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On The Reporting And Adjudication Of Campus Sexual Assaults (Part 1)

Posted by Alex K. Kriksciun | Sep 21, 2017 | 0 Comments

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I'd like to spend a couple of posts discussing a hot-button (but sensitive) topic: sexual assault on college campuses.  I plan to discuss how colleges have changed their reporting of student-made sexual assault claims, the procedural safeguards for those accused, the recent “backlash” against the changes, and my feelings on each.  This also happens to be a very timely topic based on recent actions taken by the Trump administration, as I'll allude to below.

Over the past ten or so years, colleges and universities have been pressured to be more transparent and diligent in their reporting of sexual assaults on campus.  I'm not implying that this is a bad thing.  In fact, I think it is a step in the right direction.  As Glenn Greenwald put it, “[s]ecrecy is the linchpin of abuse of power, its enabling force. Transparency is the only real antidote.”

There are various estimates on how many women (and men) in college become victims of sexual assault.  One very influential study (released ten years ago next month) stated the following:

Data highlights indicate that (1) 13.7 percent of undergraduate women had been victims of at least one completed sexual assault since entering college and 4.7 percent were victims of physically forced sexual assault; (2) 7.8 percent of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol; and (3) 0.6 percent were sexually assaulted when they were incapacitated after having been given a drug without their knowledge.

RAINN (the Rape, Abuse & Incest National Network) states on their website that among undergraduate students, 23.1% of females and 5.4% of males experience rape or sexual assault through physical force, violence, or incapacitation.  It should be noted that RAINN is essentially an advocacy organization while the former study was commissioned by the federal government.

In many cases, schools have treated student complainants of sexual assault with insufficient regard or respect for the complainant.  In a few cases, such as the infamous Rolling Stone article where a student at my alma mater (the University of Virginia) accused members of a fraternity of “gang-raping” her, the accusations have been either exaggerated or untrue.

Although you wouldn't necessarily think that the federal government would get involved in how colleges and universities report alleged sexual assaults or the process they use to adjudicate them, it actually does do so through a federal law called Title IX (the IX does not denote the actual letters, but rather the Roman numerals for “nine”).  Title IX is the popular name for a portion of a law that amended the Higher Education of 1965.  The relevant wording of Title IX (which became law in 1972) is short.  It states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Sounds pretty simple, right?  Title IX is probably best known for its role in intercollegiate athletics, where advocates contend that increases in female athletic participation are attributable to it, while detractors contend that athletic opportunities for women have come at the expense of men. 

But Title IX also plays a huge role in sexual violence on college campuses.  In 2011, the Obama administration sent a letter regarding campus sexual assault to every president of every college and university in the United States.   The letter, which has come to be known as the “Dear Colleague letter,” essentially ordered schools to make changes to their Title IX reporting schemes.

Some schools had required allegations to be proved by a “clear and convincing evidence” standard prior to the letter.  The letter unambiguously stated that that standard is “inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX.”  It concluded that the lower “preponderance of the evidence” standard “is the appropriate standard for investigating allegations of sexual harassment or violence” and informed schools that their policies would be reviewed to ensure that they were complying with the lower standard.  Under the preponderance rule, those adjudicating the case must find against the defendant if the probability of guilt is even slightly more than 50-50.

The Dear Colleague letter also addressed the ability of an alleged perpetrator to cross-examine his or her complainant.  The letter stated:

OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.  Allowing an alleged perpetrator to question a complainant directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.

There were other “suggestions” that the federal government sought to impose as well.  For example, “a school should not conduct a pre-hearing meeting during which only the alleged perpetrator is present and given an opportunity to present his or her side of the story, unless a similar meeting takes place with the complainant,” “a hearing officer or disciplinary board should not allow only the alleged perpetrator to present character witnesses at a hearing,” “a school should not allow the alleged perpetrator to review the complainant's statement without also allowing the complainant to review the alleged perpetrator's statement,” and “if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties.”  The letter also explicitly warned schools that if they did not take a tougher approach, they would risk losing millions of dollars in federal funding for violating Title IX.

Based on the research I've done, reports of sexual assault have increased since the promulgation of the Dear Colleague letter.  Most commentators attribute this to the letter and the Obama administration exerting pressure on the schools to provide a friendlier reporting environment.

However, many schools have also been hit with lawsuits by students who have been disciplined or expelled after being accused of sexual assault.  The courts have been somewhat sympathetic to these lawsuits.  In one notable example, a female student at the University of California-San Diego was effectively expelled after a fellow female student accused him of nonconsensual sex.  At the hearing, the female student was hidden by a screen that prevented the male student and his lawyer from seeing her.  The panel asked nine of the 32 questions that the male student had submitted for cross-examination. When the lawyer objected, the head of the panel told him, “You don't have the right to participate in this.”  The panel refused to consider text messages between the students that suggested that the students remained friends after the alleged sexual assault, even after the female student contended she hit “rock bottom” when arrested for underage drinking.

The male student filed suit in state court.  The trial judge slammed UC-San Diego.  He wrote that “due process . . .  requires that a hearing … be a real one, not a sham or a pretense,” that the school erred by viewing the complainant's allegations “in a vacuum,” that the female student's conduct “not demonstrate non-consensual behavior,” and that the university violated the male student's Sixth Amendment right to confront and cross-examine his accuser.  However, the California intermediate appellate court reversed the trial court and the California Supreme Court declined to hear the case.  This is just one of many examples of cases filed by suspended or expelled students contending that their civil rights have been violated.  Some have been successful and have resulted in large financial windfalls for the disciplined student.  Many, if not most, have not.

It is under this backdrop that President Trump's education secretary, Betsy DeVos, recently announced a rollback of the policies outlined in the Dear Colleague letter.  The Trump administration apparently believes that the Obama administration's polices as stated in the Dear Colleague letter went too far.  Have they?  That will be a topic for next week.  Stay tuned.

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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