Another group of law professors from another Ivy League school has attacked the academy's hostility to due process when it comes to men accused of sexual assault. This time, sixteen Penn law professors have chimed in. Read their criticisms here and here. Among other things, they say: "We are pleased that Penn, unlike many universities, has retained at least a partial hearing as a requirement for a finding of
responsibility, but this hearing still falls far short of ensuring fundamental fairness."
Further:
1. The protocol prohibits a lawyer or other representative for the accused student from cross-examining any of the witnesses against the accused. Although the Department of Education’s guidance strongly discourages allowing the accused to cross-examine the complainant personally, it permits the accused student’s lawyer or other representative to do so, as long as each side has equal rights to cross-examine. Cross-examination has long been considered as perhaps the most important procedure in reaching a fair and reliable determination of disputed facts. Rather than abolishing cross-examination, it would be much fairer to impose reasonable limits, including a ban on irrelevant questions regarding the
sexual history and sexual orientation of the complainant; control over unfair, oppressive, or overbearing cross-examination; and even separation of the complainant and accused during the hearing. Further, although the protocol permits the accused student to submit questions to the panel to be asked during its “interview” of witnesses, they must be submitted in advance and the decision to ask these questions is entirely discretionary. More importantly, no one should think that questioning by panel members is an adequate substitute for the far more informative and effective cross-examination by a student’s representative.
2. As noted, the panel is provided with a full report that finds that the accused student has engaged in sexual assault. And even though the panel has the accused’s objections to the report and is under a duty to “interview” the parties and to review all of the evidence, and may (but need not) interview other “key witnesses” and seek additional evidence if it chooses to do so, a panel of teachers and administrators is likely to defer to findings made by an “expert” Investigating Officer and a faculty member or administrator. Our legal system is based on checks and balances precisely because of the risks associated with concentrating so much power in the hands of a single investigator or Investigative Team. What is needed is a procedure that allows the accused student’s lawyer or representative to challenge the Investigative Team’s version of events, to ensure that the panel will hear all the evidence that is submitted by both sides and reach its own conclusions as to the veracity of witnesses and the
responsibility of the accused student. And it should not be forgotten that these proceedings are conducted in the shadow of threats of a Department of Education investigation for failure to properly investigate and sanction students for alleged misconduct. The threat of loss of federal funding risks coloring the proceedings, particularly because a hearing panel may not feel free to acquit without repercussions.
3. The hearing panel consists of three persons drawn from the University faculty as well as a non-voting Disciplinary Hearing Officer, and a decision holding the accused student responsible may be made not only by a mere preponderance of the evidence, but by a 2-1 vote. An evidentiary standard of clear and convincing evidence to convict provides a more durable safeguard against wrongful “convictions.” The preponderance standard may be required by the OCR guidance, but that mandate provides all the more reason for otherwise scrupulously fair procedures and a unanimous decision before a student can be expelled from the University and be stigmatized as a sexual offender. To require anything less than unanimity for the imposition of serious sanctions is unacceptable.
4. The protocol does not adequately protect the accused student’s right against self-incrimination in cases in which there may be a criminal prosecution. Although the protocol properly allows the University to grant a prosecutor’s request to defer proceedings that might adversely influence a criminal investigation or trial, there is no reciprocal opportunity for the accused, who may be forced to the cruel choice of defending the University charges at the risk of compromising his rights in
the criminal case.
Our concerns about fundamental fairness are not academic or theoretical in nature. There are documented cases of a rush to judgment on charges of sexual misconduct at universities, including the Duke Lacrosse case and the recent events at the University of Virginia. In the criminal justice system, there have been a large number of post-conviction exonerations of persons convicted of serious crimes,
including many sexual assault cases. Due process of law is not window dressing; it is the distillation of centuries of experience, and we ignore the lessons of history at our peril. All too often, outrage at heinous crimes becomes a justification for shortcuts in our adjudicatory processes. These actions are unwise and contradict our principles. We can and should provide protection and support for those who are subject to sexual abuse, and at the same time provide a fair process that is calculated to yield a reliable factual determination. Ultimately, there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.
____________________
The law professors' concerns echo the concerns that we write about on this blog on a regular basis. They echo the concerns raised last October by 28 Harvard law professors. Elsewhere, Prof. Alan Dershowitz wrote: “These rules are written to preclude a defense” for accused students. They also echo the concerns recently raised by Yale law professor Jed Rubenfeld; Prof. Glenn Harlan Reynolds of the University of Tennessee; Prof. John Banzhaf of George Washington University Law School; Prof. Elizabeth Bartholet of Harvard law school; Prof. Dan Subotnik of Touro Law School; and Prof. Janet Halley of Harvard law school.
These are not the voices of extremists or partisans. These are the voices of respected scholars that ought to be listened to. Yet, policy is being shaped by partisans who are not interested in fairness or impartial hearings. They are people who insist that every accusation ought to be treated as a conviction.