By KC Johnson -
Two new documents out from the White House--the Vice President's task force recommendations and a question and answer document from the OCR--continue the assault on due process at the expense of males accused of rape or sexual assault on campus. The administration tips its hand quickly with a telltale verbal switch--referring to complainants as "survivors," rather than as accusers. This language, which assumes guilt and the fact of a sexual offense before any hearing, is the terminology of hardline feminists who have the ear of this administration and have made it clear that they want more guilty findings. Yet what many observers call rape is viewed by others as a growing prevalence of ambiguous and drunken encounters fueled by an anything-goes campus culture.
The administration's thumb on the scale began with the 2011 "Dear Colleague" letter, which lowered requirements for a finding of guilt. Some of what the documents contain (more statistics, more transparency, clearly articulated rules and guidelines) are non-controversial. But the consistent attack on any meaningful due process for accused students means that one thing can be sure from the administration's move: more innocent students will be branded rapists by their colleges. For an example, see this report yesterday from the University of Virginia. And Brett Sokolow, director of the Association of Title IX Administrators, delivered a bombshell in a newsletter to members last Thursday, saying that "in the last two weeks, I've worked on five cases all involving drunken hook-ups on college campuses. In each case, the male accused of sexual misconduct was found responsible. In each case, I thought the college got it completely wrong." No hint of miscarriages of justice like this, or concern about the rights of the accused, is found in the White House report.
Rhetoric and Reality
The report opens--in its first sentence--with an unequivocal White House acceptance of a preposterous statistic: "One in five women is sexually assaulted in college." (See Christina Hoff Sommers for a debunking.) Since there are more than 12 million women now on campus, that would mean that up to 2.4 million of them either have been raped on campus, or will be before leaving. So the White house is saying that the nation confronts a public safety problem of enormous proportions: a higher rate of violent crime (sexual assault is, of course, a violent crime) than the most dangerous urban areas in the country.
If true, a substantial law enforcement response is required. Colleges and universities aren't islands; public universities are public property, part of the cities in which they're located. Some private universities have their own police forces, but even here are not outside local law enforcement jurisdiction. Surely the task force would have recommended a dramatic increase in police presence on college campuses--perhaps more law enforcement in dorms, perhaps beginning some hard conversations about a tradeoff between privacy and security (security cameras in all dorm halls and maybe outside all dorm rooms?, increasing authority for colleges to conduct randomized searches of students' college e-mail accounts to uncover discussions about having committed sexual assaults?) in what is, according to the administration, our country's areas of the highest rate of violent crime.
And yet the report manifests no concern with any need for an increased law enforcement presence to confront this epidemic of violent crime. The task force only promises a "sample Memorandum of Understanding (MOU) with local law enforcement," which supposedly will come in June (no explanation as to why it was not produced now). That's it in terms of increased cooperation with local police.
Indeed, the new policies appear to move in the opposite direction. The guidelines pay lip service to colleges coordinating investigations with local police, but don't require such cooperation. And since the OCR says colleges must be more aggressive in investigating alleged off-campus attacks, the new rules would seem to introduce myriad scenarios for colleges butting into law enforcement activity far away from the campus grounds. Most important, the guidelines make clear that colleges must conduct investigations parallel to those done by trained law enforcement officers, but with a critical difference--the administration strongly recommends completing the entire process (investigation, hearing, adjudication) within 60 days. Accused students like Caleb Warner, who are subsequently cleared by a comprehensive police inquiry, with subpoena powers that the colleges lack, will be out of luck. As the OCR explains, "The school should not delay its investigation until the ultimate outcome of the criminal investigation or the filing of any charges." A not-guilty verdict or a dismissal of charges might interrupt the campus rush to judgment.
Due Process, I
A question-and-answer prepared by the OCR concedes that a disparity exists between criminal investigations (in which the accused student is guaranteed a variety of due process protections) and the kind of lightning investigations/punishments that now will be federal policy (in which the accused student is not guaranteed a variety of due process protections). What accounts for the difference? Since "a Title IX investigation will never result in incarceration of an individual . . . the same procedural protections and legal standards are not required. Further, while a criminal investigation is initiated at the discretion of law enforcement authorities, a Title IX investigation is not discretionary; a school has a duty under Title IX to resolve complaints promptly and equitably and to provide a safe and nondiscriminatory environment for all students, free from sexual harassment and sexual violence."
But if one sort of investigation is discretionary and the other is mandatory, wouldn't it seem as if due process protections are more important for the mandatory investigations than discretionary ones? Not according to the administration. And a bit later in the guidelines, the OCR undermines the criminal/college distinction by encouraging the sharing of evidence to benefit the accuser.
Due process protections are especially needed given the time-limited (a proposed 60 days) investigation, hearing, adjudication urged by the new guidelines. What possible evidence exists that college administrations are not only as well-equipped to investigate violent crime as police and prosecutors, but are equipped to do so much faster?
The OCR's "question and answer" document states that "in all cases, a school's Title IX investigation must be adequate, reliable, impartial, and prompt." Yet that final requirement seems to undermine the first two. And anyone who foresees "impartial" investigations overseen by the likes of Dartmouth's Amanda Childress or similarly-inclined Title IX administrators elsewhere is being willfully blind.
"Dear Colleague" Letter
The guidelines entrench the "Dear Colleague" Letter's assault on campus due process. Reaffirmed are the requirements to brand students rapists on a preponderance-of-evidence threshold, and to allow double jeopardy so that accusers can appeal not-guilty findings by disciplinary panels. The guidelines likewise strongly discourage ("should not be allowed") colleges from allowing accused students from cross-examining their accusers, even in cases in which the only witness is the complainant. As an alternative, the guidelines recommend that a "third party screen the questions submitted by the parties and only ask those it deems appropriate and relevant to the case," effectively neutering the right of cross-examination.
The task force also recommends two changes not present in the "Dear Colleague" letter.
First: "Questions about the survivor's sexual history with anyone other than the alleged perpetrator should not be permitted." First of all, note the extremely odd wording of this sentence. While technically the accused student remains only an "alleged perpetrator," the accuser already has been identified as the "survivor." But if the allegation is false, precisely what did the accuser "survive"? The real "survivor" in such a situation would be the falsely accused. A task force whose own wording presumes guilt is a deeply troubling development.
Move beyond the wording. All states have rape shield laws, for entirely appropriate reasons. But no state's rape shield law goes as far as that of the task force--prohibiting all questions, under any circumstances, about the accuser's sexual history. To take an obvious example that I know well--in the lacrosse case, accuser Crystal Mangum's recent sexual history (she had sex with at least four men whose DNA was identified in her rape kit) was critical to explaining the only "injury" the medical report identified ("diffuse edema of the vaginal walls"). Under these new guidelines, questioning an accuser like Mangum about her sexual history, even though vital to proving the accused students' innocence, would be out of bounds in a college tribunal.
Second, buried in a footnote is this item: "Although Title IX does not dictate the membership of a hearing board, OCR discourages schools from allowing students to serve on hearing boards in cases involving allegations of sexual violence." In other words: an accused student will be denied anything approximating a jury of his peers, and his fate will be handled by administrators or faculty members who are far more likely to be pressured to accommodate the university's demands for tilting the process in the accuser's favor.
Due Process, II
Here's one line from the Task Force Report: "Victims who want their school to fully investigate an incident must be taken seriously - and know where to report." But the "victim" doesn't become the "victim" until the guilt of the perpetrator is established--not, as this sentence suggests, before a full investigation even commences.
And again: "OCR is also . . . making clear that schools should provide survivors with interim relief (like changing housing or class schedules) pending the outcome of an OCR investigation." But at the "interim" stage--before any adjudication--the accuser is not a "survivor," unless (in the only logical interpretation of the language that the task force uses) the administration believes that filing an accusation means an accuser has been raped.
This interim relief requirement comes even when an accuser makes the accusation in total confidence, and so the accused student has no idea he has even been charged. According to the OCR, in such circumstances, "the school must take immediate action to protect the complainant," including "changing living arrangements or course schedules, assignments, or tests."
Due Process, III
The task force report encourages schools to experiment with procedures (provided, of course, they don't provide more due process protections than the OCR permits) in such a way that seems to envision eliminating even the minimal protections that currently exist. Consider this item: "Some [schools] are adopting different variations on the 'single investigator' model, where a trained investigator or investigators interview the complainant and alleged perpetrator, gather any physical evidence, interview available witnesses - and then either render a finding, present a recommendation, or even work out an acceptance-of-responsibility agreement with the offender . . . Preliminary reports from the field suggest that these innovative models, in which college judicial boards play a much more limited role, encourage reporting and bolster trust in the process, while at the same time safeguarding an alleged perpetrator's right to notice and to be heard." How, precisely, is a "right to be heard" in any way sufficient for a student attempting to defend himself from charges that could have a life-altering impact.
One other note on this point: the recently promulgated Clery Act rules did give accused students one important new protection--a right to an attorney in college disciplinary processes. By seeming to encourage colleges to move away from disciplinary processes altogether, the task force is mooting the new rule.
Due Process, IV
While the administration goes out of its way to discourage cooperation with law enforcement in such a way that might uphold the due process protections of accused students, it has few such concerns with the other direction. "A school should also consider," the OCR Q&A notes, "whether information can be shared among the investigators so that complainants are not unnecessarily required to give multiple statements about a traumatic event."
This recommendation essentially presents the due process-free college inquiry as an assistant to police investigations--undermining the OCR's claim that denying accused students meaningful due process protections because the college action can't impose criminal liability.
The OCR is also aggressive on discouraging any sort of delay in a college inquiry while the police gather information. Despite lots of talk of the need for evidence, consider this line: "The DCL states that in one instance a prosecutor's office informed OCR that the police department's evidence gathering stage typically takes three to ten calendar days, although the delay in the school's investigation may be longer in certain instances." So one unnamed police department is somehow a representative national sample for the length of time to conduct a rape inquiry?
Two final notes. First, nowhere in the Task Force's document is a call to standardize definitions of sexual assault--that it, to ensure that colleges (unlike, say, Yale) are actually defining the term
Second, the underlying premise of both administration documents is that due process isn't a necessary step to producing the truth, but instead almost a hindrance in the battle against sexual assault. Or, as the OCR explains, "Of course, a school should ensure that steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant."
KC Johnson, co-author of the definitive book on the Duke lacrosse case, Until Proven Innocent, teaches at Brooklyn College and the City University of New York Graduate Center.
(Photo: The President and Vice-President at a White House Council on Women and Girls meeting in January. Credit: The White House.)