Tuesday, July 9, 2013

Duke jacks up the penalty for sex offenses, COTWA says the greater the penalty, the better

Duke University administrators are stiffening the penalty for students who are found guilty of sexual assault. A board that sets the standards for the Office of Student Conduct has revised the university policy so that expulsion is the “preferred sanction” in cases of sexual crimes.

“We’re really confident that this new change is a step in the right direction toward both preventing and addressing sexual assault on campus, as stricter sanctions are a critical aspect of gender-violence prevention,” said Duke’s student government president Stefani Jones.

Vice President for Student Affairs Larry Moneta said that expulsion is the “normative sanction expected” and there will be some determination by the hearing panel as to whether or not some factor should influence a change to that expectation.

Vassar College immediately expels any student found responsible for rape.

Theoretically, the result is that if disciplinary boards at Duke, Vassar, and any other schools that jump on the bandwagon find students responsible for sex offenses by even a preponderance of the evidence (per the Obama administration's "Dear Colleague" letter), they are expected to impose the academic equivalent of the death penalty: expulsion.

The potential injustice to accused students under the minimal standard of proof mandated by the Department of Education is manifest and has been written about extensively. See, e.g., hereherehere, and here.  If the Duke lacrosse case happened today? The accused likely would be expelled, suggested Prof. Dan Subotnik.

COTWA isn't so sure about that. Where schools mandate extreme punishments for sexual assault, triers of fact are less likely to find guilt in doubtful cases because they know the consequences for the accused are extreme.  In A Separate Crime of Reckless Sex, 72 U. Chi. L. Rev. 599, 655-56 (2005), Professors I. Ayres and K. Baker explained:
. . . if the . . . sanction is too strong, there is not likely to be widespread enforcement. . . . attempts to change a norm by severely punishing that which has previously been unaddressed or underenforced are often unsuccessful. 
The simple fact is that the public at large often refuses to see the "nontraditional" [acquaintance] rapist as a rapist at all and therefore refuses to either mark him or punish him as such. After an acquittal in a well-publicized college gang rape, one juror explained that the main concern of some jurors was not wanting "to ruin the boys' lives." 214 Decisionmakers may be willing to ruin the life of a "real rapist," but they will not impose comparable punishment for what they see as a less severe crime.
The bottom line: in schools that mandate expulsion for sex offenses or make expulsion the norm, it is our guess that even in cases where, technically, it is more likely than not that the accused is guilty, if there exists reasonable doubt about his guilt, or a very real chance that he's innocent, most triers of fact will withhold the "death penalty" of expulsion and will hold the accused "not guilty." And that's exactly how it should be. It is our guess that Duke and Vassar and the others have institutionalized a sort of jury nullification for doubtful sex cases -- an unintended antidote for the harsh "Dear Colleague" letter. The get-tough-on-rape crowd has unwittingly struck a blow for the accused. Expulsion generally will only be ordered where it is clear rape occurred, and that's how it should be.

Given the injustices on campus to the presumptively innocent who accused of sex offenses, COTWA says, the greater the penalty, the better.