual assault occurred -- rendering that individual the prosecutor, judge, and jury of the case. Not only is it impossible for any person to be both the investigator and then to act as a "neutral" arbiter of the case, but these investigators are usually school administrators who have no real training in law or sexual assault issues. These same administrators, who used to have an incentive to avoid finding students guilty so as to sweep allegations of assault under the rug, now have an incentive to find against the accused to ensure that the Department of Education does not open an investigation into the school and potentially revoke its funding. Second, under Title IX the standard of proof is a mere "preponderance of the evidence," meaning that if the adjudicatory body leans 50.01% in favor of the victim it is to find the accused student guilty. Third, Title IX does not guarantee that an accused is given a hearing before it is determined whether he committed sexual assault, and allowing the accused to cross-examine witnesses is discouraged. Our criminal law provides hearings, rules of evidence, and cross-examination to allow both sides of the case to test the evidence and prove its validity. I have had clients facing expulsion for accusations of rape who have never had an opportunity to pose a single question to the accusing student -- even through the investigator or hearing panel -- or question any witnesses about the statements they make, and who will have the label of rapist on their record for their entire life and may be unable to continue their education at any other school. Students accused of sexual assault in campus proceedings are not entitled to have an attorney represent them in the proceedings, and where we do manage to talk our way into the room, we are often relegated to sitting in a corner, unable to communicate with our clients. Finally, at some schools the accused is not even entitled to see the evidence against him; it is up to the investigator to determine what evidence to disregard and what she deems relevant and to provide only that evidence, or even merely a summary of it, to the accused. Sexual assault advocates argue that previously a victim had no hope of receiving fair treatment from their schools; students accused of sexual assault have also never been treated fairly in these proceedings and the recent reforms have only exacerbated the problem.
A system that is as fundamentally unfair as the one dictated by the DOE -- and increasingly followed by public and private colleges and universities under the threat of losing their funding -- indicates that these proceedings are not meant to, nor are they capable of, determining whether allegations of sexual misconduct are true, or imposing appropriate sanctions to those students who have actually committed sexual assault. Rather, just as in the case of the system it replaced, it is designed to protect the school from risk. The recent policy changes have amplified an environment in which once a student is accused of sexual assault a finding of guilt is nearly guaranteed.
We as feminists are failing if we make our victories dependent on eschewing the fundamental rights and principles our legal system was founded on -- fairness, due process, a presumption of innocence -- in order to obtain findings of guilt in sexual assault cases without regard to the facts of individual cases. A system that is as unfair to accused students as the one currently employed by U.S. colleges and universities lacks legitimacy, and the more people learn about the fundamental unfairness of these systems the more skeptical they will become of accounts of campus sexual assault and any resulting actions by the schools. While the federal government and universities' new approach to sexual assault cases may feel like much-deserved justice for the years of turning a blind eye to sexual assaults of university students, celebrating this trend is shortsighted. If we hang winning or losing this battle on simply increasing the number of students expelled for sexual assault, then we've already lost. As feminists, we should demand better than knee-jerk reactions from the government intended to appease anti-sexual assault activists without truly addressing their demands, and poorly designed university policies intended merely to protect the school's federal funding at the expense of our core democratic values of fairness, due process, and the presumption of innocence. We should be advocating systems that both address the actual needs and rights of sexual assault victims and respect due process and fairness for the accused. The current Title IX system does neither.
Naomi R. Shatz is an attorney at Zalkind Duncan & Bernstein LLP in Boston, where she represents students accused of sexual assault across the country. She is a graduate of Barnard College and Yale Law School.