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Due process and sexual assault, revisited

By Scott Tibbs, September 22, 2014

From National Public Radio, a report on sexual assault and due process:

  • Dozens of students who've been punished for sexual assault are suing their schools, saying that they didn't get a fair hearing and that their rights to due process were violated.

NPR reports that a student at the University of Massachusetts, Amherst claims he was notified that an investigation was being conducted into alleged sexual misconduct and he "had just hours to move out of his dorm." It comes down to a he said vs she said controversy about whether a one night stand was consensual or not.

The accused (one of many suing) claims the university "withheld information he needed for his defense" and refused to allow him to be represented by an attorney, according to NPR. Robert Shibley (Foundation for Individual Rights in Education) says academic disciplinary panels assume the accused is guilty, requiring proof of consent as opposed to proof of assault.

The basic problem, as I have said before, is that universities should not be dealing with sexual assault allegations at all. Someone who has committed a violent crime should be behind bars, not just expelled from the university. But expelling students who have committed no crime based on a system that is weighted to get more convictions is not justice, and denying due process rights does not in any way guarantee justice.

Thanks to the Obama Administration's threats, universities are worried about losing their funding and are steamrolling due process in order to prove they take sexual assault "seriously." But if we truly want to show we take rape on campus seriously, we should implement serious reforms while preserving the due process rights that protect all of us from abuse.

The reform should be simple: If a student reports a sexual assault to any university official or employee, that assault must be reported to law enforcement and police must take action - at the very least questioning the suspect and (if the evidence is strong enough) arresting him.

Years ago, some states implemented reform of domestic violence cases that required an arrest even if the victim refused to cooperate when police arrived. Similar reforms would help here. If sexual assault victims are shown that law enforcement takes it seriously, perhaps they would be more willing to cooperate - and the accused would have the due process protections that university disciplinary systems are not providing.