Tag Archives: Sexual Violence

Broken Glass and Broken Trust: Lessons to Learn from UVA

By: Derek Ko and Steven Glick

Sabrina Erdely published a story in Rolling Stone magazine on November 19 describing the brutal gang rape of Jackie, a student at the University of Virginia. The rape occurs after Jackie goes to a date function at the Phi Kappa Psi fraternity. Jackie had met her date, referred to in the story as “Drew,” at the university’s pool, where they worked together as lifeguards. Erdely reports that, after going upstairs with Drew, Jackie is tripped onto a glass table, which shatters on impact. The article then goes on to describe a horrifying incidence of sexual violence against Jackie in which she is punched in the face and raped by seven men as three others “gave instruction and encouragement” over the course of three hours.

When Jackie finally leaves the party, bleeding and covered in broken shards of glass, she seeks out her friends for help. However, her friends only exacerbate the situation, instructing Jackie not to seek medical attention lest she become, “the girl who cried ‘rape,’” and they are “never allowed into any frat party again.”

The shocking story galvanized anti-rape activists and feminists from across the country. In response to the story, the university suspended all fraternity activities until January. Protests broke out on the UVA campus in which students marched holding signs emblazoned with such slogans as “UVA, Stop Hiding Rape” and “Men of Honor Do Not Rape.” The Phi Psi house at UVA was vandalized, with windows broken and messages such as “Suspend Us!” and “UVA Center For Rape Studies” graffitied on its walls.

A short while later, cracks in the story began to surface. Phi Kappa Psi released an official statement revealing that no party had taken place at their house on September 28, 2012, the day on which Jackie had allegedly been raped. Additionally, no member of the fraternity was found on the 2012 employee roster of the university’s Aquatic and Fitness Center, which employs all lifeguards. More recently, The Washington Post has discovered upon further investigation that Jackie’s friends, referred to as “Randall,” “Cindy,” and “Andy” in the Rolling Stone article, had a vastly different account of their interactions with Jackie in the aftermath of her alleged rape. Among other things, they now claim that a photo Jackie had texted of her “date” that night was actually of a high school classmate of hers who attends a different university.

As Jackie’s account of her alleged rape has continued to unravel, many people have understandably become disappointed and even outraged by Erderly’s poor reporting. Multiple articles have since lamented the damage that the article has done to the credibility of genuine victims of sexual assault. Many others, such as a Huffington Post blog post written by Katie Racine entitled “Don’t Let Rolling Stone’s Bad Journalism Hurt the Anti-rape Movement,” have been written with a clearly defensive tone. “So what if this instance was more fictional than fact and didn’t actually happen to Jackie?” writes Racine. “Don’t let the holes in this story diminish your rage, do not let the fire burning across our schools and nation be smothered by shoddy journalism and a troubled and traumatized girl who has clearly suffered.”

Julia Horowitz of Politico.com wrote, in an article entitled “Why We Believed Jackie’s Rape Story,” that “to let fact-checking define the narrative would be a huge mistake… no matter if specifics of the article are true, …reading the article as a college student, you were thinking, ‘This could happen.’”

Horowitz is correct in one respect. The reason so many readers initially believed Jackie’s story was likely because sexual violence is still not as rare in our modern society as we would all hope. However, her assertion that fact-checking should not define “the narrative” is short-sighted and irresponsible.

There is an obvious elephant in the room that much of the anti-rape movement is not acknowledging. In their fervent and well-intentioned efforts to obtain justice for genuine victims, many anti-rape activists and advocates have lost sight of the importance of facts and evidence. We have been told for well over a decade by the mainstream feminist movement either that people never lie about being sexually assaulted, or that those who do make up such a trivial percentage that such cases are no cause for concern.

In the midst of these dominant narratives, hastily concocted state and federal regulations such as California’s recent “affirmative consent” law and the Department of Education Office for Civil Rights’ 2011 Dear Colleague Letter on sexual violence have been put into effect. Institutions of higher learning have been required to adhere to lower and lower standards of evidence while adjudicating cases of sexual assault on their campuses which they are woefully ill-equipped to handle in the first place. As a result, dubious cases of conviction and expulsion of alleged sexual assailants have multiplied, resulting in a litany of lawsuits filed against various colleges by those who claim to have been falsely accused and denied due-process. Caleb Warner’s suit against the University of North Dakota, John Doe’s suit against Occidental College, and Drew Sterret’s suit against the University of Michigan are just three such cases that have been covered in detail by the Foundation for Individual Rights in Education (FIRE).

These dysfunctional policies were not born out of an aversion to the rights of the accused or contempt for fair trials. They were drafted, lobbied for, and implemented by people who care deeply about sexual assault victims. However, they also originated from the fundamentally flawed view that society must accommodate the needs and wants of victims even at the cost of due process. Behind this mindset lies the fundamentalist feminist idea that the victim in cases of sexual assault must be unconditionally believed. Those who have dared to even question the wisdom of this assumption have often been the objects of shaming and ridicule and referred to as rape apologists.

In the immediate aftermath of Rolling Stone’s publication of Erdely’s article, blogger Richard Bradley wrote that “to believe it beyond a doubt, without a question mark—as virtually all the people who’ve read the article seem to—requires a lot of leaps of faith.” Robby Soave’s article in Reason magazine, “Is the UVA Rape Story a Gigantic Hoax?” stated that, “This isn’t a case of he-said/she-said; this is an extraordinary crime that indicts a dozen people and an entire university administration. Assuming a proper investigation—which the police are now conducting—confirming many of the specific details should be relatively easy. If ‘Jackie’ is lying, there is a good chance she will be caught (and Erdely’s career ruined).”

Bradley and Soave’s articles were met with much criticism from feminist circles online. Jezebel published a response article titled, “‘Is the UVA Rape Story a Gigantic Hoax?’ Asks Idiot,” in which the author, Anna Merlan, writes, “In summary, what we have here are two dudes who have some vague suspicions and, on that basis, are implying that Edeley either fabricated her story or failed to do her due diligence and didn’t fact check what Jackie told her.”

In even attempting to do the fact-checking that Erdely should have done in the first place, other journalists were initially slammed for having any doubts about Jackie’s story at all. In a social climate where merely investigating the claims of a sexual assault victim is considered heretical, it really should come as no surprise that Rolling Stone’s UVA article was so widely believed by other media sites or even published to begin with.

To be sure, when our friends seek out our support, we should never doubt the authenticity of their trauma and suffering. We should never demand to interview the alleged perpetrator or thoroughly investigate the incident before fully believing a friend’s account of his/her sexual assault.

However, as friends and confidantes of sexual assault victims on campus, we are neither prosecutors nor law enforcement officers nor reporters for a national publication. When someone privately shares his or her experiences of sexual violence with us, it is not our professional duty to adhere to strict journalistic standards or to prove guilt beyond a reasonable doubt. We do not have the power to expel someone from an institution of higher learning. We do not decide whether or not to put another human being behind bars for a significant portion of his or her life. We, unlike Erdely do not report for a publication with a readership of millions. For us, Erdely, or anyone else to personally believe the accounts of sexual assault victims is not a problem. In fact, this kind of trust is essential to being a good friend and advocate for sexual assault survivors. The problem with Erdely is not that she believed Jackie’s story, but that she carried her personal trust in Jackie into her work as a journalist whose actions have wide-reaching consequences. In the professional world, verifiable facts are all that do and should matter. In our legal system and our media, we cannot and should not expect alleged rape victims to be believed (and their perpetrators presumed guilty) by default.

The UVA debacle demonstrates the importance of separating the personal from the professional when listening to the stories of sexual assault survivors. Though Jackie’s particular case never resulted in a trial, it highlights the critical importance of due process and high evidentiary standards in addressing instances of sexual assault on college campuses. When these standards are lowered, even with the good intention of expediting justice for victims, the increased incidence of false accusations and unjust rulings is an inevitable result.

The fact that there are rare instances in which “victims” lie is an issue that must be addressed in a pragmatic way. When false convictions happen, the lives and reputations of those who are falsely accused suffer irreparable damage. When evidence of false accusations and incorrect rulings comes to light, it is real victims of sexual violence that are hurt the most. Despite the fact that fewer than one in ten rape accusations are likely false, the harm that they cause to the reputations of sexual assault survivors is disproportionate to their frequency. Though incidents like that of UVA are disheartening, they are important learning experiences. Through prudent discourse, a commitment to due process, and high standards of evidence, we can all work to preserve both the rights of the accused and the dignity of sexual assault survivors.
_______________________

Image Source: Flickr/Holger

Scripps College, George Will, and Sexual Assault

As many of you now know, George Will was recently disinvited from speaking this coming February at Scripps College’s Elizabeth Hubert Malott Public Affairs Program, a series that is designed to bring one distinguished conservative figure per year to a campus that is, otherwise, ideologically homogenous.

Will assumed it was because of what he wrote in a controversial column on sexual assault. As he told the Claremont Independent in an interview, “they didn’t say that the column was the reason, but it was the reason.” Once the Independent broke the story, Scripps College President Lori Bettison-Varga issued a statement confirming Will’s theory.

The president’s statement and the wider debate on campus are filled with doubletalk. Among the most egregious: “Sexual assault is not a conservative or liberal issue. And it is too important to be trivialized in a political debate…”

Of course, sexual violence itself is not a political issue. It’s a criminal issue.

What is a political issue, however, is how we choose to respond to sexual violence on campus and as a nation. If we don’t “trivialize” such policies through reasoned debate, how do we know if they’re any good?

Each political perspective offers contrasting solutions to the problem of sexual violence.

The leftist perspective, comfortable with the goodness and effectiveness of the bureaucratic state, contends that school administrators should adjudicate cases of sexual violence (both sexaul assault and rape) under Title IX, treating sexual violence as a type of discrimination.

At Claremont McKenna College, rape is tried by administrators and faculty in makeshift courts. Let that sink in for a minute. Faculty and professors are sitting in as judge and jury in cases of rape, the most egregious sexual crime that can be committed against an adult, rather than real judges and a jury of one’s peers.

While college administrators may not desire to judge rape cases, they must do so because of an April 2011 Department of Education “Dear Colleague” letter, which mandates that, in order to stay in line with Title IX, colleges must try such cases, and under lower standards than those in real courts.

Such a system trivializes rape, treating it like a serious infraction. Furthermore, it imbues non-governmental entities with a worrying amount of power. There is already evidence that the current processes are excessively prone to outside influences, with cases being influenced by a student’s popularity or their relationship to a major donor or a national figure.

The conservative view (which, admittedly, Mr. Will could have done a better job of explaining) is that deans and professors shouldn’t be trying cases of sexual violence. Instead, our legal system should. Rights of the accused – like the presumption of innocence, right to an attorney, right to a judge, right to a jury that must reach a unanimous decision, and the right to cross-examination, among others – are weak or nonexistent in collegiate courtrooms. These rights do not exist in the court of public opinion, where debates over individual cases influence the national debate on sexual violence policy. However unpleasant, rights of the accused and a methodical judicial process are essential to ensuring that justice is done properly.

Rape shouldn’t be a “preponderance of evidence” infraction. Rape should be treated as a felony, a crime serious enough that must be proven “beyond a reasonable doubt.” Rape convictions shouldn’t result in simple expulsion.  Rape convictions should result in jail time and felon status.

The argument that it was correct to uninvite Will is wrong-headed. Let’s be clear, this is absolutely not a question of free speech. Of course Scripps can invite or disinvite whomever it wants. What conservatives think is that, while it is Scripps’ right to disinvite Will, it was wrong of them to do so. It sets a bad precedent. It is an insult to the students of Scripps College. And it goes against values that classical liberalism does and modern progressive liberalism claims to espouse, such as toleration, reason, and the value of debate.

Disinviting George Will only tightens the ideological straight-jacket that binds the students of Scripps College. Let us hope that the students of Scripps understand the disservice their administrators have done to their intellectual environment and that they find ways to compensate. Reading the CI is a good way to start.

Read more:

The Scripps Silence: A Rebuttal to the Scripps Voice

The Scripps Voice, the official student newspaper of Scripps College, came out in support of the college’s decision to suppress the voices of those on campus with whom it disagrees.

George Will

In its Oct. 16 issue, the newspaper featured a breathtakingly laudatory editorial in response to the Scripps administration’s decision to disinvite conservative columnist George Will from speaking on campus over a June 6 column that he wrote about sexual assault.

“The Scripps Voice stands behind – and applauds – the College’s decision,” the editorial reads.

The newspaper makes several arguments regarding why the college was justified in rescinding Will’s invitation to speak.

First, the editorial claims that “sexual assault is a bipartisan issue” about which there is no room for reasonable disagreement. On its face, there is some truth to this argument. Sexual assault is absolutely not a political question in the same way that, for instance, abortion is. Conservatives and liberals generally disagree about whether abortion is an inherently evil act, whereas both sides believe that sexual assault is always wrong.

But Will clearly was not arguing about the moral merits and detriments of the actual act of sexual assault in his column. Rather, he wrote about which acts deserve to be given the very serious label of “sexual assault,” which cultural institutions (or lack thereof) sexual assault is most prevalent under, and what our judicial response to sexual assault should be. These are questions surely up for political debate and discussion – ones about which conservative and liberal principles and philosophy are generally in disagreement.

Screen Shot 2014-10-28 at 4.42.43 PMThus, Will was disinvited from speaking on campus because of his conservative views toward the issue sexual assault – in a guest lecture series designed to promote conservative views on campus – because the Scripps College administration personally disagreed with those political views.

It should also be instructional that only liberals and progressives are using the “sexual assault is a bipartisan issue” line. Where are the conservatives making the supposedly bipartisan argument that there is no room to disagree about political questions tangentially related to sexual assault?

Second, the editorial argues that allowing Will to speak after writing such a column would be harmful to the Scripps community, as it would trigger the past traumas of sexual assault survivors.

Yet, the Voice fails to mention that the only reason they are writing about Will’s column is because the Scripps administration chose to disinvite him from speaking on campus. Many people on this campus – perhaps among them survivors of sexual assault – only read Will’s initial column because of the political brouhaha that ensued after the disinvitation was revealed.

scripps sealWill’s column would not have been required reading had he simply been allowed to come and speak on campus, nor would attendance at the talk have been mandatory, and it is very likely that the only mention of sexual assault would have been during the Q&A session. It can be argued that the Scripps administration did more to trigger past traumas by rescinding Will’s invitation than they would have by letting him speak. (Of course, in its defense, the administration was probably counting on nobody finding out about the disinvitation.)

Third, and most fallaciously, the editorial argues that, because Will’s First Amendment rights were not violated by the disinvitation, he was not really “censored.”

Aside from the fact that no one is claiming that Will’s First Amendment rights were violated, this is a very dubious argument – and a bit of a troubling one coming from a newspaper with the word “voice” in its name. Perhaps it is best rebutted by a simple thought experiment.

Hypothetically speaking, were the Scripps administration to, say, take a stack of the most recent edition of the Scripps Voice and throw it into the trash, perhaps because it disagreed with one of the articles, would the Scripps Voice claim that they had been censored?

One need not think long on this question, because that is exactly what the newspaper claimed to have happened last year, when it intentionally left its Feb. 17 issue’s front cover blank in order to protest “student censorship” on campus.

It is ridiculous to think that political censorship can only exist within the sphere of the First Amendment of the Constitution of the United States. Just because it is not an American governmental entity doing the censoring does not mean that one has not been censored.

Finally, while the arguments raised by the Scripps Voice are far from persuasive, they are also straw men.

The real question up for debate here is not whether George Will expressed a conservative point of view, if what he wrote was insensitive, or if Scripps technically “censored” him by rescinding his invitation from campus, but whether the university can fulfill its primary purpose of creating critical thinkers and responsible citizens by presenting only one side of any given argument.

Is the modern-day university doing its students a disservice by shielding them from opinions about which they may disagree and that they may find hurtful? Can the academy properly function while only presenting certain acceptable points of view for debate and discussion?

You won’t find out by reading the Scripps Voice.

Dean Spellman on the sexual violence procedures

After initially responding to our request for an interview with a statement entitled “Regarding Title IX,” the Claremont McKenna Office of Public Affairs granted the CI an interview with Dean of Students Mary Spellman to discuss the college’s Title IX sexual violence grievance procedures.

Claremont McKenna College implemented new Civil Rights Policies and Civil Rights Grievance Procedures, which apply to cases of sexual violence, in accordance with a Dear Colleague Letter (DCL) issued by the Department of Education’s Office of Civil Rights. The DCL, sent to all educational institutions in the United States that receive federal funding, stipulates numerous Title IX requirements to which recipients must adhere in investigating and resolving complaints of sexual violence. The most controversial of its contents is a requirement that schools use a preponderance of the evidence standard of proof in evaluating complaints of sexual violence. The preponderance standard is met if it is more likely than not (a greater than 50 percent probability) that the offense occurred. The DCL explicitly states that schools are not to use the clear and convincing standard (i.e. it is highly likely or reasonably certain that the offense occurred).

When asked if Claremont McKenna College held any opinions about complying with the Department of Education’s ultimatum regarding the preponderance standard, Dean Spellman responded that the decision-making standard is a minimally important aspect of the college’s grievance procedures. She said, “The decision-making standard is the least important piece, I believe, in how we handle sexual violence cases or any kind of student conduct case. It’s really about, ‘Do we provide a fair and neutral and equitable process to all parties?’ The decision-making standard is a small piece of that larger process.”

When asked more specifically if the college was concerned that the use of such a low standard would produce wrongful findings of guilt, Spellman responded similarly, saying that the low decision-making standard should not be of great concern. She said,

“The [decision-making] standard is one piece of a very important process, so we need to make sure we have a process that’s fair, that it has appropriate due process for all the parties, that the individuals, particularly the respondent, understands what their rights are and has a process by which the college has as much information as possible about the circumstance so that the trained investigator or trained hearing officer is able to make a fair, neutral and informed decision. So I think that that is the most important piece. We could have a higher decision-making standard, and if our process didn’t have all of the robustness that our process does, you could still have a problem. It could be a different problem, but you’re going to still have a problem. So the decision-making standard—you know, preponderance or something else—really, what’s crucial is the process that you get to that. With preponderance of the evidence, if you have a process that is as robust as we want ours to be and we hope and think ours is, then the decision is easy at that point, because you have all the facts. The decision is either you do have enough information, or you don’t. That’s, to me, the most important piece.”

In other words, if the college institutes robust grievance procedures that offer appropriate due process for all parties involved, it doesn’t really matter whether the college uses a preponderance standard, a clear and convincing standard, or even a beyond a reasonable doubt standard. You either have enough information, or you don’t.

For a perspective about why the decision-making standard does matter, and why the preponderance standard is a troubling aspect of CMC’s grievance procedures, see our previous article “Title IX, sexual violence, and the preponderance standard.”

 

Why not just CMCers should care about sexual violence policy

On Mar. 1, we attended the “5C Deans of Student Life Panel on Sexual Assault Policies,” hosted by the Motley and Sexual Assault Awareness and Resource Committee, both student organizations at Scripps. Five deans from each Claremont College were present for the 2 hour presentation, which consisted of the deans’ answers to pre-screened questions and a brief, live Q&A period.

It was an overdue opportunity for administration to engage students directly for a discussion of changes to sexual assault policies across the 5Cs. The discussion covered many questions ranging from “What do you intend to address in the policies?” to the concern that “previous policies didn’t address all [sexual] identities.”

More insightful, however, were the deans of the other colleges’ answers in relation to those of Dean Mary Spellman, Title IX Coordinator and effective spokesperson for CMC’s changes to sexual violence grievance procedures in light of the Dear Colleague Letter. Dean Spellman pointed out that CMC’s sexual violence grievance procedure policy was already “technically in compliance” before the recent changes. However, it became clear from the discussion that the other
deans were taking a strong lead from Spellman’s initiatives.

For example, Harvey Mudd College VP of Student Affairs and Dean of Students, Maggie Browning, said that Harvey Mudd is in the process of revising its grievance procedures after they “took a look at what Dean Spellman was doing.”

Harvey Mudd College and Claremont McKenna College have already finalized the changes to their sexual violence grievance procedures. However, the other three colleges in the Consortium are still in the process of revising their policies.

Most of the deans emphasized that cross-campus policies were of particular importance, and it seems that policies are shifting to require that grievance procedures be carried out on the respondent’s campus. Given the frequency that students interact with one another across the 5Cs, the changes to grievance procedure policies on any of the five campuses have implications for any student at the Claremont Colleges.

Dean of Students at Scripps, Bekki Lee, acknowledged, “in cross-campus cases, the learning curve is to know each other’s processes.” It is concerning that any type of learning curve is involved in the context of serious accusations. Such comments point to the need for students from all 5Cs to educate themselves on changes to grievance procedure policies and their accompanying implications, especially in the area of the 5Cs’ differing definitions of consent and incapacitation. For example, CMC’s rules explicitly state that an individual can give consent under the influence, while other Claremont Colleges consider intoxication prohibitive of consent.

According to Dean Spellman, “each institution has its own culture of how to conduct processes. But what is really important is that where we do intersect, we have to be in agreement.”

The burden is now on students to educate themselves on how and where 5C policies intersect and agree. This starts with the sweeping changes to CMC’s sexual violence grievance procedures, and their problems, something to which we have already dedicated several articles, and something from which several 5C deans say they are taking the lead.

Title IX, sexual violence, and the preponderance standard

On Dec. 10, 2012, President Pamela Gann announced in an email to the student body that Claremont McKenna College had revised its sexual violence grievance procedures in accordance with a “Dear Colleague Letter (DCL)” issued by the Department of Education’s Office of Civil Rights (OCR). The OCR distributed the letter to all educational institutions in the United States that receive federal funding.

The DCL addresses Title IX of the Education Amendments of 1972, which (as summarized by the letter) “prohibit[s] discrimination on the basis of sex in educational programs or activities operated by recipients of Federal financial assistance.” The letter states that sexual violence, in addition to sexual harassment, is a form of sex discrimination prohibited by Title IX.

The DCL stipulates numerous Title IX requirements to which recipients must adhere in investigating complaints of sexual violence. It requires that colleges and universities adopt and publish grievance procedures providing “prompt and equitable” resolution of sex discrimination complaints on campus.

As other educational institutions have done, Claremont McKenna revised its sexual violence grievance procedures in response to the DCL. In her email to the student body, President Gann wrote that these revised procedures “reflect our commitment to creating a safe community in a manner that is consistent with the law and which offers a fair and neutral process to all parties involved.”

Whether these procedures are, in fact, truly fair and truly neutral, is up for debate.

Of primary concern is the DCL’s requirement that schools use the preponderance of the evidence standard of proof in evaluating complaints of sexual violence. The preponderance standard is met if, evidence considered, it appears more likely than not (a greater than 50 percent probability) that the offense occurred. The DCL states explicitly that schools are not to use the clear and convincing standard (i.e. it is highly probable or reasonably certain that the assault occurred).

Federal civil courts use the preponderance standard in evaluating complaints. The DCL specifically notes that the Supreme Court uses the preponderance standard in civil cases involving discrimination under Title VII of the Civil Rights Act of 1964, a statute which likewise prohibits sex discrimination.

The OCR reasons that since the preponderance standard is used in federal civil cases involving sex discrimination, it is the appropriate standard for college and university sexual violence grievance procedures.

 

CMC’s Grievance Procedures

CMC’s revised Civil Rights Policies and Civil Rights Grievance Procedures are posted to the college’s website.

The document explains that complaints of alleged sexual assaults on campus shall be forwarded to the college’s Title IX Coordinator, who currently is Dean Mary Spellman. The Title IX Coordinator appoints an investigator trained in the college’s grievance procedures to conduct a “thorough, impartial, and prompt investigation of the complaint.” The investigator conducts interviews, gathers evidence, prepares a report of the investigation, and makes an appropriate finding based on a preponderance of the evidence.

If the Investigator determines by a preponderance of the evidence that the respondent, the individual accused of the violation, did commit the sexual assault, the respondent may accept the findings or reject the findings (or accept them in part and reject them in part).

If the respondent rejects the findings in full or in part, the Title IX Coordinator forwards the complaint to the “Hearing Board” (the “Board”). The Board’s task is to conduct a hearing to provide an “equitable resolution via an equitable process.”

The Board consists of three persons appointed by the Title IX coordinator “selected from the members of the Investigator pool who were not involved in the original investigation and faculty who have been trained to review Civil Rights complaints.” The Title IX Coordinator designates one of the three individuals as “Chair” for the hearing. It is the responsibility of the Board to determine, by a preponderance of the evidence, whether the defendant is guilty of committing the sexual offense, and to recommend the appropriate sanctions to be imposed upon the individual. For students, the possible sanctions are “up to and including suspension or expulsion.”

As articulated previously, the Office of Civil Rights justifies its requirement that colleges and universities use a preponderance standard in sexual violence grievance procedures because it is the standard used in federal civil cases involving discrimination. However, the OCR appears to disregard the significant differences that exist between campus grievance procedures, such as CMC’s Hearing Board procedures, and those of the federal civil system.

CMC Professor of Government and Ethics Joseph Bessette has studied both the Dear Colleague Letter and CMC’s revised grievance procedures in depth. He raises concerns about using such a low standard of proof in CMC’s grievance procedures: “What I find striking is that although it’s true that preponderance of the evidence is the regular standard of proof in civil courts throughout the United States, federal and state civil courts, there are so many differences between the rights that the respondent has in [civil] courts compared to [CMC’s] procedures that it really raises in my mind the question of whether preponderance of the evidence is the proper standard.”

In an interview with the Claremont Independent, Bessette identifies eight significant differences between federal civil trials and CMC’s sexual violence Hearing Board procedures that, in his opinion, “argue strongly either for changes in the [college’s] procedures,… a higher standard of proof, or both.”

First. Bessette explains that a judge, who is an expert in the law, presides over all federal civil court cases. No judge-like figure presides over CMC’s Hearing Board procedures. Although the Chair shall be trained in the college’s Title IX grievance procedures, he or she will not, unless by chance, have extensive legal training. Further, the Chair is still a member of the Board that both conducts the disciplinary hearing and determines guilt.

Second. Bessette notes that the federal civil system adheres to extensive and detailed rules of evidence intended to protect the accused. The CMC grievance procedures include provisions stating that that the use of alcohol or drugs may not function as a defense, that sexual orientation and/or gender identity “is not relevant to allegations,” and that the past sexual history of a party and the respondent’s prior policy violations will not be generally admissible. However, the procedures nonetheless fail to address other vital protections regarding evidence—such as rules excluding hearsay.

Third. The federal civil system is bound by “discovery” laws, which allow each party in the case to obtain evidence from the opposing party by judicial compulsion. CMC’s procedures do not include the right to discovery.

Fourth. The civil system guarantees respondents the right to an attorney who may act as an advisor during the proceeding. CMC’s grievance procedures specify that legal counsel is not permitted in Hearing Board grievance procedures “except in cases in which any party to the grievance faces potential criminal charges or if required by applicable law.” Thus, in cases of sexual violence, of which the defendant faces potential criminal charges arising from the same set of evidence, the defendant may hire an attorney. The guidelines state, however, that “In such cases, an attorney will only be permitted in a non-participatory advisory role for the Complainant and/or Respondent at that individual’s expense” (emphasis added).

Bessette notes that a non-participatory attorney certainly does not play the same role as would legal counsel in civil court: “That means the attorney cannot, I take it, speak out in the hearing itself. He can be sitting there, because it’s a potential criminal case, but can’t actually [participate]. I don’t know what advisory role means if you’re not participating… But it’s clear that you’re not playing the same role that your attorney would play in a real civil trial.”

Fifth. In the federal civil system the burden of proof falls on the complainant. Just as defendants in criminal cases don’t have to prove their innocence, respondents in civil cases don’t have to prove that they are not at fault. CMC’s grievance pro- cedures, however, nowhere specify that the burden of proof falls upon the complainant. “Even though the standard of proof [in a civil case] is low, 51% / 49%, the complainant still has to prove his or her case… And there’s no such language in the CMC rules that I can see that puts the burden of proof on the complainant.”

Sixth. In a civil trial, the defendant has the right to see all the evidence and to cross examine the witnesses. CMC’s grievance procedures, on the other hand, don’t actually require that the complainant or respondent even appear at the Hearing Board procedures. Although the explanation of the Hearing Board procedures seems to assume participation, the document states several pages later that complainants in CMC grievance proceedings retain the right “To participate or decline to participate in the grievance process related to a discrimination, harassment, and/or sexual misconduct complaint with the understanding that the process may continue without their involvement and that the Investigator and/or Board will determine an outcome with the information available to it” (emphasis added). The document similarly states that respondents have the right to “participate or decline to participate in the review procedure, with the understanding that the process will continue regardless…”

Bessette says, “Now as I read that, that means you can be accused of some really serious misconduct by a person, and that person doesn’t necessarily have to appear and make the case in front of you and be cross-examined by you.”

Seventh. Bessette explains that federal civil trials have a minimum of six jurors and that at-fault verdicts must typically be decided unanimously. In CMC’s grievance procedures, however, just three members of a Hearing Board determine the guilt of the defendant. CMC’s procedures do not specify that the Board must determine guilt unanimously; it simply states that the Board will “determine an appropriate finding based on a preponderance of the evidence.” Bessette notes that the document’s failure to explicitly require unanimity implies that only a two thirds majority is necessary to determine guilt, asking rhetorically, “How much easier is it to ‘prove’ an accusation if you only have to persuade two out of three people that it’s slightly more likely [that the offense occurred] than to convince six people?”

Eighth and last, Bessette notes that federal civil cases are almost always open door, unless they involve serious matters of national security. Bessette explains that public trials serve to protect the accused: “If a defendant or a respondent is being mistreated some way by the process, the public can witness that… It’s a protection to an individual who is accused of something.” CMC Hearing Board procedures, on the other hand, are closed-door, offering no such public oversight. The grievance procedures state, “Board hearings are closed. The hearing itself will be recorded but not the deliberations. The recording will be destroyed after the appeal period has been exhausted.” The guide specifies that the complainant and respondent may listen to the recordings, but does not say whether they will be available to members of the CMC community.

To summarize—CMC’s Hearing Board procedures do not include a judge-like figure, specify proper rules of evidence to protect the accused, delineate rights to discovery, grant the defendant the right to an attorney who may participate in the hearing, specify that the burden of proof falls upon the complainant, permit the defendant to be confronted by and cross-examined by the complainant, require a unanimous jury of six to determine guilt, or open Hearing Board procedures to the oversight of the CMC community.

That CMC’s sexual violence grievance procedures lack so many of the legal protections afforded by the federal civil system argues strongly for a higher standard of proof, changes to the procedures, or both.