College students accused of sexual harassment and assault used to face an uphill battle to defend themselves (“DeVos’s Rules Bolster Rights of Students Accused of Sexual Misconduct,” The New York Times, May 7). But a new Title IX regulation allows both the accused and accuser to submit evidence, participate in cross-examination, and appeal the final ruling.
The change is long overdue. I say that because until now the presumption of innocence was absent. The odds were overwhelmingly on the side of the accuser. The typical scenario gave the woman the upper hand. No cross-examination was allowed, which meant that virtually anything she said was accepted as true. As a result, the man found himself the victim of what was essentially a kangaroo court.
By allowing “clear and convincing” evidence to be the basis for a verdict rather than the previous “preponderance of the evidence,” the higher standard means that falsely accused students now stand a better chance of defending themselves and clearing their name.
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Strongly believe that colleges should not be investigating, prosecuting, adjudicating or punishing sexual misconduct. Leave those functions to the police, DAs, and courts.
The consequences to the accused — and sometimes even to the accuser — of sexual misconduct allegations and findings are too significant for the functions to be entrusted to colleges that, virtually by definition, lack the expertise and authority to perform the functions fairly and effectively.
If you — or someone you know — believes sexual misconduct has occurred, report the alleged misconduct to the police. Let the qualified authorities deal with the issues raised by the allegation. If you don’t think the alleged misconduct is serious enough to get the police involved, then just forget about it or deal with it on an interpersonal, non-institutional level.
The college’s role should be extremely limited — probably limited to eliminating/reducing contact between the accuser and the accused without reaching the merits of the allegation (like allowing a student to switch dorms).
An exception would be if the accused is acting in his/her capacity as a college employee — i.e., a professor demanding sex in exchange for a higher course grade or a supervisor sexually assaulting a subordinate employee. Then, the college has the usual obligation that any service provider or employer has to protect customers and other employees from employee misconduct. But, those would be a relatively small percentage of the cases, will rarely involve the almost-impossible-to-decide drunken-assault-in-a-frat-bedroom allegations, and are pretty much not what either the media or the Dept of Ed have been worrying about.
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Labor Lawyer: I agree with you. I never understood why colleges got involved in the first place when the matter should be handled by the police. But since colleges have gotten involved, then the new rules are a big improvement. It was too easy to ruin someone’s reputation before when cross examination was not allowed.
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The additional — potentially huge problem from the college’s viewpoint — is the college’s potential civil liability in these sexual-misconduct-allegation cases. The police, DAs and courts have a degree of immunity from civil lawsuit when they investigate, prosecute and adjudicate criminal allegations. Colleges have no such immunity. Given that virtually every time that a college acts in response to a sexual misconduct allegation, someone will be unhappy with what the college ultimately does + given that intense feelings/lots of career-potential $ will often be involved, colleges will often be sued by whichever party is unhappy with the college’s ultimate action; sometimes both parties will be unhappy with some aspect of what the college does and will think a lawsuit against the college is warranted/necessary. Leave it to the police.
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Labor Lawyer: In today’s litigious society, colleges are going to be sued by the plaintiff who is unhappy with the verdict. All the more reason why such matters should be handled by the police. Colleges have no business acting as courts in sexual misconduct matters.
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