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April 1, 2016

Federal judge rebukes lack of due process in campus sex assault procedures

Finally, a federal judge has strongly condemned the lack of due process and fairness that students accused of sexual assault face on college campuses.


Judge F. Dennis Saylor IV, a George W. Bush appointee, ruled that Brandeis University "failed to provide a variety of procedural protections to [the accused student], many of which, in the criminal context, are the most basic and fundamental components of due process of law."


In his 89-page decision, Saylor criticizes Brandeis for a number of due process violations, including denying the accused student access to the evidence against him or even a detailed explanation of the charges against him.


For example, Brandeis' "special examiner," who investigated the accusation, determined that the accuser, known as J.C. in the lawsuit, was more credible than the accused, because he provided consistent statements while the accused couldn't remember certain events. Saylor concluded that the discrepancy between the two parties was "exactly what one would expect where one party is fully informed of the subject matter of the inquiry and the other remains ignorant, and has to surmise the specifics of the charges over the course of the investigation."


Further, once the accused, listed under the pseudonym John Doe, was notified that he had been sanctioned for sexual assault, he asked the special examiner for a copy of her report to use in his appeal. The school refused, meaning Doe was denied access to the evidence against him. Saylor described Brandeis' procedure for investigating sexual assault "a secret and inquisitorial process."


From the very beginning, the deck was stacked against Doe, as his accuser — a former boyfriend with whom he had a 21-month committed relationship prior to the accusation — submitted two sentences as to the accusation and was not required to provide a full account of the alleged sexual assault. As Saylor wrote in his decision, even if the accuser had provided such a statement, the accused was not entitled to see it.


"Indeed, the accused was required to provide his or her own detailed response without an opportunity to see or know the details of the accusation," Saylor wrote. "There was likewise no requirement that copies of any 'substantiating materials' submitted by the accuser, or the names of any witnesses, be provided to the accused at any time."


Saylor noted that school disciplinary hearings like the one Doe faced are not criminal proceedings, yet administrators essentially conducted the hearing like a criminal trial.


"Nonetheless, Brandeis engaged an outside attorney, presumably with years of experience and training, to investigate and prosecute serious charges of sexual assault and other sexual misconduct," Saylor wrote. "But it expected a student, approximately 21 years old, with no legal training or background, to defend himself, alone, against those same charges."


And while the accused student risked being branded a rapist and being expelled, he was not offered numerous basic due process protections with which to defend himself. He was not entitled to counsel and he could not confront or cross-examine his accuser or witnesses.


"Here, there were essentially no third-party witnesses to any of the events in question, and there does not appear to have been any contemporary corroborating evidence. The entire investigation thus turned on the credibility of the accuser and the accused," Saylor wrote. "Under the circumstances, the lack of an opportunity for cross-examination may have had a very substantial effect on the fairness of the proceeding."


Saylor also rebuked the university's use of the low "preponderance of evidence" standard to determine Doe's guilt. The low standard of proof is required by the Education Department, but Saylor saw that Brandeis has used it "to make cases of sexual misconduct easier to prove — and thus more difficult to defend, both for guilty and innocent students alike."


Saylor pointed out that "virtually all other forms of student misconduct" at Brandies retained a higher standard of proof.


"The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused," Saylor wrote.


This is exactly what due process advocates have been saying for years. While activists continually note that the preponderance standard is used in civil court, they ignore the fact that civil court also allows due process protections like the right to counsel, the ability to subpoena testimony under oath, access to the evidence against the accused, the ability to cross-examine and other procedural protections.


This case arose from a lawsuit from a former Brandeis student who was expelled after his ex-boyfriend accused him of sexual assault throughout their nearly two-year committed relationship. Part of the accusation stemmed from the couple's first sexual encounter, because the accused did not follow the question-and-answer requirements of "affirmative consent" policies. Even though that encounter was the beginning of a lengthy relationship, it was deemed nonconsensual.


Doe was also found responsible for sexual assault because he would occasionally wake his partner up with kisses. Again, remember they were in a committed relationship. Saylor determined Brandeis' finding that this was an act of "violence" was "at odds with common sense" because one would have to pretend there was no context to any sexual act.


"To reach that result, [the investigator] essentially stitched together a series of broad generalizations — kissing is sexual activity; a sleeping person is physically incapacitated and therefore cannot give consent; the existence of a relationship is not relevant to consent; sexual activity without consent is sexual misconduct; sexual misconduct is a form of violence — to reach a conclusion that seems at odds with common sense and the ordinary meanings and definitions of words," Saylor wrote.


This passage shows the utter absurdity of "affirmative consent" policies, which as I've written before turn every sexual act into rape unless no one reports it, because it removes all context from every encounter. So a couple in a committed relationship – even a married couple – would have to follow a strict question-and-answer process for the sex to be considered truly consensual. And that's negated if either party had been drinking. Further, there would be no way to prove the policy was followed unless it was videotaped, as the accusation would boil down to a he said/she said (in this case, a he said/he said) situation.


Judge Saylor was ruling on Brandeis' motion to dismiss, and allowed various aspects of the lawsuit to be dismissed, such as some counts of defamation and invasion of privacy. Overall, however, the lawsuit will continue and Saylor's decision will be used in future lawsuits to show just how unfair campus proceedings are to accused students.


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