A Rational Approach to Hearings on Allegations of Sexual Assault on Campus

©2014 Kenneth N. Margolin

No college disciplinary issue creates higher stakes than an allegation of sexual assault. For the accuser, if an assault did occur, there are urgent interests, for safety, for vindication, and for whatever emotional salve that can be obtained by knowing a predator has been punished by the school. For the accused who has not committed a sexual assault, nothing less is at stake than his college career and potentially life-long negative impact on his employment potential and his reputation. For too many years, a woman alleging sexual assault by a fellow student, was unlikely to obtain satisfaction in the college disciplinary process. College administrators, fearful of adverse publicity, perhaps rightly understanding that they were ill-equipped to investigate and decide whether what is a serious criminal act occurred, often refused to deal seriously with allegations. It was not uncommon for the female student to be advised to forget about the unfortunate incident, or perhaps to call the police, but to leave it alone on campus. Now, however, the pendulum has swung too far in the other direction. Spurred by a barrage of media attention, legitimately highlighting the problem of rape and sexual assault on campus, and encouraged by an ill-advised federal government initiative, a college man accused of sexually assaulting a fellow student will be presumed guilty, despite protests of college officials to the contrary. He will receive procedural rights far too slender for the enormous impact an adverse finding may have on him. His case will be heard, and he will be judged, in an atmosphere of witch hunt frenzy.

The starting point for understanding the current unacceptable state of college disciplinary hearings for charges of sexual assault, is the United States Department of Education's April 4, 2011 "Dear Colleague" letter. Dear Colleague letters are the manner in which the D.O.E. relays important policy guidance and mandates, to colleges and universities. While the letters do not have the formal affect of legislation or regulations, they have great force because they reflect the Department's views on colleges' legal obligations in various areas within the ambit of the federal agency. Failure to abide by the pleasure of D.O.E. could jeopardize a school's federal funding. Federal dollars, for student aid, for research and development, and for other uses, permeate higher education. Much of the Dear Colleague letter is beneficial. The Department points out that sexual violence is a subset of sexual harassment, and therefore implicates Title IX. The Department notes that federal law prohibits gender-based harassment, that creates a hostile environment, and requires colleges to act aggressively to lessen sexual harassment and to promptly investigate student complaints of sexual harassment and to put in place mechanisms for prompt and equitable resolution of complaints. Colleges are required to take accusations of sexual assault seriously, and to act promptly upon them.

Where the Department of Education got it wrong, however, was its mandate that colleges use the "preponderance of the evidence" standard in determining complaints of sexual harassment, including complaints of sexual assault. Prior to the the Dear Colleague letter, colleges could choose the evidentiary standard they would apply. Many schools, understanding the seriousness of a sexual assault allegation, employed the "clear and convincing" evidence standard. That standard, lower then the criminal proof beyond a "reasonable doubt" required for a conviction, but higher than the "preponderance of the evidence standard applied in civil matters, such as car accidents or contract disputes, is applied in a variety of cases when the stakes are high – care and protection cases of children being a prime example. The D.O.E. threatened colleges that did not comply with their Dear Colleague letter, with federal investigation and potential loss of funds. The pressure from various "victims rights" groups, and the federal government's edict, has led to a situation that when alcohol fueled sex results in a claim of sexual assault, and the two parties testify to entirely different versions of events, many college administrators will hide behind the preponderance of the evidence standard and find the accused "guilty," despite harboring significant doubts.

If taken seriously, the difference between "preponderance of the evidence" and "clear and convincing evidence" is not merely semantic. In the judicial system, the lower evidentiary standard applies in purely private disputes, the notion being that the dispute being a private one, whichever side has the better of the evidence, even if only slightly, should prevail. There is no significant public policy rationale to require one party or the other to have to meet a higher burden of proof. The "clear and convincing" standard of evidence is applied in cases in which a right or interest more important than simply money is involved, and typically, when there is a public policy interest as well. In the case of an allegation of sexual assault on campus, the accused has far more at stake than the loss of the considerable financial investment in his education. A young man's reputation can be destroyed by a finding that he was a sexual predator. Moreoever, employment opportunities and quality of life can be lastingly impacted by being thrown out of school. Advocates for victims of sexual assault, point out that victims have rights as well as the accused. That is, and should be, the case. But, our entire system of justice – not just in the courts, but in any sort of tribunal with significant power – is based on the notion that an individual accused of criminal or criminal-like behavior, is presumed innocent unless proven guilty. Given the high stakes of a sexual assault allegation against a college student, to excuse marginal procedural protections and a low evidentiary standard, on the basis that the case is civil and not criminal, creates a hollow distinction, one which guarantees that great harm will be visited upon innocent accused.

Below are the key points I would adopt for the handling of college disciplinary hearings involving allegations of rape or other sexual assault. As mentioned, it will probably require legislation or a new perspective on the issue in the courts, for measures such as the ones I propose, to be implemented.

  1. Accused students, in addition to receiving a notice that details not only the charge against them, but the basis for the charge, must have the right to the following:
  2. (a) the identity of any witnesses who will testify against them; (b) a summary of what each witness is expected to say; and (c) copies of any statements or correspondence the university intends to use at the hearing.
  3. The accused must be permitted to have an attorney present with them in the hearing room, with reasonable opportunity to consult with the attorney.
  4. The accuser may also have an attorney present, with reasonable opportunity to consult with the attorney.
  5. The accused may present witnesses on his behalf.
  6. The accused has the right to directly question the accuser. The university officials presiding over the hearing are responsible to insure that the questioning of the accused is not done in an inappropriate or intimidating manner.
  7. Any college official who participates in a disciplinary hearing involving allegations of sexual assault, must receive specialized training. The training must include skills to aid them in judging allegations of sexual assault, and must also convey the importance of the principle of presumption of innocence.
  8. Any student who brings an allegation of sexual assault, must be guaranteed that they will be free from any adverse action against them, regardless of the outcome of the hearing, unless there is evidence that the allegation was brought with malice, and knowledge that it was false.

The above process would help protect against incorrect findings that an innocent student had committed a sexual assault. When combined with adequately trained advocates and counselors for students who have been sexually assaulted, the steps proposed above would also protect the rights of students who have been sexually assaulted, to bring charges, and to obtain justice and protection within the university system.

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