Accused College Rapists Have Rights, Too by Judith Shulevitz
This August, Columbia University released a new policy for handling “gender-based” misconduct among students. Since April, universities around the country have been rewriting their guidelines after a White House task force urged them to do more to fight sexual assault. I was curious to know what a lawyer outside the university system would make of one of these codes. So I sent the document to Robin Steinberg, a public defender and a feminist.
A few hours later, Steinberg wrote back in alarm. She had read the document with colleagues at the Bronx legal-aid center she runs. They were horrified, she said—not because Columbia still hadn’t sufficiently protected survivors of assault, as some critics charge, but because its procedures revealed a cavalier disregard for the civil rights of people accused of rape, assault, and other gender-based crimes. “We are never sending our boys to college,” she wrote.
Columbia’s safeguards for the accused are better than most. For instance, it allows both accuser and accused to have a lawyer at a hearing, and, if asked, will locate free counsel. By contrast, Harvard, which issued a new code in July, holds investigations but not hearings and does not offer to obtain independent legal assistance. But Steinberg, like most people, hadn’t realized how far the rules governing sexual conduct on campus have strayed from any commonsense understanding of justice.
Most colleges that do allow lawyers into sexual-misconduct hearings or interrogations do not permit them to speak, though they may pass notes. Students on both sides must speak for themselves. This presents a serious problem for a young man charged with rape (and in the vast majority of campus cases, the accused are men). On one hand, if he doesn’t defend himself, he’ll be at a disadvantage. On the other, if he is also caught up in a criminal case, anything he says in a campus procedure can be used against him in court. Neither side may cross-examine witnesses to establish contradictions in their testimony. A school may withhold the identity of an accuser from the accused if she requests anonymity (though it may choose not to). Guilt or innocence hinges on a “preponderance” of evidence, a far lower standard than the “beyond a reasonable doubt” test that prevails in courtrooms. At Harvard, the Title IX enforcement office acts as cop, prosecutor, judge, and jury—and also hears the appeals. This conflation of possibly conflicting roles is “fundamentally not due process,” says Janet Halley, a Harvard Law School professor whose areas of expertise include feminist legal theory and procedural law.
How did this shadow judicial system become the norm on college campuses? Don’t blame universities entirely. In 1997, the U.S. Department of Education’s Office for Civil Rights (OCR) started telling colleges how to handle sexual-misconduct cases, resting its authority on Title IX, the 1972 law prohibiting discrimination on the basis of gender. (Students have always been able to file police charges.) Since then, the government has issued many guidances and revisions; Congress has passed bills. The clarification that did most to change schools’ approach to misconduct was the “Dear Colleague” letter of 2011. Among other things, this document requested schools to lower their standard of proof and to conclude all proceedings swiftly, apparently without regard for the timing of any criminal investigation. If a school violates any of the many rules or recommendations, OCR may put it on the list of 84 colleges under investigation, a public-relations disaster. OCR could also disqualify it from receiving federal funding, which could mean shutting it down.
University officials I’ve talked to are upset about the policies they’re being asked to write, though none would say so on the record. But Brett Sokolow, who runs a law practice that advises both universities and students, said administrators tell him they feel overwhelmed by the difficulty of handling sexual-misconduct cases and the expectation that they’ll pass Solomonic judgments about complicated sexual encounters to which there may have been no witnesses and which often involve heavy drinking. OCR requires schools to train investigators as well as the panelists who hear cases, but they are rarely trained well. “We run four-day trainings for campus investigators,” says Sokolow. “When these folks come out of it, if they’re novices, they’re not ready.”
There is no question that many women who have made accusations of rape or assault have been shockingly mistreated by their schools. But since the “Dear Colleague” letter, more than 20 lawsuits have been filed against colleges by men punished for sexual misconduct, and lawyers believe there will be many more such lawsuits in the next few months. In some of these cases, the facts are too messy to be shoehorned into the master narrative of predators and victims that dominates discussions of campus sexual assault. A few reveal details about the way some schools handle people under investigation that are themselves disturbing.
A suit filed this spring against Colgate University suggests that, in their eagerness to protect the vulnerable, schools may be too quick to act on the presumption of guilt. In 2013, an ex-girlfriend accused a male undergraduate of having, a year earlier, pushed her so hard she fell. She noted that one of his former girlfriends had obtained a no-contact order against him—she too had been pushed and fell against a table, cutting her head, although the man and that woman remained friendly and she declined to join the complaint. The young man’s lawsuit and Colgate’s response offer very different accounts of what happened next, but the facts that Colgate does not dispute are these: Before questioning the student, Colgate had already prepared a letter of interim suspension. He didn’t know this. The man was never given the option to seek counsel, even though the allegations could have led to a criminal investigation. (Colgate’s reply to this assertion: “no right to counsel existed.”) He was questioned for several hours, well into the night. Immediately afterward, his interrogator told him he was suspended, offered him a ticket to his home in Bangladesh, and explained that he could participate in any hearing via Skype or telephone. When the student said he didn’t want to miss classes or the chance to defend himself, security officers escorted him to a room in the basement of a dorm and kept him there, under guard, for two nights. The room had neither cell reception nor Wi-Fi, so at first, he had no way to get in touch with anyone. When he asked to be released, he was told he was free to return to Bangladesh. He finally managed to contact a faculty adviser who helped him find temporary accommodation off-campus.
The student, who was expelled, is charging the school with false imprisonment, among other things. Case law on temporary student suspensions indicates he was entitled to a hearing to determine whether his was necessary; this was not offered. Whatever he did—and if true, the charges are serious—the school went outside the bounds of decency, and perhaps its own authority, by treating him as guilty before hearing his case.
A dispute at Brandeis reveals the difficulty of distinguishing between actionable abuse and relationships gone sour. According to The Washington Post and other reports, a gay couple dated for nearly two years, then broke up. Six months later, one ex-boyfriend accused the other of assaulting him by waking him up in the middle of the night and “aggressively” seeking sex, touching him without consent, and not giving him personal space in the bathroom. The other man said the worst he had done was kiss his boyfriend while he was sleeping. The accused was found guilty of sexual misconduct and invasion of privacy and given a disciplinary warning and ordered to complete training in sexual-assault prevention. Outraged at what he saw as an insufficient punishment, the accuser organized protests. (One featured 50 students holding signs with their mouths taped shut.) OCR is investigating whether the accused student was denied a fair hearing—possibly the first time it has taken action on behalf of the accused in this kind of case.
So what should colleges do about sexual assault? In February, RAINN, the Rape, Abuse, and Incest National Network, wrote to the White House task force to argue that complaints should be dealt with by the police. Victims’ rights advocates counter that the criminal justice system is insensitive to rape victims and bad at securing convictions. Either way, universities view it as their right and educational mission to create internal justice systems for their communities. The quickest fix would be to upgrade their procedures: to ensure that the rights of both parties are equally protected and that every administrator or faculty member involved is properly trained. If nobody trusts the process—and right now, nobody appears to—campus unrest will only grow.
What’s happening at universities represents an often necessary effort to recategorize once-acceptable behaviors as unacceptable. But the government, via Title IX, is effectively acting on the notion popularized in the 1970s and ’80s by Andrea Dworkin and Catharine MacKinnon that male domination is so pervasive that women need special protection from the rigors of the law.
Men, as a class, have more power than women, but American law rests on the principle that individuals have rights even when accused of doing bad things. And American liberalism has long rejected the notion that those rights may be curtailed even for a noble cause. “We need to take into account our obligations to due process not because we are soft on rapists and other exploiters of women,” says Halley, but because “the danger of holding an innocent person responsible is real.”
Judith Shulevitz is a senior editor at The New Republic.