Working on a major piece. In the
meantime, for more information
pertinent to the wrongly accused, go here.
meantime, for more information
pertinent to the wrongly accused, go here.
Will there be “support services” for the accused?Consistent with Rubio's grandstanding on this issue, a spokesman for his office responded to the Washington Examiner's questions:
The bill will establish “university support for survivors of sexual violence.” Nowhere does it mention any kind of support services for those accused.
The “confidential advisers” designated to assist accusers will “perform a victim-centered, trauma-informed (forensic) interview” with the accuser. They will also inform the accuser of what they can do next, whether that be notifying campus officials or local police. The advisers may also assist accusers in reporting the incident.
Nowhere does the bill mention any services for the accused (note: accused means innocent until proven guilty). Will there be someone on campus providing them with information on what they can do to provide for their own defense? Will they be informed of their rights, and will those rights be under the law (due process) or under campus rules? Will they have the right to legal counsel in disciplinary proceedings?
In a statement to the Washington Examiner, American Enterprise Institute scholar Christina Hoff Sommers, one of the leading voices for responsible college sexual assault policy, decried the absence of due process rights for the accused in the bill.
“The campus gender activists who have promoted the new laws may not care about the rights of the accused, but U.S. senators have to care,” Hoff Sommers said. “They are the guardians of a legal tradition that takes exacting precautions to avoid convicting an innocent person of a crime.”
“Presumed guilty seems to be the new principle,” she added.
Examiner: Will there be “support services” for the accused? Will there be someone on campus providing them with information on what they can do to provide for their own defense? Will they be informed of their rights, and will those rights be under the law (due process) or under campus rules?
Alex Conant: This bill does not address this issue.Ashe Schow of the Examiner wasn't satisfied with that response. Nor are we. Schow writes:
These responses, however, still don't ease my concern that the legislation does not address due process rights for the accused.The proposed legislation was prompted by the results of a survey forwarded by Senator Clare McCaskill to American colleges to assess how colleges and universities report, investigate, and adjudicate sexual violence. Here is the report on the results of that survey. It is unfortunate that Rubio et al blithely ignore the fact that the survey reveals significant due process infirmities at our institutions of higher learning that put our sons at risk of wrongful expulsion. Among other things, the survey reveals that some schools -- 6% -- do not even presume the defendant is innocent until proven guilty. (F3.13) In addition, 8% of the schools do not bother to inform the defendant of his rights before the hearing. (F3.2) A full 13% of the schools do not provide the defendant written notice of the charges prior to the hearing. (F3.1) And 19% of the schools don't bother to keep written records of the proceedings, suggesting an alarming absence of accountability and transparency. (F2.5) Yet, the McCaskill report incredibly suggests that there is no hostility to due process when it comes to young men accused of sexual assault. It presents no plausible evidence in support of that view.
This bill only addresses one side of the equation — the accusers, and it is clearly skewed in favor of them, as Conant’s answers show (using the word “victim” rather than accuser).
That’s not to say that there is nothing good in this bill — there is. Any step toward moving rape accusations out of the hands of college administrators and into the hands of those with specific training on the issue and the law is a good thing.
But ignoring the rights of the accused will only cause more problems. A “one-size-fits-all process” for handling claims of sexual assault is probably not the answer, but there are some things that every campus should be required to do, such as allowing cross-examination, witness testimony and the right to legal counsel.
Until the due process rights of the accused are considered, any bill to combat sexual assault will just institutionalize the “guilty until proven innocent” mindset and will lead to far more lawsuits against colleges by men who believe they were wrongly accused.
Under pressure from the federal government to take action on sexual assault, and in the wake of a multi-plaintiff lawsuit from attorney Gloria Allred last year, Occidental College has found a student “responsible” for sexual assault despite the fact that police refused to charge him with any crime and text message evidence indicates that both parties consented to having sex.According to FIRE, the accuser was counseled by an Occidental professor "who, according to the accuser, said that Doe 'fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was "from a good family."'"
Robert Shibley, FIRE senior vice president, declined to remove the investigator's report from his group's website for the same reason he supported the judge's denial for sealing portions of the lawsuit. "The public interest lies in transparency, especially when the charge is so serious and the procedure is as flawed and unjust as it was in this case," Shibley said in an email to HuffPost.
"I am sorry to hear that people are allegedly being harassed for their involvement in the Occidental case," Shibley said. "As should be obvious, FIRE is in no way responsible for such activity and neither encourages nor facilitates such activity."
The public interest lies in transparency, especially when the charge is so serious and the procedure is as flawed and unjust as it was in this case," Shibley said in an email to HuffPost.
"I am sorry to hear that people are allegedly being harassed for their involvement in the Occidental case," Shibley said. "As should be obvious, FIRE is in no way responsible for such activity and neither encourages nor facilitates such activity."It is well to note that Kingkade's "reporting" has been heavily criticized in some quarters for its hostility to due process when it comes to college men accused of sexual assault. Prof. KC Johnson previously wrote that Kingkade's coverage of the Occidental case was "almost comically biased." According to Prof. Johnson: "In Kingkade’s telling, all that’s at stake in these lawsuits are admitted rapists who are claiming that while they committed a sexual assault, the college violated some sort of technicality and they should get away with it." FIRE previously has criticized Kingkade for presuming guilt in a sexual assault case. We wonder if Mr. Kingkade has been stung by FIRE's criticisms and, instead of answering them directly, uses these alleged emails to attack FIRE for doing something that even the court refused to hold was improper.
. . . one solution well worth trying, suggests Banzhaf, would be to have separate impartial bodies set up jointly by many colleges in a city or geographical area for the sole purpose of investigating and adjudicating date rape complaints. Unlike individual colleges, they would be able to employ full time trained investigators following established investigatory protocols to impartially get to the bottom of such claims.
Moreover, by using retired judges and others trained to evaluate evidence, they could better and more fairly - free from any possible biases - determine the truth much better than professors of computer science or geology who today often make up the disciplinary panels on many campuses.Swarthmore is one of the schools headed in that direction, according to the Philadelphia Inquirer:
Under pressure for its handling of sexual-assault cases, Swarthmore College turned to an outsider to oversee them: a retired Pennsylvania Supreme Court justice.
The college last fall hired Jane Greenspan, who has decades of experience as a trial and appeals judge and who now works as a professional mediator and arbitrator.
"They wanted a neutral person, not connected to the college or the students," Greenspan said. "I just listen to them and try to make the correct decision, as I would in any arbitration."
Swarthmore previously used a panel of faculty, staff, and students to rule on the cases.
The Swarthmore job was Greenspan's first appointment by a college to preside over sexual-misconduct hearings. Experts say such models are rare but likely to become more common as schools look to satisfy concerns that they mete out justice fairly.
"One way or another, schools are going to professionalize it," said Brett Sokolow, president of the National Center for Higher Education Risk Management, based in Malvern. "They'll either do it themselves or more and more, they'll outsource it to firms like ours or to judges."
Sokolow said he has recommended for years that colleges exclude students from judicial boards in sexual-misconduct cases. Inclusion of students deters some victims from coming forward, he said.
Nearly two-thirds of area colleges that responded to questions from The Inquirer said students have seats on their boards. But some schools, including Drexel, said they were reconsidering that policy.
At Rowan University, students are not included on boards hearing sexual-misconduct cases.
"That is primarily to protect the confidentiality of the victim and the accused," said Melissa Wheatcroft, associate general counsel at Rowan.
To Swarthmore, Greenspan brings the in-depth knowledge of what standards, such as "preponderance" of evidence, mean. That's the standard colleges must apply to find a student guilty. It simply means more than a 50 percent chance the crime occurred.
She declined to say whether she agrees with the standard, but noted, "It's a very low bar."
Greenspan presides over the cases and determines guilt or innocence, but she doesn't impose the sanction - the school decides on that.
She declined to comment on Swarthmore's system.
"I know Swarthmore has worked very hard to get it right . . . with everyone's interest in mind, the rights of the accused and the victim," she said.
She also declined to discuss any of the cases she has handled or even provide a number, except to say there were a few.
Swarthmore hasn't committed to continuing to use an outside arbitrator. Its process, the college said, is under review.
"We continue to look closely at the array of best practices around the country for the fair, appropriate, and impartial adjudication of sexual assault and harassment cases," said Alisa Giardinelli, Swarthmore spokeswoman.