The Chronicle of Higher Education - Latest Comments in Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

cjones599 — Wed, 30 Mar 2011 15:50:24 -0000

It is good to see Bernice Sandler weigh in on these issues. She set a great example in the 80's and 90's for universities wrestling with these still-ambiguous important issues. And we still are wrestling, with greater accountability, greater scrutiny, external pressures, conflicting priorities, and electronic communications (one of my cases had both parties wanting to share Facebook pictures that "proved" their side of the matter.) As a hearing officer, these cases serve as opportunities for the parties to be heard and to determine the appropriate sanctions within the campus community, if a violation is found. To believe the case can produce more than that is unrealistic. The hearings are not held to prove anything. Victims sometimes walk away with results they do not like, leaving an unsatisfied taste in their mouths. But they had an opportunity to be heard. Very frustrating experience as an adjudicator.

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

socwwp3 — Fri, 25 Mar 2011 12:36:50 -0000

Under earlier conditions these problems were lessened by rules now regarded as repressive> Male and female students were subject to limited hours of contact, drinking led to expulsion so could not be used as part of a complaint or a defense, male and female students did not visit each others rooms,etc. The freedom now accorded students has not yet generated necessary self control. Admonitions such as "safety in numbers" gentlemen never..." have been dropped in favor of express yourself freely." Universities should be able to act vigorously in loco parentis or they should leave such matters to the law. Why they need be confounded by the federal bureaucracy seems an unfortunate consequence of our misplaced desire to make a federal case of everything.

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

looksioux — Fri, 25 Mar 2011 10:45:05 -0000

This is a terrible dilemma for colleges and for students who have been abused, as whatever approach to this serious problem is in place, it seems there are no winners. But, no matter how difficult the situation may be, I don't see how the college can become a substitute for the courts; colleges do not hold judicial hearings for students accused of murder - the college has no authority to act as a separate judicial system for society. The college can take its own conduct action against its students who have been convicted by the courts in criminal cases. Having served for many years as a college officer who heard final appeals of students accused of sexual assaults, I felt I needed the "wisdom of Solomon" to determine the truth, and of course, I lacked such wisdom. My view several years later (I'm now retired) is that colleges can and should provide education, support, and counseling, but despite the awful pain students may suffer, colleges should not adjudicate sexual assault cases, but leave these criminal matters to the courts, where they belong. The fact that the courts may not be viewed as a viable option by many victims is very troubling, but is an insufficient reason for colleges to become a substitute court system for society.

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

edwoof — Fri, 25 Mar 2011 06:34:29 -0000

"The standard of proof should be and often is the preponderence of evidence"

For a civil matter, yes that is the standard. But it is not just any evidence can be used but only admissible evidence. Are the administrators and faculty of the university going to understand what evidence must be excluded under the hearsay rules and be able to apply the exceptions? Are the universities going to be responsible for maintaining physical evidence within a "chain of custody" so that there can be no allegation of tainting? These issues are especially problematic for state universities as the state will be depriving someone of an opportunity that they would have had otherwise. I do not believe that a university would be able to conduct any such hearing without gross due process violations. Just look at the tenure hearings which universities regularly conduct and see how many times due process issues arise when tenure is denied.

I don't see the connection with Title IX unless the university is involved in a discriminatory activity. If a sexual assualt occurs on campus, there's no per se violation of Titlle IX.

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

edwoof — Thu, 24 Mar 2011 13:28:22 -0000

I certainly agree that a university should be able to establish standards, but problems occur when the university attempts to make a determination if a crime has occurred. Most universities have a campus police which is tasked with enforcement, but universities do not and should not have an independent judiciary which can try a case in accordance constitutional criminal procedure. Any type of civil or administrative procedure administered by the university will have due process issues with respect to submission of evidence since there is no way that universities can conduct a trial that would meet all the constitutional requirements.

Furthermore, what would happen if the university, in an administrative procedure, decides that the student comitted the act using some "more than less probable" standard and then subsequently a criminal court finds the student "not guilty." The potential for conflicting results are a significant reason that universities should not make any attempt to determine guilt.

And your statement that "a university must be able to address conduct that is detrimental to its community" is unfortunately, as we have found out, wishful thinking considering that there are many state legistors who wish to allow guns on campus. I think it's fairly clear thatuniversities will have less say in these matters in the future. If one student shoots and kills another student on campus, do you really think it would the university who should determine if the first student murdered the second student or if the first student were only acting in self-defense? Surely most cases involving sexual battery are even more complicated.

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

ankhesenamen — Thu, 24 Mar 2011 11:05:03 -0000

The university cannot determine whether a student has committed a criminal offense; however, it can determine whether a student has violated the university's own standards of conduct.

A university must be able to address conduct that is detrimental to its community, even if that conduct is criminal. Should an academic community be required to accept drug distribution, theft, property damage, or physical assault? A university has every right to establish standards for its students and hold students accountable for failing to uphold those standards.

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

sandler — Thu, 24 Mar 2011 10:58:17 -0000

The standard of proof in a criminal trial, for example, in a case of rape, is "beyond any reasonable doubt" as is seen on many TV shows. The standand is a strict one, because the penalty is high -- someone could lose their liberty and go to prison.

In contrast, in a university administrative proceeding, the penalty is not the loss of liberty but less -- the most severe being expulsion. This is a serious punishment but it is not the loss of liberty. Thus the standard of proof should be and often is the preponderence of evidence: Given the preponderance of evidence, a reasonable person would conclude that the event either occurred or did not occur." Unfotunately many campus policies concerning rape and sexual harassment do not articulate the standard evidence so that the persons evaluating the evidence may indeed each be using their own individual standard, whatever that may be.

Both sexual assault and sexual harassment are violations of Title IX. They are on one continuum, with rape as the extreme form of sexual harassment. These are not "new issues" and gained attention on campus going back to the mid 70's and even prior to that.

Bernice R. Sandler

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

swish — Thu, 24 Mar 2011 10:32:07 -0000

In the case of sexual assault or rape, you may be right, but some of the other categories given in the article for Dickinson College may be less traumatic (e.g., voyeurism) or involve some grey areas. In some cases the victim may conclude that the problem can possibly be resolved with the help of some strong clear messages from the administration.

To forestall people's suppositions, I'll state that I am female and also a victim of rape (many many years ago).

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

ankhesenamen — Thu, 24 Mar 2011 10:10:32 -0000

Although victims' responses vary widely, I've worked with many students who are reluctant to pursue judicial action against their attackers because they don't want the accused students punished too harshly. Often the victim knows the perpetrator and is loathe to "ruin his life" (victim's words). These students often say that they simply want the perpetrator to know that what he did was wrong.

A victim may come to the judicial system for a variety of reasons: to seek appropriate punishment, to get the respondent to realize the pain he's caused, to get a no-contact order, or to have her experience heard and acknowledged.

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

edwoof — Thu, 24 Mar 2011 09:48:41 -0000

As an initial observation, I would like to point out that "he said/she said" is not only a 'flip' response to the issue but also heterocentric. Sexaul assualt or battery, or a false allegation of sexual assault or battery, also occurs within same sex relationships. Concerning TruthGuardians comments above, I agree that the term "sexual assult" is inaccurate. A more accurate term would be "sexual battery" which would include rape as the most aggrevated form of battery.

The problem discussed in the article concerns the university's role when there are allegations of sexual assualt or battery or false allegations of assault or batttery within the academic community. The problem is that universities do not have any civil or criminal jurisidiction over the students and there are very limited actions that they can take. Specifically, the Center for Public Integrity's Report stated that the alleged victims had a "frustrating search for justice" on campuses. But universities are not in the business of providing justice. Through the campus police, universities may have the ability to gather evidence, but they do not have--and cannot have---a criminal court system with rules concerning the admissibility of evidence. Accordingly, a university cannot pronounce a student is guilty and absent guilty verdict (or an admission of guilt), on what basis can a university expel or take other action against a student?

According to the artcile, Dickenson College has a sexual misconduct policy that defines various acts of sexual misconduct. Suppose these definitions are at odds with the definition in the criminal code? Suppose the procedure of investigating the matter is unconstitutional (of critical importance to state universities)?

No. Universities only should focus on four aspects of this issue: (1) maintaining a safe as possible campus including sexual assault and battery prevention programs, (2) providing counselling and support, (3) ensuring the integrity of evidence gathering for incidents that occur (or are alleged to have occurred) on campus, and (4) a requirement that both parties refrain from contact. The limited actions that a university may take against an accused student should only be triggered either upon a constitutionally obtained admission of guilt or a grand jury indictment.

We do not want universities to even pretend to venture into criminal adjudication. They do not have the resources and the area is rife with constitutional issues.

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

harringcbh — Thu, 24 Mar 2011 09:33:38 -0000

Why did universities and colleges agree, in the first place, to allow disputes involving criminal matters--- rape, sexual assault--- into their disciplinary processes? Really, are they "better qualified" than the courts when it comes to investigating, judging, and sanctioning criminal matters that seriously impact all parties (accusers and the accused)?

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

iris411 — Thu, 24 Mar 2011 08:47:32 -0000

I guess what they really mean is that it is often impossible for victims to seek perpetrators' expulsion due to the complexity of the process or the intrusive nature of the investigations etc. thus, many victims have no other choice but to seek no-contact orders as a minimum way of self-defense to prevent future incidences.

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

retired_president — Thu, 24 Mar 2011 07:26:24 -0000

A big issue is the question of off-campus conduct. When a student accuses another student of assault at an off-campus party (whether or not the students live on campus) where does the university's jurisdiction/responsibility begin and end?

Re: Colleges Face Conflicting Pressures in Dealing With Cases of Sexual Assault

Laura Dunn — Wed, 23 Mar 2011 23:04:21 -0000

I'm curious how this became stated as fact:

"Many victims don't seek perpetrators' expulsion, but rather, for example, no-contact orders."

As a victim from a campus sexual assault and having known many others I fully disagree that victims are disinterested in having their rapist removed from campus. If true justice was a realistic opportunity many victims would seek to continue their education free from the reminder of such violence against their person.