Representative Jared Polis took to his hometown paper, The Daily Camera, last week to apologize for his “spectacularly bad idea” that colleges and universities should expel students at the mere accusation of sexual assault, but the fallout for the Boulder, Colorado representative continues.
Polis made the comments—which included the assertion that if 10 students were accused of sexual assault and only “maybe one or two did it,” the university should “get rid of all 10”— while questioning FIRE Legislative and Policy Director Joe Cohn at a congressional hearing earlier this month. That statement, which flies in the face of both constitutional due process protections and common sense, has been widely rebuked. Making matters worse for Polis, his mea culpa has been called halfhearted, as it appears to double down on some downright dangerous ideas about due process.
The Daily Camera has published numerous responses to Polis, including devoting a whole page of its September 19 print edition to debating the topic.
Joe wrote his own retort in The Daily Camera, accepting Polis’ apology but expressing serious concerns about the politician’s misguided notions of campus justice.
Polis still rejects involving law enforcement in responding to campus rape — the one common-sense measure that would provide real justice for victims, ensure fair processes for the accused, and put rapists in jail. By insisting that college administrators adjudicate serious felonies, Polis doubles down on a failed policy that threatens students nationwide.
Joe details how leading national advocacy groups like the Rape, Abuse & Incest National Network (RAINN) and the National District Attorneys Association, as well as the American people, agree that campus tribunals are no place to try crimes.
Boulder district attorney Stan Garnett also wrote a Daily Camera op-ed agreeing with FIRE’s position that police—not campus tribunals—should investigate sexual assaults. Garnett, in fact, said that society “should never tolerate the adjudication of serious felony behavior outside the criminal justice system,” for the following reasons:
1. The risk of wrongful conviction is too great. The rigorous due process of the criminal justice system exists for mainly one reason: to make sure society can have confidence that one who is found guilty is, in fact, guilty. Relaxing due process, or having investigations not handled by well-trained professionals can lead to wrongful conviction.
2. The risk of traumatizing victims of sex assault. Interview and handling of victims and witnesses in sex crimes requires skill, sensitivity and time. Clumsy or repeated interviews can be traumatic for victims.
3. Those guilty of serious felony behavior present a societal risk, not just a campus risk. To suggest that sex assault on campus is primarily a campus problem is just plain wrong: it is a societal problem and deserves a societal response through the criminal justice system.
4. The criminal justice system is public and the public can observe, evaluate and criticize the proceedings. University conduct investigations carry the inherent secrecy of the discipline process, which can leave the public questioning the fairness of an investigation and the accuracy of the determinations.
The federal government’s decision to tie campus funding to a one size fits all investigative approach can interfere with criminal investigations. Fair, effective, sex assault investigations take time and cannot be handled by investigators under pressure to rush to a particular conclusion due to financial pressures on the university. Also, “warning letters” or warning bulletins, or campus-based “stay away from each other” orders can, if issued prematurely, prevent law enforcement from determining the truth of alleged criminal behavior.
FIRE, having long pushed for such a common sense approach, is pleased at the response to Representative Polis’ comments. We take Representative Polis at his word that he wants cases to be handled “promptly, fairly and equitably.” For this to be the reality, colleges need to provide meaningful due process to the accused. We hope Representative Polis will therefore support provisions like the guarantee of a right to counsel provided by the Safe Campus Act and Fair Campus Act, that do just that.