Four Better Ideas to Fight Campus Sexual Assault

August 6, 2014

By Ashe Schow at Washington Examiner

Fighting campus sexual assault has become a hot issue in Congress, with three bills introduced just before Congress left for August recess that would impose new requirements on colleges and universities for the handling of such cases.

But as I’ve written before, none of these bills provide any sort of protections for those accused of sexual assault, and instead codify into law a “guilty until proven innocent” mentality.

So how should colleges handle sexual assault claims? The Washington Examiner asked four experts on the topic. Each agreed that universities should not handle such cases in-house, though their preferred methods differed:

Andrew Miltenberg

Miltenberg is an attorney whose law firm is litigating at least three lawsuits from male students accusing their schools of violating their rights over sexual assault accusations. He doesn’t believe that accusations should be completely turned over to the police, instead opting for a more professional campus process.

“Although there are and will continue to be situations which call for the criminal justice system to become involved, I do not necessarily think that the criminal justice system is the only answer for campus sexual assaults,” Miltenberg told the Examiner.

“Certainly, there may be situations which do not rise to the level of violating a criminal statute, but nonetheless violate campus policy and students’ rights,” he added.

In his view, the process for determining whether a violation of campus policy — or crime — occurred should include “full and fair opportunity to be heard, due process and a sense of equity,” Miltenberg said. He added that each of those principles are “sorely lacking” in today’s climate.

He argued that there is “no uniformity from university to university, or even in hearings within the same institution,” and that the process needed to be reformed from the ground up.

“The answer begins at the investigative level; investigators should have significant training, and act as information gatherers, not gatekeepers, which is currently how they behave,” Miltenberg said.

“There must be greater access to the material and information that the hearing panel will rely upon, there must be an opportunity to better prepare a response, and perhaps most significant, there must be trained hearing officers — preferably people with substantial judicial, quasi-judicial, arbitration and/or mediation background; people that are trained and objective triers of fact, that have experience deconstructing testimony and complex factual scenarios with competing versions of events,” he added

Miltenberg said the current process is “critically flawed” and “an embarrassing model.”

KC Johnson

Johnson, a history professor at Brooklyn College and the City University of New York Graduate Center, is a leading advocate for due process rights for students accused of sexual assault. He also co-authored a book about the Duke lacrosse players wrongfully accused of rape.

“Sexual assault is a serious crime,” Johnson told the Examiner. “And serious crimes should be investigated only by the police and prosecuted only by prosecutors.”

Johnson pointed out that colleges wouldn’t be expected to investigate and punish other violent crimes — like murder or first-degree assault — so why should they investigate rape?

“Colleges simply lack the necessary tools (chiefly the subpoena power, but also the ability to request and analyze medical evidence; officers with sufficient training in proper investigatory techniques; and the ability to put witnesses under oath with a penalty of perjury) to conduct such investigations,” Johnson said.

“They also lack, obviously, the framework to provide sufficient legal protections to the accused.”

Johnson does not share Miltenberg’s belief that professionals employed by the college or university should handle some cases.

First, trained investigators “would lack other key tools (subpoena power, medical authority) that are needed to properly investigate violent crimes,” according to Johnson.

“The result would be the aura of greater professionalism, but investigations that would still be compromised.”

Second, Johnson emphasized that a trained professional paid by the campus would follow the same failed model currently in place.

“In most cases, they’d likely be supervised by Title IX or judicial affairs officials — figures who routinely presume guilt in sexual assault cases,” Johnson said. “So there’d be a very strong incentive (the ability to keep their jobs once the contract expired) for these supposedly neutral investigators to frame cases in ways that make guilt more likely.”

John F. Banzhaf III

Banzhaf, a law professor at George Washington University Law School and one of the leading voices on the issue of due process, provided the Examiner an extensive proposal for reforming how colleges handle sexual assault claims.

Banzhaf first pointed out that he does not believe accusations should be handled solely by police and prosecutors or solely by the universities.

He said the “beyond a reasonable doubt” standard of proof used in criminal trials would make it “very difficult to get convictions in typical date rape cases which are often ‘he said, she said’ where both were under the influence of alcohol, and there is little if any evidence.”

If you’re thinking that should be a good thing, as evidence is necessary in criminal cases, remember that, as Banzhaf said, this type of case often leaves accusers without the protection they seek.

As for letting colleges and universities handle the cases exclusively, Banzhaf said that sexual assault is too serious an issue.

“These system[s] are designed primarily to handle minor infractions (e.g., underage drinking, minor mischief, brawls, etc.), which can easily be investigated by campus police … because the evidence is usually pretty clear,” he said.

The punishments for these infractions are generally not that severe, Banzhaf said.

But for sexual assault, campuses need “specially trained investigators who follow standardized procedures/protocols, which include careful intake questions of the accuser as well as the accused, the careful preservation of evidence, etc.”

Banzhaf noted that “virtually no campus” has enough sexual assault cases to employ a trained professional full-time.

Banzhaf instead believes that, at least in areas with multiple universities, the schools could establish a “consortium” — an independent entity with training that would investigate the accusations.

“If these investigators concluded that prosecution/adjudication wasn’t warranted, they would report that to the school, the matter would be dropped, and no one could reasonably suspect either bias or a careless investigation,” Banzhaf said.

“If prosecution was warranted, the consortium could also perform that function, presumably using retired judges, retired sex crime prosecutors, retired attorneys, etc. — this would be similar to organizations which now provide arbitration determinations for a reasonable fee,” he added. “Alternatively, the consortium could prosecute the case before an existing arbitration organization or panel.”

Such a proposal would ensure, Banzhaf said, that the matter was “adjudicated properly without any possible bias.”

Alternatively, Banzhaf proposed that since in many cases the accuser doesn’t think the accused should be expelled, but still doesn’t want to see them around campus, that colleges could handle those situations.

“In such situations, where the penalty is less serious — e.g., dropping one class, being moved to another dormitory, etc. — it may be appropriate to leave the matter to the existing campus adjudicatory system without much worry about procedural protections, trained investigators, very formal hearings, etc.,” Banzhaf said.

Robert Shibley

Shibley, communications director for the Foundation for Individual Rights in Education, one of the main organizations arguing for due process on college campuses, believed that sexual assault cases should be turned over to the police but that universities should still be involved.

“When it comes to actually adjudicating whether someone did or did not commit a felony crime, FIRE does believe that should be the province of law enforcement,” Shibley told the Examiner.“And colleges should have a role too, but that role should be limited to acting to protect their students.”

For instance, Shibley said, universities could provide counseling to “people having problems” and facilitate a barrier between the accuser and accused.

“[An] easy thing they can do is to work with them and be flexible in allowing them to move out of their dormitories or move into a different living situation,” Shibley said. “They can also issue no-contact orders and ensure that their schedules don’t cross so that they’re not going to be sitting next to someone they feel victimized by in class.”

Shibley said those actions could be taken while an investigation was being conducted. Pressed on whether those actions promote a “guilty until proven innocent” mentality, Shibley clarified.

“Well the important thing is to, you know, before the person is found guilty or innocent, you take the steps — you can take the steps to protect the victim that are the least intrusive into the accused’s life because they have not been found guilty yet,” Shibley said.