Due process is crucial to justice, both for accusers and the accused

January 17, 2017


Imagine, for a moment, that President-elect Trump gave a speech promising that his administration would make it easier to deport immigrants who had merely been accused of a crime.


People would be rightly outraged. They would point out that an accusation is not the same thing as a conviction, and that people were surely entitled to a fair hearing before having the course of their lives permanently altered. After all, isn't our entire concept of justice in this country premised on the notion that one is innocent until proven guilty?


Say the same thing about students accused of sexual misconduct on campus, however, and you will get quite a different response. Indeed, if you voice support for due process rights in this setting, you're likely to be accused of not caring about justice and being insensitive to assault victims. This is something I contend with regularly in my work advocating for students' due process rights at the Foundation for Individual Rights in Education, and something that, as a woman myself and as the mother of three daughters, strikes me as particularly ridiculous.


People accused of serious wrongdoing of any kind, people whose futures are rightly at stake given the severity of the accusations against them, deserve a fair process that affords them a meaningful opportunity to defend themselves. As the famous jurist Sir William Blackstone stated, "It is better that ten guilty persons escape than that one innocent suffer."


Second, due process protects not only the rights of the accused, but also the integrity and reliability of the judicial process as a whole. That integrity and reliability is critical for both accusers and accused alike.

To understand this, consider the lawsuit of a woman who is currently suing the University of Kentucky over its alleged mishandling of her claim that she was forcibly raped by a fellow student.


According to her lawsuit, the university held the first hearing without the accused student present, because he was attending a proceeding related to his criminal case. At the first university hearing, he was found responsible for sexual misconduct. But a university appeals board found that his due process rights had been violated because he had been unable to attend the hearing, and ordered a new, second hearing. The female student did not participate in the second hearing, and the accused student was again found responsible.


However, the appeals board again found that the accused student's due process rights had been violated, this time because he had been unable to question his accuser. The appeals board ordered another, third hearing, which the female student says caused her "mental health to deteriorate." The accused student was found responsible a third time, the finding was overturned again on appeal, and the matter was sent back for a fourth hearing.


When the university filed a motion asking the court to dismiss the woman's case, the court declined. The court stated that "the University bungled the disciplinary hearings so badly, so inexcusably, that it necessitated three appeals and reversals in an attempt to remedy the due process deficiencies," and that this had "profoundly affected Plaintiff's ability to obtain an education at the University of Kentucky." Moreover, the court held, the fact that the university had not yet scheduled a fourth hearing raised the possibility that the university had acted with "deliberate indifference" towards the alleged victim.


Had the university conducted a full and fair hearing in the first place, this woman's ordeal could have been over years ago. Instead, it continues to drag on more than two years later because of an undisputed lack of due process. This is a prime example of why due process is critical to protecting the interests of everyone involved in a judicial proceeding.


Too often, the protection of due process on campus is framed as a partisan issue, or as a zero-sum game that pits the interests of accused students against the interests of their alleged victims. It is neither.


Read more at: http://www.washingtonexaminer.com/article/2612012

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