As many readers of Skidmore News are aware, Jacob Reiskin, co-Editor-in-Chief of the paper, recently published an op-ed evaluating recent changes to New York’s college sexual assault policy. This article caught quite a bit of flak—for its content, its writer, and its tone. While the article did raise some important issues, I agree with the critics that the tenor of the piece was particularly melodramatic. Furthermore, it did not have sufficient legal analysis to back up the argument.
Before launching into a legal argument about how the new policy guidelines overstep their bounds, the full scope of campus sexual assault requires attention. According to the Rape, Abuse, and Incest National Network (RAINN), almost one in four undergraduate women are sexually assaulted, while only 24% of all sexual assaults go reported to any authority. American academic institutions are being corrupted by a rising tide of assault, and our justice system is both unwilling and incapable of policing the issue—as demonstrated by the myriad reports of police dismissing and failing to prosecute rape cases. The problem that sexual assault poses for public health, not to mention an individual’s safety, is difficult to understate. There is no doubt about this.
Some colleges are, thankfully, starting to reform their policies to combat this crime. Sexual misconduct education programs are increasingly being implemented. In turn, public awareness on and off college campuses continues to increase. Unfortunately, some institutions remain hesitant to appropriately punish offenders, especially when their reputation or athletics are at stake. It is clear that something more must be done.
In an effort to stop the possibility of assault, various institutions of higher education and governmental bodies have increased penalties for student conduct violations. For example, a recent New York State law requires all colleges to cite any sexual assault conduct violation on the student’s academic record. This law stretches the “preponderance of evidence” standard that colleges use, and it also imposes penalties on students that are too onerous for a student conduct board’s lower standard of evidence. Furthermore, there are better ways to protect students on campus than the aims of this particular law that, in reality, harms the due process rights of all students.
As Reiskin’s article pointed out, there only needs to be a reasonable likelihood that the facts are accurate for a violation to be found. This is the standard that is generally used when assessing civil cases. Its usage within a college setting is justified insofar as it does not result in the “loss of life, liberty or property.” (ASCA 3). According to the Association for Student Conduct Administration (ASCA), “the courts have consistently declared student disciplinary proceedings to be civil and not criminal proceedings and, therefore, do not necessarily require all of the judicial safeguards and rights accorded to criminal proceedings” (3). If the consequences of a student conduct proceeding were limited to expulsion from the academic institution in question, then the preponderance of evidence standard would be justified.
New York’s law, however, imposes punishment upon accused students that extends past the civil jurisdiction enjoyed by colleges. By requiring colleges to annotate a student’s academic record, the law effectively brands these students and prevents them from furthering their education, thus constituting a significant loss of liberty. This penalty is too high to be imposed simply when “the facts are more likely to be than not so” in a civil proceeding (1). Colleges, legally, have the right to expel students based on this standard, but should not be required to impose sanctions best left up to criminal courts.
These sanctions also do not address the broader issues that make campus sexual assault cases especially insidious. According to RAINN, 20% of victims did not report sexual assault because they feared reprisal, while 13% believed the police would not do anything to help. An AHCA study showed that 38.2% of all college students were not familiar with Bystander Intervention techniques. Surely, we should attempt to curb the threat of reprisal, demand that the police take sexual assault cases seriously, and educate about bystander intervention before imposing further harm on the right to due process.
I am not defending rapists. If someone is found guilty of rape, they should pay with prison time. College disciplinary boards should use their powers of expulsion when they deem it necessary, but their decision cannot carry more weight than that which is allocated to them. Justice demands that the heinous crime of rape should be punished severely, but the force of this demand also requires that guilt be established beyond a reasonable doubt. If we ever want this wave of sexual assault to subside, we must educate, expel, and reform, but not introduce the potential for more injustice into an already corrupt justice system.
https://www.rainn.org/statistics/criminal-justice-system
http://www.acha.org/documents/resources/ACHA_PSV_toolkit.pdf
http://www.theasca.org/files/The%20Preponderance%20of%20Evidence%20Standard.pdf
Photo courtesy of the Foundation for Individual Rights in Education