My previous post on this subject discussed new regulations proposed by U.S. Education Secretary Betsy Devos, for use by colleges and universities that investigate allegations of sexual abuse, sexual assault or sexual harassment by students. Under the proposal, fewer allegations would be considered “sexual harassment”, and colleges and universities would be responsible for investigating only incidents that are related to campus programs and activities, that were reported to school authorities. Importantly, schools would be allowed to apply a higher legal standard when weighing evidence, than the lower standard of “preponderance of the evidence” that was encouraged by the Obama administration. I thoroughly endorse this change, as the correct evidentiary standard to apply when considering such serious criminal allegations, is, as anyone who has ever watched a crime show on TV or read a legal thriller is aware, “Beyond a Reasonable Doubt.” Keeping that higher standard of evidence is critical when such serious accusations of sex crimes are leveled at a student.
Another major change in the proposed federal regulations, allows defense attorneys representing accused students, to cross-examine accusers and witnesses. As a Boston sex crimes defense attorney, I was stunned that the Obama administration would ever suggest the elimination of this central procedural safeguard. How anyone could ever claim to argue that any investigative process could ever reflect due process, or be substantively fair in any way without allowing the accuser to be cross-examined, is beyond me. This procedural right is central to any investigative or adjudicative process to ferret out the truth of any given criminal charges, and that this fundamental right was ever abandoned, was an outrage. Shamefully, but not surprisingly, the association representing university presidents, the American Council on Education, has issued statements actually criticizing the restoration of this fundamental procedural safeguard when investigating or prosecuting accusations of criminal conduct. One excerpt of their comments: “[Restoring the process of cross-examination] goes too far in incorporating legal concepts into a school disciplinary setting. This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing. We are not courts. I’m not sure we should try to act like courts.”
I can barely make sense of this thought process: Universities want the ability to drag students who are accused of felony-level sex crimes before them, allow accusers to level any accusations they want under direct examination, and yet deprive the accused of the fundamental right to cross-examine the accuser?” They want the right to accuse and potentially destroy a student’s life, but “we shouldn’t act like courts”? As a Massachusetts criminal defense lawyer, I can assure my readers: This is scary thinking.
The new regulations also provide a much clearer definition of what conduct constitutes “sexual harassment” or “sexual assault”, what events trigger a school’s legal obligation to investigate allegations, and exactly how a school must respond. The previous Obama guidelines very loosely defined “sexual harassment” as “unwelcome conduct of a sexual nature.” That definition is so vague, and so wide, that a person could metaphorically drive ten Mack trucks side-by-side through it. It could encompass and mean almost any conduct or comment that could take place between individuals. Much more carefully and reasonably, the new regulation defines sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” That is a much more legally specific, and balanced definition. In investigating accusations, schools will be required to implement important due-process procedures, including a presumption of innocence, the opportunity to present witnesses and evidence, and the right of the accused to have an attorney present at all phases of the investigation process. While hearings are optional for K-12 schools, they are mandatory for colleges and universities, and a final decision must be provided at the close of the hearings process. The new regulation also maintains “rape shield protections” for accusers, such as barring questions about an accuser’s sexual past. These are all reasonable measures.
In addition, the new regulation require that the alleged incident have occurred within a school’s own programs or activities. This could include off-campus events if the incident occurred, for example, in a building owned by the school, or at an event the school sponsored or promoted in some way. But here’s an interesting question: What if a student is accused of committing some sexual offense at a location far off campus, not in any way connected with the school? Under those circumstances, does a college or university have the right or obligation to investigate such an allegation? That question is now being debated, as a student at Harvard University is suing Harvard for doing just that, alleging that the University branded him as a rapist in the process, that it has no jurisdiction over the alleged event since it was alleged to have occurred hundreds of miles away from the University in a place that had no connection to Harvard, and that Harvard University exceeded its authority in undertaking this investigation.
That will be an interesting case to watch. But for now, the restoration of key, fundamental legal safeguards in cases of school and college sex crimes accusations, is critically important. And to those who disagree, I would suggest they consider whether or not their opinion would change, if they were the ones accused of such charges.