Friday, June 27, 2014

Sexual Assault On Campus Is A Crime

It is not an administrative matter for colleges and universities to adjudicate:

Lawyers representing colleges have a host of worries about if and how their institutions can possibly meet a burgeoning list of federal rules for dealing with sexual violence on campuses.

The new, and still evolving, laws and guidelines have set off a scramble at institutions across the country. Colleges that can afford it are hiring staff members to investigate and help resolve sexual-assault complaints. Smaller institutions that may not be able to afford to hire their own staff are pondering alternatives, such as collaborating with other colleges. Nearly every institution is poring over its policies and procedures for how to manage cases of sexual violence.
OK, let's stop right there and pause for a moment. Is there another institution in the world that gets to have its own "rules, guidelines and policies" concerning sexual assault or violence in its midst? Is there another organizational entity that has to have its own "sexual assault policy" that is somehow outside the bounds of what the law proscribes concerning sexual assault?

If an employee at Google or Home Depot is sexually assaulted at work, would the police turn over the investigation to the company and tell them to adjudicate guilt or innocence using their own "judicial review board"? If you were sexually assaulted at a Braves game, would the Braves get to decide the validity of the claim? If a high school student is sexually assaulted, do we convene a "judicial review board" made up of the principal, a teacher, a student and the janitor to decide guilt or innocence?

Of course not. The police would be called in those instances and trained investigators, experts in physical evidence and in working with victims of sexual assault, would decide whether to make an arrest. And then trained prosecutors would decide whether there was evidence enough to move forward with a prosecution.

But that's not what happens to victims of sexual assault on campus. Instead, we have created this fantasy world, this extra-legal bubble around colleges and universities where victims of sexual assault have somehow forfeited their 14th amendment right to due process and often endure re-victimization at the hands of university bureaucrats. 
In conversations with lawyers here at the annual meeting of the National Association of College and University Attorneys, nearly all stressed that colleges want to protect students from sexual violence, and that it is the right thing to do. But even as colleges work to do so—and to meet the administrative and legal requirements that now entails—lawyers here expressed frustration that their institutions were being held to a different standard than even law-enforcement agencies and were being given increasingly complex rules that sometimes go well beyond their capacity.
It goes beyond their capacity because there is not one single qualified individual on a college campus to sit in judgment of such a criminal matter. Not one. That's a matter that should be left to trained judges in our criminal courts. Bringing in university or college Legal Department lawyers (or worse, lawyers working in EOO offices), who claim they want to protect the students, is an insult. These are are the last people who should be involved because university lawyers have only one primary responsibility: to protect the university. Not you.
The pressure on colleges to respond more comprehensively to sexual assaults has been increasing since 2011, when the U.S. Department of Education’s Office for Civil Rights sent a letter to campuses explaining that a college’s mishandling of complaints could lead to a finding that it was in violation of Title IX of the Education Amendments of 1972, which prohibits gender discrimination at educational institutions that receive federal money.

That pressure has grown significantly in recent months. In May the Education Department announced that the Office for Civil Rights was investigating more than 50 colleges for possible violations of Title IX in their handling of complaints of sexual violence or harassment. The number of colleges under investigation has since grown to more than 60.

In Apri, (sic) the White House issued stringent guidelines designed to help colleges prevent and respond to sexual violence and to offer students a "road map" for filing complaints against institutions that fall short in their responses.
Incredibly, all of this federal morass of guidelines, investigations and threats confuses sexual assault/violence with sexual harassment in the workplace. The latter is definitely the purvey of college and university boards to police and handle as they see fit. However, sexual assault on campus is not a "gender discrimination" issue. It's a crime.

This is very simple: victims of sexual assault should notify the police. And if they choose not to notify the police and instead inform someone at the college or the university, the appropriate measure at that point is for the college or university to bring in the police and determine what happens next.

For those who worry about the nature of "he said, she said" claims involving college students, drinking, etc., (incredibly and stupidly articulated by the brain dead George Will recently) again, this should quite clearly play itself out in the criminal justice system, and not be adjudicated by a university administrator, a professor, a student, and a university lawyer (which sounds like the beginning of a bad joke, frankly).

As agents of the university, none of those people is qualified to determine what happened in a sexual assault case. The lack of oversight and the incriminating, blame the victim mentality that seeps into these informal, kangaroo-court hearings is beyond troubling. The hearing transcripts are never made public, and all the hearings themselves are governed by preponderance of the evidence, rather than guilt beyond a reasonable doubt, burden of proof rules. High school mock trials are run tighter than this.

Sexual assault and violence on campus is not a civil rights issue. It's a criminal issue, and as such should be handled in the criminal justice system. Period.

Cross Posted to: The Cranky Sociologists 

UPDATE: Today's NYT (July 13) has an in-depth analysis of one particular case at a small college in New York. As I noted in the post above, virtually everything about the profiled case was handled incorrectly and inappropriately by the college. Failing to report the crime to the police (discouraged, actually, by both administrators and "campus security"), the college has to investigate the allegations under federal "sexual harassment" guidelines, which, as I've noted already, is completely absurd. Sexual assault and sexual harassment are not even remotely related by any legal or moral definition. One is a crime, the other a civil matter.

And reading the article, it becomes even more imperative why these two things should not be conflated and instead separated, with assault (rape) being sent back to the criminal justice system where it belongs.
Whatever precisely happened that September night, the internal records, along with interviews with students, sexual-assault experts and college officials, depict a school ill prepared to evaluate an allegation so serious that, if proved in a court of law, would be a felony, with a likely prison sentence. As the case illustrates, school disciplinary panels are a world unto themselves, operating in secret with scant accountability and limited protections for the accuser or the accused.

At a time of great emotional turmoil, students who say they were assaulted must make a choice: Seek help from their school, turn to the criminal justice system or simply remain silent. The great majority — including the student in this case — choose their school, because of the expectation of anonymity and the belief that administrators will offer the sort of support that the police will not.

Turning to the police may not offer a more equitable alternative. For example, as The Times reported in April, the Tallahassee police conducted virtually no investigation of a Florida State University student’s rape complaint against the star quarterback Jameis Winston.

College administrators have their own incentive to deal with such cases on campus, since a public prosecution could frighten parents, prospective students and donors. Until last year, Hobart and William Smith’s chief fund-raiser also helped oversee the school’s handling of sexual assaults. 
Er...wow.

So they encourage and convince the students that they are better equipped to deal with the case, then don't allow anyone access to the proceedings citing "privacy laws". But they did identify the victim to the entire school.
Yet privacy laws did not stop Hobart and William Smith from disclosing the name of the woman — a possible rape victim — in letters to dozens of students. “I’m surprised they didn’t attach my picture,” she said.

The school said it was legally obligated to identify Anna to students who might have been called to testify in a possible criminal proceeding. The district attorney who was assessing the case disagreed, calling the identification “unnecessarily specific and, in my mind, a poor exercise of judgment.”
The entire thing is an exercise in poor judgment, including the kangaroo panel the student had to appear in front of.
The panelists could act pretty much as they wished, including questioning Anna about internal college reports and witness statements that she was not shown. Also absent were the usual courtroom checks and balances. The panel acted as prosecutor, judge and jury, questioning students and rendering judgment. All members were supposed to be trained for this delicate assignment.

The chairwoman, Sandra E. Bissell, vice president of human resources, was joined by Brien Ashdown, an assistant professor of psychology, and Lucille Smart, director of the campus bookstore, who the school said had expressed an interest in serving.
LOL. What, the janitors and groundskeepers were too busy? And the vp of human resources? No, no conflict of interest there (but much legal expertise to adjudicate a rape claim, no doubt).

What a galling incident. The article confirms word for word everything I wrote in the post above. Colleges and universities must be put out of the sexual assault/rape investigation business. Period.

Rape is not sexual harassment and no one on a college or university campus is qualified to adjudicate such horrific incidences. No wonder women on campus are being silenced and shamed into keeping quiet.

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