A recent report released by the non-profit organization Stop Abusive and Violent Environments (SAVE) has attacked the predominant method for handling campus-based adjudications of sexual assault accusations. The SAVE report, titled “Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade,” labels these proceedings as chronically inefficient, unfair, and occasionally harmful.
The 2011 Dear Colleague Letter
The report takes issue with the Department of Education’s 2011 “Dear Colleague Letter” on sexual violence. The Letter mandated campus tribunals for the investigation and resolution of rape allegations on campus. Finding these measures inadequate, SAVE argues the Department should repeal the Letter and instead encourage the referral of campus rape cases directly to law enforcement officials in order to promote due process. This approach is embodied in SAVE’s model legislation, the Campus Equality, Fairness, and Transparency Act, which it hopes will supplant the system put in place by the Dear Colleague Letter.
Due Process Lacking for Both Sides of Campus Rape Claims
The SAVE report addresses mishandled campus sexual assault cases, from the points of view of both students making allegations of sexual assault and students accused of sexual assault. First, the report tackles instances of young women let down by their universities after reporting an assault. It identifies cases were schools failed to appropriately investigate or adjudicate assault complaints, sometimes in the process inadvertently preventing students from seeking medical attention. The report points out that the rising number of complaints in recent years has led to a backlog of investigations, delaying the resolution of these claims.
Next, the SAVE report covers the impact on young men falsely accused of and disciplined for sexual assault on campus. The primary issue here is the lack of due process demonstrated by some university investigation and tribunal systems. At some schools, this lack of fairness in the system makes it possible to expel students based on very biased or flimsy accusations. Lawsuits are also on the rise from male students claiming they were wrongfully expelled by their schools after false or mishandled allegations of sexual assault.
How to Improve Campus Tribunals?
The SAVE report highlights the challenge for university administrators coping with federal requirements and the lack of training, expertise, and resources to prevent campus committees from reliably, consistently, and fairly adjudicating complex assault cases.
In a recent White Paper issued by the American College of Trial Lawyers, ACTL argues that the current system of campus rape tribunals actually undermines the goal of reducing rape on campus because it shortchanges justice on both sides of a rape allegation. ACTL emphasizes the need for due process and impartial investigation, as well as the accused’s right to counsel, access to evidence, notice of the allegations, and ability to cross-examine the witnesses against him. ACTL also attacks as inadequate the “preponderance of the evidence” standard typically used in campus rape adjudications; that standard requires finding the accused student guilty if guilt seems more likely than not. By contrast, in a criminal sexual assault trial, the standard of proof is “beyond a reasonable doubt,” a much more difficult standard for the prosecution to meet.
The SAVE report agrees with these proposals and advocates for their implementation.
The Marshall Defense Firm is glad to represent university students in Washington State accused of sexual assault on campus. We are committed to seeing them treated fairly. We advocate for them vigorously.