Due process must be part of sex-assault policy By Justin Dillon and Matthew G. Kaiser
The University of Pennsylvania has a new system for handling allegations of sexual assault on campus. While that system will go a long way toward protecting Penn, it achieves those gains at the cost of basic fairness.
A third of the law faculty at Penn have spoken out against this policy, on the heels of a similar reaction to a similar policy at Harvard. And for good reason. The policy at Penn is completely at odds with what we think of as justice in America.
Penn's system is indeed something to behold. It begins with what might be called the Javert model - a single investigator who gathers evidence and decides, along with someone from the school itself, whether any charges should be brought.
But Penn did not find a neutral person to conduct these investigations; rather, Penn has hired an advocate - a former sex-crimes prosecutor. And, before coming on board at Penn, this investigator served as an attorney adviser at AEquitas, which is a project of the Pennsylvania Coalition Against Rape and whose "mission is to improve the quality of justice in sexual violence, intimate partner violence, stalking, and human trafficking cases by developing, evaluating, and refining prosecution practices that increase victim safety and offender accountability."
Reducing sex crimes is a laudable goal. But it is absurd to think that someone who has spent two decades prosecuting sex crimes, and then advising other people how to prosecute sex crimes, will suddenly be able to evaluate evidence objectively. To a hammer, of course, everything is a nail. Worse yet is the hammer that has only hammered one kind of nail. Yet that's exactly who Penn has entrusted with conducting the bulk of its investigations.
We have handled cases at both public and private universities that use the Javert model. Invariably, the investigators have minimized evidence that is favorable to the accused and framed the accuser's evidence in the best possible light. It is often all too clear that the investigator sees him- or herself not as an objective fact-gatherer, but as a prosecuting agent tasked with vindicating the accuser's version of events.
This is just human nature. Whatever his background, the investigator relies entirely on the university to pay his salary. His mission is to make sure that the school will not be investigated by the Department of Education or sued by a female student for a violation of Title IX. He has no incentive to be fair; he has every incentive to prevent exonerations.
Penn's system doesn't get much better from there. If the investigator believes by 50.1 percent that the accused is guilty, the case goes to a hearing.
But it is a hearing in only the barest sense. While it allows witness testimony, it doesn't allow cross-examination. It doesn't even allow either side's attorney to speak.
In our experience attending such hearings, this leads to a terrible dynamic. The accuser is usually highly emotional and, as we've seen, usually cries a lot. The accused, by contrast, typically comes off as either unemotional or angry.
This makes perfect sense on both sides. Most accusers, in our experience, believe what they're saying - whether or not it's actually true. Of course they get emotional.
Most accused, in our experience, believe that they're being falsely accused - so they either shut down or get angry. Facing false charges will make a person angry. How else would you expect them to act?
You can see where this leads - to a dynamic in which one person comes across as highly sympathetic and the other person comes across as a jerk. This sympathy was at the root of the Rolling Stone article about the University of Virginia. The woman there was highly emotional. And she was deeply not credible. Yet the magazine prized her emotion over basic investigative integrity. And that is precisely what's at risk at Penn.
Preventing this problem is why God made lawyers. Sometimes, people need help fighting their battles. They need help, and they need cover.
A lawyer can make the accused's case without (one hopes) coming across as combative. A skilled cross-examiner - which, contrary to what you see on TV, does not necessarily mean an aggressive one - can highlight holes or inconsistencies in the accuser's story without making it seem personal. And to the extent that it does seem personal, the panel will be more likely to direct its ire at the attorney, not the accused.
Yet Penn's system allows for none of this. By a 2-1 vote, a panel can find an accused guilty if it believes the accuser by 50.1 percent - a mere "preponderance of the evidence." As the Penn law professors rightly point out, the existence of such a low bar for a life-changing finding "provides all the more reason for otherwise scrupulously fair procedures and a unanimous decision before a student can be expelled from the university and be stigmatized as a sexual offender."
Without a doubt, these are difficult issues. Universities have a responsibility to protect their students. But that responsibility does not end with physical safety; it is not enough to cry "rape" and let due process slip away. Universities also have a responsibility to be fair to the accused students, who - just as in a criminal court - are innocent until proven guilty.
First, Harvard Law. Now, Penn Law. We hope that these two letters in the past two months mark the beginning of a trend. We hope that other law faculty - or, dare one hope, non-law faculty - will show the courage that these professors have shown and make their voices heard as well.
