On July 13th, Secretary of Education Betsy DeVos held a day of meetings with various groups about campus sexual assault. Secretary DeVos held one panel with students who said they had experienced such assaults, and one with students who had been accused of such assaults, reinforcing the assumption that victims and accused students represent two opposing camps who are at war with one another. Activists on both sides have fanned these flames, making outlandish claims (not based in fact) about what the other “side” is trying to do, and who is most victimized by current campus sexual assault adjudications. Since the meetings, plenty of (virtual) ink has been spilled by activists from both sides trying to undercut each other’s positions, discredit each other’s statistics, and decipher what actions the federal government might take.
A lot of time has been wasted fighting over a straw man.
I was in one of the meetings with DeVos. I am a lawyer who represents both complainants and respondents in campus sexual misconduct cases around the country, and was invited to give my perspective as an expert on this subject, having handled dozens of these cases in the last few years. I have represented students at large research universities and small liberal arts colleges, in states from Texas to Vermont.
Despite the picture of campus sexual assault we see in the media, these cases are anything but black and white. For every Brock Turner, caught sexually assaulting a clearly-unconscious victim, and every Jackie Coakley, fabricating a rape allegation out of thin air, there are hundreds of cases like my clients’. Cases where after a two-year relationship one party makes allegations that some or all of the sexual contact in the relationship was non-consensual. Cases where both parties were so drunk neither can remember more than a few snapshots of the night in question. Cases where one student was incapacitated by alcohol, and the other alleges that the incapacitated person engaged in a mix of consensual and non-consensual sex acts with him/her. Who is at fault in that situation? Both? Neither? Whoever makes the complaint of sexual assault first?
Everyone with a stake in this issue seems to agree that the current campus sexual assault systems are not working. But few people talk about the concrete details of what these processes look like, or what the current problems even are.
I have had clients told they may not have a lawyer present at interviews and hearings, despite federal regulations requiring schools to permit lawyers as advisors. I have had clients who were not given notice of what policies they are alleged to have violated, or of the factual allegations against them until the end of an investigation. I have had clients who went through entire investigations and were never allowed to see, respond to, or provide evidence to challenge the testimony of the other party or any of the witnesses. I have had schools refuse to allow my client to present relevant expert testimony that a panel of students and faculty would have needed to accurately assess a case: for example, testimony on the nature of alcohol-induced blackouts or testimony interpreting medical records.
As these examples show, schools are not providing complainants or respondents with clear, fair procedures that generate reliable procedures and accurate results. While the current Department of Education guidance does not prohibit such procedural protections, neither does it recommend many, and many colleges and universities have set up opaque and inequitable procedures. These systems address the schools’ desire to minimize bad publicity and federal investigations, but do not serve any of the students involved. In my view, the following protections would help both complainants and accused students:
The right to have a lawyer present;
Adequate notice to the accused of the allegations against him or her;
Where there is investigation, different people serving as investigator and decision maker;
The right to access and respond to all evidence before a decision is made;
The ability to provide expert scientific or forensic evidence where relevant;
The right to question witnesses;
Availability of informal mechanisms of resolution;
The right to appeal both the finding and sanction.
This list is not exhaustive, but it would go a long way toward ensuring that both parties in a case receive a fair process, and that everyone involved has some faith in the reliability of the outcome. We should reject the false narrative of two irreconcilable camps, locked in battle over whom Title IX policies harm the most. There is no war. And those of us on the ground in these cases need to roll up our sleeves and work toward concrete solutions to improve these systems for all students.