Penn Law Profs Revolt Over Sex Assault Rules, February 23, 2015
By Emily Shire
Due process is not “window dressing,” the professors argue. It’s necessary to establish a process’s legitimacy.
When the White House announced a new national campaign to combat sexual assault on college campuses last year, the treatment of victims was the chief concern. But now, after a more than a year filled with a flurry of campus reforms, some university faculty are increasingly worried about a different party: the accused.
The rights of students accused of sexual assault are increasingly scrutinized as colleges begin to implement new reforms to make it easier to report and respond to sexual assault. Decades of university failure to care for sexual assault victims has understandably produced a backlash, but there is growing concern that due process for the accused may be the baby tossed out with the bath water.
Just last week, 16 professors at the University of Pennsylvania Law School released an open letter criticizing the school’s newly revised sexual assault policy. Of prime concern in the exhaustive critique were insufficient procedures to ensure due process and a fair trial for students accused of sexual assault.
“We do not believe that providing justice for victims of sexual assault requires subordinating so many protections long deemed necessary to protect from injustice those accused of serious offenses,” states the letter, which was authored by nearly one-third of the tenured law faculty. It goes on to argue that the new policies, which went into effect on Feb. 1, have “sacrificed the traditional safeguards that accompany traditional lawmaking procedures.”
These worries about the legal rights of the students—students who are sometimes accused of frightening crimes that can irreparably damage their peers’ education and lives—aren’t necessarily new, but speaking on their behalf comes with potential risks. There is certainly a fear of being described as a rape apologist for vocalizing concerns about due process for the accused. Moreover, when one reads the online debates about campus sexual assault, those who critique reforms sometimes skew into disappointingly sexist and misogynistic language. For example, Emily Yoffe’s thorough investigation into the lack of due process for male students accused of sexual assault elicited a slew of supportive comments that promoted victim-blaming. One reader wrote: “The solution to this would be for men to completely eschew sex with women they meet at college, period. Tough decision but the only logical one, since regret sex has been redefined as rape.” Without meaning to put words into Yoffe’s mouth, I highly doubt she intended her critique of campus assault policies would be fodder for such ignorant and sexist views.
But despite a camp of ignorant, over-simplifying victim blamers, legal experts are expressing concern about some of the new campus reforms.
For one, the letter from Penn law school faculty examines the shift from clear-and-convincing standard of evidence—which means “a party must prove it is substantially more likely than not” their claim is true, according to Cornell’s Legal Information Institute—to the lower standard of preponderance of evidence, which means a party must prove a claim is more likely to be true than not. In 2011, the Department of Education’s Office of Civil Right declared that universities must use a preponderance of evidence standard for sex discrimination cases.
While, the Penn letter recognizes the federal mandate, it questions additional practices that the school has added. The faculty co-authors perceive these as going beyond the Department of Education requirements and potentially severely limiting an accused student’s right to a fair trial.
One specific point of concern in the letter is the fact that only two of the three members of a disciplinary panel need to be convinced of an accused student’s guilt, especially under the already more lax preponderance of evidence standard. “To require anything less than unanimity for the imposition of serious sanction is unacceptable,” the letter states.
Another is that the new procedure “prohibits a lawyer or other representative for the accused student from cross-examining any of the witnesses against the accused,” according to the letter. In fact, not only is the accused barred from questioning those who speak against him or her, but certain or all questions may be barred altogether. “Although the protocol permits the accused student to submit questions to the panel to be asked during its ‘interview’ of witnesses, they must be submitted in advance and the decision to ask these questions is entirely discretionary,” the letter claims.
These policies raise legitimate concerns regarding an accused student’s ability to be fairly investigated and prosecuted for sexual assault. There are a number of other issues discussed in the letter, including how the sexual assault investigations are conducted and the lack of opportunities for the defense to “challenge the Investigation Team’s version of events.” In short, the letter makes it clear that there is a potentially significant risk that Penn’s new policies could turn sexual assault proceedings into a very one-sided battle against the accused.
The Penn law professors who authored the letter suggest moderate ways to rectify the more questionable aspects of new procedures. “It would be much fairer to impose reasonable limits,” the letter states, “including a ban on irrelevant questions regarding sexual history and sexual orientation of the complainant; control over unfair, oppressive, or overbearing cross-examination; and even separation of the complainant and accused during the hearing.”
Penn, thus far, is standing by its revised policy. “We developed a process that we believe to be fair and balanced, that will both provide a sensitive and effective process for those who file a complaint, while actively protecting the rights of the accused,” Ron Ozio, the university’s director of media relations, said in a statement emailed to The Daily Beast. He declined requests to let me speak with a representative from the
The concerns and proposals in the law school professor’s letter are hardly the archaic sentiments of rape apologists. By all standards, the letter is measured in its tone and deeply nuanced. “Ultimately, there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process,” the letter concludes.
This point about due process—or really, the feared absence of it—was also the chief concern raised by Harvard law professors last year after the university revised its sexual assault policies in July 2014. In Oct. 28, members of the faculty issued a public letter decrying Harvard for adopting new sexual assault policies that “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in one way required by Title IX law or regulation.”
The Harvard law letter raised another concern regarding the fact that the new policies places “the functions of investigation, prosecution, fact-finding and appellate review in one office, and the fact that the office is itself a Title IX compliance office” instead of “an entity that could be structurally impartial.” The letter sparks the question: When a university—let alone a university being threatened with cut federal funding—will effectively act as investigator, judge, and juror, how effective or fair can the proceedings be?
In turn, that question raises another: Why are universities tasked with overseeing sexual assault cases in the first place?
The letter from Penn law school faculty was more acute in questioning why these cases were not being immediately directed to law enforcement officials. “It is not altogether clear… why the federal government requires such serious cases to be handled by campus tribunals staffed by academics, instead of professional judges and lawyers,” the faculty noted.
Sexual assault advocates often reject the notion that universities aren’t the institutions fit to adjudicate these cases. They counter that it is important for college students to feel comfortable reporting sexual abuse and be able to seek redress from campus officials. “We see well-intentioned but misinformed state legislators push law enforcement officials [rather than university ones]. I think we’d see a rapid decline in the reporting of sexual assault,” Alexandra Brodsky, a founding director of the campus sexual assault advocacy group, Know Your IX, tells The Daily Beast.
The concerns raised in the letters from Penn and Harvard law faculty are not new to sexual assault advocates, but they see these issues about standards of evidence and investigation proceedings as placing an unfair burden on victims.
“I worry that when a lot of people call for more stringent standards of evidence for students accused of sexual assault, it is built on a particular distrust of rape victims,” says Brodsky. “I think we’re not seeing the deck stacked against the accused. It’s that for so long schools have taken no action against the accused students. Now we’re trying to figure out what’s the right punishment and how to protect survivors of sexual violence while also maintaining our commitment to a fair process for the accused.”
Firmly ensuring due process for the accused is essential to sexual assault advocates because they want these new policies to not only be respected but accepted. “We need these procedures to be seen as robust and legitimate for anyone so people can feel they can turn to their schools,” says Brodsky.
Establishing legitimacy is critical but not always the top priority. While schools may be eager to revise antiquated sexual assault policies, the long-term effectiveness necessitates reform that is seen as impartial and credible. In the aftermath of the unraveling Rolling Stone story on rape and sexual assault at the University of Virginia (which is cited in the Penn letter), it is evident that fast and shoddy investigations have validated those who believe sexual assault victims regularly lie about their claims.
“Due process of law is not window dressing,” the Penn law letter states. “All too often, outrage at heinous crimes become a justification for shortcuts in our adjudicatory process.” As much as those shortcuts hurt those accused of sexual assault, they ultimately do the most damage to future victims.