By Carol E. Tracy, Terry L. Fromson, and Amal Bass
When the University of Pennsylvania adopted changes in its handling of sexual-assault cases, almost a third of the Law School faculty wrote a letter criticizing the new policy.
With all due respect, the 16 law professors who have objected to the new disciplinary procedures for sexual violence have it wrong. We believe their criticisms are flawed and misleading with regard to both how fundamental fairness must be ensured in campus disciplinary systems and the nature of campus sexual assault. Our decades of experience working directly with victims of sexual misconduct and with Title IX, the civil law that prohibits discrimination in educational institutions that receive federal funding, informs our view that the new procedures appropriately attempt to correct injustices inflicted on victims while safeguarding fairness for all parties involved.
Constitutional due process does not apply to the campus adjudication process of a private school like Penn. Nonetheless, we agree generally with the law professors that school procedures should be fair. Victims of sexual misconduct have long suffered the consequences of deeply entrenched bias in school adjudication processes, the justice system, and society at large. Historically, institutions of higher education have turned a blind eye to sexual harassment and assault, often discouraging victims from reporting it to school officials. The few victims who manage to navigate the school processes are often denied equal access to information and presumed to be lying. These systems have been stacked against victims, leaving them to suffer at school with the assailant, transfer to new schools, or drop out of school while the person who assaulted them is rarely disciplined and often remains a threat to them and to other students.
The professors have expressed one-sided advocacy on behalf of students accused of sexual assault. Their proposed changes to the school's new system would only exacerbate the unfairness to complainants.
The law professors incorrectly assert that sexual misconduct disciplinary hearings should apply a standard of proof - clear and convincing evidence - higher than the one used in most other administrative hearings or in civil court rooms: preponderance of the evidence. They also call for a unanimous decision.
The Office for Civil Rights of the U.S. Department of Education rightly requires schools to use the preponderance of the evidence standard because it is the one established for violations of civil rights laws, such as Title VII, which prohibits employment discrimination. In internal processes, the school is determining whether the respondent's alleged conduct violated the school's sexual misconduct policy. The process is administrative, not criminal.
The school has no authority to convict an assailant of a crime, and the panel is not a criminal jury that must be unanimous. Yet, the law professors refer to "evidence to convict" and "convictions," mischaracterizing the nature of the proceeding in order to buttress their position that stricter "special" treatment should be applied to sexual-misconduct claims.
In addition, the professors' assertions that counsel should not only be present but actively participate in the hearing as an essential element of a campus sexual misconduct hearing is misguided. The university's new policy permits lawyers to be present at the hearing and to consult with their clients, but does not permit lawyers to question witnesses, make statements, or seek the production of evidence. This limited role of counsel already exceeds the due process required.
Due process in the public school context does not mandate either active representation or cross examination by counsel. The role of counsel permitted by the university's policy appropriately balances the needs of the parties and prevents the school process from turning into a daunting, criminal pseudocourtroom. It is one of the many safeguards available to both parties.
Most disturbing to us is that the professors' letter reflects the persistent, victim-blaming rape myths embedded in the very process that the new system is designed to fix. Referring to alcohol and drugs as substances that "all too often fuel the conditions that lead to contested sexual-assault complaints," the professors fail to recognize how alcohol and drugs are often purposefully and strategically used by assailants as a tool to both enable rape and escape consequence. They do not even mention that incapacitated victims cannot consent to sex. Instead, they theorize that "too often troubling ambiguities" about "valid consent" lead to "after-the-fact assessments of their behavior."
Whether a person has consented to sexual activity is not as ambiguous as the professors suggest. Like alcohol, exaggerated notions of "ambiguity" are often used as a cover by assailants who are clear about their intent and aware of their victim's lack of consent. It is also used by administrators to discredit the victim. Indeed, even in cases with clear evidence of force and a lack of consent, aggressors have rarely been held accountable.
While there may be some difficult cases, the professors' categorization of sexual-assault complaints as "after-the-fact assessments," in other words, regretted sex, is irresponsible and offensive - and does not match students' experience. Despite the evidence of widespread sexual assault on campus, the only students the professors view as "vulnerable" and "victimized" are the students accused of rape.
There may be ways to further improve Penn's procedures, but an inappropriately higher standard of proof, expanded role for counsel, or other proposals based on a misunderstanding of Title IX, school campus procedures, and the nature of sexual misconduct, are not among them.