Is Due Process in Danger at Penn?

By November 4, 2014

Late last month, the student newspaper The Daily Pennsylvanian (DP) reported that the University of Pennsylvania would be changing the way it handles complaints of sexual assault in response to federal guidelines. Specifically, Penn plans to hire a professional Title IX investigator who:

will review the evidence in every case and interview both the complainant and respondent about the incident. After issuing a preliminary report, both the complainant and respondent will have an opportunity to provide feedback and further information, after which a final report with a proposed recommendation and sanction will be issued.

This is the type of single-investigator model recommended by the White House Task Force to Protect Students from Sexual Assault. FIRE has repeatedly stated our concerns about the single-investigator model, which empowers one individual to serve as detective, judge, and jury, and which dispenses with the notion that someone accused of serious wrongdoing should have the opportunity to challenge his or her accuser’s testimony.

According to the DP, the new procedures will allow the Title IX investigator’s decision to be appealed “to an all-faculty panel trained in handling sexual assault cases.”

In addition to the obvious concerns raised by the single-investigator model and the faculty-only panels, students, faculty, and others concerned with due process should also pay close attention to what kind of “training” these faculty members will receive. In the spring of 2012, Penn offered a guide that it had developed “for members of its student discipline panels” as a “template for other nonprofit colleges and universities.” That guide consists of “17 tips for student discipline adjudicators,” none of which addresses the essentiality of due process for accused students, and some of which raise serious concerns about the impartiality of Penn’s sexual misconduct hearing panels.

One of the tips, for example, is that “false allegations of rape are not common.” The sole source cited for this statement is a study co-authored by David Lisak, a clinical psychologist who has spoken extensively on college campuses at the invitation of campus sexual assault activists. While false allegations may or may not be rare, there is a serious question as to the appropriateness of including such a claim in materials supposedly intended to train impartial sexual assault adjudicators. As KC Johnson writes:

Imagine the (appropriate) outrage from civil libertarians if jurors in all murder trials received specialized training, including a “tip” that only a small percentage of murder claims are false. It seems likely, of course, that most people indicted for murder are, in fact, guilty. But such a statistic should (and must) be irrelevant to the individual juror, who is supposed to evaluate based on the specific evidence in a specific case. Including such “training” would send a message that prospective jurors should conclude that the individual defendant is guilty.

So it is with Penn’s training “tip” that false accusations are allegedly rare. The only purpose for such a “tip” would be to prompt panelists that they should presume the accuser is telling the truth, and return with a guilty finding.

There are also several tips relating to why an alleged victim’s demeanor should not detract from his or her credibility, but the only analogous tip regarding alleged perpetrators relates to why his/her demeanor should not be taken as positive evidence of his/her credibility.

Tip #10, for example, states that “victim behaviors during and after a sexual assault may appear counterintuitive to those unfamiliar with sexual assault.” According to Tip #11, “the fact that a complainant recounts a sexual assault differently from one retelling to the next may reflect memory processes rather than inattentiveness or deceit.” And Tip #12 discusses how a sexual assault complainant may display a “flat affect” in spite of his or her trauma, which “does not, by itself, show that no assault occurred.”

By contrast, Tip #15 states that “a respondent [that is, the accused] in a sexual misconduct complaint may have many apparent positive attributes such as talent, charm, and maturity. A respondent may display, for example, a deep commitment to community service and excellent career potential. Such attributes, while commendable, are generally irrelevant to whether the respondent engaged in nonconsensual sexual activity with the complainant.”

The problem with the tips is that these are materials intended to train supposedly impartial hearing panelists, yet they all seem geared towards encouraging the panelists to believe the accuser over the accused. This contravenes the traditional presumption of innocence afforded to people accused of serious wrongdoing.

The training materials also instruct hearing panelists to avoid certain types of “victim blaming questions”—something which my father, Penn professor and FIRE co-founder Alan Charles Kors, questioned in an email to the administration. According to the training materials, victim-blaming questions include “Why did you wait so long to report this?” and “You had the chance to report this incident to the police, why didn’t you choose to do that?” Regarding these questions, Professor Kors wrote, “Questions to the defendant that you rule out of court include questions that every defense lawyer that I have spoken with would utilize to achieve fairness and justice for her or his client.”

In response to all of this, I reached out to Penn’s General Counsel, Wendy White, who is listed as one of “the three people primarily responsible” for the 2012 training materials (although she denied as much in an email response to Professor Kors). In response to my questions about how Penn’s new procedures will impact due process, White wrote:

I assure you that we are looking carefully and thoughtfully at all of our procedures and protocols to ensure that both complainants and respondents are treated fairly and appropriately in these very complex and sensitive cases. We are still in the process of shaping the new model and will certainly keep your views in mind.

I should add that the “Template” you refer to was not developed as a template but as an internal guidance document for use by the Office of Student Conduct two years ago. We have every intention to review the guidance to make sure it fair [sic] and in no way has any adverse effect on the presumption of innocence. We also expect to develop new training programs for adjudicators in the new process.

Again, thank you for raising these important issues. This is a matter we take very seriously and share your concern that the process of adjudication is fair and equitable for our community.

FIRE appreciates White’s prompt and thoughtful response, and we are happy to hear Penn’s top legal official acknowledge the importance of the presumption of innocence. However, we must remain skeptical because we hear empty promises to respect due process all the time. Just last month Penn President Amy Gutmann told the Daily Pennsylvanian that “[t]here has to be a fair and effective way of dealing with accusations of sexual assault. And I think we at Penn take this extremely seriously — period.” But despite that emphasis on fairness, the university has dispensed of hearings and adopted an affirmative consent standard that effectively requires accused students to prove their innocence.

If there is a glimmer of hope, it is the fact that Penn has been responsive to free speech concerns that FIRE has raised over the years and is a longtime “green light” institution. So we know the university takes input regarding student rights seriously. But with the intense external pressure from the federal government to curtail the rights of accused students in order to address campus sexual assault, it is impossible to know whether calmer heads will be able to prevail. In the meantime, therefore, it is essential that those of us who care about fundamental fairness on campus keep a hopeful but watchful eye on the situation.

Schools: University of Pennsylvania Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process