I handle sexual assault and misconduct cases at colleges and universities throughout the country. I was recently asked to help train faculty , staff and students from a consortium of Maryland colleges and universities how to handle sexual assault cases on campus. I provided the defense point of view. My presentation outline is below.
SEXUAL MISCONDUCT ADJUDICATION TRAINING
Introduction
Colleges and universities are between a rock and a hard place as they try to comply with Federal law mandates while avoiding liability for violating the Constitutional rights of students accused of sexual assault or misconduct. This is an impossible quandary that will not be resolved until courts weigh in on the conflicts raised by the clash of fundamental rights created. Until the courts provide clarity on the issue, I strongly urge any student, faculty or staff member serving on a college or university adjudicatory board to make sure that they are covered by the institution’s insurance policy in the event of a lawsuit by a disgruntled accused.
Constitutional Flaws in Higher Education Adjudicatory Processes
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Fifth Amendment Rights of the Accused
The Fifth Amendment of the United State Constitution provides absolute protection against self-incrimination in any criminal case. Although higher education adjudicatory proceedings are not criminal, the consequences of an adverse decision affect the fundamental rights of the accused. Colleges and universities routinely make adverse findings against an accused who refuses to provide a statement explaining his or her side. Indeed, it may be malpractice for an attorney to allow a client to testify at a school hearing in a situation where criminal prosecution is possible. Testimony offered at the school hearing may be used against the accused in a subsequent criminal proceeding. In criminal cases the jury is specifically instructed that no adverse inference can be drawn from the accused’s silence. In a school proceeding no such instruction or inference is present. Normal human nature takes over. Normal human nature makes many believe that those who do not respond to charges against them must be guilty.
B. Tainted Investigative Process
Many times the same individuals who are charged with investigating sexual misconduct cases are part of the adjudicatory body or have ex parte communications with the adjudicatory body. Investigators will often tell the accused that “[w]e are here to help you; we need your side of the story.” Investigators often go so far as to tell the accused student that they do not need a lawyer, “just tell us what happened.” This taints the process from the beginning.
C. Failure to Allow Counsel to Participate
Colleges and universities vary widely with regard to the amount, if any, of participation allowed by counsel. Adjudicatory staff often become visibly angry when attorneys participate. Under current Federal law it seems clear that a “trusted advisor” can include an attorney so attorneys can no longer be excluded from the process. Many schools, however, still take the position that attorneys cannot participate in the hearing, i.e., no cross examination, no direct examination of the accused, and no ability to challenge evidence presented by witnesses. Lawyers have an ethical responsibility to be zealous advocates for their clients. Schools frequently only provide witness lists and proposed testimony shortly before the hearing, if at all. School staffs become livid if lawyers try to communicate with the accuser. Lawyers have a professional responsibility to try and do just that.
D. Constitutionally Flawed Burden of Proof
Perhaps the worst provision of the current regulations is the burden of proof standard. Current law allows schools to use a standard known as the “preponderance of the evidence” standard. This simply means that a fact finder believes that a witness’s testimony is “more likely true than not.” To any criminal defense lawyer this is a preposterously low burden of proof in a case where the sanctions and consequences can be so severe. Would you want a family member or loved one’s future to hang in the balance by the same standard used to determine who is telling the truth as to whether the light was red or green in a car accident case? The standard should be the same used in a criminal case, i.e., beyond a reasonable doubt. In the alternative, a middle tier standard of “clear and convincing evidence” gives the accused a more reasonable opportunity to get a fair hearing.
E. Presumption of Innocence
Any criminal defendant in the United States is presumed innocent. This presumption does not apply in school adjudicatory hearings. This makes a fair hearing impossible.
F. Obligation to Turn Over Exculpatory Evidence
In the criminal system the prosecutor must turn over any exculpatory evidence. Exculpatory evidence is interpreted extremely broadly. Schools do not comply with this Federal constitutional right. Schools often have video, pre or post encounter of the accuser, and schools often have witness statements from those who interacted with the accuser both before and after the encounter. The school may have records of social media postings. Schools are reluctant and sometimes refuse to turn over this material to the accused.
Conclusion
As long as the accused’s fundamental rights are ignored or diminished in sexual assault and misconduct cases, you can expect that litigation will continue. Lawsuits against schools have included claims for breach of contract, defamation and violations of Title IX. The accused should be treated with the same respect and dignity accorded to the accuser, i.e., both should be treated the way you would want one of your own loved ones to be treated in a similar situation. No one should be the victim of a sexual assault or have to suffer the consequences of unfair treatment. The rights of the accused, however, must be protected.
