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Two more schools introduce terrible campus sexual assault adjudication policies


Two new schools are jumping on the bandwagon of creating new campus sexual assault policies based on the current hysteria surrounding the issue.

Beginning this fall, Stanford University will expel just about every student found responsible for sexual assault (with little due process, of course). A Massachusetts Institute of Technology task force has prepared a list of recommendations for overhauling that school's policies as well.

Stanford has built on a California lawmaker's proposal, which would create a mandatory minimum punishment of a 2-year suspension for students found responsible for sexual assault. The proposal included no due process protections. Stanford has decided to one-up that proposal by making expulsion the default punishment.

"Going forward, if a Stanford student is found responsible for sexual assault as it is defined in university policy, the expected sanction in such cases should be permanent separation from the university — expulsion," a task force wrote.

Sexual assault, as defined by Stanford:

"[S]exual assault is defined as engaging in certain sexual acts (such as intercourse) without indication of consent accomplished by means of force, violence, duress, or menace (defined consistently with California rape law) or where a person causes or takes advantage of another in an incapacitated state. "Incapacity" itself has a specific meaning under university policy, and it means that the person lacks the ability to voluntarily agree to sexual activity because the person is asleep, unconscious, under the influence of an anesthetizing or intoxicating substance such that the person does not have control over his/her body, is otherwise unaware that sexual activity is occurring, or is unable to appreciate the nature and quality of the act."

Couple that definition with California's problematic "yes means yes" law and the fact that no one has explained how an accused student could possibly prove they obtained consent and that the accuser was not incapacitated. The only surefire way to prove such consent would be to videotape the encounter — except California is a two-party consent state, so if a school decides a person was too drunk to consent to sex, they could throw out the video evidence claiming the accuser was too drunk to consent to that as well.

This makes it absolutely impossible to prove consent was obtained. Even if the tape proved the accuser was not too drunk to consent, the accused would have to get the school to accept it as evidence in the first place.

Terrible legally, but wonderful in the current environment where accusations equal guilt.

The Stanford adjudication process is also quite biased from the start. The Title IX office is responsible for conducting the investigation. It is also responsible for justifying its own existence by finding instances of sexual discrimination as described by Title IX of the Education Amendments of 1972.

Both accusing and accused students are allowed an advisor of their choice, who can be a lawyer, during the process, however this person cannot speak on their behalf. This means that students who can't afford a good attorney are at an obvious disadvantage, but Stanford says it will "explore the possibility of providing students with legal assistance if they request it." Whether or not they end up doing so is another matter.

Students will also be able to suggest witnesses and provide evidence for their case. There is no indication in the Stanford policy that the Title IX investigator will seek witnesses or evidence not provided by the students (e.g., seeking students that attended the same party as the involved students even if neither student was able to provide names). Stanford does take an interesting step toward trying to make the evidentiary process fair for both students.

In some cases, the Title IX investigator has been accused of ignoring evidence and misrepresenting what an accused student said. Stanford allows involved students to review and challenge what the investigator "deems potentially relevant." The investigator must then review the objections and possibly modify their position. If students continue to object, an unaffiliated "evidentiary expert" will be brought in to assess the decision. Their determination will be final. That's at least a small barrier to overzealous Title IX investigators.

One supposed barrier to expulsion for Stanford students is that the entire judicial panel of three reviewers must unanimously find for expulsion. But given the current climate surrounding campus sexual assault and the bias inherent in the process, that shouldn't be very difficult — especially since the Stanford policy states that expulsion is the "expected" outcome.

The MIT proposal, at this point, remains just a list of recommendations for review to members of the community. The recommendations, obtained by the Washington Examiner, are similar to other schools in that they provide little due process in an inherently biased system.

For instance, Recommendation 2 puts the investigation of sexual assault solely in the hands of the Title IX investigator, thereby "relieving involved students of this burden and reducing their interaction with one another." The memo claims this will make the process more fair, but as we'veseen before, Title IX investigators have a goal to find discrimination and may alter the investigation to get the intended outcome.

The MIT memo also contains a recommendation for allowing students to obtain an advisor of their choice — indicating that schools have acknowledged a need for additional due process that advocates have been fighting for.

But the memo goes downhill from there. Recommendation 6 involves a secret matrix for punishing students, meaning the sanctions could be seen as arbitrary: "Establish a sanctioning matrix for sexual misconduct cases to be used by the [Committee on Discipline] as a confidential guideline to inform the members' thinking; review annually and revise as appropriate," the memo says.

Recommendation 8 would allow students who don't want to take formal action against a student but do want them to be punished in some way the ability to do so. This means that any student who simply has regretted sex with another student can force that student to be upended from their classes or dorm without having done anything wrong.

And of course, Recommendation 9 asks for increased funding for the whole operation.

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