By 8/30/16 11:17 AM
The Washington Post has an article up about the “toxic environment” for men accused of campus sexual assault at colleges across the country. It’s an informative read, and I urge you to take a look. However, the author leaves out something important.
At least twice, Post author Fred Barbash mentions that college tribunals adjudicating campus sexual assault are different from criminal courts.
He writes that schools “treat sexual misconduct as a form of sex discrimination and the charges are civil not criminal,” and that the low standard of evidence now used by schools — the preponderance of evidence — is the “same standard used in civil litigation.”
What Barbash doesn’t mention is that civil litigation also extends to defendants many other rights that colleges do not afford accused students.
Defendants in civil court still have the right to be represented by an attorney, to see the evidence against them, the ability to compel production of evidence, the ability to cross-examine their accusers and more. College students accused of sexual assault have none of those protections.
Barbash wrote that the Foundation for Individual Rights in Education wants these cases to be handled more like criminal cases, and that may indeed be the case. But FIRE also wants these cases to at least have the same due process protections that defendants in civil cases have.
Schools have been forced — through threat of lost federal funding — to adopt procedures that deny due process rights to accused students. The federal government defends its decision to use a low standard of evidence when dealing with accusations with criminal connotations by stating it’s the same standard used in civil court.
The federal government cherry-picked what it wanted from civil court (the lower standard of evidence) and ignored everything else (all the protections afforded to the accused).
Tamara Rice Lave, an associate professor of law at the University of Miami, discussed this in a blog at Huffington Post.
The rest of Barbash’s article makes it crystal clear that the way schools are handling accusations of sexual assault is unfair to the accused.
Supporters of this process might ask: “Who cares about fairness to accused rapists?” But that way of thinking is dangerous. It’s not okay to label people based on an accusation, because schools and activists are fostering a climate ripe for false accusations — which are happening.
It’s also not OK to take basic constitutional protections away from people just because we believe they’re terrible. If that were justifiable, we wouldn’t have due process protections in the first place.
As they continue to get sued by wrongly accused students who were denied a fair hearing, colleges and universities (and the federal government) need to finally accept that accused students deserve a fair chance to be heard.