FIRE Legal Network members and attorneys Matthew G. Kaiser and Justin Dillon have seen firsthand how colleges and universities mishandle allegations of sexual assault, having defended students accused of sexual assault in campus disciplinary hearings. Kaiser and Dillon focused on the University of Pennsylvania’s new sexual misconduct policies in an op-ed for The Philadelphia Inquirer’s Philly.com yesterday, echoing the concerns of 16 Penn Law faculty members who criticized Penn for disregarding the rights of accused students.
In yesterday’s piece, Kaiser and Dillon noted that Penn has hired a former sex-crimes prosecutor as the investigator who will be responsible for gathering and assessing evidence in sexual misconduct cases. Already, the two have seen investigators at other schools treat cases as a prosecutor would, not as a neutral party like a judge.
The attorneys argue that although cases still go to a hearing if the investigator concludes that the accused is more likely than not guilty, those hearings lack a number of crucial safeguards meant to ensure a fair and accurate result, such as cross-examination. Making matters worse, neither side’s attorney is allowed to speak. As both the accuser and the accused frequently come off as too emotional (or not emotional enough) to satisfy those judging their character, the lack of attorney participation risks seriously clouding the fact-finding process. Kaiser and Dillon write:
Preventing this problem is why God made lawyers. Sometimes, people need help fighting their battles. They need help, and they need cover.
A lawyer can make the accused’s case without (one hopes) coming across as combative. A skilled cross-examiner – which, contrary to what you see on TV, does not necessarily mean an aggressive one – can highlight holes or inconsistencies in the accuser’s story without making it seem personal. And to the extent that it does seem personal, the panel will be more likely to direct its ire at the attorney, not the accused.
Yet Penn’s system allows for none of this.
Read the rest of Kaiser’s and Dillon’s critique of Penn’s new system at Philly.com.