Abstract
Campus disciplinary systems are positioned to provide a modicum of justice for victims of sexual violence and deter predatory assaults. Yet, this will occur only if victims find them worthy of use and the broader campus community believes them to be fair to accused and accusing students. This investigation reviews the legal status of various due process and victim protection practices and determines their presence in the student disciplinary policies of four-year residential colleges and universities in Maryland. Findings establish that compliance with the Clery Act is relatively high, while due process and victim protections vary widely. Findings also show that public institutions and those adopting “trial”-like adjudication procedures promise greater due process and victim protections compared to private institutions and those following an inquisitorial model. Policies are recommended to achieve procedural fairness while encouraging victims to report abuse and use campuses systems, along with further avenues for investigation.
Personal Reflexive Statement
This article fits within a long-term research agenda focused on the prosecution of sexual assault. My goal with this project is to encourage the practice of systematically analyzing campus adjudication procedures, so that policy discussions are not based on practices adopted by the few select schools that appear in media accounts or those where students have filed Title IX claims. Many thanks to Emily Delaney and Alyssa Quenzel for their superb research assistance, to Robert Rubinstein for responding to my early drafts, and to my peer reviewers who provided extensive thoughtful commentary.
Campus sexual assaults and the administrative processes for adjudicating them were featured widely in the media this past year. Collectively, the stories have raised questions about whether victimized or accused students can achieve procedural justice 1 on campuses. Many media outlets reported about Emma Sulkowicz, a Columbia student who carried a mattress everywhere during her senior year to protest the way the administration handled her report of sexual assault. 2 Bazelton (2015), writing for The New York Times, emphasized that her perception of a failed system was echoed by Paul Nungesser, the man whom she accused. Smith (2015) reported for National Public Radio about John Doe, a University of California, San Diego, student who successfully sued his university after it suspended him for sexual assault. In the widely quoted story, she highlighted 50 similar civil cases that have been filed. Writing for The National Review, Taylor and Johnson (2015) argued that accused students overwhelmingly are assumed to be “guilty until proven innocent.” The Cable News Network also broadcast The Hunting Ground, a documentary about campus assault and subsequent institutional responses to it, in tandem with a panel discussion. 3 Whether cases that have gained media attention of late are generally representative of campus adjudication practices is unknown. But growth of the perception that procedural justice is unattainable has potentially serious consequences for the capacity of colleges and universities to address sexual assault, as they must under the federal Title IX statute (Russlynn 2011). 4
It is widely accepted that sexual assaults pose real threats to students’, primarily women’s, physical and mental health, and academic success (Kilpatrick et al. 2007). In addition to having access to counseling and medical care, injured students must have venues to name the harm done to them and call assailants to account (Martin 2005). Campus procedures provide such an opportunity to students who do not wish to impose the force of the criminal justice system on their assailants or themselves or whose attempts to activate criminal prosecution have failed. Having a means to hold student assailants accountable is also important in light of research that suggests that many campus assaults are not the result of miscommunication. Lisak and Miller’s (2002) study of 1,882 college men found that 120 (6.4 percent) admitted to attempting or completing rapes (penetrative sex) by force or threat of force or when they knew a woman was too intoxicated to resist. Carr and VanDeusen (2004) reported that 4 percent of 99 college-age men they surveyed admitted they had forced women into sex acts and 15 percent acknowledged “some form of alcohol-related sexual coercion” (p. 284). 5
Sexual assault appears to persist on campus because peers reinforce patriarchal gender norms. For example, Carr and VanDeusen found that more than a third (35 percent) of men in their sample “reported their friends approved of getting a women drunk to have sex with her and 20% acknowledged having friends who have gotten a women drunk or high to have sex” (2004:287). Sexual assault also appears to persist on campus because some men do not fear negative consequences for acts they know to be improper. This argument is supported by Edwards, Bradshaw, and Hinsz’s (2014) findings that 32 percent of a sample of heterosexual college men would have “intentions to force a woman to sexual intercourse” if “nobody would ever know and there wouldn’t be any consequences” (Bekiempis 2015). It is also supported by several studies that found a sizable portion of campus rapes are predatory and committed by repeat offenders (Lisak and Miller 2002; McWhorter et al. 2009; Swartout et al. 2015). 6
When student victims do not report sexual violence/misconduct and use the criminal justice system or campus judicial processes to hold assailants accountable, there are few disincentives for intentional actors to perpetrate sexual assault. Thus, it is important that victims recognize sexual assault when it happens and also know that activating adjudication systems can produce justice at a lesser personal cost than remaining silent. Written campus policies that indicate accusing students will or could face abuse during hearings from the violator or her or his representative or face bias from investigators or adjudicators are likely to contribute to victims’ silence on campuses. Campus policies that do not address or are unclear about the way in which hearings are conducted and the grounds for appeal are likely to have the same effect. But, the importance of clarity about adjudication procedures extends beyond victim’s immediate concerns. Campus judicial systems must also appear fair and legitimate to members of the campus community, such that students and faculty are willing to play a role in the administration of justice. Procedures that do not provide clear due process protections for accused students increase the likelihood that the outcomes of campus adjudication, both determinations of responsibility and sanctions, will be questioned. They also decrease the support that victimized students can count on from peers to make reports or see the adjudication through. In short, the perception of procedural justice is necessary for campus judicial systems to function as remedies for campus sexual assault (Konradi 1997, 2007, 2010; Lind and Tyler 1988; Martin 2005; Tyler et al. 1997).
Media representations of campus judicial systems at specific institutions of higher education (IHEs), like those described above, raise questions about the legitimacy of campus adjudication in general. Little published research exists to support or refute this contention. This investigation, which involved a detailed analysis of written policies governing the adjudication of sexual assault in all four-year residential campuses in Maryland, provides some relevant evidence to answer several questions. Are IHEs in compliance with federal legislation 7 focused on sexual assault? That is, are the minimum procedural information and minimum standards required by law available to the students at all IHEs? Furthermore, do campus policies equally protect accused and accusing students relative to each other and to broader standards of fairness? Are policies in place that will encourage victims to report and others to support the process? If policies are varied, what institutional qualities may account for differences in compliance and/or protections?
Analysis revealed that although 2013 Campus Sexual Violence Elimination Act (CSVEA) mandate that campuses achieve fair and equitable procedures was not yet binding, most campuses had made progress toward implementation. Progress lagged, however, in terms of granting students access to advocates and providing information to students about appeals and training for members of hearing panels. Across the IHEs, victims remained largely unprotected; rape shields and amnesty for drug or alcohol usage were offered by a minority of IHEs. Both compliance with the Clery Act and access to due process rights was greater at public institutions than private institutions and at IHEs that employed an adversarial trial process compared to an inquisitorial process. IHEs that provided strong victim protections did not have comparatively fewer protections for accused students. The findings underscore the need to dig deeper than compliance with the Clery Act to evaluate the capacity of campus judicial systems to deliver procedural justice to accused and accusing students.
Legal Requirements for Campus Adjudication
Legal requirements governing IHEs arise from federal and state court decisions; the Clery Act and its amendments (at the time of this study, the most current version was the Violence against Women Reauthorization Act [VAWA] of 2013), state legislation, and directives from the Department of Education (DOE), such as Dear Colleague Letters (DCLs) from the Office of Civil Rights (OCRs). 8 To provide a context for the analysis, the next section will provide an overview of the evolution of legislative and common law mandates concerning campus judicial procedures, noting issues that remain unresolved. Its concern is objective procedural justice (Lind and Tyler 1988), which forms a backdrop for how campuses’ administrations develop policy and how individuals develop subjective perceptions of procedural justice. The information is organized in sections by legal issue: First, taking up due process owed an accused student and then protections for sexual assault victims. A review of what we know about compliance of IHEs with the Clery Act and delivery of protections to students then follows.
Required Due Process Protections for Accused Students
In 1961, the federal court of the second district held, in Dixon v. Alabama Board of Education, that the due process clause of the 14th Amendment requires public (state supported) schools to provide students subject to expulsion with notice of charges and the specific grounds that substantiate them, the evidence that “forms the foundation of the accusation,” and a hearing affording an opportunity to present a defense employing oral testimony or written affidavits (Christensen 1975:711-12, emphasis added). This position was adopted by the Supreme Court in Goss v. Lopez (1975) and extended to suspensions.
The U.S. 10th Circuit Court of Appeals held, in Slaughter v. Brigham Young University (1975), that university students were also entitled to a standard of proof in disciplinary hearings of no less than “substantial evidence,” such that a “reasonable person would support the fact finder’s conclusion” (Weizel 2012:1633). In the same year, a federal trial court in Michigan specified that the standard of proof used by a state university could be no lower than preponderance of the evidence (Smyth v. Lubbers 1975; Weizel 2012) and might need to be higher when the offense constituted a crime. In 2001, a federal court affirmed that position in Butler V. Oak Creek-Franklin School District, explaining schools must balance “the risk of an erroneous decision under the standard of proof used and the likelihood of a more accurate decision if a more demanding standard is used.” The Butler court held “that no lower a standard of proof” than “preponderance of the evidence” could be acceptable in a case involving a suspension.
The courts have not extended these due process protections to private colleges and universities but have held that private IHEs have a contractual relationship with students and are bound to provide any promised safeguards in internal adjudication.
The 1994 VAWA created a “civil rights cause of action for ‘crimes of violence motivated by gender’” and “explicitly referred to preponderance of the evidence as the applicable standard” (Chmielewski 2013:154). When the Supreme Court later struck down VAWA’s civil rights remedy on the grounds that it was not enforceable under the commerce clause or section 5 of the 14th amendment, “it did not question” applying a civil rights remedy or the preponderance standard (Chmielewski 2013:154).
Subsequently in 2011, a DCL from the OCR explained that Title IX (Ali 2011) mandates that all IHEs, irrespective of funding source, provide a grievance procedure for adjudicating claims of sexual violence/misconduct. The DCL required IHEs to provide complaining students and accused students with equal opportunity to submit statements, present witnesses, and evidence, and to appeal outcomes; and it required IHEs to use the civil rights standard of proof, “preponderance of the evidence,” to “resolve complaints of sex discrimination.” In short, the OCR demanded uniformity of treatment of accusers and accused in cases of sexual violence/misconduct and also uniform minimal terms of due process and a threshold of proof among all IHEs, public and private (Chmielewski 2013:165; Weizel 2012:1645).
The 2013 CSVEA affected all IHEs receiving federal funds 9 and required they conduct a “prompt, fair, and impartial investigation and resolution” of allegations of sexual misconduct, “by officials who receive annual training.” Under the CSVEA, IHEs must provide students with written definitions of sexual misconduct and consent and written descriptions of penalties for sexual misconduct, how to report victimization, the adjudication process, the standard of evidence, and appeal procedures. IHEs must also provide the accuser and the accused “the same opportunity to have others present” during adjudication hearings, “including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice.” Following hearings, IHEs are to convey in writing the “outcome” or adjudication to the accused and accusing students, the appeals process, and any subsequent “change” in the final results.
While the courts, congress, and the OCR have weighed in on some issues, other matters of due process are not resolved. In 2002, Weizel noted that federal courts were split over the means necessary to ensure impartiality of judgment at a public institution and whether an accused student had a right to: a list of witnesses the university intended to call, counsel when criminal charges are pending or when the university uses an attorney, or cross-examine witnesses (p. 1627). The following four sections address the status of some of the matters that remain unresolved.
Do IHEs owe students access to counsel?
The Goss v. Lopez (1975) court “expressly noted that it did not interpret due process to require counsel” (Mossman 2012:593). Yet, three years later, in Gabrilowitz v. Newman (1978), the first circuit court established a right to counsel in disciplinary proceedings where students faced parallel criminal charges (Mossman 2012). In 1988, a Federal Appellate court revisited the matter and held, in Gorman v. Univ. of Rhode Island (1988), that students in public IHEs, who are facing criminal charges, are entitled to an attorney’s advice, but not representation, in disciplinary hearings (Hogan 2009). Triplett (2012) points out that at present the courts have varied positions on student’s rights to access to legal counsel. In 1997, the Donohue v. Baker court found that denial of access to nonstudent legal counsel was not a violation of due process. Similarly, in 2007, the federal judiciary found, in Danso v University of Connecticut, that a student is not entitled to “access to a student advocate of his choice” (Triplett 2012:502). However, “in Furey v Temple University, [2010] the Eastern District of Pennsylvania held that a student who was facing expulsion should have been granted access to legal counsel” (Triplett 2012:502). The final regulations of the 2013 CSVEA make clear that attorneys may be advisors of choice in adjudication to resolve allegations of sexual violence, but allow IHEs to limit their participation (DOE 2014).
The North Dakota and North Carolina legislatures recently granted public school students a right to have attorneys present in cases of possible suspension or expulsion (Lacher 2015). 10 Arkansas has gone a step farther and guaranteed a right to full legal representation in disciplinary processes (Lasher 2015). 11
Do accused students have a right to cross-examine witnesses?
In Dixon v. Alabama Board of Education (1961), the court stated that the right to a hearing did not encompass the right to cross-examine witnesses. The Supreme Court cited Dixon in Goss v. Lopez but did not expand on the nature of a “hearing.” Subsequent appellate cases have supported a limited right to confront. A U.S. District Court in New York found in Donohue v. Baker that a male student accused of rape was only entitled to direct questions to his accuser through the hearing panel (Campus Clarity 2014; Hogan 2009).
Do accused students have a right to appeal?
Federal courts have not specifically weighed in on student’s rights to appeal institutional adjudication. The 2011 OCR DCL and 2013 CSVEA specify that accused and accusing students must have the same right to make appeals. However, they do not specify the grounds for those appeals. North Dakota Senate Bill 2150, signed into law April 22, 2015, specified the parameters of appeal within institutions controlled by the North Dakota State Board of Education. It guaranteed the right to appeal to the accused and the “accuser or victim” when suspension or expulsion is the outcome of a hearing, specified a time frame of one year to file, and delineated the issues that might be raised.
Are accused students entitled to other aspects of “fundamental fairness”?
Whether students are entitled to be judged by peers or how the members of hearing bodies are selected has not been determined by the courts. Title IX requires only an “impartial hearing process” and “prompt and equitable resolution of complaints.” To date, neither the courts nor legislatures have set a requirement of, or parameters for, achieving a neutral fact-finding body. Other matters not yet addressed by the courts include whether accused students are entitled to sustain silence (Hendrix 2013) and to subpoena or compel testimony (Triplett 2012), or whether hearing bodies may consider an accused student’s past disciplinary record in relation to the finding of facts.
Required Protections for Sexual Assault Victims
The “equitable” imperative of Title IX would seem to require that accusing students have the same rights of participation, appeal, representation, and so forth that IHEs advance to accused students. Three other possible “victim’s rights” are considered below.
Are sexual assault victims entitled to a “rape shield”?
As a result of the feminist rape reform movement, all U.S. states and the federal government limit by law the questions that a sexual assault victim may be asked in court about her or his past sexual history. These laws vary in scope and have exceptions, but they cut off an avenue for attorneys to badger victims and decrease the likelihood that jurors will decide a victim consented to sex with the accused because they learn she or he previously consented to sex with someone else. The courts and the 2013 CSVEA are silent on this matter in campus adjudication.
Are sexual assault victims entitled to amnesty from prosecution for violations of drug and alcohol policies?
Following the logic that diminishing deaths by drug overdose is more important than prosecuting drug use, 15 states have passed amnesty laws that protect drug users from criminal prosecution if they seek urgent medical attention for themselves or someone else (L. Anderson 2014). Some students who have consumed drugs or alcohol prohibited by their campus code of conduct are reticent to bring allegations of sexual assault forward, because they fear being prosecuted (Karjane, Fisher, and Cullen 2002; Konradi and DeBruin 2003). In the interests of promoting reports and prosecuting assailants for the good of all students, some IHEs have adopted amnesty policies that prohibit charging students who make formal allegations of sexual misconduct with substance infractions. Others, including the military academies, delay consideration of such charges until after the matter of sexual violence is resolved (Brubaker 2009). The 2011 and 2014 OCR DCL and 2013 CSVEA are silent on this matter. New “Enough is Enough” legislation in New York extends mandated state university sexual misconduct procedures to all campuses in the state, requiring them to grant amnesty for drugs and alcohol (Albany Press Office 2015).
Are victims entitled to speak to influence sanctions?
The victim’s rights movement secured the opportunity for sexual assault victim witnesses to communicate the impact of the crime on their lives to judges prior to sentencing, whether the case is resolved by plea or trial (Konradi and Berger 2000). The courts, OCR, and Clery Act are all silent on whether an accusing student should have the opportunity to communicate with the sanctioning individual/body after responsibility for sexual assault is established.
Research on the Adjudication of Sexual Violence/Misconduct
Little systematic research has been conducted on the nature of campus disciplinary policies for resolving sexual violence/misconduct. Karjane et al.’s (2002) nationally representative National Institutes of Justice–funded study of the condition of practices in IHEs in 1999 serves as an initial benchmark. M. Anderson’s (2004) survey of the top 66 IHEs in U.S. News and World Report and Amar’s (2014) convenience survey of National Association of Student Affairs Professionals and Administrators (NASPA) 12 members conducted in 2011 provide updates. This section provides a summary of what little we know about past and current practices, examining protections directed at accused students and then accusers.
Due Process Protections
Consistently, Karjane et al. (2002) found in 1999 that public four-year IHEs put more information in writing and offered more due process rights than the private four-year IHEs. 13 Ninety-one percent of public IHEs had written disciplinary policies as compared to 84 percent of private IHEs. Of the 817 IHEs with published disciplinary policies, 72 percent of public and 48 percent of private provided a written description of the hearing process, 73 percent public and 57 percent private described the appeal process, and 66 percent of public and 67 percent of private IHEs listed legitimate reasons for appeals.
Interestingly, Karjane et al. (2002) discovered that public and private IHEs published a similar distribution of penalties: community service (10 percent public, 5 percent private), educational projects (30 percent public, 34 percent private), classes (10 percent public, 11 percent private), withholding grades or transcripts (15 percent public, 7 percent private) and notifying parents (5 percent public, 9 percent private), and arrest (1 percent public, 1 percent private). Amar (2014), who did not distinguish between public and private IHEs, found that sanctions reported for sexual assault in 2011 were significantly more stringent including expulsion (90 percent), suspension (92 percent), no contact orders (80 percent), fines (32 percent), restitution (43 percent), and community service (61 percent).
Karjane et al. (2002) reported that a standard of proof was supplied by 45 percent of public and 29 percent of private IHEs in 1999. In both cases, preponderance of the evidence was the most common (79 percent public and 88 percent private), 3 percent of public and 5 percent of private applied the criminal standard of beyond a “reasonable doubt” and 19 percent of public and 13 percent of private used an “other” standard, which could have been lower (substantial evidence) or higher than a preponderance (clear and convincing evidence). Recently, Amar (2014) found 61 percent of IHEs relied on a preponderance standard and 30 percent on a clear and convincing standard, suggesting that some campuses may have raised the bar in cases of sexual assault in the decade after the NIJ study was completed. 14
Public IHEs consistently promised more due process rights to accused students than private IHEs in 1999: written notice of rights (72 percent vs. 48 percent), access to an advocate (56 percent vs. 43 percent), a hearing involving presentation of evidence (73 percent vs. 49 percent), rights to give testimony (73 percent vs. 55 percent), call witnesses (81 percent vs. 57 percent), and cross-examine witnesses (69 percent vs. 31 percent; Karjane et al. 2002). Amar (2014) reported that more IHEs overall provided written notice of rights (90 percent) and charges (82 percent) and provided for an advocate (82 percent) in 2011, some including attorneys among the options.
The consistent greater due process rights that Karjane et al. (2002) found at public institutions in 1999 may well reflect the fact that IHEs are reactionary in their development of policy. Courts had not extended requirements to private institutions and administrators felt no need to act. The smaller public–private differential found by Amar in 2014 may reflect changes in legal precedents and/or institutional responses to the Clery Act and OCR litigation.
In 1999, just 10 percent of public and 12 percent of private IHEs used only a single fact finder to resolve sexual assault; most IHEs used hearing boards that took vote on the matter of responsibility. Students served on the boards of the vast majority of institutions (81 percent private and 78 percent public) and a slightly lower percentage of IHEs also involved faculty (72 percent public and 79 percent private; Karjane et al. 2002). Amar (2014) found that more hearing boards included students (88 percent) and faculty (89 percent) in 2011, but more than twice the proportion of cases overall were heard by a single fact finder (30 percent). Neither federal courts, the OCR or state laws mandated a model for resolving sexual assault complaints in 1999 or 2011, thus, the reason why change would occur is unclear.
Victim Protections
Karjane et al. (2002) found that few public (19 percent) or private (10 percent) IHEs protected sexual assault victims from questioning about their past sexual history with others or indicated that hearing board members received training about sexual assault (4 percent public and 10 percent private). Amar (2014) did not explore rape shields or training but reported that 15 percent of IHEs offered amnesty in regard to alcohol and drug violation to students bringing accusations of sexual assault. Again, it seems likely that lack of a mandate explains why the majority of campuses did not develop policy in ways that were particularly responsive to victim’s needs in adjudication.
Given the findings above, it is worthwhile to consider why some IHEs were out ahead of federal mandates. In Karjane et al.’s (2002) and Amar’s (2014) national studies, it is possible that some were responding to state legislation, but there is little evidence of states developing mandates for the management of sexual assault until recently. Another possibility is that policy on some campuses was driven by activists concerned about violence against women and/or the legitimacy of the system. This study, which focuses on IHEs in a single state, makes it possible to control for state legislation and focuses on institutional-level factors.
Data Collection and Analysis
As described above, this investigation examines policy documents secured from all residential four-year institutions in Maryland. Data were collected from IHEs within a single state because a companion study was focused on comparing institutional definitions of sexual assault and consent to the state penal code. Residential campuses were chosen because sexual assault is of particular concern on them. 15
The study includes 25 residential four-year IHEs. Eleven (44 percent) are public; three of them are historically black. The smallest conservatory enrolls 301 undergraduates and the largest state university over 35,000. One private IHE is a women’s college.
All policy documents secured pertained to the management of campus sexual assault during the academic year 2013–2014. This time frame followed the March 7, 2013, passage of the 2013 CSVEA that substantially expanded Clery Act mandates. However, IHEs were not obliged to provide students with updated policies before the academic year 2014–2015 or to meet new reporting criteria until October 1, 2014, when Campus Security Reports were due. IHEs were, however, expected to make “good faith” efforts to comply with revisions of the statute until final regulations were published (Mahaffie 2014). Thus, the time frame within which material was collected was one of flux for IHEs. They had been directed to act but were not yet accountable to the new mandates.
The data were secured via Internet searches of each IHE website (Krivoshey et al. 2013). Initially, we obtained the Campus Security Reports and Student Handbooks for the Code of Conduct. If the sexual violence policy and sexual harassment policy were not within these two documents, internal search functions were used to locate them. 16 Searches for “sexual assault” were used to locate any additional material pertaining to campus judicial policies. In total, 814 pages of documents were coded. 17 The space IHEs allocated to defining sexual misconduct and procedures for addressing it ranged from 12 to 64 pages. The mean number of pages was 32.6 and the median 32 pages.
All documents pulled from each IHE were read by two individuals and coded line by line for the presence of text responsive to 27 individual mandates within the 2013 CSVEA. 18 These included written definitions of sexual misconduct and consent, all applicable sanctions, the applicable standard of proof, to whom reports were to be made, rights of appeal, information about the adjudicatory body or individual and its constitution, training of the investigator and hearing body, specification of all rights of the accused and accusing students, information about equivalent support and access to an advisor. We also coded for specific language that pertained to how evidence was collected (oral testimony, documents), who determined a conduct violation occurred and levied sanctions (a panel or an individual), the grounds for appeals (improper procedure, new evidence, inappropriate penalty, mistake of fact), and what responsibilities and rights accused and accuser were granted in the process. Due process information included peers and faculty on hearing boards; being informed of charges; and rights to call witnesses, provide evidence, question witnesses, question one’s accuser, challenge fact finder(s) for bias, sever cases, remain silent, and have access to tape recording of proceedings. Victim rights coded included physical separation of accused and accuser possible, indirect questioning possible, existence of a rape shield of some sort, right to make a victim impact statement (VIS), and detailed training of investigators and hearing board members about sexual assault. Summary scores were created for rights granted to accused and accusing students and representative percentages were calculated. Additional close reading of the specific details of campus procedures—how a claim of sexual assault progressed through investigation, to adjudication, sanctioning (if an accused party was found responsible), and possible appeal—resulted in the development of procedural models.
We also developed several institutional-level variables. Information in all cases was derived from what was publicly available on the website. The number of students on a campus has the potential to affect the number of infractions a campus has to address through adjudication, the number of students and faculty available to serve as members of hearing boards, and possibly the likelihood accused and accusing students will know student members of hearing boards. We recorded the undergraduate enrollment for fall 2013. Bearing in mind that courts have not placed the same due process burden on private as public IHEs, we recorded the funding status of each IHE in the sample. The development of institutional policy protective of victims of sexual violence may also reflect feminist activism. Thus, we developed a measure of feminist presence on each IHE, using the existence of women’s and gender studies majors/minors; Take Back the Night Marches; and women’s centers as indicators of faculty, student, and administrative support, respectively (Hayes-Smith and Hayes-Smith 2009).
Findings
Compliance with the 2013 CSVEA (The Clery Act)
No IHEs were in full compliance with the 2013 CSVEA in the year before it was binding. The highest rate was 89 percent and the lowest 37 percent. All IHEs provided the following information relevant to adjudication (see Table 1): how to report complaints, the administrative processing options that are available, who weighs evidence and determines if accused students are responsible for conduct violations, the sanctions for persons found responsible 19 that are possible, and procedural information for the accused. Almost all IHEs showed compliance (88 percent) for supplying definitions of sexual misconduct, information about accusing and accused students’ right to have support during interviews and hearings, and a standard of proof.
Percentage Compliance with 2013 Reauthorized Clery Act Mandates Relevant to Adjudication.
Note: N = 25. IHEs = institutions of higher education.
Many mandates new to the 2013 reauthorization were found in the policy of the majority of IHEs, although compliance was not yet required. About 85 percent provided a definition of consent and 88 percent provided information about accusing student’s rights in the adjudication process. But, fewer than half of the IHsE indicated accused and accusing students could have “any advisor,” including an attorney, for support. And less than a quarter provided detailed information about training received by investigators or hearing board members. In short, it appears that IHEs are more willing and able to develop definitions or explanations of procedures than to alter institutional procedures. Administrators may not wish to get out in front of final regulations.
There were some differences between public and private IHEs. Only private IHEs did not guarantee the accused and accuser access to the same support and did not supply a standard of proof. In addition, twice as many public IHEs allowed accused and accusing students to have any advisor, which included an attorney. In contrast, more private than public IHEs supplied a definition of consent and information about the rights of accusing students.
Due Process Protections and Funding Sources
Table 2 shows that none of the specific due process protections was offered to accused students by all IHEs. Accused students were far more likely to be informed of charges or granted a right to call witnesses than allowed to challenge adjudicators for bias before hearings or question witnesses and accusers. Overall, public IHEs promised accused students more due process protections than those at private IHEs in every category, sometimes by a wide margin.
Percentage of Public and Private Institutions of Higher Education (IHEs) with Procedural Protections.
Relative to protections for the accused, comparatively few IHEs promised victim-centered protections to accusers. More public IHEs limited how questions could be asked of accusers and what questions they could be asked than private IHEs. More public IHEs also offered accusers immunity for drinking or drug use. Given this, accusers appear poorly protected overall but more protected on public campuses.
Not all IHEs supplied grounds for launching appeals despite publishing that both accusers and accused could make them. Public and private IHEs prioritized the grounds similarly, but public IHEs collectively offered more grounds. It was almost exclusively public IHEs that promised the documentary trail most beneficial for advancing an appeal: a tape recording.
Despite providing a generic statement compliant with the Clery Act, that accused and accusing students would receive the same treatment, few IHEs provided details that bore this out. Table 3 shows that promises made to accused students were not formally extended to accusing students by public or private IHEs. Thus, we can see that incentives for survivors of sexual assault to report their victimization and use campuses processes to hold assailants accountable are generally not present.
Due Process Rights Specified for Accused Students and Accusing Students.
All due process and other protections for accused students were summed for each IHE and the percentage of those possible was calculated. One IHE published no due process protections; the most promised of all possible was 65 percent. The median and mean of due process protections were both 35 percent. IHEs, with values above 50 percent, may be characterized as strongly oriented to protect accused students. All policies relevant to protecting victims/accusing students were also summed for each IHE, and the percentage of all possible was calculated. Forty-four percent of the IHEs had no victim-oriented policies; the highest value was 85 percent. The median and mean of victim support were 17 percent. IHEs with a value of 50 percent or better may be characterized as strongly victim supportive. IHEs that were strongly oriented to protecting accused students’ due process rights did not, as a group, have values for protecting victims/accusers that were above the mean. Two, in fact, had victim support values of zero. However, all IHEs that offered strong supports for victims also offered above average due process supports for accused students, and two were strongly due process oriented. It appears that due process for the accused was not diminished by attention to the needs of accused, undermining the argument that these two kinds of protections for students exist in a zero-sum relationship.
The higher levels of both due process and victim protection on public campuses could reflect comparatively greater attentiveness and responsiveness to legal precedents and legislative action. But that is difficult to square with the two-and-a-half decade obligation for all IHEs to respond to the Clery Act and steadily rising stakes, specifically increased fines, increased scrutiny by DOE, and increased litigation by accused and accusers. Perhaps the apparent public/private difference masks some other feature of IHE disciplinary systems. An inductive examination of how IHEs approached resolving accusations suggests that this may be the case.
Variation in Adjudication Procedures
Sixty-four percent of the IHEs processed sexual assault allegations the same way as other violations of the campus code of conduct. In the remaining 36 percent, sexual misconduct allegations were handled only through the sexual harassment protocol. 20 No two IHE policies were identical, and there was as much diversity within sexual harassment protocols as within those common to other violations. But two typical approaches for adjudicating sexual misconduct emerged that cut across the campus conduct and sexual harassment protocols: “adversarial trial” (adopted by 14 IHEs) and “inquisitorial” (adopted by 9 IHEs; Glendon et al. 2008). 21 It was only possible to cleanly categorize 23 of the IHEs, because 2 IHEs (1 public and 1 private) provided inadequate information to determine precisely how a hearing board determined responsibility. Information in Tables 4 and 5 are based on the 23 clear-cut cases.
Adjudication Models.
Procedural Results.
Note: N = 23. IHEs = institutions of higher education.
Adversarial trial model
The trial model involves a process in which the accused and accuser are involved in presenting information to a hearing board comprised of students, faulty, and/or staff. It explicitly allows the accuser and the accused the right to confront and question evidence provided by witnesses (and each other). The hearing board is tasked with assessing whether a preponderance of evidence indicates the accused violated the code of conduct. If the hearing board finds the accused responsible, it also recommends a sanction. The hearing board presents its decision and recommendation to an administrator with the authority to implement sanctions.
Inquisitorial model
The inquisitorial model involved a prolonged investigation: interviews with the accuser, accused, and other witnesses and review of relevant documents generated by either party or campus security. While the accused and accuser could suggest witnesses, they were not able to observe or cross-examine other individual’s testimony and could not review the full scope of documentary evidence before a formal report was issued. In some cases, this is after a sanction was set. All IHEs that followed an inquisitorial model were privately funded.
Policy documents show that a panel determined the facts of the matter at five IHEs using the inquisitorial approach. One individual was assigned responsibility for collecting evidence, determining whether a preponderance indicated responsibility, and setting an appropriate sanction at four IHEs (two the general conduct officer and two a Title IX officer). The accused and accuser were guaranteed a right to hear, but not question, other’s evidence under the general conduct protocol but were not guaranteed access to each other’s testimony under the Title IX procedure.
Evaluating Trial and inquisitorial Procedures
The difference in grounds for appeals between adversarial trial-oriented and inquisitorial IHEs were similar to the differences reported above for public and private IHEs (see Table 5). However, when due process and victim protections were examined, the differences were starker than those of public and private IHEs.
Due process protections
Almost two thirds of trial-oriented IHEs allowed accused students to directly question other witnesses, in comparison to one fifth of inquisitorial IHEs. All trial-oriented IHEs allowed accused students to question their accuser: 43 percent directly and 57 percent indirectly. In comparison, none of the inquisitorial IHEs offered the accused a similar opportunity.
All IHEs that followed the trial model reported students were on boards determining the responsibility of the accused. Four out of five inquisitorial IHEs also involved students. Irrespective of the model, documents provided very little information about the qualifications of involved students. Sixteen percent specified student adjudicators 22 could not have been disciplined and 8 percent specified a minimum grade point average. Faculty members sat on 71 percent of the “trial” boards and all the inquisitorial boards that also involved students. How faculty and students were selected was not described and detailed information about the training of hearing board members was not provided. Half of IHEs following the trial model presented accused students an opportunity to challenge members of the hearing board for bias prior to evidence collection, while only one of the five inquisitorial IHEs did. Some trial-oriented IHEs specified that accused students could sever their cases from others (21 percent) or maintain silence without a presumption of guilt (14 percent), but no inquisitorial IHEs did.
The vast majority of trial-oriented IHEs (86 percent) reported a protocol for audio taping proceedings. The remaining two stated that records would be kept but did not specify how. None of the inquisitorial IHEs reported any aspect of evidence collection would be taped; although descriptions of investigative reports indicated that evidence would be summarized. In sum, IHEs with trial systems did a better job of protecting the due process rights of accused students.
Victim protections
All inquisitorial IHEs protected victims of sexual misconduct from a confrontation with the alleged assailant, because accused and accuser were not permitted to interact. About a third of trial-oriented IHEs provided for the accuser to testify from another location via video link or from behind a screen, and as noted above, more than half of them also channeled the accused’s questions for the accuser through the hearing board, limiting the potential to use the hearing to extend abuse. But, accusers at two IHEs were expected to sit with and respond directly to the accused during trial.
About a third of trial-oriented IHEs offered an approximation of a rape shield. Thus, at the majority of trial-oriented IHEs, there were no specific written limits on the scope of questions accusers could face. No inquisitorial IHEs offered such protection, probably because accusers were not asking questions. However, the issue is still relevant, because students and faculty are involved in evidence collection in some IHEs and documents provided no detail about their training.
A greater percentage of IHEs using trial like procedures offered immunity from adjudication for drug or alcohol violations to students who brought forward complaints of sexual misconduct.
Although a small minority of both trial and inquisitorial IHEs allowed accusers to describe the impact of the sexual misconduct to the hearing body before it determined a sanction, more IHEs adopting the trial model did so.
Discussion
Despite the fact that the 2013 CSVEA mandates to achieve fair and equitable procedures were not yet binding, most Maryland campuses had made progress toward their implementation. Areas where progress lagged included granting both accused and accusing students access to any advocate and providing information about appeals. While IHEs stated that investigators and adjudicators received training, there was a distinct lack of information about what that entailed. This study is based on a census of four-year residential colleges in one state and the results cannot be generalized to other states or the nation, but it is useful to compare them to prior research.
Variability in Due Process Protections Promised by IHE Persists
This investigation found greater compliance with the Clery Act by both public and private four-year IHEs, with respect to describing the adjudication process and providing information about the appeals process and grounds for making appeals, than the 1999 NIJ study (Karjane et al. 2002). This investigation also found comparatively greater due process protections across all IHEs. All Maryland campuses publishing a standard of proof adopted “preponderance” in compliance with the 2011 DCL; thus they employed a comparatively higher standard of proof than Karjane et al. (2002) found in 1999, but a potentially lower standard than Amar (2014) reported for 2011. Fewer campuses in the current study relied on a single fact finder than did in 1999 (Karjane et al. 2002) or 2011 (Amar 2014). Whether there is a trend toward the use of hearing boards is worthy of further investigation. Sanctions currently available to discipline students found responsible for sexual misconduct were similar to those found in 2011 (Amar 2014).
Like Karjane et al. (2002), this study found that more public than private IHEs offered accused students a right to confront (cross-examine) witnesses. The minority allowed direct questioning; the majority created physical distance through a screen and/or directed questions through a third party, a practice not examined previously. In short, the study shows that the kinds of policies necessary to encourage reporting by victims of sexual assault can be implemented but still were not in place on most campuses.
The proportion of IHEs in this study promising students access to an advocate was similar to that found by Amar (2014) and substantially higher than Karjane et al. (2002). Previous research has not systematically examined whether an attorney may provide advice to students during campus adjudication. Attorney involvement was a recent phenomenon at Maryland IHEs; telephone calls to administrators revealed that only one IHE allowed attorneys prior to passage of the 2002 Clery Act Reauthorization. Given the ambiguity of “any advisor” in the 2013 CSVEA and the desire of administrators to maintain full control of the adjudication process, it is not surprising that IHEs would bide their time in addressing this CSVEA mandate, while the rule making process unfolded.
Victims Remain Largely Unprotected
This study found that most IHEs provided little information in policy documents about the details of training programs for investigators and adjudicators. This is something not previously examined but relevant to the experience of both accused students and victims. The reason why information is not provided is unclear. Most worrisome, some IHEs may lack a curriculum covering due process, appropriate protections, standards of proof, rape myths, and so forth and not be delivering comprehensive training. Or, IHEs with curricula may not consider students and faculty members of panels to be “officials” in need of annual training as specified in the 2013 CSVEA and/or not perceive that providing this information to the public could be useful.
Although the percentage was higher than Karjane et al. (2002) reported, a minority of IHEs in the study provided rape shields. It is possible there were few because most IHEs only develop new protocols in reaction to new legal mandates. It is also possible that their absence is not an oversight but explicitly an effort to avoid extending the same protection to the accused (a possible reading of the Clery Act). That is, some administrators may wish to weigh past allegations against the accused in relation to any conduct in question and a shield protection would make this difficult. 23 The gain offered by examining the accused’s past does not clearly outweigh the potential burden on victims, however.
Amnesty was not a topic of concern in 1999, but the rates found in this study are close to those reported in 2011 (Amar 2014). Victim impact statements were rare and have not been tracked before.
Accounting for Variability in Due Process and Victim Protections among IHEs
Consistent with Karjane et al.’s (2002) discoveries, public IHEs in this study provided more Clery Act–compliant procedural information and promised greater due process protections than private IHEs. Public IHEs in this study also promised more victim protections than private IHEs. The greater due process rights to the accused offered by public IHEs are consistent with the idea that administrators respond to court decisions. However, given that the courts have not adjudicated the rights due to accusers, another explanation is necessary to account for differences. We found greater differentiation among IHEs, when we sorted them by in accord with the procedural approach they adopted than their funding source. Trial procedures were associated with more protections for students. This suggests that the IHEs reliant on trial proceedings had, as a result of their use of open procedure, a commitment and/or a need to demonstrate fairness. Inquisitorial proceedings can be fair in the sense that accusers and accused are treated equally, and thus be in compliance with the Clery Act, but fail to adequately protect both accuser and accused. Further investigation is needed to understand how and why IHEs adopt trial or inquisitorial proceedings. And, researchers need to look beyond whether campuses are in compliance with the Clery Act (that they have published definitions or policies), to draw conclusions about the adequacy of policy.
Undergraduate student body size was not predictive of policies or models followed. The majority of IHEs had one or none of the feminist presence proxies; 28 percent had three or more. The measure of feminist presence had no association with Clery Act compliance, victim protections, or whether an IHE used trial or inquisitorial procedures. On the one hand, this may reflect the reality that few professors or students are invested in influencing student affairs administrators on sexual misconduct policy. Progressive definitions and protections may come from administrators who are adverse to litigation, philosophically oriented to feminism, or connected to external professional organizations that are. On the other hand, the measure of feminism used in this study may be flawed. The proxies of academic majors/minors and Take Back the Night Vigil/Marches may reflect activism of an earlier period when such programs were launched (Mann and Huffman 2005). They also represent an assumption that there is a united feminist perspective, when there may be feminists on campus who both support and oppose granting protections to victims who typically are women (Stein 2006). A better measure for academic (faculty) support might be the presence of courses that address violence against women (its frequency, causes, and prevention, or its adjudication). Since the data analyzed in this study were published, the White House task force to protect students from sexual assault was established and Notalone.gov went online. The public visibility of this website and President Obama’s comments on the subject may influence students to push for particular administrative responses to sexual assault at their home IHEs, especially those exposed to “Know Your IX” (http://knowyourix.org/). Thus, a better measure for student activism going forward might focus on student government, specifically documenting the existence of Know your IX, “Consent is Sexy” (http://www.consentissexy.net/), or other programs related to violence against women, or on the presence of women’s studies or gender studies clubs and honor societies.
A nationally representative study that examines the details of campus policies could establish whether the model of justice adopted by IHEs, inquisitorial or adversarial trial, is more indicative of protections provided to students than legal mandates associate with funding status. It could also explore whether institutional affiliations with organizations that develop model policies, such as the Maryland Independent College and University Association, the National Association of Independent Colleges and Universities, and NASPA—Student Affairs Professionals in Higher Education or American College Personnel Association are associated with greater due process or victim protections. Finally, recognizing that law on the books and law in action is not the same, student’s experiences in campus judicial processes need to be studied systematically.
Recommendations
Campus adjudication has a role to play in responding to sexual violence on campus in addition to criminal prosecution. First, even if victims report to law enforcement, criminal prosecution is certainly not a given (Lombardi 2009). Second, campus adjudication sends a message about community values and it “gives victimized students a voice” (Chmielewski 2013:173). The penalties IHEs can impose are of a “middle ground” that “recognize wrong doing and communicate disapproval, but do not subject perpetrators to prison sentences and criminal records” (Chmielewski 2013:172).
Institutions must clearly define offenses so the victims recognize that acts perpetrated upon them are unacceptable and must provide adjudication procedures that victims believe have a reasonable prospect of leading to a desired outcome and are not unduly taxing. This is currently not the norm. This study found opaquely written campus procedures that left open the possibility that victims would face abuse during hearings from the accused or her or his representative and/or face bias from investigators or adjudicators. Nor did all documents actually describe procedures that constituted equitable treatment of victims, although it was promised in the abstract. Accused students’ fears that they do not have adequate due process protections are also reasonable in light of the procedures used on some campuses, especially those that follow an inquisitorial model. This must be rectified to protect accused students, but also victims of sexual assault, so that they can count on support from peers to make reports and acceptance of judicial outcomes by the campus community. IHEs can wait for regulations to compel action or they can act to ensure that existing procedures result in meaningful justice on campus for accused and accusing students. The recommendations in this section are based on the assumption that it is necessary to address due process and victim protection simultaneously to achieve this. Studies of criminal justice systems suggest that neither trial nor inquisitorial approaches are inherently victim centered and have an edge for delivering procedural justice in cases of sexual assault (Crombag 2003; Ministry of Women’s Affairs 2009). However, both trial and inquisitorial systems can be developed to meet these criteria.
Access to counsel
The 2014 DCL from the OCRs in the DOE encourages allowing attorneys to attend hearings and interviews with accused and accusing students. Ellen Mossman argues that an attorney is critical when students face parallel criminal charges, “A lawyer can advise his client when to remain silent and how to question witnesses to expose the events or witnesses motivations in accusing him. A lawyer is more attuned to the potential for bias in the hearing panel than a student” [is] (2012:622). I am in agreement with Mossman. Students or faculty advisors are adequate for moral support, but they lack the knowledge base necessary to guide a student who may face criminal prosecution. Given that student victims have a right to activate the criminal justice process after they pursue campus justice, it is reasonable to allow attorneys to offer advice in all cases. I disagree, however, with U.S. House representatives Salmon, Sessions, and Granger who introduced the “Safe Campus Act of 2015” (SCA 2015), which would extend to all students accused of sexual violence a right to hire attorneys who would be fully empowered to represent them in campus adjudication, including filing relevant paperwork, examining evidence, and examining witnesses (p. 14, emphasis added).
Mossman argues that in the absence of a lawyer, IHEs should provide alternate procedural safeguards for students who do not have counsel and face parallel prosecution, including telling them that what they say at the hearing can be used in court (2012:623). However, she urges IHEs to assist students in gaining pro bono representation when they face suspension or expulsion from the institution and serious criminal charges. She argues this will keep the disciplinary system honest and ensure that wealth does not bias the process. Her point is important: The Clery Act requires that IHEs achieve fair and equal justice by providing accused and accusers in cases of sexual misconduct equal opportunities. If the economic resources of students limit their ability to act on their opportunities, then one problem has been traded for another.
Another aspect of limiting bias is to eliminate obstacles that prohibit an accuser or accused from presenting evidence. I agree with Triplett’s (2012) suggestion that IHEs allow student witnesses to miss class without penalty to testify, require employees to testify if called, and allow witnesses with insurmountable time conflicts to submit written statements.
Right to cross-examine
In the absence of a Supreme Court ruling, the OCR’s 2014 DCL is the prevailing guidance for public and private IHEs. OCR explains that out of concern of causing trauma, intimidating victims, and perpetuating a hostile environment (clear procedural justice concerns), it “does not require” a school to allow cross-examination of witnesses and “strongly discourages” allowing accused and accuser to “personally question” each other. 24 IHEs may allow a “trained third party (e.g., the hearing panel) to ask the questions” and to “screen” them as well, asking “those it deems appropriate and relevant to the case” (Mahaffie 2014:31). The proposed SCA 2015 would allow questions to be submitted in writing and read by an adjudicator (p. 14). Triplett (2012) makes a strong case that the integrity of the campus disciplinary process includes a right to cross-examine, when witness credibility is at stake. However, he argues that it should be achieved while providing victims with feelings of safety. In addition to the recommendations above, he suggests allowing them to testify via video or behind a screen (2012:521). IHEs that follow an inquisitorial approach and determine facts and sanctions before accused students have an opportunity to review testimony will struggle with perceptions of bias and legitimacy in the American context.
Standard of proof
What is the correct standard of proof? The 2011 DCL from the OCR has for the time being settled this matter as a preponderance of evidence. However, it is probable that constitutionality of this mandate will be litigated by accused students. The proposed SCA 2015 seeks to return decision-making power to IHEs and to allow the use of a “clear and convincing standard” in matters of sexual violence.
Proponents of the clear and convincing standard rest their arguments on three main ideas: false allegations of sexual assault are easy to make and fairly common, the accusation of sexual assault produces an exceptional reputational harm, and campuses are overly invested in producing convictions (Hendrix 2013). 25 Supporters of the preponderance standard point to the rape myths that underlie the allegations of false accusations and to studies that show the low rates of criminal prosecution and campus adjudication. They also point out that the nature of acquaintance rape fundamentally limits the scope of evidence available to decision makers. Words versus words, requires a lower standard not a higher one. Weizel (2012) argues that the Mathews v. Eldridge test points to a preponderance standard: “the risk is not that the accused student will be found responsible based on too little evidence” (p. 1650). Rather, disciplinary committees expect more evidence than is usually available and a higher standard is likely to result in “too few guilty students being held accountable” (p. 1650). Legal scholars who argue in support of applying a preponderance standard in campus adjudication also report that the courts have limited the clear and convincing standard to a very narrow set of civil cases: committal hearings for indeterminate holds in mental treatment facilities, permanent termination of parental rights, and denaturalization (Weizel 2012). Tripplet (2012) explains that the courts have applied a preponderance standard in cases of involuntary discharge from the military, which also is a matter of protecting your name and is similar to expulsion from a university. Campuses should bear these issues in mind if the door reopens to set a different standard of proof.
Reduction of bias
Lombardi (2009) and others argue that closed disciplinary hearings threaten the balance of power between accused students and the university administration, calling into question the fairness of outcomes. One means to increase administrative accountability adopted by many schools is to involve students and faculty in reviewing evidence and determining whether accused students are responsible for alleged behaviors. While some claim that students cannot render impartial justice in cases of sexual assault (Sander 2014), others argue that it is “intellectually indefensible” to claim that adult students who are subject to jury selection “lack comparable capacity in campus disciplinary hearings” (Pavela 2014:3).
IHEs should seek to involve the campus in adjudication, by way of student and faculty participation in hearing panels. Ahn (2010) has also argued that hearing bodies should ensure representation of both men and women students. Involving a diversity of faculty and students emphasizes the community obligation to respond to sexual misconduct and reduces the potential that an individual investigator–adjudicator’s personal biases will unduly influence an outcome. The SCA 2015 would limit the ability of university representatives to hold overlapping roles “victim counselor, investigator, prosecutor, adjudicator, appellate adjudicator” (H.R. ## 2015:15). This proposal is premised on the trial model, because prohibiting an investigator/adjudicator would preclude inquisitorial procedures. In the absence of evidence that either approach has a higher conviction rate (Ministry of Women 2009), excluding the inquisitorial approach is not justified. However, it is advisable to separate out roles of victim counselor from those related to adjudication and ensure that appeals are resolved by parties uninvolved in the initial adjudication. In contrast, Yale University, has hired special investigators from outside the university to mitigate bias in the prosecution of allegations of sexual misconduct (Bagley et al. 2012). This strategy may increase the perception of procedural justice by accused or accusing students, but it will not contribute to community ownership of the issue.
Irrespective of who is chosen to collect and sift through evidence, IHEs would be well served to publish information about all potential members of investigatory and adjudicatory panels. Information should include names, gender, length of terms, criteria for selection, and data on relevant experience (Ahn 2010; Bagley et al. 2012; Karjane et al. 2002). As recommended by Karjane et al. (2002), accused and accusing students should be offered an opportunity to raise concerns about the participation of specific members before evidence is gathered and decisions are made.
Training of hearing board members
To ensure procedural justice for victims, IHEs must develop comprehensive curricula for all individuals involved in investigation and adjudication and ensure that they receive annual training (Karjane et al. 2002). To date, little scholarship has been devoted to the scope or quality of training received by hearing board members. Bagley et al.’s (2012) discussion of Yale’s program is an important exception. The pending SB590 “Campus Accountability and Safety Act” (CASA) introduced by Senator McCaskill and 33 bipartisan cosigners would create a federal mandate that training be extended to “each individual” who is involved in implementing “student grievance procedures” or is involved in interviewing alleged victims of sexual assault. It would also require the curriculum encompass “cultural awareness training,” “information about sexual assault dynamics, sexual assault perpetrator behavior, and barriers to reporting” (S590 2015:28-29).
IHEs should go a step farther and publish details about the scope of training that participants in the judicial process receive and consider making the entire curricula available to the campus. Victimized students are more likely to be willing to come forward, if they know that the people who will be in a position to judge them and potentially ask them questions have some deeper knowledge of the dynamics of sexual assault. Making training curricula available to the entire campus also sends a message that sexual misconduct is taken seriously and should increase perceptions of fairness.
Victim immunity
If IHEs are serious about increasing reporting of sexual assaults, they should offer victims immunity from prosecution for use of alcohol or drugs. Both the pending CASA and SCA 2015 would mandate that IHEs extend immunity to victims.
Rape shields
The April 29, 2014, OCR DCL states that IHEs should conduct hearings in ways that do not “inflict additional trauma on the complainant” and should not permit “questioning about the complainant’s sexual history with anyone other than the alleged perpetrator.” OCR also warns IHEs “that the mere fact of a current or previous consensual dating or sexual relationship between the two parties does not itself imply consent or preclude a finding of sexual violence” (Mahaffie 2014:31). The proposed SCA 2015 would limit questions about an accuser’s sexual history with individuals other than the accused (H.R. ## 2015:15); however, it also allows social media to be introduced as evidence, which might conflict. It is also important to remember that rape shields are necessary for IHEs with inquisitorial as well as trial-like procedures, because it is not a given that investigators understand what the limits of relevant information are. All IHEs should offer victims no less than the protections from questioning about past sexual history available in their state penal code.
VISs
VISs were introduced into the criminal justice process to extend a voice to victims of crimes silenced by policies that place decisions about charging and plea bargaining exclusively in prosecutor’s hands and by direct and cross-examination practices that limit if and how they can describe their experiences. VISs were intended to make victims true experiences of injury available to judges, so that sentences accurately reflect them. The adjudicatory policies of IHEs, in general, offer student victims an opportunity to tell their story in a manner they choose. Thus, victims, generally, have the opportunity to make the damage they experience available to those who recommend sanctions. Offering a VIS opportunity to victims who have been able to give evidence freely, would, from the standpoint of equity, require creating a comparable opportunity for students found responsible. However, in the minority of IHEs deploying a prosecutor in the adjudicatory process (administrator, faculty, or student) and limiting what victims can say, a VIS is justified. It would ensure a student victim has the opportunity to expose those who sanction to the full scope of her or his injury. It would also compensate for her or his limited opportunity to testify relative to the accused.
Future research
This investigation examines written policies. It goes beyond considering whether campuses provide descriptions of policies, as required by the Clery Act, to explore whether the details of campus procedures align with the promises of equitable justice required by it and Title IX. Yet this study does not address the reality that all policy must be applied and that individual administrators may not fully abide by university protocol. Practices IHEs can follow to mitigate this occurring include scrupulously ensuring both accused and accusing students are accompanied by advocates for all steps in the process and incorporating hearing bodies populated by individuals from varied campus positions into the process. Systematically exploring how justice gets done on campus is also necessary.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.