Justice Restored is not Justice Denied

©2017 Kenneth N. Margolin

Betsy DeVos's review of Obama-era campus sexual assault policies presages the rollback of a grave injustice. In the emotionally charged discussion of campus sexual assault, the devastating impact on the life of a male student found responsible is often ignored. A college student declared by a campus tribunal or investigator to have raped a woman, will face a damaged future. He will be expelled. Enrollment in another college, and many career opportunities may be foreclosed. At the beginning of his adult life, the accused will have been branded a predator, an abuser of women.

The notion that an institution of higher learning can wreak such havoc on a young person's life while depriving the accused of the ability to effectively defend himself is profoundly un-American. Yet, a vocal cadre of victims' advocates persuaded the Obama Department of Education that justice for an accused was unjust to women who were sexually assaulted. They viewed procedural fairness to accused students as an unnecessary annoyance, to be pushed aside for the greater good. When the Obama Department of Education issued its infamous April 4, 2011 "Dear Colleague" letter, demanding that colleges investigate claims of sexual assault, and determine their validity while offering the accused scant procedural protections and using the low "preponderance of the evidence standard," timid or politicized campus administrators eagerly complied.

Few people understand what happens in a campus sexual assault case. Typically, the accused student first becomes aware of the complaint when the college sends him a notice devoid of details of the accusation. He must then speak to a campus administrator, who will question him, expecting answers, before the accused knows what his accuser alleges. There is an overarching assumption that the allegations are true, else they would not have been made. An investigation then commences. The competence of the investigators spans a wide range. While some do a good job, too many are shockingly incompetent and fail to interview key witnesses, neglect to ask obvious follow-up questions during interviews, and do not pursue potentially exculpatory evidence.

At colleges that use the "investigator model," no hearing is held. The investigator finds facts and concludes whether or not the accused student is responsible of the charges. Everything rests on the skill and impartiality of the investigator – no safe assumption. The report is usually reviewed by one or more administrators who rarely disagree with the recommended result. When colleges use the "hearing model," the accused student will be judged by a panel of students or a mix of students and faculty or administrators. The student will be expected to present his defense on his own and will be unable to confront his accuser. There is no cross-examination, even if the credibility of the accuser is contested and pivotal to the result. Despite the life-altering stakes involved, the accused will not be allowed to have his case presented by an attorney. Students and faculty who sit on disciplinary boards often enter the process biased in favor of the accuser.

Exacerbating the potential for injustice is the reality that complaints often arise after sex when both students were drunk. The question then becomes whether the accuser was intoxicated but willing, or so intoxicated as to have been incapacitated and unable to give consent. College administrators and tribunal members seem unable to understand that lowered inhibitions due to intoxication does not equal incapacity. Layered on top of the wobbly foundation of campus adjudicatory procedures is a witch trial-like frenzy, with discredited claims that twenty percent of all female college students are sexually assaulted and that only between two and ten percent of accusations are false, bandied about as gospel.

Sexual assault is a vile act, a major felony. Determining whether it occurred is a job for law enforcement and the courts. College faculty and students are ill-equipped to determine the truth. If college administrators insist on "trying" sexual assault cases, the accused must be granted timely and detailed notice of the allegations against him, the presumption of innocence, and the right to counsel and cross-examination. Secretary DeVos opined that "one rape is one too many – one person denied due process is one too many." Since when in America, did that become controversial?