National Public Radio’s (NPR’s) Tovia Smith spoke with both due process advocates and victims’ rights advocates on “Morning Edition” today, illuminating the serious problem of college students who are accused of sexual assault being denied a fair hearing. The report included comments from FIRE’s Robert Shibley, claimants’ attorney Colby Bruno, an unnamed former student at the University of Massachusetts, Amherst, who was expelled for an alleged sexual assault, and several others.
As Smith reports, some students who claim they were incorrectly found responsible for sexual assault without receiving adequate due process are now suing their institutions—in the case at UMass Amherst, arguing that the university’s process constitutes unlawful sex-based discrimination under Title IX. Even without the threat of litigation, however, universities must recognize that they are not meant to be parallel justice systems. Robert noted during the program:
Colleges need to understand their limitations. When it comes to felony crimes, that should be the task of law enforcement.
Torch readers are already familiar with the limitations of the campus disciplinary system. Unlike civil and criminal courts, these hearings often lack standard rules of evidence, the ability to subpoena witnesses, the expertise of forensic experts, and many other procedural safeguards. Disappointingly, many view these procedural safeguards as an intolerable attack on the accuser. In the NPR report, for instance, student activist Annie Clark argued that allowing accused students to cross-examine their accusers would dissuade complainants from pursuing a case. This concern is not meritless, but cross-examination is a crucial part of the fact-finding process.
It’s critical to note that allowing attorneys to represent students and perform the questioning (as they do in courts of law) would be the obvious solution to this problem. Yet most institutions are firmly set against allowing students competent legal representation in college tribunals, a decision that FIRE has frequently lamented (and worked with legislators to overcome). But regardless of what procedures campus courts use, an institution must not dispose of utterly necessary parts of the adjudication process, such as the basic right to confront one’s accuser.
Attorney Colby Bruno’s statement to NPR on the issue is particularly telling:
I don’t have sympathy for the guy who assaults somebody, and thinks he’s been railroaded. … The cases where students are deluding themselves into thinking that what they did wasn't rape and sexual assault? I think those are 85 percent of boys coming forward saying, “I was railroaded.”
Even if 85 percent of men claiming they’ve been railroaded are “deluding themselves,” it is astonishing that Bruno is apparently content to let the other 15 percent remain casualties of the system. Regardless of the numbers, though, no accused student should be presumed guilty. Due process is a right that must exist for everyone, even—and especially—for those accused of acts as heinous as rape.
The Chronicle of Higher Education elaborated on this principle in an article published Monday. The Chronicle’s Robin Wilson spoke with the founders of Families Advocating for Campus Equality (FACE), an organization that advocates for due process in campus disciplinary hearings, particularly in cases of alleged sexual assault. Judith Grossman, whose son was accused of sexual assault last January, explained the perverse result of the pressures on universities:
"I am a feminist, and I believe one rape is one too many," says Ms. Grossman, who would not name her son or the institution. "But in their rush to judgment, colleges are now substituting one class of victims for another."
In her article, Wilson also captures the essence of one of the logical flaws at the heart of many of these cases:
[I]n heterosexual cases, colleges typically see the male student as the one physically able to initiate sex, and therefore responsible for gaining the woman’s consent. ...
The problem with that reasoning, say lawyers representing those accused, is that colleges often apply it in cases in which both parties were drunk but not incapacitated. ...
Colleges are essentially expecting men to judge women’s ability to consent to sex, says [Andrew] Miltenberg, another of the lawyers [representing accused students]. "As much as everyone wants to appear forward-thinking in terms of sexuality, colleges are applying an antiquated, chauvinistic, and paternalistic standard," he says. "In every one of these situations, the male is in no better shape, physically, emotionally, or maturity-wise, to make any of these decisions than the girl is."