December 8, 2013
Last week, James Taranto penned an extraordinary exposé of the continuing war on due process in college sexual assault tribunals. (“This is the kind of story I became a journalist to write,” he tweeted.) Taranto told the story of Joshua Strange, an Auburn student expelled for sexual assault, based on thin, arguably non-existent, evidence, and after a process that resembled a kangaroo court.
While the broad narrative of events at Auburn was depressingly familiar, the case had a few distinctive features. First, the accuser in the Auburn case filed a police report–meaning that a criminal investigation into her claims occurred, which turns out to be important when analyzing the significance of the case. Second, in an unprecedented development in recent college sexual assault cases, the local prosecutor attended the college hearing–as the accuser’s legal representative. Third, OCR’s “Dear Colleague” letter had a direct impact on events–Strange was informed that in response to the OCR mandate, Auburn lowered its evidentiary threshold so that accused students could be deemed rapists on a “preponderance of evidence” (50.01%) basis.
Finally, and perhaps most important, Taranto was, to my knowledge, the first journalist to obtain a full recording of a college sexual assault proceeding. (Imagine the appropriate outrage if court hearings for criminal or civil offenses were routinely closed to the public.) The results suggested that Auburn had no business investigating any sexual assault claim. Taranto correctly noted that the case demonstrated yet again the dangers of university tribunals purporting to decide criminal issues: “Ordinary civil and criminal courts are immensely more competent to adjudicate allegations of sexual harassment and violent crime, in open proceedings subject to appellate review, without trampling the rights of the accused.”
The proceedings featured a weak presiding officer (an Auburn librarian whose academic website gives no evidence of his having legal training) who seemed uncertain of the rules, and consistently deferred to two Auburn administrators who were ideologically predisposed to believe that sexual assault accusers always tell the truth. The process presumed guilt–not only could Strange not cross-examine his accuser, but these two adult students were separated by a curtain during the proceedings. What possible rationale could exist for sheltering the accuser behind a shroud? The tactic makes sense only if the university believed, from the start, that the accuser was telling the truth, and therefore could be harmed by simply being in the same room as a perpetrator.
It turns out that the university had scant reason for such a belief. As Taranto reports, upon hearing the evidence, the grand jury found no probable cause. But examining the same information, albeit skewed through the guilt-presuming procedure the university employed, the Auburn tribunal concluded that Strange had committed sexual assault. He was expelled from school and has been barred from the campus for life.
It’s a scandal whenever a university–a public university, no less–fails to provide reasonable due process when a student is faced with expulsion, especially since the expulsion will brand him a rapist for the rest of his life, affecting future educational and job prospects. But the greater scandal in the Auburn case is that the system worked as intended, from the standpoint of both the university and the OCR.
An Auburn spokesperson declined to comment on the specifics of the Strange case, though the two administrators who testified in the Strange case remain in their positions, from which they presumably can provide testimony against future Auburn students. The spokesperson did inform Taranto that “we feel confident that each and every student who participates in the process is afforded notice and opportunity to be heard on all matters pertaining to the specific case under review.” A public university in the state branding a rapist a student for whom a grand jury couldn’t even find probable cause represents the process working?
The Strange case also illustrates how the OCR wants sexual assault tribunals to function. In line with OCR’s strong suggestion, Auburn prevents accused students from cross-examining their accuser, even in a case like this one where, it appears, the accuser was the only witness. In line with OCR’s mandate, Auburn brands students rapists on the basis of a better-chance-than-not standard.
Perhaps most troubling, the Strange case shows the type of procedure that OCR envisions in the relatively rare instances when an accuser simultaneously files complaints with the police and with the university. As the OCR made clear in its settlement with SUNY, universities cannot accept the conclusion of trained law enforcement that there’s no probable cause (as occurred at Auburn) or that the accuser has lied (as in the Caleb Warner case). Instead, the university must (as it did in the Strange case) conduct a parallel investigation. And so we get the absurd outcome of a university concluding that a student is a rapist based on “expert” testimony that an accuser crying is evidence that a rape occurred, even as a grand jury reached the opposite conclusion.
I’d like to think that an exposé like Taranto’s will stimulate more media coverage of the OCR’s efforts to diminish due process on campus. In an ideal world, legislators would respond to the Auburn case by finally exercising some oversight of OCR. Will any do so?