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An overcorrection on campus sexual assault policies?

Are university efforts to reform sexual assault policies an overcorrection that shortchange the accused?

Although colleges and universities are required by law to investigate and adjudicate sexual assault complaints by their students, they have shown to be woefully deficient in doing so. Currently, approximately 90 schools are under investigation by the U.S. Department of Education for allegedly mishandling sexual assault cases, and the list is growing.

Few disagree that the policies and procedures for preventing and prosecuting sexual assault on college campuses are badly in need of change, but the efficacy and fairness of recent reforms remain highly questionable. Some argue that the important and necessary goals of providing a better system for resolving these allegations, protecting complainants and eliminating a hostile environment on campus, has led to an "overcorrection" that raises legitimate concerns as to whether the rights of the accused are now being trampled.

In the midst of this debate, questions are being raised about the validity of campus sexual assault allegations in the wake of a debunked Rolling Stone magazine story and reports that the oft-cited figure of one in five college women being sexually assaulted is grossly overinflated.

Colleges and universities are wrestling with striking an appropriate balance between protecting complainants and eliminating a hostile environment, and providing due process to the accused. Left unresolved in their efforts are such issues as whether the parties should be entitled to an attorney in campus proceedings, what the effect is if the accused declines to participate because of potential incrimination issues, and the authority and qualifications of the school's decision makers. One of the more controversial recommendations is the adoption of a "preponderance" standard of proof for adjudicating complaints of sexual assault on campus, which is a lower burden than the "beyond a reasonable doubt" standard used in criminal cases.

Other major issues include how the school should interact with local law enforcement who may be conducting their own investigation, and whether colleges should be required to report an allegation of sexual assault even if the victim does not wish to notify the police. Some states, Virginia for example, are considering mandatory reporting legislation, noting the state's interest in ensuring that a potentially dangerous person is off the street. Many in the victim advocacy community strongly oppose mandatory reporting requirements, however, arguing that this is an important privacy issue, and it should be the victim's decision whether to report an alleged sexual assault.

To avoid ambiguity in making the determination whether a sexual assault has occurred, some schools and states are adopting a "yes means yes" standard for consent that equates any type of sexual conduct with a sexual assault in the absence of clear and unequivocal permission to engage in sexual activity. While this may be a needed modification in the criminal justice system where it is almost impossible to convince 12 people that a victim was raped without some evidence of physical force, it's problematic when dealing with teenagers and very young adults who frequently are just beginning to become sexually active, often while under the influence of alcohol and sometimes drugs.

Such substances are frequently major contributing factors in cases of sexual assault. Perhaps schools should be spending their time addressing ways to limit alcohol consumption on campus through restrictions or alternatives to fraternity keg parties rather than attempting to make life-altering decisions about the behavior of students. At the very least, they should be taking a hard look at what might be the root cause of the prevalence of sexual assaults on campus, with prevention in mind, even as they work to strike a balance between providing a safe environment for students and protecting the rights of both victims and accused.

Ultimately, one must ask whether schools should even be in the business of investigating sexual assault cases. Much of the push for colleges and universities to become more involved in these matters arise from a belief that the criminal justice system has failed victims of sexual assault, but just because the criminal justice system may be flawed, it does not mean the onus should be shifted to schools to adjudicate these cases. Instead, the focus should be on developing procedures and evidentiary rules within the criminal justice system that provide a more open and non-biased review of the facts in cases of criminal sexual assault, generally. Colleges could then be left with the important and necessary task of presiding over the entire range of sexual harassment behavior that does not amount to criminal activity but results in a hostile environment — the original intent behind Title IX.

Gregg Bernstein is a partner at Zuckerman Spaeder LLP and a former Baltimore City state's attorney. His email is gbernstein@zuckerman.com.

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