College Sexual Assault Investigations Are Not Criminal Investigations
I recently encountered a post from a men's rights advocate (some of whom make good points, some of whom are downright creepy - if not abusive and dangerous) who was upset about the way in which colleges handle sexual assault allegations. I should note that this one was definitely in the former camp of MRAs bringing up reasonable points. In response to my noting that a tiny fraction of these cases actually result in any disciplinary action, and fewer still in expulsion, he wrote the following:
"Not
true at all, not a single one allows legal representation, not one
allows the presentation of evidence or the ability to face and question
their accuser. Maybe you should go actually look up the reality instead
of spouting lies?
This
case is typical for all cases of sexual assault and how they are
handled, not by trained investigators but by Administrators and
psychologists and other paper pushers with zero qualifications to
conduct investigations of this magnitude. College Administrators have no business conducting criminal investigations. Period."
Of course, I hadn't made any mention of the universities disallowing lawyers or disallowing the accused to face his or her accuser. That is a constitutional right only applicable to criminal allegations being prosecuted by the state. The reason such a right exists is (as I explain below) because the stakes are so damn high in a criminal case. The accused is facing jail, prison, a criminal record, and other curtailment of freedom. The founders recognized that anonymous criminal accusations could lead to myriad abuses of the criminal justice system. I'll let you wiki that...
But campus sex assault investigations are not criminal in nature. They are not even fully civil, really. And the Sixth Amendment reads as follows: "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” (Emphasis added, of course.)
As with, say, a civil lawsuit - think OJ - the
underlying charges might fit within the definition of a crime, but the
proceedings themselves are not criminal. The only thing that’s
at stake in civil suit is money, basically. (A gross
oversimplification, since the court can impose a broad range of civil
penalties and remedies like specific performance in contract cases,
replevin requiring that the defendant hand over a specific piece of
property rather than money, etc.) But the gist is, in university rape investigations, there is no right to a lawyer, no right to confront the accuser and witnesses, no set of rules of
procedure issued by the state or feds, and a much lower burden of determining culpability. That doesn't mean it's not a good idea to institute such policies as a matter of course in order to avoid potential suits from the accused down the road, in the event discipline is in fact imposed. It is here that I think I and men's rights advocates might find some common ground.
I followed up by explaining things further:
"The only
punishment available in these proceedings upon a finding of substantiation is suspension,
expulsion, or some other academic penalty. There is no jail or prison time at stake and no potential criminal record that may affect one's ability to get housing, a job, a loan, student aid, etc. And there
are many, many reasons why a woman would perhaps want to pursue an
administrative remedy with the school (she has to be in the same
vicinity as her alleged attacker) while not wishing to pursue a criminal
case. Personally, I chickened out at the last minute on testifying. I
just couldn’t go through it — I wanted it all to go away. They had
physical evidence, but because of my reticence he was able to plead down
to assault with no injury. So I certainly empathize with women and men who don't want to go through the criminal investigation process and court proceedings. It's pretty hellish.
What
is particularly bemusing about your comment that “[t]his case [see link above regarding McLeod's suit against Duke] is typical
for all cases of sexual assault and how they are handled” is that the article actually proves my point about these cases rarely resulting in discipline. From the article:
“McLeod — who is the first Duke student known to be expelled for sexual assault — filed a preliminary injunction against the University in May 2014, arguing that his expulsion came after an unfair investigation and hearing.”
The first Duke student known to be expelled for sexual assault.
Once more: the first Duke student known to be expelled for sexual assault.
As
I stated, it is quite rare for students accused of assault to be
disciplined at all, and rarer still for one to be expelled. That was my
original point. I am certainly not saying that this investigation you
posted was necessarily handled properly, and I am also not saying that
every investigation is always going to be handled properly. Such
mishandling goes both ways, however, and more often in favor of the
accused rather than the accuser (particularly when it’s an athlete who
is accused):
And often there is extraordinary retaliation against the accuser. I'm an FSU alum, so I know the Winston case pretty well. The abuse and harassment that woman went through for bringing the allegation is unconscionable - and it was often from other women. She was eventually forced out of the school. The message was clear: don't mess with a star athlete, especially not in a town where college football is the only thing going, regardless of the merit of your allegation.
You said, "Not
true at all, not a single [university investigation] allows legal representation, not one
allows the presentation of evidence or the ability to face and question
their accuser.”
Once
again, I wasn’t discussing the ins and outs of these investigations per se. Since they're not criminal or even technically civil
proceedings, so there is no compulsion to allow lawyers, and as an attorney I can certainly see the upside to not getting lawyers involved. (I can see the downside too.) Each university has its
own methods, but it’s entirely untrue that one is unilaterally not allowed to
present evidence. Schools have improved their investigation methods, and many have a process by which evidence can be presented. As mentioned in the Inside Higher Ed article linked below, this is a pretty rapidly evolving body of law and procedure.
The only way to understand these matters is to understand that these are not criminal proceedings mandating the full panoply of legal accoutrements.
It’s
a tough issue, and universities are increasingly improving their
investigation protocol. Lawsuits will do that, and every once in a while
a student will win a state case against the school for violating due
process. Here’s a fairly good article on the matter, discussing in
particular the differences between state and federal cases against
schools that have taken disciplinary action against a student:
And
I say difficult because it’s such an impossible line to walk. On one hand, I
can completely understand a university’s reticence to impose any
discipline on the accused; it opens them up to costly lawsuits. On the
other hand, you do have a sizeable number of real victims, many of whom
are demonized, ostracized, doxed, harassed, etc.
In
other words, it’s a much more complex issue than you seem to want to
acknowledge, but the fact remains that discipline remains pretty rare in
these cases.
As an end note, when
it comes to state cases challenging the imposition of discipline (see my
link above for some successful ones or check out the FIRE website), the plaintiffs are basically
alleging a property interest in their education status and sometime
athletic status at a given school. The argument goes, then, that because
of that property interest, the school must give the student due process
before taking that property interest away. It’s sort
of the same thing in licensure cases, and these are an interesting
parallel. Note also that suits based on equal protection arguments concerning sex bias fail because disparate impact is not grounds for alleging an EP violation in such cases; it's simply the fact that more men commit rape than women, so it's natural that more men will be accused of rape (and hence disciplined).
Professional
licenses (doctors, lawyers, nurses, pilots etc) are considered a
“property interest” for the purpose of requiring due process of law
prior to their removal or suspension. Each state will have its own
disciplinary board for each type of licensure that handles matters when
complaints arise, but these are not necessary full-on civil proceedings - much like these university investigations.
They often mimic civil proceedings, however, since failure to provide
due process can lead to an actual civil suit by the licensee.
People
who haven’t received their licenses yet, however, have been considered
by the courts to have a much less weighty property interest, if an
interest at all. Thus it’s much more difficult to bring a civil suit
against a licensing agency for denying
the license in the first place (as opposed to taking it away once it’s
been granted). And the licensing agency has much more leeway to come up
with reasons to deny. One could conceivably analogize these students’
situs, arguing that they don’t have an actual property interest in going
to a particular school.
In
fact, I imagine in such cases that that would be one of the defendants’
(universities’) lines of defense in arguing that there is no relevant
due process (i.e., property) interest and thus no grounds for arguing that
relevant process was not adequately followed. I’ll have to read some of
the briefs and filings.
These
are certainly interesting cases, and I think many of them do in fact
have merit. The only real remedy would be for the schools to beef up
their investigatory procedures, rather than peremptorily dismissing the
allegations as they so often still do. In that respect, I think we’re
on the same page."
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