At least two universities have recently released revised campus sexual assault policies, and, as expected, the new policies provide few due process protections for accused students.
The University of California-Berkeley and the University of Michigan announced new sexual misconduct policies this week. I’ll start with UM because its policy is much better — but still troubling — than UC-Berkeley’s.
UM’s new policy, a draft of which was released last September (the final will be released on April 6) does include some due process protections for accused students. Whether the school will actually provide them in individual cases or whether they will be provided adequately remains to be seen. (In schools across the country, such protections are rarely provided or lack usefulness.)
UM’s new policy refers to accusers and the accused as “claimants” and “respondents,” which removes the guilty-until-proven-innocent tone of usual policies where accusers are called “victims” or “survivors.” The school also allows accusers and the accused to have an adviser throughout the process, and this person can be an attorney; however, this adviser cannot speak on behalf of the students.
But there is something about UM’s draft policy that is frightening to due process advocates: The ability for accusers to request anonymity. This means the accused student might not actually be told who is making the accusation against him, which would severely hinder his ability to defend himself.
The school’s Title IX Coordinator also gets to pick who will investigate accusations. This immediately creates a conflict of interest, since Title IX offices are under pressure from the federal government to find students responsible, as opposed to discerning the truth of what happened.
The draft policy states that investigators “must be impartial, free of any actual conflict of interest and have specific and relevant training and experience.” What that training looks like is anyone’s guess. But based on what we know from training materials released from other schools, that “training” looks less impartial and more like an attempt to determine guilt regardless of the facts.
If a student feels the investigator is biased, he can report his concerns to the Title IX coordinator. This again creates a bias against the accused, since Title IX coordinators are de facto advocates for accusers.
UM also has no policy against false accusations, and explicitly states that it “assumes” all reports “are made in good faith.”
The school also has an arbitrary time frame to investigate (so any evidence that might require additional time and resources to discover is ignored), and uses the preponderance of evidence standard. These are encouraged (read: forced upon schools with a threat of funding loss) by the federal government, but it still shows the poor quality of these investigations.
UC-Berkeley’s new policy has not been released for comment yet. What we know of it has been mentioned in a campus news post. Nothing in this post suggests the school thinks due process is necessary.
The school’s public affairs department, which wrote the post, says that it spoke to “survivors, faculty, staff, students, alumni and community leaders.” No specific mention of due process advocates or wrongly accused students (though it’s likely the school doesn’t believe wrongly accused students exist).
The school will invest more in prevention, such as a “half-day campuswide event” in the fall that will include teach-in and seminars. Because apparently the nationwide focus on this issue and campus orientation programs just aren’t enough. (Also, yay for more spending on this and less on other student activities or lower tuition.)
The school will also provide “additional resources” in the Office for Prevention of Discrimination and Harassment to reduce the time it takes to resolve cases. Less time spent on these cases means investigators aren’t looking for key evidence.
The school also mentions support and care for “survivors” (there’s that labeling that presupposes the guilt of the accused again). There will also be a new review board that ensures punishment is dealt consistently.
The school mentions transparency, but not the kind that allows people to know what’s actually happening in specific accusations (so that students aren’t branded as “rapists” just for being accused), but transparency in how the school plans to roll out the new policy.
And for added measure, the school will create a “task force” to look into other ways to expand the policy.
Ashe Schow is a commentary writer for the Washington Examiner.
