Saturday, October 18, 2014

College Sexual Assault Rules Trample Rights of Accused Campus Rapists | New Republic

 I was curious to know what a lawyer outside the university system would make of one of these codes. So I sent the document to Robin Steinberg, a public defender and a feminist.
A few hours later, Steinberg wrote back in alarm. She had read the document with colleagues at the Bronx legal-aid center she runs. They were horrified, she saidnot because Columbia still hadn’t sufficiently protected survivors of assault, as some critics charge, but because its procedures revealed a cavalier disregard for the civil rights of people accused of rape, assault, and other gender-based crimes. “We are never sending our boys to college,” she wrote.
Columbia’s safeguards for the accused are better than most. For instance, it allows both accuser and accused to have a lawyer at a hearing, and, if asked, will locate free counsel. By contrast, Harvard, which issued a new code in July, holds investigations but not hearings and does not offer to obtain independent legal assistance. But Steinberg, like most people, hadn’t realized how far the rules governing sexual conduct on campus have strayed from any commonsense understanding of justice.
Most colleges that do allow lawyers into sexual-misconduct hearings or interrogations do not permit them to speak, though they may pass notes. Students on both sides must speak for themselves. This presents a serious problem for a young man charged with rape (and in the vast majority of campus cases, the accused are men). On one hand, if he doesn’t defend himself, he’ll be at a disadvantage. On the other, if he is also caught up in a criminal case, anything he says in a campus procedure can be used against him in court. Neither side may cross-examine witnesses to establish contradictions in their testimony. A school may withhold the identity of an accuser from the accused if she requests anonymity (though it may choose not to). Guilt or innocence hinges on a “preponderance” of evidence, a far lower standard than the “beyond a reasonable doubt” test that prevails in courtrooms. At Harvard, the Title IX enforcement office acts as cop, prosecutor, judge, and juryand also hears the appeals. This conflation of possibly conflicting roles is “fundamentally not due process,” says Janet Halley, a Harvard Law School professor whose areas of expertise include feminist legal theory and procedural law.....So what should colleges do about sexual assault? In February, RAINN, the Rape, Abuse, and Incest National Network, wrote to the White House task force to argue that complaints should be dealt with by the police. Victims’ rights advocates counter that the criminal justice system is insensitive to rape victims and bad at securing convictions. Either way, universities view it as their right and educational mission to create internal justice systems for their communities. The quickest fix would be to upgrade their procedures: to ensure that the rights of both parties are equally protected and that every administrator or faculty member involved is properly trained. If nobody trusts the processand right now, nobody appears tocampus unrest will only grow.
What’s happening at universities represents an often necessary effort to recategorize once-acceptable behaviors as unacceptable. But the government, via Title IX, is effectively acting on the notion popularized in the 1970s and ’80s by Andrea Dworkin and Catharine MacKinnon that male domination is so pervasive that women need special protection from the rigors of the law. Men, as a class, have more power than women, but American law rests on the principle that individuals have rights even when accused of doing bad things. And American liberalism has long rejected the notion that those rights may be curtailed even for a noble cause. “We need to take into account our obligations to due process not because we are soft on rapists and other exploiters of women,” says Halley, but because “the danger of holding an innocent person responsible is real.”

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