In recent years, sexual assault on campus, a topic not historically discussed in public, received national attention and was openly discussed on college campuses. Concerned that a significant number of assaults went unreported due to policies and procedures that discouraged reporting, colleges and universities across the country developed programs to educate students about date rape and sexual assault and develop policies and procedures that encouraged and supported victims who chose to report assaults. Many institutions not only instituted educational programs discussing what constituted rape and sexual assault, but attempted to protect the rights of the accuser while providing for the due process rights of the accused. Some of these efforts created campus controversies that at times received national attention. For example, Columbia University developed a policy to increase the willingness of victims to bring forward an action against their alleged assailant. The policy sought to protect the victim from confronting the alleged assailant by denying the accused the right to cross examine witnesses, to hear the testimony of the accuser or to receive a transcript of the proceedings among others. The University had developed educational programs for the hearing committee which had the potential of biasing the committee against the accused. While there was much campaigning for the policy change, few on the Columbia campus seemed to be paying much attention until a group, The Foundation for Individual Rights in Education (FIRE) a conservative organization, began to call attention to the loss of the due process rights of the accused. Eventually liberal groups such as the ACLU and The Village Voice joined in the fight to protect the due process rights of the accused (Brownstein, 2001). Columbia University would eventually rethink its policy and instituted the due process procedures required for the accused to receive a fair hearing. Two more recent cases show how institutions are attempting to find that balance between the rights of the victim and the rights of the accused.
The first case, Theriault v. University of Southern Maine (2004), involved a female student who filed a sexual assault complaint against her alleged assailant and the hearing committee found the accused not guilty. The female student sued in Federal Court claiming that the manner in which the disciplinary hearing was conducted violated her constitutional right to due process and equal protection. She alleged that the faculty adviser for the hearing committee was biased against her, in that he refused to recuse himself after she complained, his questioning was slanted against her (e.g., using the term “love-making” once during the hearing), and he asked more questions of the alleged assailant’s witnesses than the complainant’s witnesses. The court found that there were no equal protection or due process rights where the loss of educational opportunity was due only to the student’s perceived subjective loss as a result of the decision of the hearing committee. She also unsuccessfully brought state claims of defamation, breach of contract, conspiracy, and negligence.
The Court’s discussion of the plaintiff’s allegations provides some good examples of the issues to be considered when balancing the victim’s rights against the due process rights of the accused. In this particular case these issues surrounded the alleged bias of the hearing committee faculty advisor. The plaintiff alleged that the faculty adviser, Mr. Nye, was biased because when he was a school administrator a number of years earlier there had been a conflict between her father (a teacher) and Mr. Nye. The Court found that the plaintiff was not able to prove that Mr. Nye had a bias against her. “….[T]he plaintiff has not shown that a reasonable faculty advisor in Nye’s place would have known that the use of the term ‘love-making’ one time instead of ‘sexual activity’ or “having sex” was unconstitutional” (Theriault v. University of Southern Maine, 2004). The plaintiff also alleged that Nye when questioning the university investigator of the incident “framed the issue as one where [the plaintiff] wanted to engage in some sexual conduct with [the alleged assailant], but things got carried away” (Theriault v. University of Southern Maine, 2004). According to the Court, the plaintiff’s characterization of Nye’s question was not accurate, and they noted that in supplied transcript of the hearing, Nye asked the following: “… is your interpretation that [the plaintiff] was interested in having sex and got herself into a situation in which she reached the point that she did not want to go beyond but [the alleged assailant] forced the issue?” The Court found that question implied that if the accused “forced the issue” he would be guilty of sexual assault. Further, the Court noted that Nye’s asking fewer questions of the plaintiff’s witnesses than those of the accused did not in any way indicate discrimination or bias against the plaintiff based on her gender. The Court found that the hearing was conducted in a fundamentally fair way that did not exhibit any undue bias towards the female student bring the complaint. In finding that the plaintiff did not have due process or equal protection rights violated under the Constitution, the Court reasoned that since if she did not prevail in her claim she would not be denied a property right in the form of the denial of an educational opportunity. The case demonstrated that for judicial system administrators it is important to be sensitive to the needs of the victim without compromising the due process rights of the accused.
The second case dealt with the due process rights of the accused. In Gomes v. University of Maine System (2005), two male students were accused of sexually assaulting a female student, which is a violation of the student conduct code. The school’s hearing committee found the two males responsible for sexual assault and suspended them for one full year. The students, maintaining that the hearing process was fatally flawed, filed suit in the Federal District Court of Maine claiming violations of due process, breach of contract, and related torts. The Court noted in its decision that this is not a case about whether a sexual assault occurred, but rather whether the process to determine guilt or innocence of the two males followed appropriate due process procedures guaranteed under the U.S. Constitution and was fundamentally fair. The decision draws a distinction between the more flexible due process requirements for college and university disciplinary hearings as opposed to the rigid requirements of a court proceeding. According to the Court the following are required in academic setting: “1). The student be advised of the charges against him; 2) he must be informed of the nature of the evidence against him; 3.) he must be given an opportunity to be heard in his own defense; and 4) he must not be punished except on the basis of substantial evidence” (Gomes v. University of Maine System, 2005). Citing other case law the Gomes Court also noted that: “1) the student must be permitted the assistance of a lawyer, at least in major disciplinary proceedings; 2) he must be permitted to confront and to cross-examine the witnesses against him; and 3) he must be afforded the right to an impartial tribunal, which must make written findings” (legal citations omitted). It is expected that these basic rudiments of fair play will be followed to protect the student’s constitutional right to due process.
In this particular case, the accused students claimed that due process was violated when they were not provided with the list of witnesses against them until the day of the hearing, that the University denied them access to the police reports surrounding the investigation of the assault, and that they were not provided the victim’s medical records until the day of the hearing. On all of these claims, a summary judgment was granted in favor of the University. Citing other case law the Court noted that the University could have withheld the police reports from both the complainant and the accused and survived a due process challenge. Upon review of the evidence, the Court found that it was the District Attorney’s Office that provided the complainant with the complete police report containing alleged inconsistencies in the plaintiff’s interview statements. Failure of the accused to request the documents from the DA’s office in a timely way would not yield a due process violation by the University. Further, not the full police report but a summary of the results of the police investigation which both parties received, was used by the hearing committee to reach their decision in the matter. The plaintiffs also contested that having the complainant seated in such a way that they could see only her back and profile inhibited their ability to cross-examine the witness. The Gomes Court found no impediment to cross-examination in the way the complainant was seated in the hearing room, even if their attorney moved to another location in the hearing room to see her facial expressions during her testimony. That legal counsel chose to move to a different location during testimony was not a deprivation of the accused students’ right to counsel. The Court also found based on previous case law (citations omitted) that where accused students were able to hear the testimony of all witnesses against them there would be no need to have a witness list and the contents of their testimony provided in advance of the hearings. The judicial requirements of discovery and the deposition of witnesses have not been required in academic due process. On the issue of the timely receipt of the medical records used to substantiate that the complainant was sexually assaulted, the court dismissed the claim and noted that there was no challenge to the University’s rule excluding any references to the complainant’s past sexual history during the hearing. No bias was found in the fact that the Chair of the Hearing Committee was a member of the Board of a Rape Response Services Organization. Her main role on the Board was dealing with the organizations finances. As is clearly shown in this case the issues raised by the accused go directly to the due process requirements outlined above and the Court found that due process was followed and the hearing was fundamentally fair.
Both of these cases give those responsible for the administration of the disciplinary process some clear ideas of the kind of issues they should monitor to have a fair disciplinary process in sexual assault cases. Sexual assaults are probably the most challenging cases when attempting to ensure fundamental fairness in the process. First, these cases typically involve a situation where there are no outside witnesses to the assault and hearing committees are left with the conflicting testimony of the victim and the accused. Such a situation requires that one finds a balance between the emotional and psychological needs of the victim and the due process requirements of the accused. Focusing on certain aspects of the process would help to achieve this balance.
- The chair of the committee should be trained in how to phrase questions that do not create a perception of bias or conclusions. For example refrain from using terms like “love-making” that imply consent and substituting neutral terms such as sexual activity.
- The hearing process should be sensitive to the needs of the victim during the hearing while protecting the accused rights to a fair hearing. For example: seating the victim and his/her witnesses so they are facing the hearing committee rather than looking directly at the accused.
- Ensure that rules governing testimony, such as prohibitions on the review of the sexual history of the victim or the accused, be strictly observed by all.
- Ensure that hearing procedures reflect the due process protections required for the accused and are applied in practice and in principle to achieve a fundamentally fair hearing.
Paying close attention to these aspects of the hearing will not guarantee that an institution will avoid going to court, but if a suit is filed the institution will certainly will find itself in a more defensible place during litigation. Finally, this is both an ethical and legal approach to protect the integrity of the institution’s disciplinary process.
- Brownstein, A. (2001, July 6). A battle of wills, rights, and p.r. at Columbia. The Chronicle of Higher Education, p. 43.
- Gomes v. University of Maine System, 365 F.Supp.2d 6 (D. Maine2005).
- Theriault v. University of Southern Maine, 353 F.Supp.2d 1 (D. Maine 2004).