Recent media coverage has caused a firestorm of controversy about how colleges investigate and discipline students for sexual misconduct. Why are these matters handled internally at all instead of being reported directly to the police? Why don’t accused students receive the same due process rights they would in criminal court? And why is the “preponderance of the evidence” standard used instead of the criminal standard of proof beyond a reasonable doubt? Many argue that the process received by students accused of sexual misconduct cannot be fair without access to the due process guarantees of the criminal justice system. Done well, however, college disciplinary proceedings can result in fair and just outcomes, and provide a platform to further educate students about their rights and obligations as students and as adults.
To understand college sexual misconduct proceedings, one must understand Title IX of the Education Amendments of 1972. Title IX prohibits gender discrimination, including sexual violence, in the classroom, on the field, or in the dormitory, by any school that accepts federal funding—in other words, the vast majority of higher education institutions in the country, as well as most public, and some private, elementary and secondary schools. The Office for Civil Rights (“OCR”) of the United States Department of Education enforces Title IX and periodically issues guidelines to educational institutions. Since 2001, OCR has advised schools to conduct “adequate, reliable and impartial”; “prompt and equitable”; and “effective” investigations of sexual misconduct complaints, but left it to the schools to establish systems to meet these criteria.
Prior to 2011, schools commonly used the “clear and convincing” standard of proof for sexual misconduct proceedings, or in some cases, proof beyond a reasonable doubt. Some criticized the use of these higher standards as tipping the scales in favor of those who commit sexual misconduct because they codify an incorrect, archaic, and even misogynistic presumption that all sex is consensual unless proven otherwise. In response to such criticism, OCR issued a letter in the spring of 2011 (widely referred to as “the Dear Colleague Letter”), marking a sea change in student sexual misconduct proceedings. For the first time, OCR suggested that schools make sexual misconduct charges easier to substantiate by using the “preponderance of the evidence” standard. The “preponderance of the evidence” standard, it is said, levels the playing field and removes the presumption that all sex is consensual.
In addition to changing the recommended standard of proof, other significant aspects of the 2011 Dear Colleague letter included the requirement that anyone investigating or adjudicating college sexual misconduct matters have specific training or experience responding to reports of sexual harassment and sexual violence, and that colleges should generally complete investigations within 60 days. It also suggested that schools take interim measures to ensure the safety of the reporting student during the investigation.
In April, 2014, in conjunction with the publication of a White House Task Force report titled, “Not Alone,” OCR issued “Questions and Answers on Title IX and Sexual Violence.” The Questions and Answers mandated (in contrast to OCR’s earlier suggestions) that schools use the “preponderance of the evidence” standard, take interim measures to ensure student safety, prohibit the questioning of a complainant about sexual interactions with anyone other than the respondent, and avoid using students as adjudicators.
OCR’s Questions and Answers also required schools to permit attorneys to act as advisors, which many schools previously did not allow. However, they did not require schools to permit active participation of those attorneys in disciplinary proceedings. Most schools in fact prohibit active participation by attorneys to prevent one party from having the advantage of skilled legal counsel that the other may not have, a particular risk when the adjudicator is not a lawyer. Attorneys can still play an important role, however, by preparing clients for interviews, advising them during breaks, and ensuring they fully understand and answer the questions asked.
Additionally, the “Not Alone” report approved the increasingly popular “single investigator” model, in which a single investigator—whether an employee or outside consultant, lawyer or non-lawyer—gathers all the evidence, questions witnesses, and issues findings and conclusions. The report noted that preliminary research demonstrated that this model has “very positive results” because it “encourage[s] reporting and bolster[s] trust in the process, while at the same time safeguard[s] an alleged perpetrator’s right to notice and to be heard.” When the single investigator model is used, generally the accused receives a written notice that the college has received a report of sexual misconduct, including basic details such as the date and location of the alleged incident, and the name of the reporting party. The investigator then interviews the complainant, the respondent, and the witnesses, at mutually convenient times. The investigator asks principals and witnesses to provide names of witnesses and to produce relevant documents, and identifies additional relevant witnesses and documents. Questioning is non-adversarial, and the investigator seeks information relevant to possible defenses as well as evidence that supports the allegations. Re-interviews give a party the opportunity to respond to new information or to clarify previous statements. The investigator ultimately writes a report summarizing factual findings and applying specific provisions of the college’s sexual misconduct policy to the facts. Regardless of the model used, colleges must investigate verbal and written reports of sexual misconduct, anonymous complaints (when possible), and additional allegations discovered during the course of the investigation.
Like criminal laws, which differ among states, student discipline processes vary by college, but some notable models have emerged. Some institutions exclusively use the single-investigator model, with an administrator adopting the recommendation of the investigator. Others use a hybrid model in which a single investigator makes a recommendation to a panel of administrators (sometimes from other institutions, to ensure impartiality) who make a final decision, sometimes meeting with the investigator and the students separately. Some schools continue to hold formal hearings at which the students appear, but have instituted measures to prevent re-traumatization of the reporting student, such as placing a partition between the reporter and respondent, or having the parties in different rooms but able to participate by video feed. While the number of institutions in Massachusetts makes it difficult to say with certainty which model most schools use, the model that appears to have the most momentum is the hybrid in which the investigator gathers facts and analyzes potential policy violations, and a panel of administrators reviews the conclusions with the investigator and the students to make its final decision.
Most Massachusetts colleges prohibit a wide variety of sexual misconduct, some of which—such as sexual harassment—may not constitute a crime. Still, these prohibitions set important boundaries that will help guide students in their sexual interactions throughout their adult lives. For instance, most of these colleges use the “affirmative consent” standard, in which the initiator of a sexual act must obtain consent, whether verbal or non-verbal, for any sexual act. Under this standard, consent to one act is not necessarily consent to another, consent may be withdrawn at any time, and silence does not equal consent. Consent also plays a key role in criminal prosecutions for rape, but there are significant differences between consent in that context and in how colleges treat sexual assault.
To prove rape in Massachusetts, the Commonwealth must persuade a fact finder that the accused committed “sexual intercourse with a person…by force and against his will.” G.L. c. 265, § 22 (b). “Against his will” means the same as “without her consent.” Commonwealth v. Roosnell, 143 Mass. 32 (1886). Rather than requiring the initiator of the sexual act to ensure that he has consent before proceeding, criminal prosecutions require the Commonwealth to prove a lack of consent beyond a reasonable doubt. Since Massachusetts does not further define consent, jurors—many of whom harbour outdated beliefs about sex and gender roles—may determine for themselves whether a lack of resistance, silence, or consent to a different sexual act equals consent to the one charged. Thus, in criminal sexual assault cases, like in college discipline cases before the Dear Colleague Letter, the deck is stacked in favor of the defendant.
While they may seem counterintuitive to criminal-law practitioners, affirmative-consent policies—in which students must be certain the desire for sex is mutual—promote socially responsible and considerate sexual interactions. Most people already follow these guidelines instinctively, because such consideration is no different than the consideration we display in the countless other non-sexual social interactions we engage in every day, such as checking traffic before changing lanes, and asking permission before borrowing a friend’s car. Adding sex to the equation does not reduce our social obligations. Affirmative-consent policies also promote gender equality by dismantling the presumption of criminal cases that all sex is consensual. Finally, by helping control for potential bias of fact finders, affirmative-consent policies, along with the lower standard of proof, promote greater accountability for sexual misconduct.
That college sexual misconduct policies may result in greater accountability for a broader range of offenses than does the criminal justice system does not make those policies inherently unfair. Nor does the fact that the due process protections provided at colleges differ from those available in the criminal setting. OCR recognizes that possible expulsion from school does not warrant the same due process protections provided to those facing possible imprisonment.
In addition, although much of the conduct addressed by college policies doesn’t rise to the level of criminal prosecution, colleges and universities correctly address such socially inappropriate behavior through school disciplinary procedures. After all, students increasingly learn fundamental social skills in school. Learning to hold themselves to the higher standard of sexual behavior expected by college policies better prepares students for adult life. When students are permitted to present evidence in a private, non-adversarial setting in which investigators and adjudicators have the appropriate skills and expertise, listen carefully, and treat them respectfully, the result is a fair process in which students and the campus community can have confidence.
Djuna Perkins is the principal of DP Law, a law firm in Dedham, Massachusetts that provides fact-finding, training and representation in sexual misconduct matters for schools and employers.