We’ve defended lots of campus sexual assault cases, so we know just how unfair they are
If the government wants to give someone a speeding ticket, the hearing a person deserves is not as extensive as if the government wants to give that person life in prison. That should be uncontroversial – the harsher the punishment, the more extensive you want the process to be.
This principle is rarely applied in the world of campus sexual assault. And it’s fully on display in the recent move by some jurisdictions to require that a finding that a student committed a sexual assault stay on that student’s transcript permanently.
In the 2015 legislative year, as The Washington Post reported, 26 states – and now the District of Columbia – are considering laws addressing campus sexual assault.
Among others, the District of Columbia’s version includes a “scarlet letter” provision. These laws would require colleges and universities to brand the transcripts of any student convicted of sexual misconduct with a note saying the student committed a sexual assault. The transcript note could never be removed.
So if the student is found responsible for sexual misconduct when he’s 19, then applies for a job that requires his transcript 30 years later when he’s married with two children, his transcript would still mark him as a rapist. One would hope that an employer would care a lot less 30 years later, but that company will surely have a concern about its own liability for sexual harassment from that employee. This transcript note could effectively end a person’s career before it even starts.
If these transcript notes came in an unambiguous area of the law where the processes were full and fair, this scarlet letter may not be troubling. It’s also ironic that these laws are being proposed at the same time President Obama is urging companies to hire people who were convicted in real courts of real crimes. There is a legitimate question about how long a person’s past should haunt his future.
But campus sexual assault cases are not unambiguous, and the procedures in these cases are not fair.
As lawyers who have represented students accused of sexual misconduct at dozens of colleges and universities nationwide, we find it hard to see the purpose behind such a law — apart, that is, from vengeance.
Start with the ambiguity of campus sexual assault. No one disputes that people should not be forced to have sex against their will.
But how someone’s willingness to have sex is communicated makes a huge difference in whether the other person has done something wrong. People should be punished only when they’ve done something that is clearly over the line, not when they are simply bad at communicating. That common-sense distinction is lost in the hysteria of the current debate.
Right now, campuses are engaged in a good and healthy debate about what consent needs to look like in both long-term relationships and one-night hookups. But the way to have this debate is not on the backs of men in secret campus disciplinary proceedings.
The unfairness of these proceedings is also, by now, well-documented. You have the right to an attorney, but your attorney can’t talk during the hearing. You can’t cross-examine your accuser. You often can’t even submit questions for the “court” to ask your accuser during the hearing — no matter what your accuser says.
And that’s if you’re lucky enough to get a hearing. Many schools, prodded by the Department of Education, are moving to a “single investigator” model. In this model, a school outsources the entire investigation to a third-party firm, which will alone decide guilt or innocence.
Consider that firm’s incentives. Leaving aside a desire to get repeat business from the school, the third-party investigator knows that the school is under tremendous pressure from the Department of Education. It knows that these cases can receive significant media attention. It knows that most of the pressure and the media attention come from those who want to protect the victims, not those who care about fair process for the accused.
So these private Javerts do what they do.
Plus, if the firm gets it wrong, there’s always a do-over. In one recent case we handled, an outside investigator produced a shoddy report that ignored numerous exculpatory witnesses and mischaracterized evidence left and right on its way to a guilty finding.
When we pointed this out to the school’s lawyer, she sent the case back to the same investigator — who then produced a report three times as long and riddled with just as many mistakes.
The ultimate finding did not change at all.
Finally, there’s the burden of proof. In a charged case, with highly ambiguous facts, unclear rules, and often witnesses talking about things that happened months earlier when they were drunk, a biased investigator only has to find that it was more likely than not — just slightly better than a coin flip — that a sexual assault happened.
Of the dozens of men we have represented in these cases, we have never seen a serial predator — or even a non-serial predator.
Real predators should be stopped and punished. But the vast majority of our clients are confused college students who don’t know what they’re doing, don’t know what the rules are, and have no meaningful voice in the process that leads to their expulsion or suspension.
Legislators want to act, for reasons both noble and selfish. But taking action on the backs of the ignorant and the railroaded is wrong.