Sexual Assault and Due Process on College Campuses Debated

On Thursday, September 17, the Program in Constitutional Government and the Center for Freedom and Western Civilization held a debate titled “Sexual Assault and Due Process: Vindicating or Violating the Constitution on College Campuses?” The debate focused on whether college equity grievance procedures for sexual assault violate the rights of the accused by requiring a lower standard of evidence in order for the accused to be found guilty.

Professor Wendy Murphy of the New England School of Law argued in support of the procedures mandated by the Office of Civil Rights under the Obama Administration, while Stuart Taylor, Jr. of the Brookings Institute argued against the current guidelines.

“Schools are special places where equality exists,” Murphy said. She argued that sexual assault and rape are civil rights issues. As a former child abuse and sex crimes prosecutor, Murphy has pioneered work examining the relationship between sexual assault and Title IX, a piece of federal legislation that prohibits discrimination on the basis of sex in education.

“The language of Title IX reads like Title VI, which applies to race, color, national origin, and when the language is the same, the promises are the same,” Murphy said. She stated that violence against women on college campuses must be handled in the same manner as violence against any other protected class under these laws. To not do so, Murphy argued, is to label women as second class citizens.

According to Murphy, in these sexual assault cases, civil rights laws become more important than due process laws, as the former focuses on full equity for everyone while the latter protects individuals from the government. Murphy emphasized the fact that schools are not the government and the focus at schools should be more on civil rights laws.

Taylor was on the other side of the debate, arguing that the new equity grievance procedures violate the rights of the accused. After graduating from Harvard Law School, Taylor covered the Supreme Court and other matters for the New York Times, Newsweek and National Journal, and now works as a senior fellow at the Brookings Institute. In 2008, he, along with co-author K.C. Johnson, wrote “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case,” a book detailing the account of the Duke rape case fraud.

“For sexual assault cases, the discrimination is against the men,” Taylor said. He argued that the Obama administration has destroyed due process and created a de facto presumption of guilt for the accused with the new equity grievance procedures announced in the “Dear Colleague” letter of April 2011.

The letter mandated that “a preponderance of evidence” be the standard for sexual assault cases, meaning the evidence must show it is more likely than not that the assault occurred. This is a noticeably lower standard of evidence than for criminal cases, where “clear and convincing evidence” and “beyond reasonable doubt” are the norm. Additionally, males accused of sexual violence have lost the right to cross-examine their accusers, a right listed in the Sixth Amendment and a right historically praised by the Supreme Court.

Additionally, Taylor said that colleges face huge financial incentives to find males guilty of sexual violence. Public universities, as well as Title IX coordinators, risk losing financial funding if they do not strictly enforce Title IX and have empirical evidence of doing so. As a result, Taylor listed Columbia University, Colgate University, Swarthmore College, University of California-San Diego, St. Joseph’s University in Philadelphia, University of Virginia and Washington and Lee University as universities who had unlawfully prosecuted students who were clearly not, or likely not, guilty of sexual violence crimes.

Specifically, Taylor went into detail of a case at Occidental College where two first-years had consensual sex back in 2013. After the male made it clear the sexual encounter meant nothing the next day, the female student filed a rape charge against the student. According to Taylor, she did so because she regretted the encounter and despite text message evidence that revealed the sex was consensual, Occidental branded him a rapist.

Both students and professors alike filled the auditorium to hear the debate, walking away with mixed reactions.

“I was actually a little disturbed that this was even a conversation that we were having. But what I liked about Wendy’s argument was that she sort of actually made a point when she said, ‘Colleges are special cases and civil rights cases are special cases’ so that’s why the preponderance of the evidence standard fits with these. Stuart was really working on anecdotal evidence that I didn’t really find too convincing,” senior Rosie Tootell said.

“I thought it was really interesting. I thought both of them weren’t exactly right. I thought the debate was good and it got a lot of discussion going but both of them went a little overboard,” sophomore Skylar Salim said of the debate.