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Due process remains problematic in campus sex crime cases

When a person faces a criminal charge or pursues legal action, the rule of law dictates that due process be followed. The way the Constitution of the United States expresses this is that every person is presumed innocent until found guilty. Additionally, the Constitution states that in any prosecution, the defendant has a right to confront his or her accuser through cross-examination.

That's not a "nice-to-have" sentiment. It is a "must have." Unfortunately, application can be spotty at times. Cases of alleged sexual assault on college campuses may serve to highlight the point.

These types of cases are often but not always criminal in nature. When they occur on college campuses, school administrations bear the onus for responding, and the record is mixed on how well they do.

Resolutions typically give schools cover

The issue of sexual assaults on campuses has always been serious, but it has gained attention in recent years as assault reports rise. When President Obama was in office, his administration issued guidance on the subject that directed schools to effectively apply the lowest standard of proof when deciding sexual misconduct cases under federal anti-discrimination law.

While criminal trials require proof beyond a reasonable doubt, schools were urged to apply a standard of a preponderance of evidence. That is typically taken to mean just over a 50 percent likelihood of guilt. What resulted were policies that restricted the rights of the accused to question their accusers. It also promoted a concept of one person serving as investigator, judge and jury in a case.

Last fall, the Trump administration revoked those standards and issued new interim guidance to ensure greater fairness for accuser and accused alike. Perhaps the most significant is one that states that schools must grant both parties "meaningful access" to all information used in any formal or informal proceeding, including disciplinary meetings or hearings. The DOE says it is working on a new set of replacement rules, but it's not clear when they be issued or what they will say.

Meanwhile, the threat of sexual assaults on campuses and risk of having to answer to accusations remains. Where the presumption of innocence is lacking, those accused face a greater challenge protecting their rights, consider these tips from FIRE, the Foundation for Individual Rights in Education.

  • Know that public colleges are government institutions subject to constitutional restraints against violating your rights.
  • Be aware that potential penalties increase with the severity of the allegation, but so do your rights to greater due process.
  • If informed you are under investigation, regardless of the seriousness of the accusation, contact an experienced attorney before speaking to anyone.
  • Prepare to respond to the accusations in accordance with your school's disciplinary rules and procedures.

With sexual encounters at colleges, evidence of wrongdoing tends to be scarce. Cases often come down to one party claiming the sex was nonconsensual and the other thinking it was consensual. The burden of proof is on the school. The respondent's job is protecting his or her rights.

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