When universities hold student conduct hearings in cases as sensitive as sexual assault, it isn’t easy to have a process that the accuser and the accused find fair.
In July, The New York Times reported on the case of Anna, a Hobart and William Smith Colleges freshman whose conduct hearing panelists asked her if she had actually just had sex with the accuser and who did not understand what a rape exam entailed.
Despite privacy laws, the college disclosed her name as a possible rape victim in letters to dozens of students and did not take action when the accused did not keep his distance from her, the Times reported.
But it’s not always accusers who think they have not received a fair hearing.
The Chronicle of Higher Education reported in September on young men found guilty in university hearing procedures whose lives were turned upside down.
One drives a delivery truck and may never finish college, The Chronicle reported. Another was expelled from his dream college, although, he said, his ex-girlfriend had wrongly accused him of sexual assault. A third lost a $30,000 scholarship and his place on the football team.
All three were expelled after their colleges found them responsible for sexual assault, The Chronicle reported. They join those who think the movement to bring attention to sexual violence on college campuses has gone too far, labeling innocent students rapists.
“The way that universities are handling the entire situation is terrible,” one of the men, Joshua Strange, told The Washington Post in an Aug. 20 article. “It’s kind of a broken system.”
State College defense attorney Matthew McClenahen has a similar concern about Penn State’s student conduct hearing procedure.
McClenahen said he had a client who went through a Title IX hearing procedure, and it was a difficult process for his client to prove his innocence.
Title IX hearings involve cases of alleged sexual misconduct.
Although defense attorneys cannot participate in the process, they can attend. From what he saw in that case in terms of fairness, McClenahen said, the process seems to favor the accuser.
The university’s hearing process uses a standard of a “preponderance of evidence” to establish guilt, McClenahen said, unlike in a court of law where the evidence has to show guilt beyond a reasonable doubt.
In a typical criminal case in a court of law, “usually the evidence is just so overwhelming against the defendant,” he said.
Senior Director of Student Conduct Danny Shaha said in an email that the preponderance standard “means that 51 percent of the evidence presented must point one way or the other, propelling each party into a more equitable space.”
This standard puts the plaintiff and the complainant on a level playing field, Shaha said.
McClenahen said it took a lot of hard work for his client, but in the end he won the case and was not expelled.
No matter how frivolous and ridiculous a story may be, McClenahen said, the university does not see itself as being in a position to disbelieve a complainant.
Shaha said the Office of Civil Rights for the federal Department of Education is reviewing all of Penn State’s policies, procedures and practices related to Title IX, including its hearing procedures when cases move through a conduct process.
Penn State is one of dozens of universities being investigated for their procedures under Title IX, the law that prohibits discrimination based on gender in education programs and activities receiving federal funding; it includes how universities deal with and report sexual assault.
Shaha said the Office of Civil Rights has not made any recommendations, but the university’s Office of Student Conduct is evaluating its own processes.
It is working toward implementing an investigative model for cases involving sexual violence, as opposed to the traditional hearing model, Shaha said.
The position of conduct investigator has been created within the office, and the office plans to start a pilot program for the investigative model within the next few weeks, he said.
Shaha said the investigative process is still in draft form, but the process has seen success at other universities.
The conduct investigator works at the outset of a case to gather the facts from the respondent, complainant, witnesses and any others who have information. The investigator compiles an investigative packet, which each party can review, providing additional information as appropriate, Shaha said.
Then the case is forwarded to a panel, which makes decisions based on the preponderance-of-evidence standard, Shaha said. Each party has the right to appeal the decision.
Shaha said this process does not include the accuser and the accused facing each other. He noted, however, that they don’t have to confront each other in the current process either, because they can choose to participate in person, over the phone, via Skype or in another medium with a partition separating them.
Also in the current process, all questions between the two are only permitted through the university conduct board chair.
In 2013-14, there were 12 charges issued for violations of the sexual harassment or sexual misconduct section of the student code of conduct, university spokeswoman Lisa Powers said in an email.
In 2012-13, there were 20 charges, ranging from stalking to non-consensual sexual touching to non-consensual sexual intercourse, she said.
Ninety-nine percent of the cases that the Office of Student Conduct manages are resolved at a disciplinary conference, Powers said.
Usually the accused student, or respondent, accepts responsibility for the violation, eliminating the need for a hearing. But if cases do proceed to a hearing procedure, there are lower-level cases and higher-level cases, Powers said.
One administrator or faculty member hears lower-level cases, she said.
The person appointed hears all the information and makes a decision that would likely result in probation or less.
Higher-level cases — those likely to result in suspension or worse — are sent to a university conduct board hearing, Powers said.
Regardless of a hearing’s outcome, “information used in a university discipline process could be subpoenaed for the purposes of a legal process,” Karen Feldbaum, associate director of the Office of Student Conduct, said in an email. But a student’s admission of guilt during a hearing does not mean a crime has occurred or could be prosecuted.
In a hearing, using the preponderance-of-evidence standard the university decides if a student violated the Student Code of Conduct, not if a student violated the law, Feldbaum said.
A conduct board is composed of five people — two students and three faculty and staff members, with one of the faculty or staff serving as the chair. Faculty and staff are appointed by a college to serve; students apply to serve.
Board members get intensive training at the start of their membership and regular annual training. Members who serve on panels that hear cases related to Title IX must complete annual training on sexual assault, Title IX, victimization and related issues, Powers said.
Shaha said the complainants and the respondents have the same rights of participation and appeal, such as having an adviser of their choice and choosing whether or not to participate in the hearing; they also have the same criteria for appealing.
“Anyone asserting that the process the Office of Student Conduct utilizes favors one party over the other may not understand the process,” Shaha said.