Date Rape Rules Inevitable, Since Constitution Mandates It, Says Law Professor
WASHINGTON, D.C. (November 1, 2017): New federal rules will reportedly require that accused students be permitted to cross-examine their accusers in campus sexual assault cases, a position contrary to that incorporated in Department of Education guidelines during the Obama administration.
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This should be no surprise since a growing number of court decisions seemed to make it inevitable, says public interest law professor John Banzhaf, who has won over 100 cases of sex discrimination against women.
Since the Due Process clause of the U.S. Constitution undeniably applies to hearings held by any public college or university, and the U.S. Supreme Court has made it clear in decisions like Mathews v. Eldridge that the Constitution requires that the accused have the opportunity to face and cross examine his accuser in situations where the credibility of the complainant is a key issue, it is for the courts - not universities or federal agencies or even Congress - to determine the minimum level of procedural protections required. The new date rape rules seemingly simply reflect this, says Banzhaf.
It's also nothing new. In Donahue v. Baker (1997), a date rape charge against a male student hinged on whether a female had consented to the sexual intercourse that both conceded had taken place.
The U.S. District Court for the Northern District of New York held that the date rape accused student had the right to cross-examine the alleged victim, because the only evidence that the act had not been consensual was her testimony, and the determination of guilt or innocence therefore rested on her credibility.
More recently, in a decision which has precipitated similar rulings across the country, a judge in California has ruled that the procedures, and the protections extended to students accused of date rape, are established by the U.S. Constitution.
He found that, although UC San Diego properly following the rules it has established to try allegations of campus sexual misconduct, the rules and procedures themselves were unconstitutional, and the punishment imposed was therefore invalidated. Among other key determinations, the court specifically held that the procedures were defective because they denied the accused male student his constitutional right to cross examine his accuser, and that his Fifth Amendment rights were also violated.
Already dozens of students accused of date rape have been vindicated by the courts, and several recent settlements suggest that colleges are finally beginning to understand that they - even backed up by federal guidelines - may not deny due process and fundamental fairness to students accused of date rape.
Although the strict constitutional requirements of due process apply only to state schools, it is hard to imagine one set of standards for state schools, and another for private schools which lets them expel students based solely upon a date rape accusation untested by cross examination.
As one of our greatest jurists once wrote, cross examination is the greatest engine ever invented for the discovery of truth, notes Banzhaf.
Punishing students who rape, and providing due process and fundamental fairness to all students accused of date rape, and not inconsistent or mutually exclusive, argues Banzhaf, whose suggestions for improving the process have been publicly praised by Secretary Betsy Devos.
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf
