A Slight Nod to Due Process

Last year, when the White House campus sexual assault task force issued its due process-unfriendly recommendations, the document excluded one critical item: how colleges and universities should coordinate with local law enforcement agencies. That item was promised at a later date; it now has appeared. As expected, the document gave little reason to believe that the administration will ease up its campaign against campus due process.

Local police could, and should, play a critical role in investigating any campus sexual assault—in part because they have the experience in investigating serious felonies that colleges don’t, and in part because working with prosecutors they have the tools (subpoenas, compelling testimony under oath) that colleges lack. Yet strong resistance to maximizing the police’s role exists from “victims’ rights” figures—whether to maintain the fiction that college rape hearings are somehow only educational and not punitive in design (Suzanne Goldberg) or to ensure that accusers avoid the criminal justice system, where their claims must be proven beyond a reasonable doubt after a trial featuring cross-examination (Michele Dauber). Given that the administration seems to share the Goldberg/Dauber hostility to ensuring due process for accused students, there was little chance the recommended memorandum of understanding (MOU) would call for allowing the police, rather than college bureaucrats, to investigate serious felonies on campus.

That said, the proposed MOU does feature some promising items, especially in calls for increased campus outreach to police. There is a serious campus culture problem regarding sexual assault—the culture at too many college campuses discourages victims of serious crime from reporting those crimes to police. To the extent the proposed MOU makes students more aware of the police role in their communities and encourages actual victims of crime to go to the police rather than to the Title IX office, that would be a positive development.

The document’s language, however, exposes the central problem that has characterized the administration approach to campus sexual assault since issuance of the Dear Colleague letter in 2011—an inability, or perhaps a simple unwillingness, to consider the possibility that some allegations of sexual assault might not be true.

Fifty-nine times the document uses the word “victim” to describe a student who has alleged being sexually assaulted; fifty-nine times the document doesn’t couple that description with an “alleged,” even as the document makes clear it’s dealing with procedures that occur before any adjudication. The Task Force does concede the possibility of a language dispute regarding this term—with extreme victims’ rights advocates. A footnote explains, “Although some people prefer to use the term ‘survivor’ to describe an individual who has been sexually assaulted, the term ‘victim’ is widely used in the law enforcement context. This document uses the term ‘victim’ but always with respect for those who have been subjected to sexual assault.”

In other words, Crystal Mangum of the lacrosse case must be deemed either a “victim” or a “survivor.”

That’s not to say the word “alleged” fails to appear in the proposed MOU. Four times the document uses the word, including describing the accused student as an “alleged suspect.” (A suspect, obviously, is a suspect; it’s hard to see how one can be an “alleged” suspect.) The message here is clear: a crime has occurred (since the accuser is either a victim or a survivor). An accused student is, according to the administration, the “alleged perpetrator” of that crime. Under this definition of events, it would seem that an accused student could defend himself only by identifying the actual “perpetrator”; because of the MOU’s language, a defense based on a claim that an assault never occurred is off the table. Of course, in the real world, accused students can and will defend themselves with claims revolving around consent. Yet the administration’s inability to recognize the possibility of such a line of defense shows just how one-sided the White House has become to campus sexual assault questions.

Beyond the language issue, the proposed MOU recommends giving the accuser (the “victim,” according to the administration) a near-absolute veto on whether the campus can even report an incident to police. Only in “rare and exigent circumstances” could the college act independently of the accuser’s wishes.

Perhaps the most troubling aspect of the document deals with what happens when the inquiry is turned over to the police, either because the accuser wants to do so, or because the incident meets the nebulous “rare and exigent circumstances” standard. The task force concedes that taking this approach might produce an investigation by an “agency [that] has significantly more experience, training and available resources to effectively investigate such [sexual assault] offenses.”

This would seem to be a good thing, correct? Not so fast. Any college that recognizes the superior investigatory abilities of the police must nonetheless act in such “a manner that does not interfere with or otherwise delay the conduct of any separate investigation conducted by the IHE for the purposes of complying with Title IX requirements.”

In other words: as first made clear in the SUNY resolution from 2013, colleges must undertake their own inquiries, complete with the kangaroo-court style of justice, even if the police conclude the case is one of actual innocence. After all, there’s always a “victim” in these cases, regardless of what the police say.