Education Law

New ABA task force will consider due process rights in college sexual-misconduct cases

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The ABA’s Criminal Justice Section has formed a task force to develop guidelines and best practices for the handling of sexual misconduct cases on college campuses.

The guidelines are intended to ensure due process for both the victim and the accused, according to an ABA press release.

The ABA Task Force on College Due Process Rights and Victim Protections will be led by Andrew Boutros, co-chair of Seyfarth Shaw’s white collar, internal investigations and False Claims Act practice.

Standards for deciding sexual misconduct cases have been dividing victim advocates and defense lawyers. Some lawyers have complained that accused students can’t ask questions in hearings, and aren’t allowed to learn the name of their accusers.

One issue is whether sexual misconduct must be proven using a “preponderance of the evidence” standard or a “clear and convincing evidence” standard. The U.S. Department of Education’s Office for Civil Rights backed the preponderance of the evidence standard in guidance to colleges and universities in 2011. The department revealed in 2014 that it was investigating 55 schools, including Harvard University, for the way they handled sexual assault complaints.

Harvard University adopted a new sexual assault policy last year, spurring 28 current and former Harvard law professors to allege the changes “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

The task force will have 10 to 12 members, including lawyers, academics, defense lawyers, prosecutors, government officials and victim advocacy representatives. Its findings and recommendations will be presented to the Criminal Justice Section and the policy-making ABA House of Delegates.

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