After the federal government increased pressure on universities to investigate sexual violence on campus, some lawyers and advocates say schools across the country have struggled to develop procedures that ensure both justice for the victims and due process for the accused.
A lawsuit filed against the University of Maryland by a former student on Sept. 30 is one of more than 150 nationwide since 2011, highlighting the challenges universities face as they strive to prosecute sexual assault fairly and aggressively. This university joins 238 universities under federal investigation by the Education Department’s Office of Civil Rights for possible Title IX violations.
While speaking at a protest on McKeldin Mall, Title IX Officer Catherine Carroll responded to a student question about federal investigations into this university’s handling of sexual misconduct. She said the challenges this university is facing in prosecuting sexual assault are “not unique to Maryland.”
Scores of universities quickly developed sexual misconduct policies and procedures in the years following 2011 guidance from the Education Department to investigate sexual assault more aggressively and lower standards of evidence in solving sexual misconduct cases, or risk losing millions in funding for violating the federal anti-discrimination law, Title IX.
This university most recently updated its policy in 2016 to align with guidance from the University System of Maryland and the Office of the Maryland Attorney General.
“Universities in a relatively short amount of time have been scrambling to figure out how to handle these cases and really investigate sexual assault cases in a thorough, prompt, meaningful way where you’re really conducting quality investigations,” Carroll said during Occupy McKeldin, University of Maryland campus advocacy group Preventing Sexual Assault’s day-long sit-in to raise awareness of sexual violence. She added the university administration is striving to improve what is an “imperfect process.”
Advocates for sexual assault survivors have long argued that universities nationwide made it too difficult for sexual assault survivors to report a case and believe the Obama administration’s guidance is a sign of progress. Opponents of the 2011 guidance believe it strips away constitutional rights from the accused.
Current Education Secretary Betsy DeVos has not publicly committed to enforcing the previous administration’s guidelines.
Not a court of law
Groups representing disciplined students and their families — such as Families Advocating for Campus Equality, Stop Abusive and Violent Environments and Save Our Sons — have in recent years been pushing for greater due process protections on campuses, including the right to cross-examination, a higher standard of proof and greater support for accused students. Some were founded by mothers of accused students who believe their sons are innocent and unfairly targeted.
The groups also share stories about campus sexual assault procedures online and aim to provide resources for the accused. Posts on HelpSaveOurSons.com claim “false accusations are real” and decry sexual assault investigations as “witch hunts” against male students. A lawyer with FACE said universities are running “kangaroo courts.” SAVE’s website says there is a “hysteria” about rape culture in the United States, and calls it a “manufactured” crisis.
Since 2014, there have been at least 50 cases where accused students have disputed sexual misconduct findings in court, a “new phenomenon” in higher education, said Gary Pavela, a consultant on law and policy issues in higher education. In more than half the cases, courts ruled in favor of the accused, most on motions to dismiss.
But “college campuses aren’t the court of law,” and don’t need to meet a court’s due process standards, said Chardonnay Madkins, a project manager with the advocacy group End Rape on Campus.
A common reason many survivors do not report their assaults is they don’t believe their university will take it seriously, Madkins said.
McLaine Rich, a 2016 university graduate and the founder of Preventing Sexual Assault, waited five months after her assault before reporting to the university. At first, she said she was “still … second-guessing” herself and what happened that night.
Had the university required a heightened standard of proof or cross-examination, Rich said she never would have reported. She said she was — and still is — afraid of her attacker, and that her case was difficult to investigate because it was a question of “he said/she said.”
Raising the standard of proof would only heighten barriers to reporting sexual assault on campus, Rich added.
“All that would happen is nobody would get in trouble,” she said.
This university’s investigative process allows both parties to comment and respond to information gathered. For cases of sexual assault, the Office of Civil Rights and Sexual Misconduct conducts an investigation, a review committee consisting of five faculty, staff and students determines if a policy violation occurred and the Office of Student Conduct determines the sanction.
Under the policy, the university determines whether a violation has occurred using a preponderance of the evidence standard, meaning evidence shows it is “more likely than not.” Participation in the review committee meeting is voluntary, and it can move forward without the participation of one or both parties.
Goodwin said she feels the university policy “allows for due process on both sides.”
“I believe that it is fairly balanced, that there are a lot of checks and balances in the system and it doesn’t favor one part over another,” she said.
Studies published by the monthly journal “Violence Against Women” and the National Sexual Violence Research Center estimate the rate of false sexual assault reports on college campuses to be between 2 and 10 percent.
The most common concern Matt Kaiser, a partner with KaiserDillon PLLC in Washington, hears from accused students is whether the school will treat them fairly during investigations. His firm has represented students accused of sexual assault at more than 70 schools at the campus hearing level and in lawsuits, he said.
“Often these cases are really a question of who you believe, and our clients tend to be worried that they’re just not going to get a fair shake when they present their side of the case,” Kaiser said. “And I think that’s a reasonable fear in light of how many schools handle these cases.”
The former University of Maryland student who filed the September lawsuit is now seeking $5 million and reinstatement to the university, alleging that university administrators violated his due process rights during disciplinary proceedings, including the right to a fair and impartial hearing, the right to testify, the right to cross-examine witnesses against him and the right to counsel.
In response to the lawsuit, university spokesman Brian Ullmann wrote in a statement that the university is “confident that our policies and procedures support our commitment to maintaining a campus wide environment free of sexual misconduct and we intend to mount a vigorous defense. Persons found responsible for any form of sexual assault will be held accountable, regardless of threatened legal action.”
University President Wallace Loh also told The Diamondback in December that “the University of Maryland will mount a vigorous defense in this case.”
The student named as John Doe in the lawsuit was one of the three students expelled for sexual misconduct during the 2014-15 school year, a record number for this university at the time. That year, the Title IX office received 48 misconduct complaints from students. The next year, this university expelled four students after receiving 66 complaints.
“Our goal is not to expel students, but it’s to provide a fair, prompt, equitable, impartial process,” Carroll said. “The more we do that, the outcomes will speak for themselves.”
Kaiser said in most cases he has seen, accused students believe they had consent, but don’t understand what a school’s policy requires, “how sexual interactions are supposed to work,” or were as intoxicated as their accuser.
Advocates have pushed for affirmative consent requirements — calling for clear, unambiguous, informed and voluntary agreement to engage in sexual activity — on college campuses to eliminate uncertainty and empower schools to take action when an individual is coerced into sex or is incapacitated and cannot consent.
This university’s policy requires consent to be “knowing, voluntary, and affirmatively communicated,” and explicitly states that consent cannot be granted if an individual is asleep, unconscious or in any other state of incapacitation, such as being drunk.
Goodwin, who is also named in the expelled student’s lawsuit, said in sexual misconduct cases, “nobody wins.”
“If you have somebody who is found responsible and found expelled, that person is going to feel that they were not treated fairly,” Goodwin said. “But we have to rely on the facts, and we have to look at the analysis from the professional investigator, and the panel has to make the best determination possible. On the flip side, sometimes even if we believe a complainant, the evidence does not support it.”
Leigh Goodmark, a professor at the University of Maryland Francis Carey School of Law, said the 2011 guidance didn’t lay out universal procedures for adjudicating these cases, creating a “kind of vacuum” in which it’s unclear what university action is and is not appropriate under Title IX.
“We’ll probably see a lot more litigation coming down the pike, and in the end what we’re going to see happen as a result is that people are going to stop coming forward,” Goodmark said. “Either … we’re going to end up with a process that looks more like the criminal-legal system, which I think is a mistake, or we’re going to end up with underenforcement. It’s kind of [tragic] all the way around.”