Wednesday, July 2, 2014

Colleges claim sex hearings are "learning experiences" and are not intended to do justice, yet more and more schools make expulsion mandatory for sexual assault -- because women want "justice"

Colleges need to decide why they have disciplinary proceedings for claims involving sexual assault. Is it to provide a "learning experience" or to do justice?

College administrators insist that the process is designed to be a "learning experience" for the accused and should not be treated like a judicial proceeding with its attendant procedural safeguards and due process. Giving the accused the right to be represented by counsel, for example, would destroy the learning experience, they argue. (This premise assumes the presumptively innocent accused student is, in fact, guilty--after all, why would an innocent student have need of such a "learning experience"?)

Yet, at the same time, more and more colleges are making expulsion the mandatory punishment for sexual assault, or at least they are considering it. And make no mistake, they are doing this not to provide the accused with a "learning experience." They are doing it because -- as a California assemblyman said yesterday at a hearing on the campus rape problem -- women who are sexually assaulted "want justice."

But if women who are sexually assaulted want "justice," why do so few of them report their victimization to the criminal justice system, which has the power to lock up rapists and protect other women from falling prey to them? Because the criminal justice system can only convict when the evidence of guilt is "beyond a reasonable doubt," so it is much easier to get "justice" -- or at least a finding that the male student is responsible for the offense -- in a college disciplinary proceeding where the standard of proof is a mere "preponderance of the evidence" and where there the accused has virtually no due process rights.

They justify stripping young men of their due process rights by insisting the goal isn't to do justice, yet it is "justice" they mete out in the form of life-altering punishments.

This is wrong for too many reasons to recount, but we'll state the most obvious.

First, young men accused of sexual assault are afforded essentially no due process rights in campus sex hearings, so it is patently unjust to subject them to life-altering punishments. An innocent student has a substantial interest in not being wrongly expelled from college. Cornell's Prof. Cynthia Bowman said this: “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma. To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” She added that procedures proposed at her school in response to the Department of Education's mandate were "Orwellian.” Cornell's Prof. Kevin Clermont noted that “not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque.”

They lowered the standard of proof for sex offenses at American colleges in order to make it easier to find men guilty of sexual assault, but they didn't bother to arm the accused with the procedural safeguards to fairly defend themselves. On college campuses at least, we have abandoned Blackstone's formulation that says is better for the guilty to go free than for the innocent to suffer, and we rationalize it with silly explanations about "learning experiences."

Second, mandatory expulsion does no favors for rape victims. Where schools mandate extreme punishments for sexual assault, triers of fact are less likely to find guilt in doubtful cases because they know the consequences for the accused are extreme. See, e.g., I. Ayres and K. Baker,  A Separate Crime of Reckless Sex, 72 U. Chi. L. Rev. 599, 655-56 (2005). The spate of lawsuits against colleges filed by young men who claim they were wrongly punished, and the recent comments by the leading sexual assault advocate in America, Brett Sokolow, that a lot of men are being unjustly deprived of their rights in campus sex hearings, undermine public confidence in the system and makes adjudicators all the more wary about punishing in any but the clearest of cases.

It is time for colleges to get honest with themselves. They are running an alternate system of justice whether or not they care to acknowledge it. While many of us think that is preposterous for serious offenses like sexual assault, since that is what colleges are doing, they ought to stop pretending they aren't. And they ought to allow presumptively innocent students accused of serious offenses the right to fairly defend themselves by arming them with substantial due process rights.