'Those who oppose these changes do not oppose victims' rights, they merely recognize that in the case of a false conviction, it is the accused, not the accuser, who is the real victim.'

From The Cornell Daily Sun:

Ensuring Legal Protection for All

April 10, 2012
By Mike Wacker

In response to a letter from the Department of Education, when a student is accused of sexual assault or sexual harassment, Cornell may no longer try them under the Campus Code of Conduct, which provides a robust set of protections for the accused modeled after the criminal justice system. Instead, they would be tried under University Policy 6.4, which strips away many of these protections and also uses a lower standard of proof. Advocates of these changes, including the Women's Resource Center, hope to create a system friendlier to sexual assault victims and more likely to bring the guilty to justice, which by itself is certainly an admirable goal.

However, before anyone signs off on these changes, one critical question must be asked: How many innocent people must suffer to ensure that the guilty are brought to justice?

While the intentions behind these proposed changes are admirable, the basis for these changes is fundamentally and irrecoverably flawed. It seemingly assumes that the accuser is the victim. But if that were true, why would we even need any sort of trial in the first place? These measures would make complete sense in a counseling session provided by the Women’s Resource Center, but they make no sense in a trial incorporating changes advocated by the Women’s Resource Center.

At times, one wonders if those proposing the changes have even considered the possibility that the accused may in fact be innocent. For example, while banning cross-examination and lawyers may create a friendlier environment for an accuser who is also a sexual assault victim, if the accused is innocent, how will he or she have any hope of exposing the holes in the accuser's story without a cross-examination or a lawyer trained to find these holes?

Those who oppose these changes do not oppose victims' rights, they merely recognize that in the case of a false conviction, it is the accused, not the accuser, who is the real victim.

Furthermore, past experiences at Cornell and other universities suggest that such concerns are practical and not just theoretical. Unfortunately, under University Policy 6.4 and similar policies at other universities, all records are kept confidential, meaning that if abuses of due process occur, an outside entity will not even be able to know that said abuses occurred, much less advocate against those abuses.

However, Prof. Maas, who was tried for sexual harassment under a special Professional Ethics Committee instead of the Code of Conduct, challenged his conviction in court, which made many of the confidential trial records public as part of the lawsuit. The book The Shadow University gives an excellent account of his trial on pages 296-300; here are some of the highlights (or perhaps lowlights): 

• While a single column would not provide enough space to list all the problems with the rules of conduct and evidence, this quote from the trial's chair will succinctly summarize them: “We have to make the rules as we go along.”
• Even though Prof. Maas’ career was on the line, not only was he not allowed a lawyer, but he also was not allowed to have a law professor as an advisor because he was “too much of an expert.”
• Not only could Prof. Maas not cross-examine his accusers, he was not even allowed to be in the same room as them so as not to upset the alleged victims. No presumption of guilt there!

That Professional Ethics Committee sounds eerily similar to University Policy 6.4. Sadly, these sorts of problems pervade not just Cornell, but many other universities. At the University of North Dakota, Caleb Warner was convicted of sexual assault and expelled from the university, even though police, looking at the same evidence, charged the accuser with making a false report to law enforcement. Even then, it still took a year and a half and pressure from the Foundation for Individual Rights in Education before UND would reinstate Caleb. And of course, who can forget the Duke lacrosse scandal? The rape and sexual assault of a woman by three lacrosse players led to the cancellation of the lacrosse season, the firing of the lacrosse coach and a national uproar about sexual assault … until it turned out the accuser's story was false.

Not only has the Foundation for Individual Rights in Education clearly opposed this letter as expected, a letter which may have even violated the law by ignoring the required notice and comment procedure, but the American Association of University Professors has stated that this letter contradicts their Recommended Institutional Regulations on Academic Freedom and Tenure. At Cornell, The Sun quoted one law professor as saying the faculty of the Law School generally agrees that these measures are Orwellian.

Nonetheless, deputy University counsel Nelson Roth has stood his ground, advocating the legal necessity of these changes. From a risk management and legal liability point of view, he may be right. But when fundamental rights are at stake, should there not be more important concerns than legal liability? Is Cornell a university or just a mere corporation?

In light of the clear and convincing evidence against using University Policy 6.4 to handle sexual harassment and sexual assault cases, and the rights at stake which are more important than legal liability, I would recommend that the University Assembly and President Skorton keep in mind the “counsel” in deputy University counsel: You should always listen to counsel, but you do not always have to follow it.

Mike Wacker ’10 is a former Sun columnist and former Sun Assistant Web Editor. He may be reached at  mew66@cornell.edu. Guest Room appears periodically this semester.

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