Wrong People on Trial?

This month, two national television news shows featured college women who had accused other students of rape -- and whose cases, as the women described them, had been swept under the rug by their universities' judicial processes, which they say were biased against them. They said they were smeared at their hearings, re-victimized in a process essentially contrived to get the alleged perpetrator off the hook.

“The entire tone of the hearing was to blame the victim,” the woman from Indiana University said. “The school allowed it, they condoned it; they didn’t do anything to stop it.” The Wake Forest University student said, “Their defense was, 'She forced me to do this.' That I was a whore and I was promiscuous and that I was someone who would want this to happen. I was very intimidated. This was about them, and when it continued to be about me for the next nine hours, I was angry.” A University of the Pacific student said, "So much of what they focused on was not the actual assault. Tons of questions about how much alcohol I was drinking, and a focus on flirting."

Under most states' rape shields and under federal law, including Title IX of the Education Amendments of 1972, it is illegal for those accused of sexual assaults to defend themselves by attacking the reputation of the alleged victims. The federal legislation aims to ensure equity by prohibiting discrimination in education on the basis of sex; thus, under Title IX, a focus on past conduct by alleged victims creates an inequitable hearing process for the accuser. Yet in many cases where campus judicial boards have considered such charges, women say that is exactly what happened to them.

"It is inherently inequitable to ask a victim irrelevant questions that will not elucidate the truth on an issue legitimately in dispute," said Wendy J. Murphy, a former sex crimes prosecutor and long-term Title IX litigation expert. "To ask such questions is to create relevancy in the answer, which means something like 'What were you wearing?' produces information that tells us nothing about consent, but will be presumed relevant simply because an official person thought it was important enough to ask. The resulting response doesn't then become relevant, but it does become fodder for all sorts of tactical annoyances, strategies, etc. that can intimidate the victim."

Particularly when high-profile campus athletes are involved, as was the case with two out of the three women featured on the news shows, the accuser can be treated unfairly because of the accused's high social status on campus, said Kathy Redmond, founder of the National Coalition Against Violent Athletes, which helped bring forward the cases at Wake Forest and Pacific. “In all the cases I’ve dealt with, those are the things that are brought up in a judicial hearing,” Redmond said. “Many student affairs people, and people who were supposed to uphold Title IX, have failed them.”

All three universities have defended their procedures. Wake Forest President Nathan Hatch responded to the "Today Show" segment, saying, "I feel strongly that the university's response, as well as our character, has been misrepresented." According to the university's sexual misconduct policy, "the irrelevant prior sexual history of a victim should not be admitted in a campus hearing."

A Pacific spokesman pointed out that a federal judge had dismissed the student's lawsuit against the university, noting that the student had no evidence of inappropriate questioning; the spokesman said she was in fact not asked about her sexual history because that would have violated student policies. Indiana has no policy explicitly prohibiting such questioning, but spokesman Larry MacIntyre said judicial officers are trained about relevance and would not ask about sexual history, clothing, etc. MacIntyre also noted that a federal investigation found the university acted promptly and appropriately, and added, "I would suggest you not necessarily rely on the account of a former IU student as to what may or may not take place in a student disciplinary hearing."

Regardless of what did happen in the cases of those three women, there is a general acknowledgment that such events do transpire. Inappropriate questioning is only one aspect of campus judicial hearings that could violate Title IX, experts say. Alleged victims and rapists can be forced to sit knee-to-knee, with the accuser subjected to questions about flirtatiousness, alcohol consumption habits and sexual history, with the accused either standing by or asking the questions. (Questions about alcohol consumption on the night of the alleged assault, however, are crucial in determining whether the victim was capable of giving consent.) Often the alleged perpetrator is granted some form of Miranda Rights, and allowed to not respond fully, shifting the focus of questioning to the accuser, say Title IX experts.

“The schools’ judicial processes have developed along the lines of – and in some ways directly mirror – criminal justice models,” Murphy said. That’s partly because, through their rulings, the federal appellate courts have not really created a body of law to instruct colleges on the rights of accusers and the accused, she said – but they have, notably, punished some institutions for violating the due process rights of the alleged perpetrator. This lack of clarity can be particularly concerning for public institutions because their ties to the state can require heightened due process rights for the accused.

This emphasis on the rights of the defendant resonates strongly on campuses. “It creates this government-vs.-accused tension where the victim becomes aligned with – and perceived as – an agent of the state trying to take away the freedom or liberty of the accused," she said. "As soon as you’ve got liability-based incentives to side with the perpetrator, you’re going to be attracted to themes and narratives that undermine the victim’s credibility.” And financially speaking, it’s less risky to rule in favor of the accused because if the accuser decides to sue the college, he or she must show that the institution acted with “deliberate indifference.” That is difficult because colleges generally take at least some measures to help the student, whether through counseling or through other resources.

As a clear standard for such procedures has failed to develop in the courts, colleges have been left to their own devices. And with no physical evidence to speak of, these cases are always at risk of becoming he-said, she-said affairs, said Daniel Swinton, president of the Association for Student Conduct Administration and assistant dean and director of student conduct and academic integrity at Vanderbilt University. “You have one person saying one thing and another person saying another, and you have to go forward with that,” he said. “It’s not the freshman walking down the hall with a can of beer. That’s easy.”

Swinton said a lot of institutions might just not know how to proceed (which, he noted, is no excuse now that the federal administration is renewing its demands that colleges comply with Title IX). And when sexual assault cases do go to hearings at colleges, generally two or three times a year, administrators are hesitant to discuss them with officials at other institutions because of privacy concerns.

“When I go to national meetings, and I sit in meetings at NASPA or ACPA or our association, the rooms are packed, standing-room only, to learn about how to do this better. People are eager and anxious to do this well,” Swinton said. “If what is being alleged by these victims is true, that’s pretty egregious. If the colleges have acted in the manner that they’re being accused of doing, that’s extremely inappropriate…. But I think people assume that colleges are trying to hide this a lot more than they actually are. I think sometimes colleges and universities are just not very good about it, and they’re accused of trying to cover it up.”

The U.S. Department of Education’s Office for Civil Rights, which last month pointedly reminded colleges of their responsibilities for addressing sexual assault under Title IX, is in the midst of a few investigations, one of which is at Harvard Law School. In September, Murphy filed the complaint that launched the investigation, which revolves around three relatively common judicial problems: requiring too high a standard of proof; “running out the clock” and taking no action until police or prosecutors finish investigating, which in some cases doesn’t happen until after the victim has graduated; and failing to provide clear time frames for resolution. (All three points are addressed in the OCR letter.)

Despite the Education Department’s recent flurry of activity in this arena, the OCR’s influence is limited, even though its investigations can culminate in an institution’s loss of federal funding. The office only investigates if a satisfactory complaint is filed, then the institution typically falls into line with Title IX and everyone moves on. And – despite federal regulations mandating that colleges properly educate students and parents on their rights under the law – many students never even know about them. (That should change with the OCR letter, Murphy said, but the problem then will be continued enforcement to make sure colleges follow the procedures in the long term.)

Aside from the pragmatic reasons why judicial hearings don’t always work and Title IX isn’t always upheld, there can be more cynical motives at play. Howard Robboy, an associate professor of sociology at the College of New Jersey and advisory board member of Security on Campus, has pointed the government to colleges that he says did not report crime statistics correctly under federal law. In examining judicial hearings, he hasn’t been encouraged by what he says he’s seen: colleges siding with perpetrators simply to keep their image clean – especially when athletes are involved, as in the cases reported on "60 Minutes" and "Today." The parties in charge of questioning – various combinations of students, faculty and administrators, depending on the college – all have their own biases. “It’s just not the same thing” as a real hearing, Robboy said. “There’s axes to grind.” He's working on a book about college officials hiding and minimizing campus crimes, and has written about the topic in the past.

In these proceedings, colleges have to defend only two things, Robboy said: their image and their money. “Nobody’s watching the store,” he said. “If you want to have an educational institution, you have a different culture than if you want to have a business.”

One of the Pacific basketball players was expelled, one was suspended for one year, and one was suspended for a semester. The two Wake Forest basketball players were found not guilty in their hearings. And the Indiana student, who had been previously charged with a felony, was suspended for one year.