George F. Hildebrandt
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Sexual Assault on Campus: Victim Focus Clouds Due Process Rights of Defendant

The White House's visible focus on preventing sexual assault has sparked efforts at both the federally and state level to address sexual violence. The Department of Education Office for Civil Rights, the office responsible for dictating procedures regarding investigating sexual assault complaints and Title IX violations, released a "Dear Colleague" letter in April 2011 detailing new procedures to investigate these claims. The new procedures require administrators to determine the guilt or innocence of students independently of the conclusions of the police or court system based on a "preponderance of the evidence," otherwise known as the lowest standard of proof in our legal system. Under a preponderance standard, if the administrative forum finds the student "more likely than not" committed the actions accused of, they must find the student responsible for the assault.

New Practices at SUNY Campuses

In an effort to follow suit, Governor Andrew Cuomo announced in October 2014 that the SUNY campuses would enact a uniform set of sexual assault prevention practices in hopes of serving as a model for other universities. Governor Cuomo drafted a proposal, subsequently passed by the SUNY Board of Trustees, establishing an immunity policy to protect students reporting sexual assault in addition to a Sexual Assault Victim's Bill of Rights. The proposal did not go so far as to require affirmative consent, but instead held that "consent is active, not passive" and must be "knowing and voluntary."

Students and Sexual Assault

When one student accuses another of sexual assault, the university often has internal policies to police and investigate this type of behavior. Each college and university is free to establish its own definitions and procedures, with penalties ranging from suspension to expulsion. University investigations, however, are not criminal investigations and there are virtually zero due process protections. For example, colleges will internally decide who presides over the proceedings, whether or not they will allow students to be represented by counsel, and what information to disclose to the student accused of assault. If students are lucky enough to be accompanied by counsel, often students must speak for themselves with counsel acting as a "consultant" throughout the proceeding.

In a criminal proceeding, due process rights include the right to the presumption of innocence, notice of the charges against them, adequate opportunity to prepare a defense, the right to confront their accuser, an impartial judge and jury, and the right to have their guilt proven beyond a reasonable doubt. University investigations provide none of these protections and require a finding of guilt based on the lowest standard of proof in the legal system.

The problem of not protecting due process rights in these quasi-criminal proceedings is that there is a great risk of erroneous guilty or "responsible" findings, which can result in significant consequences, including expulsion. The disciplinary sanctions may stay permanently on the student's record, effectively nullifying years of study and hard work, and hundreds of thousands of dollars in tuition.

The shift to over-prioritizing the rights of an accuser has come at the cost of effectively eliminating the protections those accused of such actions in other settings take for granted. Sexual assault is a serious accusation, but a process that prioritizes efficiency and convictions over truth does not benefit anyone.

The Importance of an Attorney

As of April 2015, over 68 cases have been filed against universities claiming violations of due process, defamation, and lost educational opportunities. If you have been accused of a sexual assault on campus, do not hesitate to contact my office. I have represented students at colleges all over the state. Let me help you protect your rights, your reputation, and your future.

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