I’ve been to many rowdy campus parties. In the news, there are many horrific tales of sexual assault allegations, some proven false. What happens if you’re accused of sexual assault on campus?
Our reflexive response is you should be expelled and go to jail. But you asked about being accused, not convicted. An allegation alone is enough to put the administration, students and parents in a tailspin. Even President Obama moved the issue into the spotlight, seeking to assert federal protections for victims. This article is a disturbing one, certainly the reason we want to address it here.
In a major study, over 20% of college women said they were victims of sexual advances or misconduct. There is systemic and cultural sexism, since these incidents are never reported to the colleges. Following up on the few reported cases, we find a lack of interest from the colleges to pursue them. Then, a minimal punishment for those found guilty. Without protection for victims, there’s only the stigma from reporting the incident, without the hope of justice. The injustice perpetuates itself, and women don’t report the assaults.
English common law says, “…better that ten guilty persons escape, than one innocent party suffer”. Behind closed doors, often with alcohol, it’s nearly impossible to make a fair determination about sexual consent. So, what happens if you’re accused?
In recent years, the practice of Campus Assault Due Process has become a flourishing legal specialty. An increasing number of colleges have been charged with denying accused male students the right to due process. Many universities have resorted to using their own internal disciplinary processes.
In April 2011, a letter from the Department of Education Assistant Secretary for Civil Rights was sent to every college receiving federal funding. Known as the Dear colleague letter, it addressed the schools’ obligation to respond to claims of sexual harassment and assault. The letter supplied directives on how schools handle sexual assault allegations, including the use of a ‘preponderance of the evidence’ standard. This discouraged communication and cross-examination between the parties involved. The federal assertion is that unlawful sexual harassment may occur that does not violate criminal law, allowing students to seek action by the colleges.
Every week at least one new due process lawsuit is filed by an accused student against a college, after being found guilty at a campus tribunal. Universities have been pressured to presume the guilt of accused students by the federal government, faculty, and administration. However, in almost half of the cases the accused student has prevailed. These lawsuits have employed differing theories such as breach of contract, gender discrimination, and due process violations. Most revolve around the unfair procedures used by the university.
Recently, Education Secretary Betsy DeVos started to examine campus sexual assault policies implemented by the Obama administration. However, she remains ambiguous about the policies initiated by the ‘Dear colleague’ letter, claiming that it would be premature to commit to enforcement of these policies.
Laws without morals are useless – University of Pennsylvania motto.
(Jacob Maslow is the founder and editor of Legal Scoops).
