A College with Strange Sex Misconduct Hearings
(‘No’ Means ‘No,’ and ‘Yes’ Can Mean ‘No’ Too)

Wayward reporter Richard Perez–Pena, who covers campus sex codes and hearings for the New York Times, recently examined events at four campuses: Amherst, Yale, the University of North Carolina, and Occidental, offering readers positive portraits of “activists” who seek to decimate due process protections
for students accused of sexual assault. A hallmark of the Times‘ coverage of college sexual assault questions has been an
utter refusal to describe the campus procedures that help determine the fate of accused students.  I have covered events at Yale and UNC closely on this site and referred to Amherst, but what about the fourth case mentioned by Perez–Pena, at Occidental, a college with strange and unfair procedures?

In line with the OCR “Dear Colleague” letter mandate, Occidental uses the lowest possible threshold (preponderance of evidence) to determine guilt of a student accused of sexual assault. The accused student has the right to an “advocate” who can assist him in the process, but this “advocate” cannot be a lawyer and cannot speak in any way during the disciplinary hearing.

Confronting an Accuser on Skype

The college employs an investigator to compile evidence, but
Occidental does not have to give the accused student and his non-lawyer advocate access to exculpatory (or, indeed, to any) evidence gathered by the investigator until a mere 48 hours before the hearing commences. Even then, the college can withhold relevant information that it deems “subject to the privacy limitations imposed by state and federal law.”

During the hearing, the accused student (but not, of course,
his non-attorney advocate) has the right to ask questions of his accuser. But this cross-examination can occur through such odd “alternative testimony
options” as “placing a privacy screen in the hearing room,” or allowing the
accuser to testify via Skype. The college assures accused students that these
procedures “are not intended to work to the disadvantage of the other party,” but
I wonder how many defense attorneys would agree that losing the right to see the witness they’re examining
doesn’t work to the disadvantage of the questioner.

Male Occidental students and their parents need not worry, however,
since Occidental has assured them that the college is committed to fairness.
How? The college is determined to respect “the civil and legal rights of all
participants.” It accomplishes this task, according to the procedural
guidelines, in the following manner: “In campus hearings, legal terms like
‘guilt,’ ‘innocence’ and ‘burdens of proof’ are not applicable, but the College
never assumes a student is in violation of college policy.“

This is due process turned
on its head: a professed unwillingness to presume
guilt, as part of a structure in which the term “innocence” does not apply,
constitutes procedural fairness. But there’s no need to worry, since Occidental
promises to accused students “the right to a fundamentally
fair hearing, as defined in these procedures.”
[emphasis added] That’s a little like saying residents of northern Alaska have
a right to warm temperature, as defined as anything above zero degrees.

   No Meaningful Due Process

Even before the current controversy, the activist group,
which dubs itself “Oxy Sexual Assault Coalition,” or OSAC, had issued a
12-point list of demands to retool Occidental’s sexual assault policy, which it
appeared to view as insufficiently protective of “survivors.” (As with most
such groups, the claiming of a sexual assault in and of itself appears to give
a woman status as a “survivor,” regardless of whether a criminal proceeding
verifies her claims.) The list of demands included a call for a college Sexual Assault Advisory
Committee, half of whose members would be selected by the OSAC itself, thereby
giving this self-appointed group of student and faculty activists effective
veto power over the college’s sexual assault policies. The committee,
according to the activists, would “conduct an annual review of policies and
practices . . . and make recommendations for changes to the President and Vice
Presidents by the end of the regular school year.”

OSAC has claimed that its “demands were developed in response
to [Occidental’s] administration’s refusal to treat rape as a crime.” Yet if
the college chose to treat “rape as a crime,” that would require giving accused
students meaningful due process, clearly moving the college in a far different
direction from what groups like OSAC want. Indeed, like most colleges and universities,
Occidental’s sexual assault policy all but ensures that an accused student
cannot receive due process as anyone outside of campus walls would understand
the term.

  What about ‘Yes’ Don’t You Understand?

These basic guidelines–the preponderance of evidence
standard, severe limitations on discovery, mandating that an accused student
can’t have an attorney present during proceedings–are, sadly, all too common on
today’s college campuses. But Occidental’s
sexual assault policy contains at least one provision that is extreme by any
standard. “Under this policy,” Occidental’s guidelines explain, “‘No’
always means ‘No,’ and ‘Yes’ may not always mean, ‘Yes.’”

Consider the ramifications of this assertion. A male
Occidental student could obtain verbal (or even, it seems, written) consent
from a female Occidental student before commencing sexual intercourse. But that
male student could still be found
guilty of sexual assault if an Occidental tribunal found–with a 50.01% degree
of certainty–that in this instance, “yes” did not mean “yes.” This is part of the
star-chamber procedures that the Occidental activists were deeming too friendly
to the accused– a policy under which an accuser’s “yes” to sex might
nonetheless have yielded a finding of sexual assault?

Even in the Orwellian world of college sexual assault
tribunals, Occidental’s standard is an extraordinary one. But this startling
fact never made it into the Times‘s
lopsided and unprofessional coverage of campus sex hearings.