College tribunals or criminal courts: where to find justice for sexual harassment?

In 1972 Title IX was passed, changing college programs across the country.

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
— Cornell Law School’s Legal Information Institute (20 U.S. Code § 1681 – Sex)

Over time, the scope of Title IX expanded to include sexual harassment. Sexual harassment on college campuses became defined as a form of sexual discrimination because it denies the harassed the equal opportunity to education.

The Obama administration took it a step further, tightening up Title IX expectations by issuing a Department of Education Dear Colleague Letter that put U.S. colleges and universities on notice: either make sure your campus addresses sexual discrimination in the form of sexual harassment or lose federal funding.

With this mandate, schools set up ways to settle sexual harassment claims that use students or staff as mediators and judges with in-house procedures. Why not? Schools had been adjudicating plagiarism, cheating, underage drinking and much more, through their own legal system.

Yet, lawsuits have followed: Sexual harassment cases are more sensitive and impactful to both accused and accuser. Issues of due process and confidentiality have surfaced.

Should unwanted conduct of a sexual nature continue to be tried in colleges by college courts? Or is justice best served when these cases are sent to criminal courts–even though most sexual assault cases go unreported?

Sexual harassment cases are best handled by schools.

the legal standard in schools is lower than in criminal courts

The sad reality of justice for criminal sexual assault cases: 95% of victims don’t report to police because they don’t think they’ll get justice.

According to RAINN (the Rape, Abuse and Incest National Network):

  • perpetrators of sexual violence are less likely to go to jail or prison than other criminals
  • and, for every 1000 rapes, 6 people will be incarcerated (with 20 for robberies, and 33 for assault and battery)

lower legal standard means there is more probability of victims feeling heard

In colleges, theres is a “preponderance of the evidence” standard: If a defendant is more than 50 percent likely to have committed the act, he or she is declared guilty.

This lower standard makes sense with a rule that is essentially a protection of civil rights (you have the right to an education without discrimination based on gender). And, the lower burden of proof is justified because colleges and universities don’t have the power to incarcerate the guilty. Also, false convictions of sexual assault aren’t as consequential to the accused because he or she does not end up with a criminal record.

On the other hand, the burden of proof for regular criminal trials — which include sexual assault cases — is much higher. Criminal convictions require establishing guilt “beyond a reasonable doubt” to ensure more certainty in an outcome that could forever change the accused’s life.

So, a lower legal standard can be met more easily than the higher criminal standard, which may allow the victim more confidence to come forward.

disciplinary codes

There is a long history of using disciplinary codes in colleges and universities, particularly with regard to issues like plagiarism and cheating.

It’s a college’s job to provide an environment for learning and this can’t be done when someone is being harassed.

With these codes in place, colleges can react quickly to make adjustments to make victims feel safe, and they can do so by using a variety of remedies. For example dorm assignment may be changed, a class schedule rearranged, and more.

different objectives

The criminal system is meant to provide punishment while Title IX is about equality: no student, on the basis of sex, should be discriminated against. This seems appropriate for a college setting.

Sexual harassment cases should be heard by criminal courts.

unfairness of the process

In a college tribunal, the accused may or may not be allowed to have an attorney, and the accused does not necessarily have access to testimony or evidence or other basic facts of the case.

lower burden of proof for conviction

While the lower burden of proof for conviction means a victim is more likely to come forward, the consequences of a conviction are huge for the accused: he/she can get kicked out of school, yet the process isn’t as transparent or established as a criminal court.

incentive for conviction

In the current system, colleges are incentivized to convict those accused of sexual harassment because colleges can lose federal funding if they’re not complying with the Dear Colleague Letter.

conflict of interest

Often the same person who finds guilt in the accused is also responsible for the sentencing.

forensics

Colleges often don’t have access to forensics like rape kits for the collection of DNA samples.

sexual harassment is broadly defined

A broad definition of terms leads to prosecution by campuses of things that seem ridiculous: one rule stated that moving from one “level” of intimacy to the next required a verbal question with a verbal “yes” response–otherwise, it would not be considered consensual.

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