The nightmare: You are a male undergraduate. A female friend accuses you of violently raping her on a bed in your living room. Your university charges you with sexual assault. You acknowledge that you slept for less than an hour on the bed where the woman was already sleeping.
You figure the matter will be easily resolved, since your girlfriend and another friend were sitting nearby the entire time, and both will testify that there was no rape, no physical contact and you were both asleep the whole time.
You figured wrong.
The bedrock of individual liberty in this country is that the government cannot deprive us of life, liberty or property without “due process of law.” If we’re charged with a crime, the government must provide us with notice of the charges and with a fair trial in which we are presumed innocent.
Since the law applies to all government entities, students at public universities enjoy due-process protections in disciplinary procedures. Several years ago, rumors of a “rape culture” on American campuses gained momentum. Terms such as “rape” and “sexual assault” were used interchangeably, often without concrete definitions. Unreliable statistics purported to demonstrate that a female college student had about a 1 in 5 likelihood (or greater) of being sexually assaulted at school.
Enter the U.S. Department of Education’s Office for Civil Rights (OCR), which enforces Title IX and has over the years aggressively tried to address this alleged epidemic of sexual assault. On April 4, 2011, it issued a “Dear Colleague Letter,” which created a new scheme for adjudicating accusations of campus sexual assault. It said schools would lose federal funding if they didn’t prosecute such accusations aggressively.
OCR also required schools to adjudicate these cases using the standard of “preponderance of the evidence” for finding guilt — the most minimal evidentiary standard in use, in contrast with the standard of guilt “beyond a reasonable doubt.” Faced with these requirements, schools had every incentive to impose a presumption of guilt upon male students accused of sexual misconduct. Many schools came to regard accused male students as collateral damage in their efforts to prove to OCR their toughness in prosecuting such accusations.
In 2014, the White House further pressured campuses by creating a task force on the issue. Its first report noted that schools were testing new adjudicative protocols in order to hold “offenders accountable.” The report also accorded students making accusations of sexual assault the status of “survivors” and labeled the accused as “offenders.” This introduced a presumption of guilt fundamentally at odds with basic notions of due process.
Not surprisingly, the change led to litigation by male students whose reputations and futures were irreparably damaged by campus kangaroo courts that discarded basic features of a fair hearing in order to achieve convictions.
“Rape” and “sexual assault” began to be used interchangeably, often without concrete definitions.
Back to the nightmare — a real case I’m handling. At the accused student’s disciplinary hearing the university withheld critical evidence from him until the night before his hearing but let a campus police officer testify about the withheld evidence. In doing so, and in other crucial respects, it dispensed with the formal rules of evidence to support the accuser’s claim, while applying them to hamper the defense. Finally, it reached findings that contradicted the evidence and disregarded the testimony from the two eyewitnesses that no assault had occurred. The student was found guilty and suspended for two years. His case currently is in litigation.
OCR, under the Trump administration, recently rescinded the 2011 Dear Colleague Letter, saying it had placed “improper pressure upon universities to adopt procedures that do not afford fundamental fairness,” and that many schools had adopted procedures that “lack the most basic elements of fairness and due process,” which “led to the deprivation of rights for many students.”
The important goals of eliminating campus sexual assaults and protecting the due process rights of accused students are not mutually exclusive. Both the victims of such crimes and the accused benefit when due process is guaranteed. Hopefully, the new OCR rules will restore due process to hearings that have lacked the fundamental fairness to which students are entitled.
Arthur I. Willner is a civil trial attorney and a partner in the L.A. office of Leader & Berkon LLP.