The consequences of unfair sexual misconduct procedures are monumental and life-altering. Students who are found guilty can be made into pariahs, kicked out of their residences, expelled from their colleges, and forced to explain marked transcripts to graduate institutions and employers for the rest of their lives. When these defendants have not committed any wrongdoing, such punishments are a travesty of justice. While The Huffington Post has done admirable work in highlighting the significant problem of inadequate university responses to claims of sexual violence, its coverage has failed to explore the issues of due process and procedural safeguards for accused students that reform must also address.
Both Title IX (a federal law which prohibits sex discrimination in educational settings) and notions of basic fairness require sexual assault adjudications to be equitable and impartial for both parties. Yet prevailing attitudes and arguments for reform of campus policies only consider the plight of the victim. Many, for example, are quick to endorse the U.S. Department of Education's Office for Civil Rights' April 4, 2011, mandate (issued in flagrant violation of the laws governing administrative rulemaking) that colleges employ a burden of proof of "preponderance of the evidence" (50.0001 percent) in evaluating whether a sexual assault occurred. It may seem that lowering the burden makes the proceedings equitable, even though commentators including the AAUP's Committee on Women in the Academic Profession have stated that doing so is a bad idea. Changing the burden does not make hearings more equitable; instead, it makes them even more unfair to accused students.
Given the utter lack of procedural safeguards colleges employ in disciplinary hearings, a student defendant is already at a severe disadvantage. In a court of law, judges have explicit criteria to determine what material may be considered in determining the defendant's guilt or innocence. Under these rules, evidence that is inherently irrelevant or unreliable, such as second-hand hearsay or speculation, is excluded. In a court of law, the parties also have mechanisms for obtaining relevant information from each other; in a criminal case the prosecution must always give the accused anything which would help prove his or her innocence. In a college sexual assault hearing, there are no formal rules of evidence governing what may or may not be considered in rendering a verdict; there are no rules of procedure that give the accused access to anything that could disprove the allegations against him or her; and there is not even necessarily a ban on secret communications between the party alleging sexual violence and the ultimate decision maker. The person filing charges by definition knows what the accusation is, while the responding party may not learn all the facts until after an investigator has already determined guilt. Under these circumstances, mounting a defense is impossible.
Lowering the burden, like limiting cross-examination or substituting trial-type procedures for an Inquisitorial model, removes potential safeguards. Without corresponding reforms to protect student defendants, convictions are more likely to occur irrespective of guilt or innocence. How can we have confidence in the reliability of campus sexual assault adjudications when tribunals have considered evidence that one party "looked like a rape victim" or the unverified hearsay testimony of anonymous secret witnesses while ignoring evidence that the accused was medically incapacitated on the date that sexual harassment allegedly took place? Too many students like Caleb Warner, who was expelled from his college for rape for over a year and a half even after police issued an arrest warrant for his accuser for filing a false complaint, know what it feels like to be convicted for something they did not do.
It should be clear from these limited examples that universities lack both the impartiality and the institutional competence to judge claims of felony crime between their students. Indeed, that is why calls for reform have been necessary in the first place. Accused students and victims would both be better off in a world where only the courts handle sexual assault. To the extent that colleges are nevertheless allowed to handle rape allegations, they must do so with an eye toward fairness, not just conviction and punishment. Conversations about reforming sexual misconduct policies must begin by accepting the facts that not all accused students are guilty and that procedural safeguards are vitally important to protect the rights of innocent people.
Stephen Henrick is an attorney specializing in civil litigation. He lives in New York City. His upcoming article in the Northern Kentucky Law Review, "A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses," explores the issue of sexual assault in university settings in more detail.