Due Process Prohibits Efforts to Secretly Influence Sexual Assault Hearings
WASHINGTON, D.C. (December 26, 2018) – The Department of Education under Secretary Betsy DeVos is considering whether to prohibit what reportedly is an all-too-common practice for colleges to “educate” (many says “indoctrinate”) those deciding guilt, in sexual assault cases, as to how to evaluate evidence (such as determining credibility), including instructions to believe complainants and to disregard inconsistencies in their testimony and other contradictory evidence (e.g., “believe the women”).
But this would be as unfair – and just as much a violation of Due Process and of fundamental fairness – as charging members of a civil or criminal jury in secret to give heightened credibility to the testimony of police officers, and disregard discrepancies in their statements (e.g., “believe the police”), argues professor John Banzhaf.
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Banzhaf is a well known public interest law professor with extensive involvement in this field whose proposals regarding these issues have been featured in the Chronicle of Higher Education, U.S. News, Washington Examiner, National Public Radio, New York Times, Inside Higher Ed, and in other respected media outlets.
He has spoken at several national and international conferences on this topic, and his proposal to permit colleges and universities to delegate responsibility for investigating and adjudicating claims of sexual harassment to regional centers has been singled out for praise by DeVos.
Since a practice of telling decision makers that complainants almost never lie favors typically-female complainants over typically-male respondents, such a practice also violates - in addition to Due Process and fundamental fairness - the underlying statute, Title IX, which requires equal treatment of both genders at colleges and universities, argues Banzhaf.
For these reasons the Department is considering banning any such efforts to train, educate, or otherwise unilaterally seek to affect or influence decision makers in campus sexual assault hearings, especially when done in secret without the knowledge of attorneys for accused students.
In the alternative, it is suggested that, at the very least, new Title IX rules insure that the defense is fully aware of any such effects, and has a fair opportunity to rebut what the deciders are being told, and expected to believe and put into practice, says Banzhaf.
A formal legal proposal now before DeVos and the Department argues that:
"Reports in many major media outlets, as well as statements in judicial opinions, indicate that ... persons involving in determining whether or not a respondent is responsible for a reported sexual assault are prepared, trained, educated, etc. beforehand ... by being told (and expected to accept and believe) things which are clearly harmful and prejudicial to the interests of one party, and quite controversial, as they often go directly to issues such as assessing credibility."
"For example, deciders of guilt or innocence are apparently being told - as a matter of alleged established fact which they are supposed to believe and accept - that complaints of sexual assault by female students are almost never false and are generally completely accurate (e.g., "believe the women"); that even major inconsistencies in the reports and testimony of complainants should never be taken as casting doubt on their stories; that emails and other communications sent after the event, in which the complainant says that she enjoyed the date and/or wishes to continue the romantic and/or sexual relationship, in no way undermines the claim that the single complained-about sexual act was committed against her will, etc."
"Such statements, which the deciders are supposed to accept and use to help them make their decisions regarding key issues such as the credibility of the witness and her story, are clearly very prejudicial, especially in situations in which the credibility of the complainant is key, and the standard of proof required for a finding of 'responsible' is a mere 'preponderance of evidence.'"
Many judicial opinions have now made it very clear that the requirements of Due Process apply to campus proceedings which involve allegations of sexual assault, and where the result could be the suspension or even expulsion of the accused student, reports Banzhaf, who suggests that one-sided "educational" briefings are totally incompatible with Due Process.
While Due Process binds only state schools, the Department has announced that it plans to apply the same standards to private as well as public colleges and universities.
This will not only avoid having two sets of regulations governing Title IX adjudications, but also help assure fairness and equal protection for all students.
As Professor Banzhaf has argued, students at Harvard should enjoy the same protections as students at the University of Massachusetts.
The formal legal proposal now being considered by the agency concludes:
"In summary, in civil as well as in criminal proceedings involving alleged sexual assaults including rape, in other proceeding such as civilian police review boards and grand juries, and in a wide variety of adjudicative proceedings before federal (and most state) agencies, no one would ever even suggest that an interested person should be permitted to direct decision makers as to how they should view the evidence and determine credibility, especially when such instructions are delivered in secret."
"To do so would fly in the face of procedural protections guaranteed by Due Process, and even by fundamental fairness. The Department should not permit schools to continue this practice.
Especially where such training tends to favor female complainants over male respondents, and instructs decision makers to give greater credibility to the former to the detriment of the latter, such 'indoctrination' also violates the underlying statute, Title IX, and should be prohibited."
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf
