Category: Due Process

PR: Most Americans Want Due Process on Campus, Despite Protests

Post author By saveadmin
Post date September 4, 2018

Contact: Rebecca Stewart

Most Americans Want Due Process on Campus, Despite Protests

WASHINGTON / September 4, 2018 – Last week the New York Times leaked information about a sex discrimination regulation that the federal Department of Education is expected to issue this Fall. In response, campus activists assailed the policy as “downright cruel” and “willfully ignorant.” (1)

These statements contrast with the views of most Americans. According to a 2017 survey of 1,200 persons conducted by YouGov, persons overwhelmingly agree that students accused of a felony level crime should be afforded due process (2):

— A full 81% of respondents said the accused should have the right to know the charges against him.

— 71% of persons polled said accused students should be sanctioned under the “clear and convincing” standard of evidence.

— 61% said accused students should have the right to cross-examine their accusers.

— 67% agreed that students accused of crimes on campus should enjoy the same legal protections that would receive in a court of law.

These findings held across the entire political spectrum. For example, 58% of Democrats, 70% of Republicans, and 60% of Independents agreed that accused students should have the right to cross-examine their accusers.

Due process procedures serve to ascertain the truthfulness of an alleged sexual offense. The importance of these procedures was evident in the recent case of Nikki Yovino, former student at Sacred Heart University, who was convicted of falsely accusing two men of rape. On August 23, Yovino was sentenced to serve one year in jail (3).

SAVE’s Campus Equality, Fairness, and Transparency Act outlines a series of procedures designed to maximize fairness for both accusers and the accused (4). To date, the editorial boards of the New York Daily News and the Detroit News, as well as numerous commentators, have written editorials in support of bolstering campus due process protections (5).

Citations:

http://endrapeoncampus.org/new-blog/2018/8/29/statement-on-new-york-times-reports-on-proposed-title-ix-guidance

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to campus sexual assault: www.saveservices.org

Campus Due Process

PR: Effort to Restore Due Process on Campus Gains Traction

Post author By saveadmin
Post date May 14, 2018

Contact: Christopher Perry

Telephone: 301-801-0608

Email: cperry-at-saveservices.org

Sexual Assault: Effort to Restore Due Process on Campus Gains Traction

WASHINGTON / May 14, 2018 – Over the past seven months, leading liberal and conservative voices have worked to restore due process and fairness in campus sexual assault policies. Such initiatives reveal a growing trend being supported by lawmakers on both sides of the aisle.

Last September, Betsy DeVos, Republican Secretary of the U.S. Department of Education, rescinded the 2011 Dear Colleague Letter, a policy that was widely viewed as infringing on fundamental due process rights of accused students (1). The following month, Democrat Jerry Brown, governor of California, vetoed a bill that would have imposed many of the Department of Education’s anti-due process requirements on California universities (2).

Likewise in Massachusetts, the Democratic-controlled House of Representatives declined to take action on H.632, which had been previously passed by the state’s Senate. Critics of H.632 highlighted the flaws of trauma-informed training for investigators and adjudicators, a provision that had been derided as “junk science.” (3)

The pro-due process trend gathered momentum in 2018, as Supreme Court Justice Ruth Bader Ginsberg offered this commentary: “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. …There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” (4)

In Maryland, lawmakers took up Senate Bill 607, which required disciplinary proceedings to include a description of the rights for students and specified that an institution may not prevent a student from retaining an attorney. The bill recently passed both the Maryland Senate and House with strong bipartisan support (5).

In Colorado, House Bill 18-1391 was approved in the House. But because it failed to include sufficient due process protections, the bill it was significantly amended by Republicans in the Senate, resulting in the bill’s indefinite postponement (6).

In West Virginia, House Bill 2825, a bill that would have mandated worrisome “affirmative consent” polices at the state’s colleges, was not voted upon prior to adjournment of the state legislature (7).

In Mississippi, House Bill 1438, which was devoid of adequate due process protections, died in the Senate Judiciary Committee (8).

The editorial boards of two liberal-leaning newspapers likewise have called on colleges to involve criminal justice officials to investigate felony-level crimes. In January, the Detroit News opined, “Federal, state and campus policy regarding sexual assault should change to treat it as the serious crime it is, and assure that it is probed by experienced, professional investigators independent of the university.” (9) Last month, the St. Louis Post-Dispatch board issued a similar plea: “The pain lives on at universities whenever sex-abuse cases are handled quietly in-house rather than by competent legal authorities.” (10)

A summary of the current status of the state-level sexual assault bills introduced in 2018 is available on the SAVE website (11). In Congress, both Republican and Democratic lawmakers have spoken out on the need for due process and to strengthen the role of the criminal justice system (12).

SAVE urges state and federal lawmakers to recognize the growing trend for impartial and fair proceedings in campus sexual assault cases. SAVE offers a model bill titled the Campus Equality, Fairness, and Transparency Act (13).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org

Campus Due Process Sexual Assault

PR: Supreme Court Justice Ginsburg, Joined by Dozens of Federal and State Judges, Calls for Due Process in Campus Sex Proceedings

Post author By saveadmin
Post date February 7, 2018

Telephone: 301-801-0608

Email: info@saveservices.org

Supreme Court Justice Ginsburg, Joined by Dozens of Federal and State Judges, Calls for Due Process in Campus Sex Proceedings

WASHINGTON / February 20, 2018 – In a recent interview for The Atlantic, Supreme Court Justice Ruth Bader Ginsburg affirmed the need for due process in campus sexual assault proceedings. In addition, Ginsburg clarified that due process protections are not incompatible with aspirations for gender equality.

Asked, “What about due process for the accused?”, Ginsburg gave this reply: “Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” [emphasis added]

When the interviewer sought clarification whether “some of those criticisms of the college codes valid?”, Ginsburg provided this unequivocal answer: “Do I think they are? Yes.”

Queried about her thoughts how to balance the values of due process against the principle of sex equality, Ginsburg explained, “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.”

Ginsburg’s sentiments on this issue have been echoed in recent rulings issued by dozens of federal and state judges.

Since 2012, over 200 lawsuits by students accused of sexual assault have been filed against colleges and universities. The SAVE report, Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases, documents that in a majority of cases, judges have ruled in favor of the accused students (1). To date, 79 of these lawsuits have resulted in decisions by state and federal judges against the defendant university (2).

Justice Ginsburg’s comments were published in the February 15, 2018 edition of The Atlantic (3).

Citations:

SAVE (Stop Abusive and Violent Environments) is working for effective and fair solutions to sexual assault, sexual harassment, and domestic violence: www.saveservices.org

Campus DED Sexual Assault Directive Due Process Office for Civil Rights Press Release

PR: Universities Face Major Changes in Title IX Landscape as Administrators Prepare for Fall Semester

Post author By saveadmin
Post date August 14, 2017

Contact: Christopher Perry

Telephone: 301-801-0608

Email: cperry@saveservices.org

Universities Face Major Changes in Title IX Landscape as Administrators Prepare for Fall Semester

WASHINGTON / August 14, 2017 – Last week the University of Georgia Board of Regents approved wide-ranging changes in the sexual assault policies at the campuses it oversees. The revisions were designed to strengthen oversight, assure a consistent process for all cases, and place more emphasis on prevention and education (1). The changes were made in response to developments in the Title IX landscape that are occurring across the nation.

Stop Abusive and Violent Environments (SAVE) has identified eight shifts in the policy landscape that have emerged in the past 12 months. SAVE invites administrators to review these developments and make necessary updates to campus policies:

State legislation. Responding to reports of unconstitutional practices on campuses, state lawmakers have introduced 22 bills designed to restore free speech or due process protections to college students. To date, eight of these bills have been passed into law in Colorado, Nevada, North Carolina, North Dakota, Tennessee, Utah, Vermont, and Virginia (2).

Liability risks. The number of lawsuits by accused students is on the rise. Since 2013, judges have issued rulings on 55 lawsuits filed against universities that were at least partly favorable to the accused student (3). Last week it was reported that an average of $187,000 is spent per case filed by accused students (4).

“Victim-centered” investigations. Investigations based on the “always believe the victim” model are often implicated in lawsuits by accused students against universities. An analysis of these lawsuits concluded that “victim-centered” approaches “are inconsistent with the most basic notions of fairness, repudiate the presumption of innocence, and are likely to lead to wrongful determinations of guilt.” (5)

OCR complaints by identified victims. Following issuance of the Dear Colleague Letter in 2011, thousands of identified victims have filed complaints with the Office for Civil Rights alleging mistreatment by campus officials. Some identified victims claimed their experience with the campus adjudication process was more traumatic than the original assault (6).

Administrator concerns. John McCardell, Vice Chancellor of the University of the South at Sewanee, Tennessee, recently charged the OCR’s Dear Colleague Letter has “imposed on entities ill-trained or equipped for the task, a quasi-judicial role, with the implication that ‘justice,’ however defined, can be satisfactorily rendered through processes that cannot possibly replicate a genuine legal proceeding.” (7) An Inside Higher Ed article on the annual meeting of the National Association of College and University Attorneys reported, “Many college and university officials felt overregulated by the Obama administration, and have expressed interest in seeing that oversight eased.” (8)

OCR investigations. In June, the Office for Civil Rights announced that it will narrow its investigational approach to focus only on the specific allegations of the complaint, not on cases that have been previously resolved by the college (9).

Expert reports. Five independent reports have recently called for an overhaul of the campus adjudication system (10):

American College of Trial Lawyers: Position Statement Regarding Campus Sexual Assault Investigations
SAVE: Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade
NCHERM Group: Due Process and the Sex Police
American Bar Association Task Force for Promoting Fairness in Campus Sexual Misconduct Cases
Heritage Foundation: Campus Sexual Assault: Understanding the Problem and How to Fix It

Editorial criticisms. Thus far in 2017, over 300 editorials have been published at various newspapers and internet sites criticizing the recurring due process violations on campuses (11).

Citations:

SAVE (Stop Abusive and Violent Environments) is working to restore free speech and due process on college campuses: www.saveservices.org

Due Process Free Speech

PR: As Campus Unrest Spreads, Legislators Seek to Restore Free Speech and Due Process

Post author By saveadmin
Post date June 5, 2017

Contact: Stephen Coleman

Telephone: 301-801-0608

Email: scoleman@saveservices.org

As Campus Unrest Spreads, Legislators Seek to Restore Free Speech and Due Process

WASHINGTON / June 5, 2017 – In the wake of widening campus protests that have sometimes turned violent, legislators in numerous states are taking steps to assure free speech and due process. These bills have generally enjoyed broad-based bipartisan support.

Thus far in 2017, governors in four states have signed into law bills that bar free speech zones or otherwise strengthen free speech on campus (link to the actual bill is embedded in the state’s name):

Similar free speech bills have been proposed in California, Illinois, Louisiana, Michigan, North Carolina, Texas, and Wisconsin.

Enhanced due process in campus sexual assault cases has been the focus of bills proposed in three states this year:

Georgia — HB 51 seeks to have allegations of campus sexual assault referred to local criminal justice authorities for investigation and adjudication.
North Carolina — HR 777 seeks to guarantee accused students’ fundamental due process rights.
Utah — HB 326 sought to enhance reporting to law enforcement, and HB 284 afforded accused students the right to active counsel.

To date, none of these bills has been signed into law.

In Washington, student protesters at Evergreen State College harassed and screamed at a White professor for not leaving campus on a “Day of Absence.” The school was closed this past Friday after a caller threatened to “execute as many people as I can.”

SAVE urges legislators to continue efforts to reinvigorate constitutional principles by strengthening free speech and due process on campus.

SAVE (Stop Abusive and Violent Environments) is working for practical and effective solutions to campus sexual assault: www.saveservices.org

Campus Due Process False Allegations Sexual Assault

PR: Federal Directive Triggered Spurt of Lawsuits Against Universities For Alleged Mishandling of Sexual Assault Cases, Report Says

Post author By saveadmin
Post date September 7, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Federal Directive Triggered Spurt of Lawsuits Against Universities For Alleged Mishandling of Sexual Assault Cases, Report Says

WASHINGTON / September 7, 2016 – A report released today reveals a 2011 U.S. Department of Education sexual harassment directive led to a dramatic increase in the number of lawsuits alleging mishandling of allegations of sexual assault on campuses. Titled “Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases,” the report found that the number of lawsuits by students tripled over an eight-year period.

During the period 2006-2010, a leading insurance company received an average of 52 claims per year from alleged victims of sexual assault and from students who asserted they were wrongfully expelled for sexual assault. By 2013, the number increased to 154 claims. Claims by students alleging lack of due process increased at an even higher rate, increasing from 10 lawsuits in 2013 to 53 in 2015.

These claims represent a growing liability risk for colleges and universities. During the period 2006 to 2010, payments to accused students represented 72% of all expenses for legal fees and payments to persons alleging mishandling of sexual assault cases by campus disciplinary committees, according to a leading insurance company. In July, Georgia Tech officials agreed to pay a male student $125,000 to settle a case in which he had been accused of sexual assault(1). Earlier this year, a former University of Montana quarterback received a $245,000 settlement for the university’s “unfair and biased” rape investigation (2).

The report provides a detailed analysis of 30 lawsuits in which a state or federal court ruled at least partly in favor of the accused student. For each of the 30 cases, the report identifies the causes of action. Among the most common causes of action, an allegation of lack of due process was successful in eight out of 11 cases (73%), followed by breach of contract (62%), Title IX violation (54%), and negligence (33%).

The report also details the relief requested for each lawsuit. Among the 30 lawsuits, a total of 198 types of relief were requested. The three

most commonly requested types of relief requested were reversal of the expulsion/ finding of guilt, just and proper, and reimbursement of attorneys’ fees.

The report highlights the most significant procedural and policy deficiencies identified in the judicial decisions. The deficiencies pertained to weak qualifications of university adjudicators, inappropriate use the word “victim,” selective enforcement of Title IX, investigational biases, weak cross-examination provisions, unfair appeal procedures, and affirmative consent policies.

The report notes that alleged victims of sexual assault have prevailed in numerous lawsuits, as well. The report concludes by noting the fundamental incompatibility between the requirements of the federal Department of Education 2011 Dear Colleague Letter and the mission and capabilities of colleges and universities.

Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases represents the first detailed, quantitative analysis of sexual assault lawsuits filed by accused students. The report can be viewed here: http://www.saveservices.org/reports/

Citations:

SAVE is working for balanced, evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Accountability Accusing U. Affirmative Consent Due Process Press Release Rape-Culture Hysteria Victims

PR: American Law Institute Pulls the Plug on Affirmative Consent

Post author By saveadmin
Post date May 23, 2016

Contact: Gina Lauterio
Telephone: 301-801-0608
Email: glauterio@saveservices.org

American Law Institute Pulls the Plug on Affirmative Consent

WASHINGTON / May 23, 2016 – By a resounding margin, members of the American Law Institute voted down a controversial “affirmative consent” standard being considered for the group’s proposed Model Penal Code for Sexual Assault. Instead, the ALI membership approved a definition proposed by attorney Margaret Love that states, “’Consent’ means a person’s willingness to engage in a specific act of sexual penetration or sexual contact. Consent may be expressed or it may be inferred from behavior, including words and conduct—both action and inaction—in the context of all the circumstances.” (1)

The historic vote took place at the ALI annual conference on May 17 in Washington, DC. After two hours of at times acrimonious debate, approximately four-fifths of the 500 members present voted to remove the affirmative consent language (2). Leading judges, law professors, and practicing attorneys comprise the membership of ALI, which develops model laws for adoption at the state level.

The National Association of Criminal Defense Lawyers had sharply criticized the proposed affirmative consent policy, charging the ALI draft used “the bludgeon of criminal sanctions to impose the new and yet untested concept of ‘affirmative consent’ upon society.” (3)

The affirmative consent standard has been struck down in two state-level decisions, as well.

In August, Judge Carol McCoy ruled the University of Tennessee-Chattanooga’s affirmative consent policy “erroneously shifted the burden of proof” to the defendant. The administrative judge noted that “requiring the accused to affirmatively provide consent… is flawed and untenable if due process is to be afforded to the accused.” (4)

Last month the Massachusetts District Court ruled against the Brandeis University affirmative consent policy, saying “it is absurd to suggest that it makes no difference whatsoever whether the other party is a total stranger or a long-term partner in an apparently happy relationship.” (5)

Decrying the rigidity and intrusiveness of the affirmative consent approach, Newsday columnist Cathy Young asks, “While there’s still time, we should stop and ask just how much government we really want in the bedroom.” (6) More information about affirmative consent can be found on the SAVE website (7).

(1) https://www.ali.org/media/filer_public/19/a4/19a45dd8-da30-44d5-a4a1-5bb3992a3521/mpcsa-language-52016.pdf
(2) http://www.washingtonexaminer.com/a-mess-law-group-rejects-affirmative-consent/article/2591692
(3) http://www.prosecutorintegrity.org/wp-content/uploads/2016/03/NACDL-Comments-Draft-6-MPC-Sexual-Assault.pdf
(4) https://kcjohnson.files.wordpress.com/2013/08/memorandum-mock.pdf
(5) https://kcjohnson.files.wordpress.com/2013/08/brandeis-decision.pdf
(6) http://www.newsday.com/opinion/columnists/cathy-young/the-risks-of-affirmative-consent-1.11819583
(7) http://www.saveservices.org/sexual-assault/affirmative-consent/

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Due Process

PR: Judge Issues Scathing Decision Against Brandeis U.; Ruling is Latest in String of Cases Favoring Due Process

Post author By saveadmin
Post date April 5, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Judge Issues Scathing Decision Against Brandeis U.; Ruling is Latest in String of Cases Favoring Due Process

WASHINGTON / April 5, 2016 – The Massachusetts District Court has issued a strongly worded decision, ruling in favor of a student accused of sexual misconduct. The case is the most recent is a series of legal rulings supporting the need for stronger due process measures in campus sexual misconduct cases.

The case involved a same-sex relationship between two male students attending Brandeis University in Massachusetts. Following a 21-month long romantic relationship, John Doe was accused of “numerous inappropriate nonconsensual sexual interactions.” (1) The college proceeding led to a disciplinary warning and permanent notation in his educational record stating Doe had committed “serious sexual transgressions.” Doe filed a lawsuit alleging breach of contract, defamation, and other violations.

Writing on behalf of the District Court, Judge Dennis Saylor highlighted the basic unfairness of the University engaging an experienced attorney, while it expected “a student, approximately 21 years old, with no legal training or background, to defend himself, alone.”

The Court chided the university for its description of the accuser as a “victim,” noting, “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

Judge Saylor was especially critical of the university investigator’s finding that Doe had violated the university’s affirmative consent policy because “it is absurd to suggest that it makes no difference whatsoever whether the other party is a total stranger or a long-term partner in an apparently happy relationship.”

The judge also questioned the University’s use of a preponderance of evidence standard of proof, which he viewed “as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.” The District Court concluded, “Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”

The Brandeis decision is the most recent in a series of rulings that favor stronger due process protections for accused students at Appalachian State University, Brown University, University of California-Davis, University of California-San Diego, Cornell University, George Mason University, University of Michigan, Middlebury College, Pennsylvania State University, Salisbury University, University of Southern California, University of Tennessee-Chattanooga, and Washington and Lee University. (2)

(1) https://kcjohnson.files.wordpress.com/2013/08/brandeis-decision.pdf

(2) http://www.saveservices.org/sexual-assault/court-decisions/

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Due Process Sexual Assault

PR: Free Speech and Due Process Violations on Campus Give Rise to Budget Cutbacks, Costly Lawsuits

Post author By saveadmin
Post date March 1, 2016

Contact: Gina Lauterio

Email: glauterio@saveservices.org

Free Speech and Due Process Violations on Campus Give Rise to Budget Cutbacks, Costly Lawsuits

WASHINGTON / March 1, 2016 – A growing number of budget cutbacks and lawsuits across the nation reveals colleges that fail to respect free speech and due process rights may incur substantial financial liabilities. SAVE urges administrators and lawmakers to work cooperatively to restore the constitutionally based rights of students and faculty members on campus.

Regarding free speech, state lawmakers in Missouri recently announced they plan to reduce funding for the University of Missouri by $8 million. State House and Senate members singled out the actions of professor Melissa Click who was recorded interfering with students’ exercise of free speech rights (1).

University of Missouri trustees were also informed that the university system expects to lose $20-25 million in tuition revenues this year. Last month Standard & Poor’s lowered the system’s credit rating, citing a severe drop in new student enrollments (2).

Last July Valdosta State University in Georgia settled a First Amendment lawsuit, agreeing to pay $900,000 to former student Hayden Barnes who had been expelled due to his protests over planned construction of two parking garages (3).

Due process violations are proving to be costly, as well.

In Georgia, Rep. Earl Ehrhart warned Georgia Tech president GP Peterson on January 26 that he wouldn’t consider Tech’s budget request until the college adopted “simple, basic due process protections.” The following week, Georgia Tech withdrew its request for state bond funds for building renovations (4).

Lawsuits filed by students accused of or expelled on allegations of sexual assault have become more prevalent. At the University of Montana, administrators just agreed to pay $245,000 to former quarterback Jordan Johnson for the college’s “misconduct” in investigating a 2012 rape allegation (5).

Last week the Rhode Island District Court refused to dismiss a complaint filed by a male student who had been suspended from Brown University, citing breach of contract and a pattern of sex discrimination against male students (6).

Last month two men announced they were suing the University of Texas to prevent sanctions from being imposed on them. They charged the school is using them as scapegoats to build a reputation for being tough on sexual assault (7).

Over 100 due process lawsuits have been filed against colleges and universities across the country (8).

(1) http://www.stltoday.com/news/local/govt-and-politics/um-system-could-see-m-cut-under-mo-house-s/article_14d95137-311b-5d27-ade9-d9a5275c9768.html

(2) http://www.columbiamissourian.com/news/state_news/university-of-missouri-system-s-credit-outlook-is-lowered/article_3d6e872a-10b8-5285-b568-62cdb5afd4f9.html

(3) http://www.ajc.com/news/news/local-education/valdosta-state-to-pay-900k-to-settle-students-civi/nm5sy/

(4) http://www.news.gatech.edu/2016/02/04/tech-withdraws-library-budget-request

(5) http://www.msn.com/en-us/sports/ncaafb/montana-to-pay-ex-qb-dollar245k-over-rape-investigation/ar-BBpB2l4?ocid=st

(6) http://www.saveservices.org/wp-content/uploads/Doe-v.-Brown-University-2016.pdf

(7) http://www.mystatesman.com/news/news/crime-law/men-accuse-ut-of-unfairly-punishing-them-for-sex-a/nqQcf/

(8) https://boysmeneducation.knackhq.com/due-process-lawsuits

SAVE is working for evidence-based, constitutionally sound solutions to campus sexual assault: www.saveservices.org

Campus Due Process Sexual Assault

Law Professors, Lawmakers, and Others Strengthen Calls for Due Process in Campus Sex Cases

Post author By saveadmin
Post date January 25, 2016

Contact: Gina Lauterio

Telephone: 301-801-0608

Law Professors, Lawmakers, and Others Strengthen Calls for Due Process in Campus Sex Cases

WASHINGTON / January 25, 2016 – In recent weeks, numerous law professors, lawmakers, and others have issued statements calling for colleges to restore due process in the adjudication of sexual assault cases. These statements reveal a dramatic shift in the focus of the ongoing debate on campus sexual assault.

During a January 8 panel on “Grappling with Campus Rape” held at the American Association of Law Schools annual conference, several panelists were sharply critical of the current state of affairs. “’Rights’ is a generous description of what these schools gave the accused,” charged University of Miami law professor Tamara Rice Lave. http://reason.com/blog/2016/01/14/law-professors-against-title-ix-faculty

Two weeks later, over 80 members of the American Law Institute signed a letter deploring a proposed model penal code because the draft law would engender “expansive criminalization” of sexual assault. http://lawprofessors.typepad.com/crimprof_blog/2016/01/more-concerns-expressed-about-alis-affirmative-consent-project-by-ali-members.html

Presidential candidates have expressed reservations about the proper handling of campus sex cases, as well.

On January 11, Democratic candidate Bernie Sanders called for the referral of campus sexual assault cases to the criminal justice system, which embodies an array of due process protections. http://reason.com/blog/2016/01/13/bernie-sanders-said-something-sane-about

Republican candidate Marco Rubio recently issued a statement noting that false allegations of sexual assault “can destroy lives….Certainly, we should make additional efforts to protect due process on campus.” https://marcorubio.com/news/marco-rubio-campus-sexual-assault-bill-due-process/

State lawmakers are calling for a renewed focus on due process, as well.

In California, governor Jerry Brown vetoed a bill last fall that would have established a mandatory minimum punishment for students found responsible of rape or sexual assault. “College campuses must deal with sexual assault fairly and with clear standards of process,” Brown announced. http://www.huffingtonpost.com/entry/california-college-sexual-assault-punishment_561b184de4b0dbb8000f020f

Referring to a series of alleged due process abuses at Georgia Tech, Rep. Earl Ehrhart recently declared, “I cannot in good conscience continue to fund Georgia Tech at the level that it requests without some assurance to parents that there will be due process for their children.” http://blog.simplejustice.us/2016/01/17/crazy-campus-consent-conundrum- collapses/

Last week a federal court in Kentucky ruled that a campus sexual assault hearing should be regarded as a “proceeding…akin to a criminal prosecution,” and held that states should ensure that adjudicatory procedures are fair. https://www.thefire.org/opinion-and-order-in-doe-v-hazard-no-515-cv-00300-e-d-ky/

The Independent Women’s Forum just released a policy paper, Title IX and Freedom of Speech on College Campuses, which deplores the fact that colleges that adhere to “basic concepts of due process and innocence until proven guilty” could be found to be in violation of the federal Title lX sex discrimination law. http://pdf.iwf.org/PolicyFocus16_Jan_p3.pdf

In January, over 60 editorials were published that enumerated broad concerns over the lack of due process on campus: http://www.saveservices.org/sexual-assault/editorials/2016-2/ On January 17, for example, the Editorial Board of the Oklahoman noted that the processes used to handle sex allegations on college campuses “increasingly resemble kangaroo courts.” http://newsok.com/article/5472807?utm_source=MobileNewsOK.com&utm_medium=Social&utm_campaign=ShareBar-Facebook