ABA Annual Meeting

How should universities balance sexual assault victims' rights with due process for the accused?

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A survey by the Bureau of Justice Statistics asked college students whether they had been sexually assaulted during the 2014-2015 academic year. The respondents reported 2,380 rapes to the survey, 770 of which took place on campus. But only 170 of them were reported to the schools. That’s a reporting rate of just 7 percent, said Carrie Bettinger-Lopez, White House Advisor on Violence Against Women.

That disturbing number kicked off an afternoon of serious discussion at the ABA’s Annual Meeting in San Francisco, “Sexual Assault on College Campuses: Balancing the Rights and Interests of the Accused and the Victim.” The Saturday afternoon discussion was a showcase CLE presentation sponsored by the ABA’s Criminal Justice Section.

Bettinger-Lopez works on these issues full time; she also represents Vice President Joe Biden on the White House Task Force to Protect Students Against Sexual Assault. She took the audience through the numerous federal resources available to colleges and universities, attorneys, victim advocates and others interested in the hot-button topic. Perhaps the most famous of those resources is a 2011 “Dear colleague” letter from the federal Department of Education, saying sexual assault and sexual harassment impede equality under Title IX, which prohibits discrimination from federally funded schools.

Noreen Farrell of Equal Rights Advocates in San Francisco said a turning point on this issue came in 2010, when a video of Yale fraternity pledges went viral, showing them chanting “No means yes! Yes means anal!” After that, she said, calls to ERA’s discrimination and harassment hotline skyrocketed.

The numbers Bettinger-Lopez presented are reflected by Farrell’s experience; she thinks only “a tiny fraction of cases” are reported, and even fewer are investigated properly and result in discipline. Farrell believes the criminal justice system is not adequately handling cases—and the sexual-assault case against Stanford University swimmer Brock Turner, whose victim’s statement went viral online, reflects why: There’s too much emphasis on how penalties could affect the bright futures of the accused.

“I can tell you these cases have a chilling effect on students who think about going to law enforcement for recourse,” she said. “I think we really have to address that problem if the criminal justice system is going to be a viable remedy.”

But Robert Cary of Williams & Connolly in Washington, D.C., thinks taking these cases to the criminal justice system is absolutely vital—because that’s the best way to guarantee that the accused will get the due process they are entitled to by law. University disciplinary proceedings don’t necessarily give the accused the right to confront their accusers; gather evidence; have an attorney; and more. And while the accused may not face criminal penalties in a university disciplinary context, being kicked out of a university can have a profound effect on a person’s future, he said.

The criminal justice system is also better at stopping serial rapists, he said—Brock Turner, for example, will be a registered sex offender for life, whereas someone kicked out of a university faces no civil disability. Farrell added that serial rapists are not uncommon on campuses, but their victims often don’t realize it until a legal case is filed or news of an accusation spreads.

Last to speak was Judge M. Margaret McKeown (PDF) of the San Francisco-based 9th U.S. Circuit Court of Appeals, who noted that Title IX litigation has exploded since the “Dear colleague” letter. Some of these are cases in which victims allege schools didn’t handle their complaints appropriately, or ignored them entirely. But some are cases of accused students who say they were victims of discrimination as universities rushed to judgment. Courts have, in many cases, analyzed these issues very carefully, McKeown said. Both types of cases have gone forward, at least in part.

Follow along with our full coverage of the 2016 ABA Annual Meeting.

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