Friday, April 26, 2013

Cornell takes another step to make it easier to punish innocent students

Cornell is planning to change its disciplinary procedure for sexual assault claims by dispensing with the requirement that witnesses testify in person. It will, instead, allow written statements of witnesses. See here and here. The change is a significant blow to the rights of the accused. It flies in the face of judicial authority holding that in college disciplinary cases that are essentially credibility contests, the cross-examination of witnesses is essential to a fair hearing. An accused student cannot cross-examine an affidavit.

The change is being made to benefit accusers. The basis for the change seems to be anecdotal evidence suggesting that accusers may find hearings intimidating, and, therefore, they may be deterred from reporting misconduct. Narda Terrones, a member of the school's Women’s Resource Center, explained: “The most terrifying thing is getting in front of the panel and telling their story in front of the person they are accusing.”

The right to confront one's accuser is fundamental to due process. Its roots extend back to Roman law. In our modern criminal and civil jurisprudence, there are expansive protections to guard against the admission of hearsay evidence that can't be cross-examined. At least at public universities, while disciplinary hearings need not be conducted with the full panoply of due process rights accorded to criminal defendants, hearings still must be conducted with fundamental fairness for the rights of the accused. Even though Cornell is a private school, presumably, it wants its students, prospective students, and alumni to believe that its disciplinary hearings are conducted in a manner that comports with fundamental fairness (I have yet to see a college brochure anywhere touting a philosophy of treating the school's students unfairly). The new procedure would discard any semblance of the right to confront an accuser and is patently unfair to presumptively innocent students accused of sex offenses.

An influential judicial decision on the subject, Donohue v. Baker, 976 F. Supp. 136, 147 (N.D. N.Y. 1997), said the following in words Cornell should heed:
. . . if a case is essentially one of credibility, the "cross-examination of witnesses might [be] essential to a fair hearing." . . . . In the instant case, the disciplinary hearing became a test of the credibility of plaintiff's testimony versus the testimony of defendant Scott. From the record, it appears that the only evidence that was before the panel came in the form of Scott's two statements alleging sexual misconduct and the plaintiff's two statements denying the same. Indeed, the record reveals that the panel was reticent about even permitting plaintiff the opportunity to make a second statement. 
The opportunity to make two statements to a disciplinary panel might suffice in the case of alleged misconduct that could result in a short suspension from school. . . . . But the plaintiff here faced expulsion and procedures necessarily had to take on a higher level of formality to ensure fairness. . . . At the very least, in light of the disputed nature of the facts and the importance of witness credibility in this case, due process required that the panel permit the plaintiff to hear all evidence against him and to direct questions to his accuser through the panel. . . . It is not clear from the record that plaintiff was afforded this opportunity. . . . .
College sex claims are typically "he said/she said" affairs where the only witnesses with direct knowledge are often the accuser and the accused. Often, the entire case comes down to credibility. Cornell's new procedure will allow the accuser to carefully craft a narrative, in a sterile, controlled, and completely non-adversarial environment, that could forever alter a fellow's student's life. Both the person who will decide the fate of the young man she accuses, and the young man himself, will be deprived of the critical opportunity to observe her demeanor in testifying. The opportunity for juries and trial judges deciding fact issues to observe a witness' demeanor is so important in deciding questions of credibility that appellate courts, which do not see the witnesses, routinely refrain from upsetting juries' findings of fact for this very reason. The fate of young men at Cornell accused of sex offenses (but no other kinds of offenses) will be decided based on a cold, lifeless record.

The change is otherwise problematic. First, it seems to be motivated by anecdotal evidence about the discomfort of sexual assault victims in testifying at hearings. We can, of course, envision all manner of other scenarios involving alleged offenses having nothing to do with sexual encounters where accusers would experience discomfort about testifying. To our knowledge, Cornell is not offering these witnesses the opportunity to "testify" on paper.

Second, the concerns underlying the anecdotal evidence do not appear to mirror the actual primary reasons for underreporting of sexual assault. Scott Berkowitz, President & Founder of the Rape, Abuse, & Incest National Network (RAINN), undeniably an expert on the subject, testified about this in a Senate hearing in 2010, and writer Amanda Hess summarized it:
More victims may not be reporting their rapes, but the reasoning has changed over the past few decades. "A generation ago," the reasons were things like, "fear of not being believed; fear of being interrogated about and blamed for their own behavior, and what they were wearing. In short, they feared that they would be the one on trial."

Today, "the perception of many victims has evolved." Now they don't report for these reasons: "they don't want their loved ones to know what happened; they're ashamed themselves; they just want to put it all behind them." Today, "fear and shame of how the police wil [sic] treat them" has moved down on the list of reasons victims provide for not officially reporting the crime.
See here.

It is peculiar that the anecdotal concern is being raised now as a reason to change the school's policy, when it is significantly less pertinent than it once was. The timing may be motivated to take advantage of a political climate that is less respectful of the rights of the accused in these sorts of proceedings than at any time in memory.

Third, by treating sexual assault different than any other offense, Cornell is playing into an unfortunate stereotype that the feminist community has long labored to overcome. Feminist Naomi Wolf has decried anonymity for rape accusers in words that are equally applicable here: "Feminists have long argued that rape must be treated like any other crime. . . . Treating rape so differently serves only to maintain its mischaracterization as a 'different' kind of crime, loaded with cultural baggage and projections." Wolf argues: "It is wrong – and sexist – to treat female sex-crime accusers as if they were children." See here. But that is what Cornell is doing here--treating one class of victims as too weak to withstand the adversarial process. (It is well to note the the "Dear Colleague" letter mandates a very broad application of rape shield law-type protections for accusers, so the accuser's sexual history would not be an issue at any hearing on sexual assault.)

We are especially disappointed that Cornell, of all schools, is taking yet another step that will make it easier to punish innocent students. Law school professors Kevin Clermont and Cynthia Bowman, among others, have been vocal critics of the "Dear Colleague" letter's dismantling of the rights of the accused. The school's administration, in contrast, seems to harbor an unhealthy fealty to group identity politics, without adequate regard for the interests of the presumptively innocent.

All in all, another triumph for political correctness, but a bad thing for Cornell.