Clear and Convincing?

By Lisa F. Geherin posted 11-27-2017 08:45


I have mixed feelings about the plan to rescind the Obama administration’s Title IX guidelines that implemented the preponderance of the evidence standard for universities investigating sexual assault complaints. On one hand, I have a 13-year-old daughter who will, in the not too distant future, be enrolled at one of the fine colleges in Michigan or elsewhere. And, God forbid, if she were ever the victim of a sexual assault, I might want the lowest standard of proof used when deciding the guilt of the accused student. I might argue that keeping the current guidelines in place is the only way to ensure that her school understands its responsibilities under the law—ensuring it responds in a timely and effective manner to sexual violence. On the other hand, I also have a 14-year-old son. He too will be attending college in the not too distant future. I certainly would want him to have a fair investigation that included due process safeguards if he were ever accused of such an act.

So what is prompting this new policy recommendation? Two things, says Janet Halley, feminist Harvard Law School professor: (1) accusers rarely get to see the complaints against them and (2) what constitutes wrongful conduct under Title IX has, in some instances, been interpreted too broadly, including in real cases involving public urination or touching someone on a crowded dance floor. The goal, she says, is to make the process fair for all students. But without a process that provides for the accused to be able to confront the accuser, says ICLE contributor Deborah Gordon, people’s civil rights are being violated.

In a recent Heritage Foundation legal memorandum criticizing the quasi-administrative process of investigating sexual assaults, Hans von Spakovsky argues that colleges lack the resources to conduct sexual assault investigations. He goes on to say that allowing colleges to conduct those investigations rather than refer them to law enforcement hurts the accuser as well. In his view, the process “put[s] potential victims in jeopardy by literally giving some rapists and other dangerous predators a get-out-of-jail-free card.” Not surprisingly, the memo urges mandatory referral of sex crimes to law enforcement.

Whether you believe that the standard of proof should be higher or whether schools should turn over investigations to law enforcement, the next few months will be telling as members of the public and groups like the American Bar Association and the American College of Trial Lawyers take part in the notice and comment process about the proposed changes to the Title IX guidance policy.