Sexual Assault and Due Process on Campus

This ended up being very long, which was not my initial intention, but my whole motivation for writing it was the shallow, one-sided treatment the issue gets in so many news accounts, and I just haven't been able to cut it to a reasonable length.

As everybody knows, it is very hard to get convictions for acquaintance rape. If the victim invites the rapist into his or her room, you will need either a mountain of evidence or a confession to get a jury to sustain rape charges.

Feminists hate this, as do many women who are not feminists. Those scenes in which cross-examining lawyers try to make the victim look like a slut enrage advocates for rape victims and plenty of other people. Lawyers keep doing it because it works; few juries will convict a male acquaintance of raping a promiscuous woman.

Legal advocates for women's or rape victims' rights have long been looking for ways to get out of this trap, for ways that women could get justice for rape without undergoing the humiliation that our system heaps on accusers in jury trials. They have found one in university disciplinary hearings.

These hearings exist in a legal gray zone. The Supreme Court has explicitly held that the university hearings do not have to meet strict courtroom standards:

It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion. (Wood vs. Strickland, 1975)

Since hearings on university matters do not have to meet the same standards as courtroom trials, Universities have leeway to punish some offenders who could never be convicted in court. For example, the perpetrators of acquaintance rape. I have always found it odd that universities have policies for rape, a Class I felony; I mean, nobody expects universities to have policies for murder. But the parallel quasi-justice system offered by universities allows victims to get at least some measure of redress without going through the agony of a trial that would probably result in an acquittal anyway.

This is all old news, going back decades. But in 2011 the Obama Administration's Education Department began issuing "guidance" to universities on the enforcement of Title IX, which guarantees women equal access to education. The Department has told more then 400 universities that their policies with regard to sexual harassment and sexual assault do not meet the standards of Title IX and ordered them to shape up or lose Federal funding. This appears to be a paper tiger sort of threat, since no university has ever lost funding over Title IX, but universities still take it seriously, and some of them have fallen over themselves revising their policies to comply.

The centerpiece of the reform effort is the 2011 "Dear Colleague" letter from the Department of Education's Office of Civil Rights (OCR), which lays out the Department's policies with regard to Title IX enforcement. You can read the whole thing here. For such a controversial document it is remarkably bureaucratic and banal, chock full of language demanding impartiality and evenhandedness. Except for a couple of points that I will deal with below, the whole thing boils down to saying that universities must have written policies in place that take sexual harassment and sexual assault seriously. What has made it such a lightning rod is the subsequent behavior of some universities, whose efforts to comply have ended up creating what look like seriously flawed systems.

I almost wrote that because of this, the problem of sexual assault on campus has been increasingly politicized. But I'm not sure that's fair; thousands of other things in America have become politicized lately without any directives from the Education Department. So perhaps I should say that this policy has been one contributor to an increasingly politicized and partisan fight over Title IX policies. To critics, the policy has led to rigged trials in which men accused of harassment have been expelled from the university without ever even being told what the charges against them are. (Yes, men; 99% of students accused of sexual assault are male.) One story I have seen several times describes a man accused of sexual assault who is told by some administration figure that he had better just resign from the school because there is no way for him to be found innocent. It is easy to find accusations like this, but it is hard to find out if they are true, since universities can and do keep these records sealed; certainly if that does happen it is in direct violation of the policy laid out in the "Dear Colleague" letter. Fans of the policy say that many schools have been sweeping sexual assault accusations under the rug for decades, lecturing rape victims on how they should drink less, etc., and something had to be done to get them to take their responsibilities seriously.

This is the background to the furor over Betsy DeVos' announcement that the department will now review their Title IX policy. Because of the way we do politics in America now, this had led to a shouting match in which truth has been thrown overboard. Of course they are reviewing this policy; every administration reviews the controversial policies of the previous administration. And it is not just men's rights groups who have objected to the Obama Administration's policy; the ACLU has denounced it vociferously and filed multiple suits against universities for the way they are following it. The thing that bothers me about this fight is, again, the way people have abandoned any desire to be reasonable or to acknowledge the complexity of the problem in pursuit of partisanship. Conservatives are blaming the Obama administration for things that it had nothing to do with, viz., policy choices made by universities that the Dear Colleague letter explicitly leaves up to the university's discretion; liberals are accusing the Trump administration of taking the side of rapists.

One important point that has been left out of many news stories on DeVos' announcement is the role of the courts in creating the crisis. Dozens of lawsuits have been filed since 2011 by accused students contesting university decisions in sexual assault cases, and many plaintiffs have won million-dollar verdicts against the schools. These journalists counted 59 wins for plaintiffs in these cases since 2013 and 36 wins for the schools, and that of course must only be a fraction of the suits filed or threatened since most civil complaints are settled out of court. When a policy is so controversial that it has attracted dozens of lawsuits, many of which are being won, you might want to reconsider it.

Recall that the Supreme Court has explicitly said that universities have wide latitude in how they hold disciplinary proceedings, which do not have to meet the same standards as courtroom trials. But many judges are so exasperated by the behavior of universities that they are slapping them down anyway. Even when they find for the school, under the doctrine of Wood vs. Strickland, they sometimes lecture the university's lawyers on the failings of their systems. The sloppy way some schools conduct these investigations must deeply offend their sense of how justice is supposed to work.

One state appellate judge opened oral argument by bluntly informing the University of California’s lawyer, “When I . . . finished reading all the briefs in this case, my comment was, ‘Where’s the kangaroo?’”

So if you find yourself asking, why, other than patriarchal wickedness, does the Trump administration want to review this policy, remember that 59 Federal and state judges have found universities in violation of the law for the way they are enforcing it. (That includes 14 judges nominated by Obama.)

I doubt I agree with Betsy DeVos about very much, but I agree that this situation is a big mess.

To explain some of the complexity involved, I am going to spend a little time on two of the issues that have gotten the most legal attention. First, the standard of evidence. As the Dear Colleague letter lays out,

in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

If you think, as some people do, that being expelled from a university as an accused rapist is a life-ruining event, you may think that the charge deserves a high standard of proof. (Some universities have been accused of hardly trying to find out the truth at all, but that is a separate matter; the OCR's guidance requires thorough, impartial investigations.) It seems to me that this argument gets at the heart of the problem. In a technical sense the Dear Colleague letter is exactly right; if you sue your employer for tolerating sexual harassment, the standard used in the trial will be the preponderance of evidence, and you could win a massive verdict without ever producing clear and convincing proof. Title IX is civil statute, so ALL matters adjudicated under it are governed by those rules. But are those rules appropriate for what feels to the accused like a trial for rape? Should you be forced to bear the stigma of being a rapist, that is, a felon, without ever being convicted under the standards of criminal law?

The second point of major controversy concerns the old common law right, enshrined in the Sixth Amendment, to confront your accuser. The Dear Colleague Letter deals with this matter explicitly:

While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties. Additionally, any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings should apply equally. OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties.

Here is the trap that so offends both the ACLU and many conservative writers. The question of whether the attorney for the accused can speak in the proceeding is left entirely up to the school. Most universities do not allow lawyers to talk in their hearings, which leaves the accused to do all the talking in his defense. (Op-eds like this one blame the silencing of lawyers on Obama, but that is emphatically not true; this has always been and remains up to the school.) But for him to cross-examine his accuser is explicitly forbidden. So at most universities, it is impossible for the accuser to be cross-examined.

Which is exactly what advocates for rape victims have been trying to achieve in criminal trials for decades. They have failed, because of the very strong protections the right to confront your accuser has in both constitutional and common law. And because that right is so ingrained in our understanding of justice, to be punished without being able to cross-examine your accuser feels to many Americans like the definition of injustice. Think how many courtroom scenes in our literature, from 18th-century novels to Law and Order, turn on cross-examination; this is, in our legal folklore, how liars are exposed, and how the truly virtuous prove their worth. Without it, trials feel like a sham. Of course many legal systems make do without it, including most of those in Europe, but in America we have trouble imagining justice without it.

Legally, university disciplinary hearings are NOT trials, are not really legal proceedings at all, so there is no reason to hold them to that standard. Nor has any court held that they should; when accused rapists sue their schools and win, it is because the university did not properly follow its own procedures, or because those procedures did not follow the OCR's demand for fairness.

But then again, much of the criticism the OCR has made of university policies is that they do not take sexual harassment and assault seriously enough. The first response of some schools to these charges of assault used to be to bring the two parties together and see if they could come to some kind of agreement, or maybe settle the whole thing with a heartfelt apology. But the Dear Colleague letter explicitly forbids this; there must be a formal hearing with a clear paper trail, not some informal mediation by an RA or a friendly Dean. The Dear Colleague letter also instructs schools to keep the parties apart as much as possible while the case is being investigated, since further contact between them might be traumatic for the victim. (Which is true; an old friend of mine who was raped by an acquaintance seemed to be doing ok until she ran into her rapist in class and he said, "Hi, X, how ya' doing?" in a normal, friendly manner, after which she ran home and ripped her whole dorm room to shreds.) The letter also specifies that asking the victim to leave campus should not be the automatic way this is achieved, as it used to be at some schools. The letter demands evenhandedness, but critics charge that schools now force the alleged perpetrator to leave campus as a matter of course.

Almost every outsider who has looked seriously into this matter has ended up conflicted; here is Emily Yoffe in the Atlantic:

The impulse behind the new policy was noble and necessary—sexual assault is a scourge that should not be tolerated in any society, much less by institutions of higher learning. But taken in sum, these directives have left a mess of a system, and many unintended consequences.

If I were the new Secretary of Education, holding hearings on how to revise this policy would be one of my first actions, too.

But I doubt there is any obvious solution. Acquaintance rape is just an extremely hard problem, and university administrations are probably not where we would turn for wisdom and justice in any situation. To be truly evenhanded toward both the victims of sexual violence and men accused of it may be beyond our powers. But I, for one, will not fault Betsy DeVos for taking another look at the problem.