Author: saveadmin

Is It Time to Punish False Accusers?

Post author By saveadmin
Post date October 19, 2018

Should deliberately false reports of sexual assault be subject to the same legal penalties as false reports of other felonies? Right now, accusers who lie about sexual abuse are criminally liable for filing a false report and perjury, as well as civil sanctions for defamation, but legal consequences rarely occur.

The question was spotlighted by the accusations surrounding Supreme Court Judge Brett Kavanaugh. It was clear during Kavanaugh’s confirmation hearing: An accusation of sexual assault can devastate a man’s life, family and future. Those who reject the account of his main accuser, Christine Blasey Ford, don’t suggest bringing legal proceedings against her. A sincere report of sexual abuse should not be penalized for being confused or mistaken.

Jeffrey Catalan and Julie Swetnick are different stories; in the wake of Ford’s accusations, Catalan and Swetnick claimed to have witnessed sexual abuse by Kavanaugh; Catalan quickly recanted. But the chairman of the Senate Committee that presided over Kavanaugh’s hearing has asked for an official review of the claim as a possible crime. In a NBC interview Swetnick contradicted a sworn statement to the Committee, which had implicated Kavanaugh in gang rapes. Harvard law professor emeritus Alan Dershowitz has called for Swetnick to be investigated and then prosecuted for perjury, if appropriate.

The debate on how to handle blatantly false accusations of sexual abuse has re-opened. Feminists argue that punishing any accuser chills the willingness of victims to come forward. Rule-of-law advocates counter that false accusations are not victimless crimes. In most cases a real person is named as an attacker and he or she confronts severe consequences. Genuine victims are also damaged by false allegations. Every lie casts a shadow of doubt over every future report of sexual assault. So legal disincentives should attach to the act of lying not merely to protect those falsely accused but also to encourage real victims to make reports.

False accusations on crime are everyday events

The danger of using the Kavanaugh hearing as a springboard for discussing false accusations is threefold: the session was highly politicized, with unrelated agendas attached; it was played out in the Senate, with the Supreme Court as a backdrop; and the true context of false accusations in everyday life may be lost. False accusations are not partisan, elite, or recent occurrences.

The recent re-evaluation grows out of a backlash that has raged on college campuses for over seven years. At some universities the battle has been much longer. In 2011, President Obama’s Department of Education’s Office of Civil Rights sent a letter to every college that received federal funding. To continue the flow of funds colleges needed to dilute the due process that on-campus hearings offered to students accused of sexual misconduct.

The purpose: To combat sexual misconduct and to protect victims who were overwhelmingly female. Accused students were denied legal representation and the presumption of innocence, as well as standard protections of justice such as facing an accuser and questioning witnesses. As a matter of policy, accusers were to be believed.

As a result, false accusations increased — at least, that was a widespread assessment. Legal experts signed petitions in protest; lawsuits proliferated from students who had been found “guilty;” high-profile cases of false accusations rocked the media.

Finally, new Title IX guidelines were recently drawn up by the DOE’s new administration and they will be unrolled shortly. The guidelines direct colleges to restore due process rights to students accused of sexual misconduct.

The human cost of false accusations

Petitions and guidelines do not capture the human suffering that caused a rebellion against the imperative to #BelieveWomen. For that real stories are required. Consider the Flood family of Pennsylvania and their teenage son, whom the media identifies as T.F.

According to a local newspaper five girls at T.F.’s high school “terrorized” him with accusations of sexual molestation. T.F. was fired from his part-time job, “tortured in school by the other students and investigators,” expelled and “forced to endure multiple court appearances, detention in a juvenile facility, detention at home, the loss of his liberty and other damages.”

Finally, the girls confessed to lying. Why did they? One explained, “I just don’t like him…I just don’t like to hear him talk…I don’t like to look at him.” The girls have not been punished. Meanwhile, the boy is under the care of a psychologist and being schooled at home. Devastated by the experience, his parents are suing.

The Kavanaugh hearing brought the question of false accusations into people’s living rooms. That’s where the issue belongs because average and disadvantaged people need due process far more than the elite of society.

Average people have fought through centuries to gain and maintain these protections against imperious government and bad actors. The protections benefit both men and women because they stand in defense of common people. No sincere accuser, mistaken or not, should have anything to fear from impartial justice. But no intentionally false accuser should be able to bypass the protections of justice in their own self-interest.

Conclusion

#BelievetheWomen is the culmination of a push that began decades ago to achieve much-needed reform within the justice system. In the 1960s feminists crusaded against rape laws that brutalized women by treating them as though they were responsible for their own assaults. They weren’t and they aren’t, but the reform has gone too far. It is not an insult to ask for evidence when a crime is alleged. It is a sign of taking the accusation seriously and that’s what feminists crusaded for in the first place.

Source: thehill.com/opinion/civil-rights/411905-is-it-time-to-punish-deliberate-false-accusers?rnd=1539805668

Uncategorized

Due process legal update: Judge holds that ‘preponderance of evidence’ standard may be unconstitutional in campus sexual misconduct proceedings

Post author By saveadmin
Post date October 18, 2018

Last week, a federal judge in New Mexico allowed a student’s due process lawsuit to proceed against the University of New Mexico and its president, but dismissed his claims against several individual administrators, holding that because the “contours of [the plaintiff’s] due process rights were not clearly established,” the university administrators who punished him were entitled to qualified immunity.

In his opinion, Judge James Browning made some of the strongest and most remarkable statements to date in favor of a student’s right to due process in a campus proceeding.

The student-plaintiff, known in the pleadings only as “J. Lee,” alleged that the process used by the University of New Mexico to find him responsible for sexual misconduct violated his constitutional right to due process. When the university moved to dismiss his claim, Judge Browning found that Lee had indeed stated a plausible due process claim. Among other things, the court held that:

“Lee’s allegations plausibly support a finding that his sexual misconduct investigation resolved into a problem of credibility such that a formal or evidentiary hearing, to include the cross-examination of witnesses and presentation of evidence in his defense, is essential to basic fairness.”
“[P]reponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”
“[The fact] that UNM provides an evidentiary hearing in cases of alleged non-sexual misconduct but not in cases of alleged sexual misconduct supports Lee’s claim that the process he received was constitutionally inadequate.”

On the question of cross-examination, this is the latest in a growing line of cases holding that cross-examination is essential to due process when credibility is at issue. Earlier this month, the U.S. Court of Appeals for the Sixth Circuit ruled that “[I]f a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

On the second point — the evidentiary standard — this opinion is remarkable. It is, to my knowledge, the first federal court decision explicitly stating that “preponderance of the evidence” is an inadequate standard in campus disciplinary cases with such severe potential consequences. Of particular importance is the fact that the judge considered the lasting impact of “a permanent notation” on the plaintiff’s transcript in reaching this finding. FIRE has long argued that “[i]f a de facto sex offender registry for college students is to be constructed, it is all the more critical that procedural protections be in place to ensure trustworthy results,” and it is heartening to see a judge reach the same conclusion. I hope other courts (there are currently hundreds of lawsuits by accused students pending in federal and state courts around the country) will follow suit.

Judge Browning also noted the difference between UNM’s process for students accused of non-sexual misconduct, who get an evidentiary hearing, and its process for students accused of sexual misconduct, who do not. This phenomenon is hardly unique to UNM; a disturbing number of universities offer fewer procedural protections to students accused of sexual misconduct than students accused of non-sexual misconduct. Other schools that provide students with a meaningful hearing in non-sexual misconduct cases, but not in sexual misconduct cases, include Brown, Cal Tech, Dartmouth, Georgetown, Notre Dame, Princeton, Penn, Tufts, UC Berkeley, UCLA, the University of Virginia, and Washington University in St. Louis, to name just a few. (For more information on procedural protections at these and other schools, stay tuned for FIRE’s second annual report on campus due process, coming out later this fall.)

Despite these findings, however, Judge Browning dismissed Lee’s claim against the individual administrators on grounds of qualified immunity. Under the doctrine of qualified immunity, state officials and employees are entitled to immunity from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

This result, while disappointing, is not altogether surprising. Until the recent deluge of lawsuits brought by students accused of sexual misconduct, the law surrounding students’ due process rights in campus proceedings was not very well fleshed-out. Recently, a growing number of courts have begun to clarify the scope of these rights, but Judge Browning clearly felt that the parameters were still insufficiently clear to hold university administrators personally liable. Hopefully, the many additional rulings certain to come in the hundreds of accused-student lawsuits still pending will help increase certainty and clarity. And in the meantime, Lee’s due process claim against the university itself continues on.

Milestone Award in Maine to Compensate Victim of Prosecutorial Misconduct

Post author By saveadmin
Post date October 2, 2018

PRESS RELEASE

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Milestone Award in Maine to Compensate Victim of Prosecutorial Misconduct

WASHINGTON / October 2, 2018 – In a first for Maine, the state has agreed to compensate a victim of prosecutorial misconduct. Last week it was announced that the state will pay Vladek Filler a settlement of $375,000, arising from the misconduct of former Hancock County Assistant District Attorney Mary Kellett, police officials, and others.

In 2007, Ligia Filler alleged she was a victim of marital rape. Ignoring exculpatory evidence, ADA Kellett prosecuted Vladek on several counts of sexual assault. Filler was convicted of assault, but was cleared of the rape charges made during a divorce and child custody battle. Eventually, the assault charge was also dismissed.

In 2011, SAVE filed a Grievance Complaint against Kellett with the Maine Board of Overseers of the Bar alleging improper withholding of evidence and other misconduct. On May 12, 2011, SAVE held a press conference at the Penobscot Judicial Center in Bangor (1).

The complaint was investigated and eventually referred to the Maine Supreme Court, which ruled against the prosecutor in 2013. Mary Kellett issued a public apology and was required to attend ethics training. She later resigned her position.

In 2015, Vladek filed a civil rights lawsuit against Kellett and other parties. The lawsuit against a nurse who coached Ligia to cry during testimony to make her claims more credible is still outstanding (2).

More information on Vladek Filler’s exoneration is available from the National Registry of Exonerations (3). The legal documents of the lawsuit are available online (4).

October 2 is Wrongful Conviction Day (5).

Citations:

http://www.saveservices.org/camp/intolerable-injustice/
https://www.dailywire.com/news/36302/maine-man-receives-375000-after-false-rape-ashe-schow
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4694
https://www.pacermonitor.com/public/case/6844884/FILLER_v_HANCOCK_COUNTY_et_al#
http://www.intlwrongfulconvictionday.org/

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and sexual assault: www.saveservices.org

Press Release Sexual Assault Sexual Harassment

SAVE Calls on Sen. Hirono to Withdraw and Apologize for Sexist ‘Shut-Up’ Remarks

Post author By saveadmin
Post date September 21, 2018

PRESS RELEASE

Contact: Rebecca Stewart

Email: info@saveservices.org

SAVE Calls on Sen. Hirono to Withdraw and Apologize for Sexist ‘Shut-Up’ Remarks

WASHINGTON / September 21, 2018 – During a Tuesday press conference, Sen. Mazie Hirono of Hawaii made remarks that have stirred controversy about the diminished importance of free speech and due process in America. Commenting on a possible FBI investigation of allegations of sexual misconduct against Judge Brett Kavanaugh, Hirono declared, “Not only do women like Dr. Ford, who bravely comes forward, need to be heard, but they need to be believed… I just want to say to the men in this country — just shut up and step up!.” [emphasis added] (1)

A recent YouGov poll confirms a different picture. The poll found only one-quarter of Americans believe the sexual assault allegations against Kavanaugh to be credible. When asked: “Do you think that the allegation of sexual assault against Brett Kavanaugh generally is or is not credible?” 28% of men said it was credible, while 25% of women gave the same response (2).

Patrice Lee Onwuka of the Independent Women’s Forum emphasizes, “We cannot abandon the presumption of innocence because assuming he’s ‘probably guilty’ serves certain political motives…. it’s wrong to jump to conclusions or use unsubstantiated allegations for political purposes. Not only is that unfair to the accused but it sets up a harmful precedent for the future.” (3)

Writing in the Boston Globe, Jennifer Braceras wrote, “The she-said/he-said nature of the allegations; Ford’s failure to mention the event to anyone for decades; and her inability to provide key details such the location or specific time frame of the alleged assault raise reasonable questions about her credibility.” (4)

One of the strongest critics of Hirono’s remarks was Fox News host Tucker Carlson. During his September 19 monologue, Carlson commented on the meaning of Hirono’s statement:

“It’s not just Brett Kavanaugh that’s guilty, but ‘the men of this country,’ every single one of them, Carlson said, because they’re men. Tucker also said liberals recently ignored a woman who accused Keith Ellison of sexual assault, which occurred within the last year, not 36 years ago.

“That’s a command from the United States senator,” Carlson said of Hirono’s call for men to shut up. “It’s not optional, it’s mandatory. So repeat after Mazie Hirono: Men always lie, women never do. One sex is evil, the other is holy. That’s the Catechism of the Church of Late-Stage Feminism.” (5)

Seldom has an elected official instructed a class of Americans to “shut up,” or to accept the veracity of a sexual assault allegation without corroboration. The First Amendment guarantees the right to express opinions and beliefs. The presumption of innocence is a key element of due process, which is guaranteed by the Fifth and Fourteenth Amendments.

SAVE believes justice is best served when Constitutional guarantees of due process are respected, not when lawmakers engage in a politically calculated rush to judgement.

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and sexual assault: www.saveservices.org

False Allegations Sexual Assault Sexual Harassment Wrongful Convictions

Recent Exoneration of Joshua Horner, Wrongfully Convicted of Sex Abuse, Spotlights Widespread Problem of False Allegations

Post author By saveadmin
Post date September 12, 2018

PRESS RELEASE

Contact: Rebecca Stewart

Email: info@saveservices.org

Recent Exoneration of Joshua Horner, Wrongfully Convicted of Sex Abuse, Spotlights Widespread Problem of False Allegations

WASHINGTON / September 12, 2018 – This past Monday, Deschutes County Judge Michael Adler overturned a 50-year sentence against Joshua Horner of Redmond, Oregon. Horner had been convicted on April 12, 2017 of sexual abuse of a minor. In the trial, the complainant testified that Horner shot and killed her dog as a warning that she not bring her sexual molestation claim to the police. https://www.opb.org/news/article/redmond-oregon-innocence-project-exonoration-josh-horner/

With the assistance of the Oregon Innocence Project, the dog was recently found alive and well in another city, casting significant doubt on the truthfulness of the accuser. It was the first exoneration for the Oregon Innocence Project, launched in 2014 to exonerate the wrongfully convicted and promote legal reforms.

Horner’s exoneration highlights the problem of false allegations in criminal cases. According to the National Registry of Exonerations, false allegations/perjury are the most common contributing factors for wrongful convictions, representing 57% of all exonerations. False allegations/perjury are especially common in child sex abuse cases (85% of exonerations) and homicide cases (69% of exonerations). http://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx

Nearly one in 10 persons – 9.7% — of respondents to a national survey said they had been falsely accused of sexual assault, domestic violence, or child abuse. Three-quarters of persons claiming to be falsely accused were male. http://www.saveservices.org/dv/falsely-accused/survey/

On college campuses, false allegations of sexual misconduct are believed to be commonplace. In over 100 lawsuits against universities, judges have sided with the accused student. https://docs.google.com/spreadsheets/d/1CsFhy86oxh26SgTkTq9GV_BBrv5NAA5z9cv178Fjk3o/edit#gid=0 At one university, the training materials openly justify false allegations of sexual assault, claiming that verified “lies” of accusers “should be considered a side effect of an assault.” https://www.thecollegefix.com/post/47631/

False allegations are not a victimless crime. Nikki Yovino, 18, was recently convicted and sentenced to one year in jail for false reporting of an alleged campus rape in Connecticut. At the sentencing hearing, Malik St. Hilaire, victim of her false accusation, explained, “I went from being a college student, to sitting at home being expelled with no way to clear my name.”

September is False Allegations Awareness Month. http://www.saveservices.org/camp/faam-2018/

Stop Abusive and Violent Environments works to end sexual assault and domestic violence.

Campus Due Process

PR: Most Americans Want Due Process on Campus, Despite Protests

Post author By saveadmin
Post date September 4, 2018

Contact: Rebecca Stewart

Email: info@saveservices.org

Most Americans Want Due Process on Campus, Despite Protests

WASHINGTON / September 4, 2018 – Last week the New York Times leaked information about a sex discrimination regulation that the federal Department of Education is expected to issue this Fall. In response, campus activists assailed the policy as “downright cruel” and “willfully ignorant.” (1)

These statements contrast with the views of most Americans. According to a 2017 survey of 1,200 persons conducted by YouGov, persons overwhelmingly agree that students accused of a felony level crime should be afforded due process (2):

— A full 81% of respondents said the accused should have the right to know the charges against him.

— 71% of persons polled said accused students should be sanctioned under the “clear and convincing” standard of evidence.

— 61% said accused students should have the right to cross-examine their accusers.

— 67% agreed that students accused of crimes on campus should enjoy the same legal protections that would receive in a court of law.

These findings held across the entire political spectrum. For example, 58% of Democrats, 70% of Republicans, and 60% of Independents agreed that accused students should have the right to cross-examine their accusers.

Due process procedures serve to ascertain the truthfulness of an alleged sexual offense. The importance of these procedures was evident in the recent case of Nikki Yovino, former student at Sacred Heart University, who was convicted of falsely accusing two men of rape. On August 23, Yovino was sentenced to serve one year in jail (3).

SAVE’s Campus Equality, Fairness, and Transparency Act outlines a series of procedures designed to maximize fairness for both accusers and the accused (4). To date, the editorial boards of the New York Daily News and the Detroit News, as well as numerous commentators, have written editorials in support of bolstering campus due process protections (5).

Citations:

http://endrapeoncampus.org/new-blog/2018/8/29/statement-on-new-york-times-reports-on-proposed-title-ix-guidance

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to campus sexual assault: www.saveservices.org

Campus Sexual Assault

Responding to Judicial Scoldings, State Legislators Seek to Rein in Campus ‘Kangaroo Courts’

Post author By saveadmin
Post date August 13, 2018

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Responding to Judicial Scoldings, State Legislators Seek to Rein in Campus ‘Kangaroo Courts’

WASHINGTON / August 13, 2018 – The movement to restore due process in campus sexual assault cases is gaining momentum, as lawmakers in several states have worked to restore due process and fairness in campus sexual assault proceedings. The trend began with California Governor Jerry Brown’s 2017 veto of a bill that would have solidified a number of anti-due process policies on campus. The trend is now being propelled by a surge of lawsuits by accused students against universities and colleges.

“In a stunning collective judicial rebuke to many campuses’ unfair treatment of students accused of sexual misconduct, courts have issued at least 102 rulings against universities since 2011, compared with 88 rulings in their favor,” notes a recent report (1). Many of the decisions were written using pointed language that was strongly critical of the university policies procedures. In 46 other cases, colleges have opted to settle the lawsuit prior to a judicial decision, rather than pursue expensive and potentially embarrassing litigation (2).

In two states, pro-due process bills have been introduced in 2018, but not enacted into law:

In South Carolina, House Bill 3303 would provide students with reasonable notice, a presumption of non-responsibility for the accused, the right to have an attorney who can participate in proceedings, and impartial fact-finders (3).

In Ohio, public colleges would be required to develop sexual-misconduct policies “with the goal of enhancing due process,” under a bill that has passed the House and moved to the Senate (4).

In Maryland, lawmakers took up Senate Bill 607, which required disciplinary proceedings to include a description of the rights for students and specified that an institution may not prevent a student from retaining an attorney. The bill passed both the Senate and House with strong bipartisan support (5).

In three other states, bills that erode due process protections have been sidelined:

In Massachusetts, the Democratic-controlled House of Representatives declined to take action on H.632, which had been previously passed by the state’s Senate. Critics of H.632 highlighted the flaws of trauma-informed training for investigators, a provision that had been derided as “junk science.” (6)

In Colorado, House Bill 18-1391 was approved in the House. But the bill failed to include sufficient due process protections, so the bill it was significantly amended in the Senate, resulting in the bill’s postponement (7).

In West Virginia, House Bill 2825, a bill that would have mandated problematic “affirmative consent” polices at the state’s colleges, was not voted upon prior to adjournment of the legislative session (8).

A summary of the current status of the campus sexual assault bills introduced in 2018 is available on the SAVE website (9).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org

Believe the Victim

PR: Legal Experts and Professors Join Forces, Endorse Letter Opposing Biased Investigation Practices

Post author By saveadmin
Post date July 23, 2018

Telephone: 301-801-0608

Email: info@saveservices.org

Legal Experts and Professors Join Forces, Endorse Letter Opposing Biased Investigation Practices

WASHINGTON / July 23, 2018 – Over 150 criminal attorneys, law professors, and scholars across the country who are concerned about widespread bias in sexual assault investigations have signed an Open Letter denouncing inequitable and unfair “victim-centered” investigative practices.

The letter concludes, “By their very name, their ideology, and the methods they foster, ‘believe the victim’ concepts presume the guilt of an accused. This is the antithesis of the most rudimentary notions of justice. In directing investigators to corroborate allegations, ignore reporting inconsistencies, and undermine defenses, the ‘believe the victim’ movement threatens to subvert constitutionally-rooted due process protections.”

Many of the victim-centered practices discussed in the Letter have become widely utilized by college administrators, drawing the ire of judges in both state and federal courts. “[I]n a stunning collective judicial rebuke to many campuses’ unfair treatment of students accused of sexual misconduct, courts have issued at least 102 rulings against universities since 2011 compared with 88 rulings in their favor.” (1)

Victim-centered practices, sometimes referred to as “Start by Believing,” are becoming widespread in the criminal justice system, as well (2). In 2016 an Arizona governor’s commission issued a letter advising the state’s criminal justice agencies to reject “Start by Believing” investigative methods because their use “creates the possibility of real or perceived confirmation bias.” (3)

These legitimate concerns have already manifest in actual cases. (4) Defense attorneys will likely begin to expose the biased training to the fact finders. As for institutions of higher education, journalist Emily Yoffee suggests that faculty members “should also model for their students how an open society functions, and how necessary it is to protect the civil liberties of everyone.” (5)

The Open Letter is available at http://www.saveservices.org/wp-content/uploads/VCI-Open-Letter-7.20.18.pdf. For a list of the 20 editorials published in 2018 critical of the ‘believe the victim’ approach, visit http://www.saveservices.org/sexual-assault/investigations/.

Citations:

(1) https://regproject.org/wp-content/uploads/RTP-Race-Sex-Working-Group-Paper-Campus-Misconduct-Proceedings.pdf

(2) http://dailycaller.com/2018/06/07/start-by-believing-program/

(3) http://www.phoenixnewtimes.com/news/duceys-faith-office-assails-start-by-believing-advocacy-program-for-rape-victims-8896373

(4) https://newsinteractive.post-gazette.com/blog/lies-jail-and-false-charges/ & https://blog.simplejustice.us/2018/03/16/no-reason-to-investigate-if-you-believe-the-victim/

(5) https://www.theatlantic.com/education/archive/2017/09/the-uncomfortable-truth-about-campus-rape-policy/538974/

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org

Campus

100 Decisions and Counting: Disregard of Due Process in Sex Cases is Costing Colleges Millions

Post author By saveadmin
Post date June 12, 2018

Contact: Chris Perry

Telephone: 301-801-0608

Email: cperry@saveservices.org

100 Decisions and Counting: Disregard of Due Process in Sex Cases is Costing Colleges Millions

WASHINGTON / June 12, 2018 – Last Friday the First Circuit Court of Appeals issued a unanimous due process ruling against Boston College. The judges upheld a student’s claim that the school failed in its “obligation to provide a fundamentally fair disciplinary process to Doe,” who had been accused of sexually assaulting another student (1).

The lawsuit demanded expungement of the proceedings from the accused student’s record and over $3 million in compensatory damages (2). The milestone decision marks the 100^th judicial decision in favor of students accused of sexual assault who later sued their college (3).

In 2011 the Office for Civil Rights issued a new policy on campus sexual assault that removed numerous due process protections for accused students (4). At many colleges, so-called “victim-centered” investigative procedures were instituted and poorly trained investigators began to play a lead role in the adjudication process, creating new liability risks for colleges (5).

Accused students who had been suspended or expelled began to sue. By 2015, the number of lawsuits by accused students surged more than five-fold over the 2011 level (6).

These lawsuits have proven to be costly in terms of legal defense fees and damages. Over a five-year period, total losses approached $9 million at the approximately 1,000 universities insured by the United Educators insurance company. The average loss per claim was $187,000, of which $132,000 was for defense costs, according to a 2017 report (7).

These expenses are likely to increase in the future. On March 9, 2018 a former student filed a $25 million claim against Vanderbilt University, alleging he was denied a meaningful standard of due process and equal protection (8).

The current system was recently described by New York Times columnist Michael Powell as a “broken process” that “flipped fundamental concepts of fairness.” (9) SAVE has developed a model bill titled the Campus Equality, Fairness, and Transparency Act (10).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to sexual assault and domestic violence: www.saveservices.org

Campus Due Process

PR: Effort to Restore Due Process on Campus Gains Traction

Post author By saveadmin
Post date May 14, 2018

Contact: Christopher Perry

Telephone: 301-801-0608

Email: cperry-at-saveservices.org

Sexual Assault: Effort to Restore Due Process on Campus Gains Traction

WASHINGTON / May 14, 2018 – Over the past seven months, leading liberal and conservative voices have worked to restore due process and fairness in campus sexual assault policies. Such initiatives reveal a growing trend being supported by lawmakers on both sides of the aisle.

Last September, Betsy DeVos, Republican Secretary of the U.S. Department of Education, rescinded the 2011 Dear Colleague Letter, a policy that was widely viewed as infringing on fundamental due process rights of accused students (1). The following month, Democrat Jerry Brown, governor of California, vetoed a bill that would have imposed many of the Department of Education’s anti-due process requirements on California universities (2).

Likewise in Massachusetts, the Democratic-controlled House of Representatives declined to take action on H.632, which had been previously passed by the state’s Senate. Critics of H.632 highlighted the flaws of trauma-informed training for investigators and adjudicators, a provision that had been derided as “junk science.” (3)

The pro-due process trend gathered momentum in 2018, as Supreme Court Justice Ruth Bader Ginsberg offered this commentary: “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. …There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” (4)

In Maryland, lawmakers took up Senate Bill 607, which required disciplinary proceedings to include a description of the rights for students and specified that an institution may not prevent a student from retaining an attorney. The bill recently passed both the Maryland Senate and House with strong bipartisan support (5).

In Colorado, House Bill 18-1391 was approved in the House. But because it failed to include sufficient due process protections, the bill it was significantly amended by Republicans in the Senate, resulting in the bill’s indefinite postponement (6).

In West Virginia, House Bill 2825, a bill that would have mandated worrisome “affirmative consent” polices at the state’s colleges, was not voted upon prior to adjournment of the state legislature (7).

In Mississippi, House Bill 1438, which was devoid of adequate due process protections, died in the Senate Judiciary Committee (8).

The editorial boards of two liberal-leaning newspapers likewise have called on colleges to involve criminal justice officials to investigate felony-level crimes. In January, the Detroit News opined, “Federal, state and campus policy regarding sexual assault should change to treat it as the serious crime it is, and assure that it is probed by experienced, professional investigators independent of the university.” (9) Last month, the St. Louis Post-Dispatch board issued a similar plea: “The pain lives on at universities whenever sex-abuse cases are handled quietly in-house rather than by competent legal authorities.” (10)

A summary of the current status of the state-level sexual assault bills introduced in 2018 is available on the SAVE website (11). In Congress, both Republican and Democratic lawmakers have spoken out on the need for due process and to strengthen the role of the criminal justice system (12).

SAVE urges state and federal lawmakers to recognize the growing trend for impartial and fair proceedings in campus sexual assault cases. SAVE offers a model bill titled the Campus Equality, Fairness, and Transparency Act (13).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org