Monday, July 7, 2014

If your son is accused of sexual assault at Dartmouth, he has fewer rights than "illegal" aliens at removal hearings -- and about the same rights as prisoners accused of infractions behind bars

The public discourse about sexual assault is dominated by persons who believe campus sexual assault proceedings one-sidedly favor the accused. In this milieu, the indisputable trend to diminish the rights of young men accused of sexual assault at college is deemed not just acceptable but necessary to combat a perceived national campus rape epidemic. (And let's be clear: although college sex policies are written in gender neutral terms, the accused is almost always a young man.) This epidemic is deemed to exist by virtue of  surveys of a small population of students where the definition of sexual assault is engorged and where every allegation is credited and untested against competing claims of innocence.

We wonder if parents of college men know that, generally, if their sons are accused of sexual assault in college, they will be afforded fewer rights than "illegal" aliens at removal proceedings, and public housing tenants being evicted for even good reason. Young men accused of sex offenses in college are afforded about the same level of due process protections as prisoners accused of disciplinary infractions behind bars.

One of the most prominent schools to manifest a disturbing hostility to the due process rights of young men accused of sexual assault is Dartmouth College. It has just revised its sexual assault procedure, which is found in Dartmouth's "Unified Disciplinary Procedures for Sexual Assault by Students and Student Organizations."

For starters, Dartmouth's new procedure opts for a single investigator to be both police and judge. This person is supposed to have "specialized training in conducting Sexual Assault investigations." The lone investigator will determine guilt or innocence. It was a deliberate decision by Dartmouth to keep students from adjudicating sex cases "in response to concerns that victims are uncomfortable revealing details of a sexual crime to peers."

The change to a single investigator to appease the sensibilities of accusers ought to be cause for alarm to persons concerned about due process, given Dartmouth's institutional hostility to young men accused of sex offenses. Earlier this year, Amanda Childress, Sexual Assault Awareness Program coordinator at Dartmouth College talked about sex offenses and openly asked, "Why could we not expel a student based on an allegation?" As if Childress's bold expression of that appalling view wasn't sufficiently blood curdling, Dartmouth actually defended Childress's comment, noting that she "was asking a question—a provocative one—meant to generate dialogue around complex issues for which answers are necessary to continue to strengthen and promote fair and equitable processes at all colleges and universities.” Dartmouth's response only confirmed its institutional hostility to due process when it comes to college men accused of sexual assault.

Dartmouth's new Title IX coordinator, Heather Lindkvist will select the investigators. It is not clear how she determine if someone is "qualified and trained" to ferret out the truth without ideological bias in thorny "he said/she said" sex cases, but Lindkvist herself was actively involved in efforts to raise awareness about sexual assault at her old college. She recently offered a course called "Gender, Sexuality and Violence: The College Campus and Beyond," to examine sexual culture and gender-based bias on college campuses. She presumably has been trained to be sympathetic to the concerns of sexual assault victims, but it is unclear if she has any sensitivity to or training in due process or the fair administration of justice in sex cases.

Dartmouth's new policy is a model of vagueness and seems purposefully open-ended to afford the investigator free reign to conduct the adjudication. The investigator is required to speak separately with the accuser and the accused and, at her discretion, with witnesses that she deems pertinent. She is also required to review documentary evidence that she deems pertinent. The accused has no right to examine, much less object to, the evidence offered against him, nor will he necessarily know which evidence is deemed "pertinent." The accused can have an attorney, but the attorney cannot participate in the hearings (called "meetings") or even confer with the accused while a meeting is ongoing. The accused has no right to question the accuser or other witnesses to test their recollections or credibility, or even to ask follow-up questions that would not occur to the investigator. The accused has no right even to be in the same room with room with the accuser when she is being questioned, much less to challenge her side of the story. The accused is permitted to furnish written comments to the investigator's report. There is no requirement that the report necessarily identify the evidence relied on to draw the factual conclusions in favor of a finding of guilt. The investigator could, presumably, base a finding of guilt on hearsay evidence or on the accuser's report to the police if she refuses to testify. And, of course, the adjudication is to be based on a preponderance of the evidence standard.

The accused is like a warrior of old entering battle without a sword or shield. He faces a potentially life-altering punishment that could follow him to the grave and affect his education, his job prospects, and his social relations, but he's been denied the opportunity to fairly defend himself. Subjecting callow 19-year-old men to this process, and forcing them to fend for themselves against ideologically-driven college administrators, seems a sort of feminist blood sport, almost unimaginably cruel when the accused happens to be innocent.

Many who defend colleges' use of the preponderance of the evidence standard in sex cases insist it is fair because civil proceedings for money damages generally use that standard. What they fail to mention is that defendants in civil actions are afforded all manner of procedural protections, including the right to cross-examine plaintiffs in grueling depositions and at trial, that are flatly denied young men in college sex proceedings. We will not recount our many objections to the preponderance of the evidence standard; they are strewn throughout this blog.

In contrast to the procedures afforded college men accused of sex offenses at college, aliens who are in this country illegally have the right, before they can be removed from this country, to examine the evidence against them and to cross-examine witnesses presented by the government.

Public housing tenants have the right, under federal law, to confront and cross-examine witnesses before they can be evicted.

Young men accused of sex offenses on campus have about the same level of due process protections as prisoners accused of infractions behind bars. (But even prisoners have the right to a written statement by the factfinder of the evidence relied upon to discipline him. Howard v. Werlinger, 403 Fed. Appx. 776 (3d Cir. 2010). There is no requirement under Dartmouth's Star Chamber sex policy for the investigator to tie her factual conclusions to any specific evidence.)

After a finding of guilt, for serious sexual offenses, the punishment is automatic expulsion. We will not repeat the problems with that.

We wonder, though, is there a class of citizens who are afforded fewer due process protections than persons accused of sex offenses on campus (almost always young men)? And yet, the public discourse invariably revolves around the insistence that the process supposedly heavily favors the accused.

When some of us dare to point that young men accused of sex offenses in college have been stripped of their right to fairly defend themselves, we are accused of being obsessed with false rape claims.

When the young men themselves sue to seek justice for some due process infirmity in the way they were disciplined, they, too, are attacked. One professor recently commented on the spate of lawsuits filed by men who claim their colleges denied them their due process rights in connection with sexual assault claims: "These lawsuits are an incredible display of entitlement, the same entitlement that drove them to rape."

It is difficult to argue with such idiocy and stay rational. I wish the problem were getting better; sadly, it's getting worse.