The White House Flunks a Test on Sexual Assault

May 5, 2014

By Matt Kaiser and Justin Dillon at The Wall Street Journal

In January, President Obama convened a White House Task Force to Protect Students from Sexual Assault and charged it with creating a set of recommendations commensurate with its title. Last Tuesday the task force released its report.

Those of us who handle these cases professionally had hoped that the report would strike a thoughtful balance between respecting the experiences of victims and protecting the rights of the accused. Instead, it continues the apparently inexorable erosion of the rights of the accused on campus.

To be sure, the task force’s goals—to ensure that victims of sexual assault are treated properly by colleges and to prevent such assaults—are important. It is absolutely appropriate to encourage colleges and universities to create programs that seek to deter sexual assault and to make sure that, when it happens, the victims are treated with respect.

The report’s proposals calling for increased training and education on campus would accomplish just that. One calls for engaging men through so-called bystander training, which would teach men that if you see a woman who is about to be victimized, step in and say something. Putting aside whether this is a message that a university can effectively convey to someone who has failed to learn it by age 18, the goal is certainly admirable.

Another sensible proposal calls on schools to identify trained victim advocates to whom victims can turn for confidential support, while still another calls for increased training for school officials who deal with the issues surrounding sexual assault.

But in dealing with the accused, the task force’s report falls into what is becoming an all-too-familiar trend: disregarding the rights of the accused under the guise of equal treatment.

Today, at colleges across the country, a student accused of sexual assault has no right to find out the evidence against him, no right to be in the same room as his accuser, no right to a lawyer, and no right to cross-examine the witnesses against him—all rights that, in a criminal proceeding, are fundamental. His case will be decided by a committee comprised variously of students, professors and administrators, without oversight by impartial professionals who have criminal-law experience.

In one recent case we handled at a large private university in the Midwest, the committee members were a religion professor, a librarian and a junior studying dance. Laudable pursuits all, but pursuits that no more qualify them to handle a rape case than a carburetor repair.

The task force’s recommendations would double down on this system. It praises the so-called single-investigator model in which a solitary “trained” investigator would handle the entire investigative and adjudicative process. In other words, one person—presumably paid by the university, whose federal funding may be at stake if the government says the institution has contravened Title IX—will effectively decide innocence or guilt. There is a name for a system like this, and it is Javert.

More remarkably still, the task force report criticizes an “adversarial, evidence-gathering criminal justice model” and lauds the Department of Education’s new guidance stating that, to comply with Title IX, “the parties should not be allowed to personally cross-examine each other.”

The federal government has thus, for the first time that we are aware, taken an official stand against what the American jurist John H. Wigmore famously called “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” As the Foundation for Individual Rights in Education (which protects civil liberties in academia) noted on the day the task force’s recommendations were released, the words “due process” appear nowhere in the report.

Given what is at stake for a young man accused of sexual assault on campus, the lack of these basic procedural protections is deeply troubling.

A student found guilty of sexual assault is almost always suspended from school and barred from campus; his transcript will also note that he was found guilty of sexual assault. Every time that student applies to a different school, he has to talk about how he was accused and found guilty of being a rapist.

But to the task force, that is just the cost of doing business—or, more precisely, of taking federal funding.

Being a victim of a sexual assault is a horrible, life-altering thing. So, too, is being falsely found to have committed a sexual assault. Schools need processes that are fair to both accusers and the accused.

No system, whether devised by the White House or the National Association of Criminal Defense Lawyers, is going to be perfect. Sadly, some victims will inevitably be victimized again by the legal process, and some perpetrators will go free. But that is, quite simply, the cost of having a true justice system—one with rules and protections for people on both sides.

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process