Sex-Assault Cases Belong In Court

March 21, 2015

Editorial at The Columbus Dispatch

Colleges and universities wrestling with how to respond to accusations of sexual assault on campus should make it easier on themselves and leave such conflicts where they belong: in court.

A well-intentioned nationwide movement to ensure that campus sexual assaults aren’t ignored or minimized has collided with the traditional university disciplinary tribunal, and the result often is a disaster for due process and, thus, justice.

Some colleges and universities still attempt to sweep sexual assaults and other serious crimes under the rug, in a reprehensible choice to protect their reputations rather than their students. But many others, feeling pressure from the federal government and courts, are erring just as badly in a different direction.

The U.S. Department of Justice under President Barack Obama has made a priority of enforcing Title IX prohibitions against gender discrimination, and case law has established that sexual assault is a form of gender discrimination. While the goal is laudable, the approach taken by many colleges and universities — ratcheting up hearings before internal discipline panels — is wholly inappropriate.

The Foundation for Individual Rights in Education (FIRE) outlines some of the ways in which college panels are ill equipped to dispense justice in serious criminal matters — what FIRE legislative and policy director Joseph Cohn described as “amateurs getting in way above their heads.”

Such panels, typically made up of faculty members from various academic areas and some administrators, lack the benefit of forensic evidence and mostly likely wouldn’t have the expertise to interpret it properly even if they had it. They can’t subpoena witnesses, and people who testify before them do so without being under oath.

This is hardly a recipe for a fair hearing, and yet such panels have the power to ruin lives, by expelling students and branding them as predators.

Adding students to such panels, as some, including Ohio State University’s student-government President Celia Wright, have urged, would do nothing to improve the situation.

Expulsion and the ruin of one’s education are great enough risks, but it could get worse; the testimony given by accused parties at disciplinary hearings can be used against them in a criminal case, meaning an unfair disciplinary process also could help pave the way to prison.

Cohn suggests that schools can help victims obtain medical care, and they can advise and advocate for students in their dealings with police and the courts. Beyond that, any accusation of a felony crime should be aired in court. Victims deserve that level of thoroughness as much as those accused.

And in the interim, while an accusation moves through the justice system, an institution can protect an accuser from contact with the accused via temporary means less drastic than expulsion, such as requiring him to study remotely or changing a dormitory assignment.

If a court of law finds the accusation unfounded, some would say those measures were unjust. But for someone unjustly accused, they surely beat expulsion, with no chance to clear his name.