Monday, May 20, 2013

College student leader: Requiring substantial evidence of a sex offense before a student may be expelled 'automatically assum[es] the information from the victim is false'

Ted Barnhill, a finance professor at GW University, recently took issue with the school's sexual assault policy that, among other things, allows students to be punished based on a mere "preponderance of evidence" standard. Professor Barnhill wants the school to commit itself to requiring substantial evidence of wrongdoing prior to the termination of faculty or staff, or expulsion or suspension of students, for an alleged sex offense. See here.

Professor Barnhill explained: "In sexual harassment and violence cases there may be little or no evidence. False, emotional or confused claims do occur. Our proposal . . .  is focused on insuring that career and education ending decisions are based on substantial evidence."  He cautioned: "Given the Federal Government’s aggressive behavior including the Dear Colleague letter it would not be surprising to see a significant, and perhaps justified, increase in complaints. Some of these complaints may have limited or no evidence of wrong doing. Given the threatened financial penalties and potential law suits the University could be pressured to terminate faculty or staff or expel students in the absence of substantial evidence of wrong doing. . . . ." And: "Have we forgotten the many sham trial abuses where defendants were convicted in the absence of evidence (Salem,Georgia, Moscow, Afghanistan, etc. etc.)? Are we prepared to have our students, our colleagues, and ourselves face career and education ending sanctions in the absence of substantial evidence of wrong doing? I am not so inclined."

Prof. Barnhill's advocacy for the presumptively innocent was too much for Student Association Executive Vice President Kostas Skordalos. Skordalos ran for student government on a platform of enhancing sexual assault awareness, and he suggested that Barnhill's concern was "troubling." Why? According to Skordalos: "You're automatically assuming the information from the victim is false."

Read that quote again. The implication is chilling. Somehow, having a policy that helps insure innocent students aren't punished for something they didn't do is "assuming the information from the victim is false."

Skordalos' comment, itself, is premised a very troubling assumption: that an accuser, by necessity, is a "victim." It follows, then, that the accused must be guilty on the basis of the accusation.

Is it even necessary to explain the grotesque error here? The hanging trees of the Old South were witness to such odious assumptions.

Skordalos's blithe dismissal of the interests of the presumptively innocent evinces an absence of schooling on matters fundamental to our culture's collective sense of fairness, most robustly articulated in the steady expansion of due process rights for the accused since before our nation was founded. Blackstone's formulation has always been one of the pillars of our jurisprudence. See here. Based on Skordalos's comment, I would be surprised to learn that he is familiar with it.

In the current campus climate, Skordalos's views are the bow wow of the mob, neither brave nor controversial, and certainly not well thought out. Even GW's Deputy Title IX Coordinator Tara Pereira recently admitted: "It's much more popular to make sure you're being fair to the complainant right now . . . ."

In contrast, Blake Neff, writing for the Dartmouth Review last week, understands that Blackstone's formulation retains its relevance, even on college campuses: "The argument has been made that the preponderance standard is necessary because the use of a stricter standard implies that the accuser’s word is not equal to the word of the accused. Relying on preponderance, so it goes, puts the two sides on equal footing. This may be the case, but what it ignores is that the consequences of a [disciplinary] hearing are far from equal for the two sides." He added: ". . . expulsion from college is a severe, life-altering event with effects comparable to a brief prison stint."

Prof. Cynthia Bowman of Cornell echoed that in her school's debate over adoption of the "preponderance of the evidence" standard: “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma.” She added: "To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” She said that procedures proposed at her school in response to the Department of Education's mandate were "Orwellian.” Prof. Kevin Clermont said that “not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque.” (Alas, their voices have not been heeded at Cornell: Prof. Clermont recently told me: ". . . battle and maybe war lost.")

GW's student newspaper endorsed Kostas Skordalos in the school's recent student election. It said he "demonstrated his interest in relevant student issues, one of which is heightening awareness of sexual assault. As a founder and co-president of GW’s Men of Strength chapter and an active member of Students Against Sexual Assault, it is clear that this is an issue that he is both passionate and knowledgeable about."

It is troubling that someone with so much concern for victims of sexual assault has so little for the wrongly accused.  Every civilized society must strive to eradicate heinous criminality by punishing offenders, but it also must insure that the innocent aren't punished with them. It is perpetually mystifying to us why more of us don't have concern for both victims of sexual assault and the wrongly accused.