Wednesday’s Senate Campus-Rape Hearing Will Ignore Middle Ground

WASHINGTON - July 28, 2015 - PRLog -- On Wednesday, the full Senate HELP Committee will hear eight witnesses who will all support continuing to force colleges to investigate and adjudicate campus rapes, even though they, like most others, admit that the new system of university responsibility is simply not working.

        In attendance, but not testifying, will be representatives of organizations who argue that rape, like other serious felonies, should be handled solely by police and other law enforcement authorities.

        But completely missing from the volatile mix will be any discussion of a compromise between the two divergent approaches - one which has been widely reported in major media outlets such as the New York Times, Wall Street Journal, Washington Post, Boston Globe, etc. and which the Chronicle of Higher Education reported is being seriously considered by many in the ongoing debate - based upon the use of regional consortia, says public interest law professor John Banzhaf.

        Further complicating the problem, says Banzhaf, is what appears to be a total misunderstanding by both sides of the meaning of "Due Process" which clearly applies in many such situations, and the potential impact of a recent California decision holding that it is the courts - not the individual universities, not state legislators, not the executive branch, and not even the Congress - which in the end will determine what procedural protections must be applied when a college student is accused of rape.

        Because few universities, much less colleges, can afford to hire and retain the highly trained officials necessary to investigate complex and delicate crimes like campus date rape, and to then adjudicate them with the required fairness to both sides, and because colleges have inherent conflicts of interest in handling such matters by themselves, Banzhaf has proposed that colleges form city-wide or regional consortia to handle both the investigation and the adjudication of all reported campus rapes.

        Unlike individual colleges which cannot afford to hire nor to keep busy their own trained sex-crime investigators, the dozens of schools in the Boston or D.C. areas, for example, collectively can do exactly that because those costs and the work will be spread out and shared by many different institutions.

        Moreover, unlike individual universities which have a strong incentive to downplay accusations which could result in adverse publicity and/or the loss of key athletes on the one hand, and the pressures from the federal government and activists to demonstrate determination through convictions, consortia face no such conflicts of interest, and their determinations are therefore more likely to be accepted by all parties.

        Campus police are too often poorly paid and poorly trained, and therefore barely able to investigate claims of campus drunkenness or brawls, much less complex felonies which occur in private, and their hearing panels made up of professors and students, often overseen by those with virtually no training, are equally ill equipped to judge “he said, she said” cases fairly and effectively, says Banzhaf.

        The hearings will also apparently skirt the issue of Due Process, and a recent precedent-setting ruling applying it to campus rape hearings, in part because all sides seem to misunderstand it.

        Ironically, even the bill itself refers to the Due Process rights of complainants, even though no court has ever found that Due Process applies in any way to victims of crimes.

        Also, witnesses who testify in favor of legislation requiring colleges to continue to handle such situations seemingly believe that Congress and the colleges can determine what procedures are fair.

        On the other hand, organizations like FACE complain that the bill which the Committee is considering does not include provisions guaranteeing Due Process.

        But since the Due Process clause of the U.S. Constitution undeniably applies to hearings held by any public college or university, and the U.S. Supreme Court has made it clear in decisions like Mathews  v. Eldridge that the Constitution requires that the accused have access to all available evidence as well as the opportunity to face his accuser and cross examine witnesses, it is for the courts - not universities or federal agencies or even Congress - to determine the minimum level of procedural protections required.

        This is nothing new.  In Donahue v. Baker (1997), a rape charge against a male student hinged on whether a female had consented to the sexual intercourse that both agreed had taken place.


        The U.S. District Court for the Northern District of New York held that the accused student had the right to cross-examine the alleged victim, because the only evidence that the act had not been consensual was her testimony, and the determination of guilt or innocence therefore rested on her credibility.

        More recently, in a decision likely to precipitate similar rulings across the country, a judge in California has ruled that the procedures, and the protections extended to students accused of rape, are established by the U.S. Constitution.

        He found that, although UC San Diego properly following the rules it has established to try allegations of campus sexual misconduct, the rules and procedures themselves were unconstitutional and the punishment imposed was therefore invalidated.

        Among other key determinations, the court specifically held that the procedures were defective because they denied the accused male student his constitutional right to cross examine his accuser, and that his Fifth Amendment rights were also violated.

        Already more than a dozen male students accused of rape have been vindicated by the courts, and several recent settlements suggest that colleges are finally beginning to understand that they - even backed up by federal guidelines - do not have the power to deny males accused of sexual assault various fundamental procedural protections.

        It is regrettable that not a single witness will probably even suggest any possible alternatives, even one of authorizing universities to experiment with the concept of colleges in a region banding together to investigate and adjudicate campus date rape allegation rather than the current practice of requiring each institution to do its own investigations, and use its existing campus hearing system to determine guilt.