Assaulting due process under sexual assault banner By Bruce Fein
Sexual assault complaints on college and university campuses present hard cases.
Hard cases encourage bad law that shortchanges due process.
Thus, the prevailing epidemic of political correctness regarding sexual assault complaints is predictably crippling fairness.
You are said to condone male depravity if you refrain from endorsing the summary adjudicatory procedures of the Queen of Hearts in Alice in Wonderland: “Sentence first—verdict afterwards.”
Sexual assault cases are no exception to the rule that it is more important that justice be done than that the complainant win. And the need for procedural protections are at their zenith in their adjudication.
The complainant and the accused are characteristically young and without judgment. A complainant’s attitude, communications and body language in a sexual encounter are often ambivalent — reflecting a mix of the Apollonian and the Dionysian. And sober second thoughts about a sexual experience may belatedly alter memory. Love-hate relationships are not rare.
In addition, the prohibited conduct is routinely described in ultra-vague or subjective terms that deny fair notice. Harvard University, for example, defines prohibited sexual harassment as “unwelcome conduct of a sexual nature” that may detract from a student’s educational experience.
Further, conduct that is ostensibly welcomed will be deemed unwelcomed if the welcome signal was given by a female student under the influence of drugs or alcohol of which the accused knew or should have known.
In sum, sexual assault cases will ordinarily be more chiaroscuro than prime colors. Moreover, an adverse finding against the accused is a virtual professional death sentence akin to Hester Prynne’s scarlet letter. Three of Duke’s falsely accused lacrosse players in 2006 bear reputational scars despite their belated sexual assault exonerations.
Despite these factors, Harvard University — the trend setter for sister institutions of higher education — is proposing to relax rather than enhance due process norms in the adjudication of sexual assault complaints. In response, 28 members of the Harvard Law School Faculty courageously voiced objections, including former federal district Judge Nancy Gertner.
The faculty members noted that a complaint is investigated by an investigative team responsible for compliance with Title IX of the Education Amendments of 1972, which prohibits sex discrimination by recipients of federal funds. The team is predisposed against the accused because Title IX problems with federal funds arise only if sexual assault complaints are rejected more than sustained.
The accused is provided but seven days to submit a written response to a complaint with no help from attorneys or advisers. He has no right to discover the facts charged. He has no right to confront his accusers and to test their veracity with cross-examination — the time-honored vehicle for the discovery of truth. There is no adversary hearing prior to findings of fact made by the investigatory team. The accused is given but one week to file a written response to proposed findings.
The investigative, prosecution, fact-finding and appellate review functions are combined in a single Title IX compliance office denuded of the appearance of impartiality. Combining the prosecution and adjudication function in the same office offends core separation-of-powers principles.
The procedural deficiencies risk ruining the lives of accused students before they have begun. Adults know that to be young is to err.
In any event, the law is a very clumsy instrument to address sexual assault complaints in higher education. It forces reality into legal pigeonholes that do injustice to the complexities of campus sexual encounters. Ostracism of campus knaves would be superior.
But if the law is employed, it should not cut due process to fit today’s cultural fashions.