Should campuses just push sexual assault cases to local police?
College administrators are feeling the heat on the sexual assault issue. Pressure is coming from the Obama Administration, members of Congress, the Department of Education, and the victims themselves, as they go public with their stories of administrators bungling their cases. The list of 55 schools now under investigation for their handling of sexual assault cases has been made public.
With the difficulty that colleges face in trying to adjudicate sexual assault complaints, and their apparent high failure rates, it begs the question, as put by a former Syracuse University dean earlier this month: Why should a university even have its own parallel justice system?
“Why should we expect panels of faculty, staff, and students to handle infinitely more difficult, highly charged cases of sexual assault that may involve alcohol, drugs, unconsciousness, miscommunication about consent, remorse, guilt, and more?” writes David Rubin, the former dean, on Syracuse.com. "This is best left to police specialists trained for this work. Sexual assault is a crime. We would not expect a university to adjudicate an armed robbery on campus through its own parallel ‘justice’ system, so why should it adjudicate sexual assault? Indeed, why should a university even have its own parallel justice system?”
The answer lies in the different roles of the campus administrative process and the police/prosecutorial process, said W. Scott Lewis, partner in the National Center for Higher Education Risk Management Group and a co-founder of ATIXA, the Association of Title IX Administrators, NYC.
Much of the process that campuses undertake is akin to that of an employer. “It’s kind of like any other workplace. If you break the rules of the workplace, it might also be a crime, but you might also get fired,” Lewis said.
Higher ed institutions have an administrative process they must go through, like an employer does. But with sexual assault, additional federal law kicks in because of the possible discrimination on the basis of gender and the possible denial of an educational program.
The idea of a school being involved in the investigation and adjudication of a crime isn’t new. “The dilemma is that these are very difficult cases. The reason you can’t leave [sexual assault cases] expressly to law enforcement is the same reason you couldn’t leave any of these other violations to law enforcement,” he said.
Law enforcement, as an arm of the district attorney, investigates crimes to see if they can be proven beyond a reasonable doubt. Administrators, like civil courts, rely on a preponderance of evidence, and the stakes are lower. The accused doesn’t have his or her freedom at stake; the worst penalty is getting fired or kicked out of school.
One of the main problems college administrators face with sexual assault cases is that they aren’t specifically trained for the investigations, and may not understand differences between the impartial process and a prosecutorial process, or victim-blaming and accused-blaming, for example, Lewis said.