NCHERM’s Open Letter on Campus Sexual Assault Reveals Common Ground

On Tuesday, the National Center for Higher Education Risk Management (NCHERM), a risk management law firm with a long list of college and university clients, posted “An Open Letter to Higher Education about Sexual Violence” (PDF). In the letter, NCHERM’s partners reveal several candid observations that reflect how our current means of addressing sexual misconduct on college campuses fail all parties involved.

Before diving into the letter, first a little background. It is no secret that FIRE and NCHERM do not often see eye-to-eye when it comes to campus judicial systems adjudicating sexual assault allegations. For one thing, NCHERM supports the Department of Education’s Office for Civil Rights’ (OCR’s) mandate that institutions adjudicate sexual misconduct cases using our judiciary’s lowest evidentiary threshold, the preponderance of the evidence standard, and FIRE does not. That difference and other, related disagreements have prompted plenty of back-and-forth between FIRE and NCHERM during the past three years.

And there are certainly parts of this open letter with which FIRE disagrees. For example, the NCHERM authors call out FIRE for not advocating on behalf of student victims of university gag orders—when, in fact, we have done so and will continue to do so.

But today, I want to focus on the areas in the NCHERM letter where FIRE was pleased to find common ground.

One of the most important points the open letter makes is its assertion that “the public and the media need to understand that campus [sexual assault] complaints are not as clear-cut as the survivors at Know Your IX [a victims’ advocacy group] would have everyone believe.” FIRE agrees; sexual assault allegations are often complex. There’s a reason why even our criminal justice system struggles with them—and professional law enforcement and courts have the benefit of years of expertise, forensics, and legal tools like subpoenas and sworn testimony that aren’t available to campus adjudicators. The NCHERM authors write: “If you work on a college campus, we don’t have to point out the complexity of the complaints we receive.” FIRE knows this complexity, too, from the ever-growing number of case submissions related to sexual assault adjudications we receive every year. Like NCHERM, we know that these cases are often devilishly difficult—and therefore, we believe that dismissing careful policy considerations that would make the process more fair, effective, and just does everyone involved a deep disservice.

In addition to acknowledging the complexity of sexual assault cases, NCHERM also challenges the idea that it’s safe to assume that all complaints are true (or as near to true as to make no difference). NCHERM appropriately acknowledges that first responders, who are not the adjudicators of these claims, need not question the truthfulness of a complainant’s claim. But the letter’s authors explain that in the course of providing consulting services to more than 300 colleges every year, they have encountered “complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen.” Statistics can tell you about crime in the aggregate, but they tell you nothing useful about an individual case. That’s why in February, FIRE told the White House Task Force to Protect Students From Sexual Assault that each complaint needs to be analyzed on its individual merits (PDF) and decided upon the evidence available in the case—not on the basis of assumptions of the statistical prevalence of the underlying crime in question.

NCHERM further states what we at FIRE had hoped was self-evident: “a victim’s self-labeling does not make the person they are accusing a perpetrator.” NCHERM points out:

Only a campus resolution process, conducted under equitable rules in compliance with Title IX, can determine that an accused student violated campus policy (which doesn’t make them a rapist, in a criminal sense).

FIRE agrees that only after a fair and equitable adversarial proceeding is it possible to sort out the true claims from the false. But where FIRE parts company with NCHERM here is on its assumption that institutions of higher education are capable of reaching that standard. If campus proceedings ever truly met their obligation to be fair and equitable, and if they ever gained the competency to determine these difficult claims of sexual criminal accusations, FIRE would have little quarrel with the process. But because years of experience defending student rights has left us skeptical about institutions’ ability to competently make these decisions (a skepticism shared by plenty of victims’ advocates), we highlight this not as an area of complete agreement, but instead as a good starting point for a conversation about how to craft better policy.

Perhaps the most powerful aspect of NCHERM’s open letter is its description of eight recent cases handled by the organization where it was abundantly clear to its investigators that the accusations were false, flawed, or unprovable. The language here comes straight from NCHERM, and is not FIRE’s:

• A female student interviewed recently during an investigation had spread rumors by social media that she had been raped by a male student. When the rumors got back to the male student, he approached her about it, and she offered him a lengthy apology, and then put it in writing. We had to investigate nevertheless, and she told us that they’d had a drunken hook-up that she consented to. She was fine with what happened. We asked her why she called it a rape then, and she said, “you know, because we were drunk. It wasn’t rape, it was just rapey rape.” We asked her if she was aware of what spreading such an accusation might do to the young man’s reputation, and her response was “everyone knows it wasn’t really a rape, we just call it that when we’re drunk or high.”

[…]

• A female student alleged a campus sexual assault based on non-consensual oral intercourse. Her texts both before and after the incident with the alleged perpetrator state that she enjoys swallowing and “dirty boys who cum in her mouth,” all in reference to her actions with him. In her complaint that the oral sex was non-consensual, she informed the campus that she was appalled that he did not wear a condom. He insists it was consensual. We don’t know that we’ll ever know what happened, but we do know what can and can’t be proven.

• A female student was caught by her boyfriend while cheating on him with another male student. She then filed a complaint that she had been assaulted by the male student with whom she had been caught cheating. The campus investigated, and the accused student produced a text message thread from the morning after the alleged assault. It read:
  • Him: How do I compare with your boyfriend?
  • Her: You were great
  • Him: So you got off?
  • Her: Yes, especially when I was on top
  • Him: We should do it again, soon
  • Her: Hehe

NCHERM’s letter provides five additional compelling examples. Like FIRE when we discuss a case involving allegations that obviously lack merit, NCHERM cites these examples not to suggest that these cases are representative of all sexual assault claims, but rather to demonstrate that each individual case requires individual analysis of the evidence.

Worryingly, NCHERM’s examples come with a warning that confirms FIRE’s concerns about the ability of campus tribunals to provide fair and equitable hearings. The authors write: “We hate even more that in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to, and that doing so is what OCR wants.” In a May 2011 letter to OCR, FIRE cautioned, “Affording ample due process protections to those students accused of sexual harassment and sexual violence is of paramount importance and may not be sacrificed for purposes of expediency or compliance with OCR’s administrative interpretations of Title IX requirements.” Unfortunately, NCHERM’s letter about the process afforded the accused in “a lot of these cases” proves our warning was prescient.

NCHERM concludes its open letter with pieces of advice addressed to various stakeholders in this issue. In its recommendation to student conduct administrators, NCHERM states:

You can’t be too hot or too cold, you need to get it just right. Some of you are too hot, meaning that you hold men accountable for drunken hook ups that shouldn’t violate campus policies. Charging only the male if both parties are drunk (not incapacitated) is gender discrimination. In some cases where you find a preponderance, some of you have your thumbs on the scales of justice. A tie must go to the accused student. In other cases, you’re too cold, and you don’t ensure that victims get their due, and that perpetrators are kicked out. The just right bowl of porridge is neither too hot nor too cold, and the equal dignity we owe to all of our students requires that we get it right, every time. We also ask you to become more effective gatekeepers on the process. Not every complaint deserves a hearing. Many complaints can be resolved through investigation, and when the investigation shows that no misconduct took place, bring the gate down and stop the process. It can be victimizing to all parties to continue the process beyond that point.

FIRE’s longstanding objections to OCR’s mandate that institutions decide these cases using the preponderance of the evidence standard are well-catalogued. That aside, FIRE agrees with NCHERM’s observation that institutions using this standard in their campus proceedings have often put their “thumbs on the scales of justice.” Indeed, the fact that even a light thumb on that scale can tilt a verdict reached under the preponderance standard from innocence to guilt is why we have argued that the “clear and convincing evidence” standard is more appropriate. NCHERM seems to believe that colleges can somehow manage to reach accurate and just determinations about allegations of one of the most repulsive crimes known to humanity in a system where the fact-finder needs to be only 50.01% convinced that the crime actually occurred. We don’t agree.

We do agree with NCHERM that the goal must be to “get it right every time,” especially if that means all involved objectively, fairly, and impartially reviewing the evidence, and acknowledging when the evidence is too uncertain to find someone responsible for such a serious offense. We also agree that complaints that obviously lack merit should be dismissed early in the process.

NCHERM offers one more piece of advice to student conduct administrators that FIRE wholeheartedly hopes they follow:

Please reconsider imposing gag orders on the parties to a complaint. Title IX requires you to maintain the confidentiality of an investigation. It does not give you the right to deprive students of their right to talk about their experiences and tell their stories. We also suggest you get used to welcoming attorneys as advisors in your processes. We’re coming sooner or later (now that the SaVE Act is in effect), and we can’t imagine many students involved in sexual misconduct complaints navigating the campus process very well without us, to be blunt.

Simply put: Gag orders against students discussing their experiences violate their free speech rights. On public campuses, those gag orders are unconstitutional. On private campuses that promise their students free speech, gag orders breach those promises.

Finally, we cannot emphatically agree enough that students must be allowed the active assistance of attorneys to effectively represent their interests. We’ve argued exactly that to the White House Task Force, legislators, and the higher education community as a whole, and we’ll continue to do so for exactly the reason NCHERM suggests: Students need counsel to arrive at just outcomes.

And, as NCHERM notes, campus administrators should get used to having attorneys present. Under the recently passed Violence Against Women Act (VAWA) Reauthorization, both parties will enjoy the right to have an adviser of their choice, including an attorney, present during the proceedings. But institutions and lawmakers should make sure that the right to counsel is meaningful by ensuring that those advisers can actively participate in the process.

Please read NCHERM’s full open letter (PDF), and check back here for more analysis in the days to come.