For purposes of this paper, we use the term “accused” to describe the person the accuser says committed the act against her or him.
Additionally, in this paper we use a number of terms for certain immoral, and often illegal, actions of a sexual nature.
The OCR “guidance” letter has been roundly criticized in liberal and conservative quarters, from law professors to think tank scholars to Members of Congress and many others.
Law professors at the University of Pennsylvania wrote that the “OCR’s approach exerts improper pressure upon universities to adopt procedures that do not afford fundamental fairness,” and that “due process of law is not window dressing.” Similarly, the American College of Trial Lawyers (ACTL) issued a white paper criticizing campuses for their lack of due-process protections and pointing out the inherent conflict of interest that Title IX school officials have if they are involved in these tribunals.
To make matters worse, in April 2011, the Obama Administration’s Office of Civil Rights (OCR) at the U. Department of Education sent a letter to all colleges and universities on them to change how they handle such cases.
This letter urged schools to weaken already minimal due-process protections for those accused of rape and sexual assault and threatened those that refused to do so with the prospect of losing federal funding, negative publicity, and public shaming by the Education Department, which would put the school on a “watch list.” Unfortunately, many schools buckled under the pressure and lowered the standard of proof from clear and convincing evidence to a mere preponderance of the evidence—often described as “50.01 percent sure” or the “simply more likely than not” standard; prohibited an accused individual from reviewing the evidence against him or cross-examining his accuser; either refused to allow an accused to hire an attorney or to allow that attorney to speak on the accused’s behalf; and implemented other procedures that “do not afford fundamental fairness” to the accused.
Ironically, the OCR’s guidance may well make matters worse for victims of rape.
By tipping the scales in favor of an accuser and coercing colleges to keep these cases on campus rather than referring them to law enforcement authorities, the OCR has put other potential victims in jeopardy by literally giving some rapists and other dangerous predators a get-out-of-jail-free card.
These not-so-subtle pressures may contribute to partial and discriminatory investigations and the absence of protection for the accused.” Moreover, Title IX officials, who are often put in charge of these investigations, have an inherent conflict of interest since they “owe their position” to the 2011 OCR guidance.
On the other hand, colleges often handle rape and sexual assault cases internally through a quasi-administrative process instead of referring them to local law enforcement.
Indeed, students who have been raped are sometimes discouraged by university administrators from reporting the crime to competent, professional law enforcement officers or local prosecutors.
Colleges often handle rape and sexual assault cases internally through a quasi-administrative process staffed by individuals without the necessary training or experience instead of referring them to local law enforcement.
A sounder system that safeguards the due process rights of the accuser and the accused is to mandate referral of sexual assault crimes to local law enforcement for investigation and prosecution.Schools must remain focused on their educational mission while responding to misconduct that is not necessarily tied to academic performance.Sometimes far more serious crimes occur on college campuses, including rape and murder.The accused are entitled to a presumption of innocence, both in criminal and administrative proceedings—something that too many campus administrators and activists would like to deny.