Monday, October 27, 2014
According to a National Institute of Justice study, a majority of teens who date described themselves as either victims or perpetrators of abuse within the dating relationship. Much of this violence happens on school campuses. Friday's post addressed sexual assault and other abuse against members of campus higher education communities and the difficulties faced by students who participate in university administrative hearings. Following a sexual assault or other abuse over which the educational has jurisiction, students face options should they decide to pursue a remedy. For many reasons, a student may decide not to pursue criminal charges. They may, however, decide to pursue an administrative hearing within the university system, typically through campus Judicial Affairs. The sensitivity and civility of these hearings varies between those that safeguard against disrespectful proceedings and those that permit behaviors that humiliate the complaintant.
Earlier this month, Pepperdine University hosted a conference Student Life, Relationship and the Law: Confronting Domestic Violence in Higher Education. The interdisciplinary conference brought together those working with students who have experienced campus violence and those who engage in scholarship on violence. While the difficulties faced by survivors in finding appropriate remedies was part of the discussion, so was implementing remedies. One significant part of the identified problems is a lack of respectful treatment during administrative hearings. Several speakers suggested changes that could restore dignity to campus investigations and hearings. As stated in Article One of the Declaration of Human Rights, "All human beings are born free and equal in dignity and rights."
Schools need to create processes that are culturally sensitive. In particular, African-American and LGBT students feel at particular risk for not being treated respectfully during school administrative hearings and other parts of the investigatory process. Prof. Deborah Weissman and others addressed the need for remedies to be available to diverse students in a way that treats them with dignity and respect and provides settings and processes that are designed to incorporate the needs and wishes of those who historically have been marginalized.
A link to the substantive discussion is found here.
A related suggestion is for Judicial Affairs hearings officers and others involned in the process must be vetted for cultural sensitivity and subject matter competency. Misunderstanding of sexual assault, use of stereotyping of relationships and parties can victimize all parties to the hearings. Some hearings leave students humiliated and without a sense of fairness. Many of the same barriers faced by parties in criminal hearings are present in some campus judicial office hearings. Being a member of the faculty or campus administration does not qualify those individuals to hear concerns regarding sexual assault and other abuse. Likewise, academic qualifications do not ensure neutrality or lack of bias. Campuses need to engage experts on abuse to participate in hearings and ensure that all involved in the process are familiar with the issues being heard and the sensitivities involved.
Recently members of the Harvard Law School faculty criticized Harvard's revamped sexual assault policy. The new policy is not unlike that of many universities. The professors bring a perspective rooted in criminal law to campus proceedings. Any accused student is wise to consult with counsel before engaging in either campus or criminal hearings. A misunderstanding exists, however, that students are deprived of counsel at campus hearings. While attorneys and other advisers are not permitted to conduct courtroom-like examinations, the students are able to consult with counsel or other advisers at any stage of the process, should they decided to participate. Bringing a criminal law perspective to these hearings would virtually shut down the purpose of the hearings, which is intended to be remedial, not punitive. The applicable standard of proof at campus hearings is preponderance of the evidence. Once campus processes take on attributes of criminal hearings, officers will confuse the standard of proof with reasonable doubt. A shift of both purpose and standard can happen in ways that are not obvious and may not be intended. But the consequence would be essentially to close the administrative avenue of recourse to those students who wish to pursue a non-criminal avenue of redress.