Why Campus Sexual Assault Tribunals are Needed

Since the Obama administration increased its focus on campus sexual assault in January 2014, there has been a steady flow of articles criticizing university sexual assault proceedings. Authors have decried innocent men being railroaded through a system with limited procedural protections and a low burden of proof. Based upon those sources, one would think that prosecution, expulsion, and punishment of innocent men was the norm. Meanwhile, case after case surfaces where the university either failed to act or acted in a woefully inadequate manner.

Consider the case of Yale. After numerous findings of wrongdoing in Title IX and Clery Act audit investigations were made, Yale had the opportunity to start fresh in handling complaints of sexual violence on campus. The critics of campus tribunals cite schools like Yale as embodying the liberal politically correct ethos they associate with rigged campus tribunals. So what happened after the federal regulators left Yale? Yale has issued three semi-annual reports covering the period of January 1, 2013 to June 30, 2014 during which I count 20 resolved complaints of sexual assault (non-consensual sex) between Yale students. In 10 cases, the university found inadequate evidence or the victim decided not to pursue the complaint further. In the other 10, the university assessed some sanction/punishment as follows: 3 received a 2-semester suspension, 2 received a 1-semester suspension, 3 received a written reprimand, and 2 were expelled. Yale should be applauded for making their handling of cases transparent so that this analysis is even possible. Most schools offer little information beyond what the Clery Act requires. In the end, the numbers at Yale are hardly consistent with an off-the-rails tribunal system.

Meanwhile, at Columbia, Emma Sulkowicz is facing the far more common scenario. Most victims are left on campus with their rapist. Emma has decided to protest Columbia’s indifference to her rape complaint by turning it into her senior honors visual arts project. She will be carrying her dorm mattress with her everywhere she goes until her alleged rapist is kicked off campus.

At my home institution, the University of Kansas, the Huffington Post is reporting today that the university decided that community service was too punitive for a student who “would later admit to campus police that he continued to have sex with the woman even after she said ‘no,’ ‘stop’ and ‘I can’t do this.'” Instead, he received a ban from university housing and probation.

We live in a world where police and prosecutors do not regularly pursue rape complaints and convictions are a rarity. If an attempted murderer was left on campus with his or her intended victim, we would be horrified. If a student brutally assaulted another, we would want the university to take action to protect the victim. Even in the non-criminal cases of sexual harassment at universities, defendants are separated from victims without waiting for a civil suit to be completed in the plaintiff’s favor. As a matter of simple humanity, universities need to protect rape victims by having a mechanism to remove/punish rapists.

Does this mean universities have designed effective and fair sexual assault tribunals? Absolutely not. I have been critical of the uneven protections and ad hoc processes often used. However, simply letting the criminal justice system resolve the matter, as many have proposed, is unrealistic and wrong. We should treat alleged rapists on campus as we would alleged murderers, brawlers, burglars, and other violent criminals. That means an internal university process needs to assess the available evidence to protect victims of sexual assault.

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12 Responses

  1. PrometheeFeu says:

    First, it should be noted that inadequate procedural safeguards does not imply campus tribunals yield only false positives. Those inadequate protections probably betray an amateurism which yields both high rates of false positives and false negatives. This would mean that both the horror stories of innocent men being expelled and guilty men being allowed to roam free are consistent with each other. The horror stories on both sides, to me, do not betray a system rigged in favor of the victim or the accused, but rather a system rigged in favor of the biases of the officials involved.

    Second, I wonder if your comparison to attempted murder, burglary is in fact useful. Do colleges actually expel such students before the criminal justice system has done its job? As you noted, violent criminals, outside the sexual violence context, are usually aggressively prosecuted. So universities probably don’t need to expel those criminals since those criminals will often end up in jail. As a result, the way universities deal with such crimes is probably not a useful pattern for dealing with sexual violence.

    Ultimately, the problems of sexual violence in the criminal justice system are not specific to the criminal justice system. Sexual violence is often difficult to prove because it hinges often upon facts which are held only within the minds of the victim and the perpetrator. This is especially true given the fact that so many acts of sexual violence are perpetrated by intimate partners. And of course, there are many who view sexuality in such a way that they find sexual violence to be easily excusable. Those factors are going to be present on campus courts just as much as in the criminal justice system. So why expect campus courts to do a better job?

  2. Orin Kerr says:

    Corey, maybe you have written this elsewhere, but can you say what the “effective and fair sexual assault tribunal” you advocate would look like? What burden of proof, evidentiary standards, counsel, judges, etc. would you have?

  3. Corey Yung says:

    Hi PrometheeFeu,

    While I think bad procedures in general can yield both false positives and false negatives, most of the proposals being discussed lean toward one direction or the other. A higher burden of proof would only increase false negatives. A right to counsel for defendant would have a similar effect. Specific evidence rules could have a mixed effect but there aren’t a lot of concrete proposals in that area.

    As for my other examples, universities regularly expel students for alleged criminal conduct. Sometimes the cases are adjudicated under an honor code. Often the expulsion is based upon some student conduct policy. Sexual assault, just like property theft, is in violation of normal student rules and can be adjudicated on that basis.

    In truth, I have no expectation that campuses will do a “better” job. But, for me, that’s not the point. The university has a different job than the criminal justice system. A finding of student misconduct is not the same as a guilty verdict in a rape case. And just as universities can do an adequate job in handling sexual harassment complaints, they can muddle through sexual assault complaints in order to keep a safe environment for victims.

  4. Corey Yung says:

    Hi Orin,

    Generally speaking, I think a fair approach to adjudicating sexual assault claims based upon student conduct policy would include:

    Defendant can bring counsel, but no Gideon right to counsel
    Fact finding is limited to student conduct policies in place (no ex post facto application)
    No right to compel victim to testify (even though the victim almost always has to)
    Fact-finder should be a person with independent authority (Title IX coordinator might work); no student juries
    Evidence rules should generally match those of arbitration proceedings
    Rape shield rules should apply
    Some form of determinant punishment guidelines should guide punishment
    The ultimate factual question is whether the student code of conduct or honor code was violated

    I’m open to either a clear and convincing or preponderance of evidence standard. Its my understanding, but I am happy to be corrected, that student misconduct is usually adjudicated with a preponderance of evidence standard. If that is the case, I think sexual assault cases should be fine using that standard as well. I think sexual assault cases should not be treated as a special instance for assessing student misconduct – these procedures and protections should apply in all situations where serious misconduct is alleged.

    • Joe says:

      Since many students have limited finances and might not afford counsel, it is unclear — especially with certain other protections such as a guard against self-incrimination (often not guaranteed, e.g., in civil contexts — see OJ) — why at least a limited Gideon right should not be present here. This is so especially regarding the importance of the benefit and the heinous nature of the accusation.

  5. Orin Kerr says:

    Thanks, Corey. Perhaps a post on that, too? Just a thought.

  6. Brian L. Frye says:

    Corey, I think it would be helpful to provide a theory that explains which offenses are properly addressed by colleges & police (or both) and why.

  7. David B says:

    “We should treat alleged rapists on campus as we would alleged murderers, brawlers, burglars, and other violent criminals. That means an internal university process needs to assess the available evidence to protect victims of sexual assault.” Do university tribunals usually handle such things? I”m genuinely curious.

    Also, the federal government’s guidance to universities has a blanket prohibition on any evidence of the accuser’s past sexual conduct; no jurisdiction in the U.S. has such a blanket prohibition. As for not requiring the accuser to testify, in a he said/she said case, how exactly can the accused defend himself if the accuser can’t be questioned? In court, a decision by the accuser not to testify in such circumstances would often lead to the charges being dropped. But the federal guidelines now severely restrict what can be asked of the accuser and by whom, and you would go even further. So A can give a written statement accusing B of sexual assault, and B can be grilled about anything and everything by the tribunal, but A can’t be asked anything at all? And then have a preponderance standard? That’s not a fair process.

  8. Howard Wasserman says:

    You left out an important (and controversial) issue: Who bears the burden of persuasion and what is the standard of persuasion?

  9. Corey Yung says:

    Hi Everyone who I haven’t replied to,

    I will return to the issue of tribunals in a while. First, I’m going to be posting about a draft of an empirical study I have been working on regarding sexual assault reporting practices of universities. That will hopefully provide a clearer foundation for my opinions on tribunals. The post I did this week was a little out of order due to events I discussed at my home institution that led me to post.

    As much criticism as tribunals are receiving, I want to leave one thought. Getting rid of campus proceedings might not mean leaving things to the police. Instead, we might see a return to administrators unilaterally handing out discipline with no due process.

  10. David Lang says:

    the question is campus tribuals are really “due process” or mearly a thin cover for the arbitrary decisions/ They certianly leave out a lot of what is considered due process for criminal law.

    If these cases aren’t a matter for the police and criminal assault/rape charges, then what is the justification for them?

  11. thanks for sharing this review…