I encourage the Office of Civil Rights of the Department of Education to adopt proposed changes to Title IX procedures dealing with sexual assault on college campuses. The current procedures are woefully inadequate concerning due process and seriously damage confidence in the legal system. But do not take my word for it. Twenty-eight members of the Harvard Law School faculty have signed a letter strongly criticizing the current procedures. This was soon followed by another letter signed by 140 law school faculty members from across the country. These legal scholars have complained that the current procedures define sexual infractions too broadly, thereby labeling common and innocent sexual behavior as misconduct. Also, the current “victim-centered practices” unfairly favor accusers over the accused, put great pressure on schools to punish the accused or the schools risk losing all federal funding, promote a “single investigator” model which can result in completely unfair decisions with no possibility of correction, punish only the accused even if both accused and accuser are equally inebriated, and demand a “preponderance of the evidence” standard without any of the protections usually associated with this minimal standard. They argue that the current procedures lack basic due process for the accused and were instituted without going through the proper legal steps.
To prove the point, please consider that in at least 117 cases, accused men sued their schools over the total lack of due process. And the men won.
Sexual assault victim advocates argue that, since only about 2% of sexual assault accusations are false, stringent due process protections are not needed. I believe the 2% statistic is very, very wrong. Some studies indicate false accusations could be as high as 60%. But one does not need a study to show that the percentage of false accusations is high. Consider all of the recent high-profile cases that have turned out to be false or very suspicious, e.g., the Duke lacrosse team; the Rolling Stone University of Virginia gang rape; the Dominique Strauss-Kahn case, the Brian Banks case; the Jian Ghomeshi case, the Rockville High School bathroom rape; the case of Jordan Johnson highlighted in Jon Krakauer’s book, Missoula; three of the cases highlighted in the movie The Hunting Ground—Andrea Pino, Jameis Winston, and Brandon Winston; Lena Dunham’s accusation; and the case brought by mattress girl, Emma Sulkowicz. Could there be so many false high-profile cases if false accusations were extremely rare? Claiming that the rarity of false accusations justifies little due process is not only faulty justice, but it is just wrong.
Please adopt the new guidelines for adjudicating sexual assault accusations in colleges.