Conduct Hearings vs. Criminal Justice

Posted by On Tuesday, March 11, 2014

In addition to the flood of Title IX lawsuits filed by female college students against their schools for failing to adequately respond to sexual assault complaints, schools are now facing a rising number of lawsuits filed against them by male students accused of sexual assault. These students claim that they have suffered damage to their reputations and emotional distress. They also claim that student conduct hearings violate their due process rights and are biased in favor of their female accusers.

This places schools in a catch-22 situation. On the one hand, if they don’t “take immediate and effective steps to end sexual harassment and sexual violence” they face a lawsuit from the victim. On the other hand, if they don’t turn student conduct hearings into a court of law or refer all sexual assault complaints to the criminal justice system they face lawsuits for not complying with the accused students’ due process demands.

Previous posts examine the differences between the standard of proof and right to cross-examine required in student conduct hearings on the one hand, and criminal trials on the other. These differences reflect the fact that student hearings are not courts of law, while recognizing that accused students must receive a fundamentally fair hearing.

Many sexual assault victims choose not to pursue criminal charges against the accused and, unfortunately, there are good reasons for their decision that we will discuss. Therefore, in order to fulfill its obligations under Title IX to end sexual harassment (including sexual assault) whenever it knows or should know it exists on campus, each school should be taking a hard look at its disciplinary proceedings to make sure its hearing process is fair, prompt, and impartial.

Criminal Justice for Sexual Assault Victims

How effective is the criminal justice system at handling sexual assault cases? Dr. Rebecca Campbell’s research found 86% of sexual assaults reported to police are never referred to prosecutors, and 90% of victims felt upset and re-traumatized by their interaction with law enforcement when they reported a sexual assault.

Dr. Campbell’s research is consistent with the RAINN website’s statistics, which show that 8 out of 100 police reports are prosecuted and half of those reports result in a felony conviction. This means only 4 out of 100 sexual assault complaints result in a conviction.

One study found that survivors of acquaintance assault are less likely to notify police because they:

  • are too embarrassed
  • fear reprisal
  • think the police won’t believe them
  • believe the police would be ineffective
  • don’t consider themselves crime victims

When research shows that false sexual assault reports are rare and 96% of sexual assault cases are rejected by prosecutors, it’s not surprising that victims are reluctant to make police reports.

DOJ’s Investigation of Missoula County Attorney’s Office

The criminal justice system of Missoula, Montana provides a high-profile case in point. Last year, the U.S. Department of Justice issued its findings after investigating the Missoula Police Department, and concluded that the MPD compromised investigations and deprived “female sexual assault victims of basic legal protections.”

The DOJ also investigated the Missoula County Attorney’s Office. The DOJ recently released its findings that, even when Missoula police did refer sexual assault cases to the County Attorney’s Office, it refused to prosecute “nearly every case of non-stranger assault” involving a victim who was incapacitated by drugs or alcohol. Since 85-90% of campus sexual assaults are committed by someone the victim knew and 72% of college women who were raped were intoxicated at the time of the attack (Journal of Studies on Alcohol, Mohler-Kuo, et al., 2004), this is a major deterrent to reporting these crimes.

In fact, in one case cited by the DOJ the perpetrator admitted raping an unconscious woman and the County Attorney’s Office still declined to prosecute. Based on its investigation, the DOJ concluded there was pervasive gender bias against women who reported sexual assaults to local police:

[T]he County Attorney’s Office’s handling of crimes of sexual assault is indicative of unlawful gender bias, perpetuates a culture that tolerates sexual assault, dissuades victims from reporting crimes, leaves violent criminal activity unaddressed, and compromises the safety of all women in Missoula. Such a situation strongly suggests that MCAO stands in violation of the Constitution and federal anti-discrimination laws.”

Given the institutional and individual barriers to ending acquaintance assault through the criminal justice system, student conduct hearings are critical to the success of a campus sexual assault prevention program provided the disciplinary process meets Title IX and Campus SaVE Act requirements.

Student Conduct Hearings Requirements

Proper hearing procedures and qualified hearing officials are essential to meeting a school’s legal obligations and managing risk in sexual assault cases.

Both Title IX and the Campus SaVE Act require schools to have a disciplinary process that provides prompt, fair, and impartial investigations and resolutions of sexual misconduct complaints. The Campus SaVE Act also requires that disciplinary proceedings are “conducted by officials who receive annual training on the issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.”

Therefore, the first step is to train members of the campus community who investigate sexual assault complaints and are involved in student disciplinary proceedings. Getting to the truth in a case involving allegations of alcohol-facilitated, non-stranger sexual assault with no witnesses is a difficult and emotional process. It requires knowledge of the unique challenges presented in these cases.

The next step is to make sure that a school’s hearing procedures provide a solid framework for fair and impartial hearings. Title IX requires that a school must provide grievance procedures for:

  • reporting sexual misconduct, including sexual assault
  • allowing equal opportunities for each party to present witnesses and evidence
  • using the preponderance of the evidence to resolve complaints involving sexual misconduct
  • notifying both parties of the outcome of the complaint (determination and any sanction imposed)
  • giving either party the right to appeal the decision

Under the Campus SaVE Act, schools must disclose their policies that establish these procedural requirements, and the Department of Education expects the policy to reflect the institution’s practices. Simply having a policy that is not consistently followed will not pass a compliance review.

Schools have their work cut out for them. They must protect the safety of the campus community by encouraging reporting and holding perpetrators accountable. Each school is unique and has its own set of challenges but the way forward is the same: educate students and employees, and implement fundamentally fair disciplinary procedures designed to eliminate campus sexual violence and the risk of being sued in the first place.

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