As college administrators, state and federal lawmakers, the White House, and the Department of Education’s Office for Civil Rights (OCR) take steps to combat sexual assault on college and university campuses, it is critically important to ensure that attempts to keep students safe do not exacerbate the already serious threats to due process that exist for students accused of sexual misconduct. Consideration of the legal problems presented by the use of the low “preponderance of the evidence” (50.01% certainty) standard of proof and by the lack of procedural safeguards in campus hearings is necessary—but it doesn’t tell the full story. Brown University student Daniel Kopin’s story of being accused of rape, published in The Daily Beast on Sunday, serves as a powerful reminder that the dangers posed by unfair hearings are not hypothetical.
Kopin relays in Cathy Young’s column how he was suspended from the university for one year after being found responsible for “[s]exual misconduct that involves non-consensual physical contact of a sexual nature” and “[s]exual misconduct that includes one or more of the following: penetration, violent physical force or injury.” Kopin’s testimony and that of his accuser, Lena Sclove (she has made her name public), told very different stories, and witness testimony only highlighted the impossibility of knowing with any certainty what really happened. Such situations aren’t unusual in the realm of campus sexual assault cases, but since OCR’s April 4, 2011, “Dear Colleague” letter mandated the use of the preponderance of the evidence standard in addressing allegations of sexual misconduct, cases involving evidence that no rational person would consider to be definitive nevertheless end in an unambiguous labeling of the accused as a rapist.
Brett Sokolow, president of the National Center for Higher Education Risk Management, noted in The Chronicle of Higher Education that institutions of higher education are under pressure to reach a finding in favor of the complainant in order to limit their own liability, but accused students are increasingly fighting back against unfair procedures:
This spring, says Mr. Sokolow, he has noticed a significant uptick in the number of men complaining that colleges have mishandled allegations of sexual misconduct against them. Since April, he says, at least 55 young men have asked him to represent them in disputes with their colleges or universities. So far, Mr. Sokolow has taken on 11 of those cases.
He believes that the rising number of complaints from men stems in part from increasing pressure on colleges to hold students responsible for sexual misconduct, and the mistaken belief among administrators that this means they should find more young men responsible. “All of this pressure from the White House and OCR has been communicated, and these university panels believe they are supposed to vote a certain way now,” says Mr. Sokolow. “Campuses are saying, We have to comply with Title IX, so we have to side with the victim.”
And the problems with college tribunals don’t end at unfair written procedures—institutions also administer those procedures using people who may well have no idea what they’re doing. Young reports:
Kopin’s advisor during the investigation and the hearing was the campus director of dining services, who he says had little knowledge of the disciplinary process. Criminal defense and civil rights attorney [and FIRE co-founder—ed.] Harvey Silverglate, who was retained by the Kopins but was barred from any role in the campus disciplinary process, says in an email, “Dan, because factually innocent of everything except some bad judgment, was suspended for ‘only’ one year, which quite often in today’s academic environment is the penalty for the innocent.”
As Young points out, whether Kopin is innocent or guilty, the result is wildly inappropriate:
[I]f Daniel Kopin is a violent rapist and near-strangler, he should be doing time in prison, not getting suspended or even expelled (the toughest disciplinary sanctions still leave a rapist free to find other victims off-campus). If he is innocent, he has been effectively branded a criminal without any of the safeguards normally accorded to criminal defendants. In the end, nobody wins.
Kopin is, of course, not alone either in being denied due process or in speaking out. Last October, Al Jazeera America published an article detailing the case of Caleb Warner, who was suspended for three years by the University of North Dakota despite the fact that evidence in the case led law enforcement to charge his accuser with making a false report.
Read the rest of Kopin’s story in The Daily Beast.