In the September 2017 Q&A on Campus Sexual Misconduct guidance, the United States Department of Education’s Office for Civil Rights (OCR) made an important, if not obvious statement:
“In every investigation conducted under the school’s grievance procedures, the burden is on the school – not on the parties – to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred… (see id at Question 6) (emphasis added).
“A person free of actual or reasonably perceived conflicts of interest and biases for or against any party must lead the investigation on behalf of the school. Schools should ensure that institutional interests do not interfere with the impartiality of the investigation.” (ibid).
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In legal proceedings, courts and tradition have crafted appellations for the parties to an action to connote each party’s status or “role” in the action. The appellations are neutral and do not at all serve to suggest who is “right” and who is “wrong” or who is, in fact, “guilty” or “innocent” or “responsible” or “not responsible”. Thus we have appellations such as “plaintiff”, which merely means “a person who brings a legal action” (see Merriam Webster) or “defendant”, which means “a person against whom a criminal or civil action is brought” (id). This is completely descriptive and completely appropriate.
Imagine if it were any other way. Imagine if one party, and only one party, got to call themselves what they wanted to in a proceeding whose very purpose is to determine that very status. A plaintiff in a car accident case could instead refer to himself or herself as “the victim of negligence”. Meanwhile, the defendant is not permitted to call himself or herself “the wrongly accused” or “the innocent party”, but merely “the defendant”. You get the idea. It’s not very fair, is it? In fact, if a court permitted that we might use certain words to describe that court, words such as “unfair” and “partial” and “biased”.
In student misconduct cases, however, brought under Title IX and the Clery Act/VAWA, this actually happens. Here is an actual quotation from the first sentence of one institution’s Sexual Misconduct Policy:
“[Name of Institution] is committed to providing timely
support and assistance to victims/survivors  of sexual
misconduct. This policy provides detailed descriptions of how
the institution identifies and responds to such complaints.”
Here is footnote 1:
“The words ‘victim’ and ‘survivor’ are both used in the
literature and research on this topic. [Name of institution]
respects the decision of those who have experienced violence to
identify as a victim or a survivor. We recognize that to identify
as a survivor is an important part of the healing process for
some who have experienced sexual misconduct.
Thus, at least at this institution, before the Title IX investigation begins, before the first witness is interviewed, before the issuance of any report or the conduct of any hearing, the school itself has denominated the complainant as a “victim” (defined as “one that is subjected to oppression, hardship or mistreatment”) (Merriam Webster) or a “survivor” (we all know what that means), and that the stated purpose of granting this appellation to the complainant is to assist in the “healing process” from the already presumed “sexual misconduct”.
Now imagine again. Imagine you have been accused of sexual misconduct at your school. You are innocent, but you know it is your word against your accuser’s word. You are given a notice of charge and are referred to your school’s sexual misconduct policy. You read the aforementioned first sentence of the policy and its footnote. How are you feeling now?
There is a proper time and place to provide support for alleged victims of sexual misconduct. Families, counselors, and support groups all are appropriate resources to provide unfettered validation and assistance. During the Title IX and Clery Act/VAWA campus investigation and determination process, alleged victims should receive the full support of their advocates and advisors – but not the uncritical and presumptive belief of the truth of their accusations from the very institution that is adjudicating the guilt or innocence of the accused student. To do so changes everything.
It changes the presumption of innocence into a presumption of guilt. It shifts the burden of proof from the institution asserting the charge to the student defending against it. It influences the mindsets of the individuals assigned by the institution to investigate and adjudicate the matter. It demonstrates bias. It demonstrates unfairness. It demonstrates partiality in favor one party over another. It demonstrates a conflict of interest on the part of the institution (how does a “not responsible” finding for the accused promote the institutions stated concern of assisting with the alleged victim’s “healing process”?)
For any person or entity that is concerned with the concepts of due process and the presumption of innocence afforded to any party accused of misconduct, provisions and policies like this one should give us pause. Let’s hope that the new OCR’s seeming commitment to a return to due process in campus sexual misconduct proceedings, as evidenced in the September 22, 2017 “Dear Colleague Letter” and the 2017 Q&A on Campus Sexual Misconduct, starts to bear some fruit. Two months after the issuance of those documents, however, it remains clear that some institutions have a long way to go.