The Innocent Can Be Punished in Columbia Sex Cases

Columbia president Lee Bollinger has announced a new commitment to transparency in reporting sexual assault cases on campus, and used the occasion to reveal a new university website detailing revised sexual assault procedures at Columbia. The new policy’s specifics won’t come as any surprise.

As has almost become routine, Columbia’s policy violates basic principles of due process and fairness–even as it promises to treat accused students with “respect, dignity, and sensitivity throughout the process.” A student accused of sexual assault receives five days’ notice (“whenever possible”) to prepare for the hearing. Once the hearing commences, he can’t have an attorney present (though, unlike Swarthmore, Columbia’s willing to concede he can “seek legal advice outside of the process,” given that “information collected in this process may be subpoenaed in criminal or civil proceedings”). He has the right to make an opening and closing statement, no longer than seven minutes, but can’t cross-examine his accuser, or directly question any witness.

The accused student is judged not by a jury of his peers but instead by a three-person panel consisting of two administrators and one student “chosen from a specially trained pool of panelists.” Columbia doesn’t reveal what this special training entails, but based on the Stanford experience, in which the special training consisted of provisions such as the suggestion that an accused student presenting his case logically was a sign of guilt, the provision (which is absent in other Columbia disciplinary processes) doesn’t inspire confidence. And the accused student can be branded a rapist based on a 2-1 vote, with the two-person majority reaching its decision on a preponderance-of-evidence (50.01 percent) threshold.

Columbia also allows punishment before the tribunal reaches its verdict, and, remarkably, in cases where the university has concluded that no probable cause exists to believe the accused student committed an offense. A student accused of sexual assault can be subjected to such “interim measures” as “restrictions from areas of campus, and/or removal or relocation from the residential areas.” The former restriction could have the effect of preventing an accused student from attending classes. And Columbia even reserves the right to impose a penalty–euphemistically described as “other forms of remedial, community-based efforts such as educational initiatives and/or trainings”–against those students for whom, after a university investigation, no “reasonable cause” exists to justify an allegation of sexual assault. Actual innocence, according to this provision of the school’s new policy, can still result in a form of punishment. Columbia joins Swarthmore in this Orwellian outcome.

Bollinger’s newfound commitment to transparency sounds unobjectionable in theory. But given the lack of commitment to due process and fairness in his own university’s overall policy, it’s hard to take seriously the president’s willingness to undertake “a delicate balancing of confidentiality and transparency.” As Patrick Witt discovered at Yale, “confidentiality” can often be the only real protection in a process that’s rigged from the start. (That is: university tribunals can deem an accused student a rapist without providing him with a meaningful opportunity to defend himself, but since the verdict isn’t public, the punishment is at least somewhat mitigated.) But while university procedures often promise to protect confidentiality, clear violations of that promise, as Witt discovered, aren’t investigated.

Another university seemingly uninterested in the “delicate balancing of confidentiality and transparency” is the school that Bollinger formerly led, the University of Michigan; earlier this week, reports revealed that former Michigan placekicker Brendan Gibbons was expelled from the school after a university tribunal had found him guilty of a sexual offense (which he allegedly had committed in 2009). Yet Michigan’s policy states that such information is supposed to be publicly shared “only on a need-to-know basis“; the Michigan Daily report on the issue cryptically states that the paper “did not obtain these documents from the University.” Will Michigan undertake an inquiry into who violated the need-to-know policy in the Gibbons case?

My guess is such an inquiry will occur at about the same time Columbia provides meaningful due process to students accused of sexual assault.