College campuses are equipped to educate students. Education can have numerous definitions and not all lessons are learned in the classroom. Spending time with other students, especially those with different backgrounds, provides lessons unto itself. Universities ought to have the ability to provide security and to punish students for minor infractions. It is, therefore, reasonable to allow universities flexibility in creating a more suitable and inclusive learning environment.
Contact us to schedule your initial consultation.
What a college campus is emphatically not capable of doing is coordinating a full investigation into a sexual assault claim. According to the State University of New York (SUNY) system website, the investigator in a sexual violence complaint is someone outlined as follows:
“Investigators [are] employed or retained by the college or university; these individuals may work for different departments within the institution, including, but not limited to, the police/public safety department, student affairs and academic affairs.”
There is no mention of any medical professional, forensic investigator, seasoned detective, or anyone capable of gathering physical evidence, something of great importance when investigating a possible sexual assault case. It is unclear how a university employee who works in “student or academic affairs” would be qualified to investigate such a serious and complex matter.
While student discipline procedures differ between private institutions, public universities are required to provide due process as prescribed by federal and state law. In New York State, for example, the SUNY system does allow for the accused to retain some form of counsel, to be notified of the complaint against them, and the right to appeal, among other rights. What is noticeably absent, however, is the right to confront and cross-examine the accuser or the witnesses and to test their credibility. In fact, according to the 2011 “Dear Colleague Letter”:
“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 an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”
In addition, there is the question of a suitable burden of proof. In any criminal court, the burden of proof is that crimes must be proven “beyond a reasonable doubt”. On campus, that standard is lowered to a “preponderance of evidence”, or only, more likely than not.
College administrators and proponents of the current version of Title IX regulations dismiss the need for a more thorough investigation or the ability to test the credibility of a witness through cross-examination or a higher burden of proof because the process is a so-called “learning experience” and that the consequences of an adverse finding are not as serious as a criminal conviction.
However, reality would show these claims to be untrue. Many students found guilty of sexual assault violations have trouble finding jobs or difficulty reentering school because of this black mark on their record. In many respects, a guilty finding in a Title IX proceeding is far worse than a finding of guilt of a petty crime.
All aspects of an accusation of sexual assault should be handled proportionally and consistently. The accuser should be taken seriously and the accused should have the right to a full investigation, a robust defense, and comprehensive due process. All this because of the seriousness of both the offense and the repercussions.