Due Process? More Like No Progress

by and

Friday, November 16, 2018

The original claim that “one in five women” on college campuses are sexually assaulted has been proven to be false, yet we continue to see this statistic frequently thrown into conversations on this topic. The Obama Administration was able to exploit this supposed epidemic of “rape culture” on college campuses to create a sense of urgency among college administrators to adapt these new Title IX rules for handling campus sexual assault allegations.

In short, Title IX coordinators on college campuses must now work to quickly remove the accused from campus in order to protect the victim from further abuse. The Obama Administration even threatened federally funded universities with restricting their funding if these schools did not take immediate action to remove from campus students accused of sexual assault, all without regard to due process considerations.

The Due Process Clause ensures that an accused rights are not violated. The clause prohibits the government from convicting someone without first respecting certain protections to ensure a fair trial, i.e. “innocent until proven guilty.” This concept has always been widely accepted in our society, even outside of our criminal justice system because, as a society we have traditionally recognized that respecting due process provides for the best balance between punishing those who are guilty while also protecting those who are innocent.

Under this presumption of innocence, the prosecution must prove that the defendant is guilty after adequate opportunity for discovering all the relevant facts. If the prosecution fails to carry that burden, the defendant should be found innocent. Why then, on college campuses, does this idea of innocent until proven guilty not seem to exist?

There are numerous incidents where these relatively new rules under Title IX have ruined lives. One mother describes her son’s case as being, “presented with no evidence beyond word of mouth, vague, and lacking even the most basic information about the acts.” Judith Grossman’s son was accused of sexual assault, and with little to no time to prepare, told to appear to answer the allegations against him only days after the crime was reported.

Fortunately for Grossman’s son, the charges were ultimately dismissed, largely due to her own experience as an attorney. But what happens to the accused students who have no understanding of how our justice system is supposed to work? And what happens to his reputation? Are there no repercussions for those who falsely accuse others? As a result of the Obama administration’s new Title IX rules, the presumption of innocence has been effectively eliminated from college campuses in sexual assault cases. In short, an uninformed student is usually on his/her own.

If those who support these relatively new Title IX rules truly cared about fairly adjudicating sexual assault complaints, they would approach such allegations on a case-by-case basis, employing process and procedures that have stood the test of time. But they don’t care. Apparently, it is more important to quickly validate such allegations without considering the possibility of a faulty or impaired memory or a potentially false or even mistaken accusation.  Unfortunately, it appears that proponents of the newer Title IX rules are only interested in furthering a political perspective founded on ‘I believe the victim’.

The case at Amherst College is one of the most heavily documented college sexual assault cases. That student was accused and expelled after a routine disciplinary hearing. The student then sued the college in federal court. The plaintiff’s case highlighted numerous holes in the accuser’s case, exposed clearly false accusations and highlighted contradictions in the initial disciplinary hearing. Some of the procedural problems with the original hearing were that the accused student was not able to cross-examine his accuser, and the hearing happened so quickly that the accused never had time to discover and then produce the evidence that ultimately cleared his name — text messages.

College campuses allow the lowest standard of proof before issuing life changing rulings. Someone can make a claim with little to no evidence and get a student immediately removed from campus. On its face, Title IX requires college hearings to be “prompt and equitable” -requiring just over a fifty percent (50%) certainty of guilt. Said differently, Title IX merely requires that the accuser’s claims appear only slightly more likely than not to be true. How much higher is the standard in real criminal courts? Significantly higher. Specifically, criminal courts utilize a “beyond a reasonable doubt” standard. In other words, if a criminal court has any reasonable doubt that a criminal defendant is guilty they must acquit that defendant.

So what is the solution? Establishing policies and procedures that work both to protect the accuser while ensuring due process for the accused would be a very good start. Each sexual assault case needs to be handled with specific attention to the circumstances and evidence of that case. This would include a full investigation while avoiding a one-size-fits-all procedure that diminishes the importance (or even possibility) of a vigorous defense. Those found guilty, after appropriate due process, should immediately be removed from campus. Victims deserve to be heard, and they can be heard without immediately ruining the lives of the falsely accused.

Casey is a student at Belmont University studying Economics and Finance. Casey plans to attend law school after undergraduate school so that she may continue to fight for and defend the Constitution in a professional setting. Her interests include reading, writing, politics, debating, music, and traveling.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Casey Dickinson

Belmont University

Casey is a student at Belmont University studying Economics and Finance. Casey plans to attend law school after undergraduate school so that she may continue to fight for and defend the Constitution in a professional setting. Her interests include reading, writing, politics, debating, music, and traveling.

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