TWO WEEKS ago, a University parent launched a new Web site calling for the University to toughen up the way it deals with students accused of sexual assault. The site's founder alleges that after her daughter reported being raped by a fellow student earlier this semester, the University failed to respond adequately. In addition, she charges that the administration routinely "turns a blind eye" to this issue, and that the community must take steps now to ensure that all perpetrators of sexual assault are "immediately removed from Grounds so that students' emotional and physical well-being are not ever in jeopardy."
Although this mother's pain is both tragic and understandable, her calls for reform are misguided. The University should not involve itself further in cases of accused sexual assault, but should rather get out of the business altogether. Sexual assault is much too serious an offense to be handled through a process under the watch of bungling University administrators. Instead, such serious crimes should be prosecuted exclusively within the existing criminal justice system, which contains time-tested and established procedures for securing justice while protecting the due process rights of the accused.
Rapists shouldn't just be kicked out of the University. They should be locked up in prison. The classic problem of criminal law, however, consists in judging the guilt or innocence of the accused. Branding a student guilty of rape or sexual assault is not something that the community should take lightly, as the dark stigma surrounding such a condemnation literally carries the power to ruin a young man's life.
For reasons like this, the Anglo-American legal tradition has evolved a set of procedures specifically designed to protect defendants against false convictions. To guard against arbitrary prosecution, state prosecutors file charges only when they believe they have enough evidence to obtain a conviction in court. In addition, defendants invariably receive certain key protections such as the assurance of an open trial, the right to full legal representation by an attorney, the ability to confront and cross-examine their accusers and trial by a jury of their peers. But most importantly of all, criminal courts ensure that defendants can be convicted only if they are proven guilty beyond a reasonable doubt, as determined by a unanimous vote in jury cases.
The University's current method of prosecuting sexual assault cases denies defendants every single one of these basic protections. To begin with, University policy allows for charges to be brought against students in cases where state prosecutors have already decided that there is insufficient evidence to proceed. Then, instead of having their cases heard openly before a jury of their peers, accused students are brought before the University's little-known Sexual Assault Board. The Board, composed almost entirely of non-students, takes on the triple task of administering the trial, questioning all parties involved and judging the guilt of the accused. Further, under the Board's direction, all sexual assault trial records are kept forever hidden from the view of the public, and all participants are barred from discussing any case details under the threat of punishment. Although this secrecy is justified on the grounds of sensitivity to victims, it effectively destroys the accountability of the process and provides a cloak of mystery to mask any miscarriages of justice that might occur during trials.
In addition, defendants facing the Sexual Assault Board are categorically denied the right of legal representation. Although they are allowed to have an attorney present, he or she is not permitted to question witnesses, speak on the defendant's behalf or directly participate in the trial in any capacity whatsoever. Even worse, the defendants themselves are absolutely prohibited from cross-examining or asking questions of their accuser during the trial.
As if these egregious denials of due process aren't bad enough, the Sexual Assault Board readily admits that it issues convictions even when students are not proven guilty beyond a reasonable doubt. Instead, it appeals to a standard of what it calls "clear and convincing evidence," which apparently leaves room for the imposition of punishments when it remains reasonable to doubt the guilt of the accused. On top of this, these cheap convictions do not require a unanimous vote of the Sexual Assault Board, but only a bare majority.
This situation is fundamentally unfair, and it renders the University completely unfit to act as a judge of guilt in sexual assault cases. It is nonsense to argue that the University should be held to a lower standard of due process than the regular criminal justice system. If you are going to judge someone guilty of rape in a formal disciplinary proceeding, you'd better be damn sure, especially if the conviction attaches permanently to a student's educational records.
In deciding whether any given trial process is just, it is helpful to consider whether you could tolerate seeing someone you love prosecuted under such a system. Would you want your friend, your brother or your son to be hauled into the secret chambers of the Sexual Assault Board, stripped of his right to legal representation and denied the basic trappings of a standard trial by jury?
This is not justice. This is insanity.
Anthony Dick's columns appear Mondays in The Cavalier Daily. He can be reached at adick@cavalierdaily.com.
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