Guidelines for the Proper Handling of Allegations of Sexual Misconduct on Campuses

Guidelines for the Proper Handling of Allegations of Sexual Misconduct on Campuses

The U.S. Department of Education’s Office for Civil Rights issued procedural guidelines in 2014 that ought to be fol- lowed when handling complaints about sexual misconduct on college campuses. Title IX prohibits discrimination on the basis of sex, so if the campus judicial machinery violates this stature and the college refuses to admit wrongdoing, it could lose federal funding. A number of best practices drawn from the successful experiences of various college student disci- plinary boards should guide the adjudication process:

Each college should define the boundaries of prohibited sexual misconduct in terms of failing to secure voluntary, explicit, and unambiguous affirmative consent before pro- ceeding. Silence, confusion due to intoxication, or failure to resist does not indicate willingness to engage in sex.

The adjudication process should be equitable and impartial. The reporting process should be streamlined. Complainants should be able to present their version of events through testimony, witnesses’ statements, per- haps with cross-examination and legal representation.

Colleges should provide victim services that are com- prehensive and holistic, which address the complai- nants’ medical, emotional, and academic needs.

A “single investigator” from the administration ought to play the role of prosecutor, judge, and jury,

and make a determination about whether the accused bears responsibility or not for a violation of the college’s policies. Confidentiality and anonymity should be respected at all student disciplinary hearings.

The proceedings are civil, not criminal, so the standard of proof should be “preponderance of the evidence” that translates to “more likely than not” (a certainty in excess of 50 percent). This is a lower standard than “clear and convincing evidence” and is much easier to achieve than the required proof in criminal proceedings, which is “beyond a reasonable doubt.”

After a prompt resolution, penalties can include sus- pension and even expulsion from the college.

If the accused person is found “responsible” for sexual misconduct, that finding can be appealed. If the accused is found not responsible, then the accuser can appeal this decision.

Students at public universities must be accorded certain due process rights. At privately run colleges, the stu- dents must be granted certain contractual rights.

SOURCES: Notalone, 2014; Rubenstein, 2014; Yoffe, 2014; and Shulevitz, 2015.


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on a number of factors, some of them in contradic- tion with the others. In terms of consent, she will have to convince those who sit in judgment that she said “No!” and meant it, or clearly did not give permission. The man’s defense will be more credible if he did not hear that “No!” or had reason to believe it was part of a game or traditional script. If witnesses testify that they saw and heard her resist his advances, it supports her case. If witnesses observed her acting provocatively and seductively, that undermines her version of events leading up to the alleged assault. As for her immediate reactions, if she quickly got up and left the premises, called the police, or at least disclosed her distress to some- one else, her charges seem more credible. But if she stayed the night, had breakfast with him, and con- tinued to date him, that undermines her later reas- sessment that whatever took place that evening violated her wishes. If she engaged in heavy drink- ing, the accuracy of her memory of events might be challenged on cross-examination. But her accusa- tion that she was taken against her will could be believable if there is evidence that he plied her with liquor until she was too drunk to actually give consent (Banfield, 2007).

To put the problem into perspective, it is worthwhile to compare the risks faced by college women to their non-student counterparts between the ages of 18 and 24. An analysis of a huge NCVS database of survey findings from 1995 to 2013 revealed that young women lived slightly safer lives if they were involved in higher education dur- ing those high risk years. The rate of rape and sex- ual assaults suffered by nonstudents were a little higher (1.2 times more, 7.6 per 1,000 for nonstu- dents compared to 6.1 per 1,000 for students). About 33 percent of nonstudents shared their prob- lems with the police, whereas only 20 percent of college women did. Otherwise, few differences could be discerned. About 20 percent of both groups feared reprisals if they informed the police about what happened. Both groups knew their assailants in about 80 percent of the sexual assaults; and the offenders used a weapon against the non- students as well as the students in only 10 percent of the attacks (Sinozich and Langton, 2014). In sum,

there is no evidence that college is a more danger- ous place to spend the high risk years of the late teens and early twenties than in the “real world” beyond the campus gates.

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