Sexual assault is a serious issue, especially on college campuses. The White House’s “It’s On Us” Campaign, launched in September, is just one example of the numerous programs dedicated to stopping sexual assault on campuses and just in general. However, there is an unfortunate trend on college campuses, which should cause anyone concerned about the issue to think twice before embracing changes such as “yes means yes,” also known as “affirmative consent,” or moving towards a standard of preponderance of evidence and away from beyond a reasonable doubt. Increasingly, universities are trampling on the due-process rights of the accused, in an effort to show that they are concerned about sexual assault. While we should all be concerned about the violent act that is sexual assault, we should also be concerned for the due-process rights of the accused. How does this relate to the consistent life ethic?
While the consistent life ethic holds that we should be opposed to all forms of violence, it also means we should value fairness and justice for all. It would seem difficult for someone to be opposed to the death penalty on the grounds that someone might be innocent, or that it is unfairly applied based on racial identity, while also supporting the kangaroo courts that so many universities set up to deal with sexual assault. I argue that the same philosophy that holds that even the most gruesome and vilest of murderers deserve not only a fair trial, but a chance to seek forgiveness with life on parole instead of death by injection, should also hold that students accused of sexual misconduct of any time have a right to a fair trial. There are two ways I believe colleges can go about ensuring a fair trial: turning the case over to the police or replicating court conditions during university-run hearings.
The first suggestion should be the only serious proposal to be considered. Universities have no duty to act as private courts, and all criminal activities should be handed over to the police. Under criminal proceedings, the accused would have a right to testify, cross-examine witnesses, present evidence and, most importantly, have an attorney present to argue for the student. While our justice system is not perfect, it is still far better than how most university proceedings occur. While universities may be able to handle petty crimes like theft from dorm rooms, serious crimes like sexual assault should not be left to graduate students with master’s degrees in higher education nor should they be dealt with by a dean of students or a panel of students. Crimes should be dealt with by law enforcement.
Take, for example, a case I have been following through my work for The College Fix, a conservative news website which focuses on on-campus news. At Occidental College, a female student accused a male student of sexual assault after a professor told her the student fit the typical profile for a rapist. Although the sex appeared to be consensual, based on evidence such as text messages and consent, both students had been drinking. The College Fix staff editors wrote on June 6, “A former Occidental College student is suing the school after it accused him of raping a female student — this, despite police being unable to prove it ever happened. Worse, a professor at the school claimed the accused’s upbringing fits the ‘profile’ of campus rapists.” Under criminal proceedings, the accusation would not stand very long unless evidence supported it. The defendant would be allowed to testify as to his recollection of the event, evidence would be presented and his attorney could argue the case for him. If the “beyond a reasonable doubt” standard (roughly 80% chance the student is guilty) could be reached, then the student would rightly be punished. However, colleges often use the “preponderance of evidence” standard (50.01%), which tilts the system against the accused in an unjust way. In practice, this means that the accused student had little recourse and little chance of winning his case. Instead of facing normal criminal proceedings, the university subjected the student to a kangaroo court system of hearings. Even though police investigators found a lack of evidence to move forward with the case, the university decided to move forward.
The other approach towards justice on campus is to restructure the hearing process on-campus, if the university decides that they can better handle the case than trained law enforcement officers and prosecutors. In order to bring a sense of justice, I believe that universities need to change how they conduct sexual misconduct hearings. First, the university should use a panel of trained professionals to hear cases. Oftentimes, universities rely on academics who have no formal background in law, law enforcement or judicial proceedings. Granted, juries are generally comprised of people without a law background, but they are under the supervision and instruction of a judge. Universities can bring a sense of reliability to proceedings by only having panels of current or former lawyers, prosecutors, police officers or judges hear cases. As I have written before for The College Fix, many universities rely on non-law enforcement professors to conduct investigations and hearings. At Ohio University, for example, students accused of sexual assault face a hearing panel, but there is no indication that the panel will involve someone with actual judicial or law experience. Some schools even have students serve on the panels; remember that kid who slept through half of Intro to Chemistry? He might decide if you are kicked out of school.
The second step universities can take is to conduct the hearing like an actual trial, with the accused having the right to an attorney who can speak on his behalf (normally an adviser can be there to “assist” only). The accused should also have the ability to have his attorney cross-examine witnesses and present evidence. Finally, the university must use the “beyond a reasonable doubt” standard, instead of preponderance of evidence, which is usually reserved for civil trials.
Sexual assault on campus is a tricky topic; no one wants to be seen as not believing a potential victim of sexual assault. But justice must still be carried out, no matter the crime. In fact, true justice occurs when even the most heinous of criminals are given a fair trial. Universities should turn over any sexual misconduct cases to the police as soon as possible, if possible. If they choose not to, they should at least conduct the hearings as a legitimate, just trial, with the accused enjoying the benefits of cross-examination of witnesses, an attorney, and the ability to testify. Those concerned about justice and fairness should be concerned about sexual assault proceedings as well. I believe that we can find a way to both respect the dignity of the accuser while protecting the right to justice for the accused.