Tar Heel View: Kangaroo courts aren’t the solution for sexual assault

A private university has joined a former Virginia law student’s federal suit against the U.S. Department of Education over the weak standard of evidence it requires colleges to use in sexual assault hearings.

Oklahoma Wesleyan University last month became the nation’s first college to challenge guidelines from the education department’s Office of Civil Rights that instruct institutions receiving federal funds to adjudicate claims of sexual harassment and sexual violence on the preponderance of the evidence.

The ex-University of Virginia student identified only as John Doe in court filings was accused of sexual assault following an August 2013 incident in which a female student claimed she was too drunk to consent to sex. In January 2016, an adjudicator found Doe responsible, but noted that the low threshold of proof was a key factor in her decision.

“She found Mr. Doe responsible, she said, because the evidence ‘slightly’ tipped in favor of responsibility and she was ‘require(d) by the Office of Civil Rights of the Department of Education’ to apply ‘the weakest standard of proof available’ — preponderance of the evidence — which is satisfied whenever the evidence is ‘tipped very slightly’ in favor of responsibility,” the lawsuit states.

A retired Pennsylvania Supreme Court justice, the adjudicator noted that the claim against Doe would not have succeeded if a more stringent standard such as “clear and convincing evidence” was used.

The Office of Civil Rights advised universities to use the preponderance of the evidence standard in a 2011 letter purporting to be a “significant guidance document” on Title IX compliance that did not create new federal regulations. However, the office pressured numerous institutions in writing to adopt that standard and, when called to investigate Title IX violations, required colleges to use the low threshold of proof.

Doe and Oklahoma Wesleyan claim in the suit that the Office of Civil Rights violated the Administrative Procedure Act, which requires federal agencies to issue notice, hold meetings and seek public comment before adopting new rules.

The suit also notes that universities are discouraged from allowing students to question or cross-examine each other during the campus hearings, a violation of defendants’ due-process rights.

We find the claims in the lawsuit convincing and believe the court should rule for the plaintiffs. But the remedies being sought simply aren’t enough. They seek to require a pause where justice and common sense require a full stop.

Neither the Department of Education’s Office of Civil Rights nor individual colleges should conflate sexual harassment with sexual violence. The former is a civil claim in employment and educational settings. The latter is a criminal offense. They simply cannot be adjudicated in the same manner.

Serious crimes like rape and sexual assault must be referred to law enforcement for criminal prosecution, not handled in-house by administrative bureaucracies ill-equipped to investigate such weighty matters.

Campus hearings for sexual assault do a disservice to both victims and defendants. Accused students deserve the right to an attorney, the right to question their accusers and the ability to review and challenge the evidence against them.

The thoughtless rules harm victims the most by dissuading them from seeking justice in the criminal courts. Victims can still call the police, but if they report a campus rape to school officials first, assurances that the college will investigate will make some less likely to do so.

The worst punishment a college tribunal can mete out is expulsion. Rapists should be charged, tried and convicted, not merely asked to leave school and put back on the street to reoffend.

Wouldn’t rapists be emboldened, not deterred, if they knew their probable penalty? Expulsion is a picnic compared to a lengthy prison sentence.

Under a federal agency’s misguided guidance, American colleges have established kangaroo courts where the innocent can be declared guilty in sham trials and the guilty are set free with a slap on the wrist.

Shame on the dysfunctional system that produced this miscarriage of justice.

The Wilson Times

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