Expulsion Presumed

June 27, 2014

As the summer term began at Dartmouth College last week, so did a new disciplinary policy. Expulsion will now be the mandatory punishment for students who commit certain kinds of sexual assault.

Many institutions are grappling with how to fairly punish students they believe to be guilty of sexual assault – whether or not the accused have been formally charged by the police – but mandatory expulsions remain rare on college campuses.

Several of the colleges currently under investigation by the Department of Education's Office for Civil Rights for Title IX violations are on that list because they allowed accused students to remain on campus with their alleged victims. At the same time, colleges are dealing with lawsuits from angry students they banned from campus. Facing pressure to find an elusive balance between protecting the accusers and honoring the due process rights of the accused, some colleges and universities are resorting to a tricky compromise: a firm declaration of guilt of sexual assault, but with a sentence short of expulsion. 

The compromise may be doing little to appease either side, with lawsuits still being filed by the accused and protests being staged by survivors and other students. Dartmouth’s decision received praise from some student groups and safety advocates, but other colleges and universities may be slow to adopt similar policies, even as many advocates for sexual violence survivors are pushing for expulsion to be the default punishment.

More than 300 Stanford University students gathered for a campus protest earlier this month, demanding that the administration toughen its policies about sexual assault. The demonstration was a rally for a student named Leah Francis, who said she was raped by a classmate and that Stanford did not do enough to support her and punish the alleged rapist. The accused student was only suspended and will be allowed to graduate.

In an open letter that spread virally around campus in early June, Francis compared the suspension to a "gap year" and asked that Stanford adopt a policy making expulsion the mandatory punishment for students found responsible of sexual assault.

"Five months ago, I was forcibly raped by another Stanford student," Francis wrote. "Months later, the student who raped me was found by Stanford to be responsible for sexually assaulting me through use of force. Stanford did not expel the man who raped me."

In recent months, a handful of institutions, including Amherst College, Duke University and Vassar College, have put more emphasis on expulsion as a penalty, but stop short of making it mandatory. Duke’s is perhaps the closest to Dartmouth’s, with a policy that refers to expulsion in cases of sexual misconduct as the “preferred sanction.” For the most part, however, colleges and universities still decide upon expulsion on a case-by-case basis, as they would for many other types of misconduct on campus.

“One common approach to listing penalties, in any context, is to say a violation may result in sanctions ‘up to and including expulsion,’ ” said Ann Franke, president of Wise Results LLC, a higher education consulting firm. “Lots of colleges and universities do that in their drug and alcohol policies, employment policies, and elsewhere.”

Last year, the University of Michigan expelled a former football player for an alleged sexual assault in 2009, and earlier this year – for the first time in at least a decade – the University of Iowa also expelled a student accused of sexual assault.

No criminal charges have been brought against any of the men, and neither of the universities has a default expulsion policy for cases of sexual assault. Instead, they follow the Campus SaVE Act’s broader requirement for addressing assaults, which only mandates that university policies include “possible sanctions or protective measures” that institutions can impose in cases of rape, sexual assault, and other kinds of domestic and dating violence.

Colleges are required to punish students they determine to be guilty of sexual assault in some fashion; that’s as far as the federal guidance goes on the matter, Franke said. Institutions can devise and enforce their own conduct standards, she said, but if they do adopt a zero tolerance policy, they’ll need to be clear about their definition of the phrase sexual assault.

At Dartmouth, only certain types of sexual assault result in mandatory expulsion, and the college clearly spells out what those entail. Expulsion is the mandatory punishment for sexual penetration of any form, however slight, by a body part or object, through physical force, threat, or incapacitation, the new policy states. It is irrespective of gender, and also covers oral-genital, oral-anal, or genital-genital contact. While not mandatory, Dartmouth’s new policy also allows for possible expulsion in other cases of sexual assault, such as groping.

“In defining the cases calling for the mandatory expulsion, we tried to identify the situations that any reasonable person would agree with,” Robert Donin, general counsel for Dartmouth, said. “As Dartmouth strives to create a greater culture of reporting, it is our hope that with our new sexual assault policy, more students will feel comfortable coming forward."

Not everyone feels that default expulsion policies would encourage reporting, though. Emily Renda, the former chair of the Sexual Assault Leadership Council at the University of Virginia and a sexual assault survivor, said while she believes expulsion should always be on the table as a possible punishment, not all victims are comfortable with strictly "punitive" sanctioning – especially in the initial stages of the reporting decision-making process.

A common hesitation among survivors, she said, is worrying that their attacker will be punished if the crime is reported. Many survivors are initially afraid of ruining their assaulter’s life, Renda said, and a “one-size-fits-all” default punishment for rape could actually deter reporting.

 “While I now would look back, and many of the women I worked with would now look back, and wish they had reported sooner and sought punitive action sooner,” she said, “this view doesn't always develop until later in the recovery process, oftentimes because survivors feel responsible for their rapes and because the perpetrators are often known friends, acquaintances, partners.”

The types of sexual assaults punishable by expulsion at colleges such as Duke and Dartmouth mirror the more inclusive definition of rape recently put forth by the Federal Bureau of Investigation. The White House proposed a rule last week that would require colleges to use that same definition under the Clery Act. At the same time, Dartmouth does not refer to penetration as rape in its new policy, and rape is not even a legal term in New Hampshire, where the college is located.

"Dartmouth’s policy is a student disciplinary code, not a criminal code,” Amy Olson, Dartmouth's senior media relations officer, said. “It reflects Dartmouth’s behavioral expectations for members of the college community and the requirements of Title IX and the Clery Act.”

The difference in campus sexual assault definitions and that of the states they operate in are a concern for some colleges, and it can lead to lawsuits for institutions that adopt harsher penalties for sexual assault. Soon after Duke strengthened its policies and expelled a student there, a judge ruled that the university violated the student’s due process rights.

Under Duke’s policy, “sexual misconduct” is defined as “any physical act of sexual of a sexual nature perpetrated against an individual without consent or when an individual is unable to freely give consent.” In the state of North Carolina, where Duke is located, rape laws focus on the use of force rather than clear consent. Police declined to file a report for the alleged assault victim, who said she was heavily intoxicated and unable to give consent when the accused student brought her back to his fraternity house in November and had sex with her. A judge blocked the student's expulsion earlier this month.

"The harsher the potential penalty for an alleged offense, the greater the due process that must be afforded to the accused,” said Joe Cohn, the legislative and policy director of the Foundation for Individual Rights in Education. “We should be asking whether campuses should be determining the guilt or innocence of students accused of serious charges at all. Campus judiciaries simply cannot provide sufficient due process or sufficient punishment when confronted with alleged conduct as reprehensible as sexual assault.”

It’s not only the difference in state laws that can lead to trouble for universities doling out stiffer punishments for assaults. It’s the distance between the standard of evidence campuses and criminal courts much adhere to when determining guilt, said Ada Meloy, general counsel for the American Council on Education.

Where criminal courts must use the higher standard of “beyond a reasonable doubt,” institutions, under the direction of the Department of Education, use the lower standard of “preponderance of evidence.” This standard is typically used in civil court cases, and only requires that there be a more-than-50-percent chance that wrongdoing occurred.

“Preponderance of evidence is a very different standard of proof than the criminal standard,” Meloy said. “And there are likely to be problems with that dichotomy. It’s a very challenging situation for universities to deal with.”

That disconnect was again made apparent last week when the University of Oregon avoided expelling three former basketball players accused of assault by suspending them for as long as the alleged victim remains on campus. The suspension could last for up to 10 years.

John Clune, the attorney for the alleged victim, said the suspension was the “right result,” but the players’ attorneys fired back Tuesday in a statement, calling the university’s decision “good political cover, bad principle.”

“Some people will insist that the university's suspension is proof that the acts occurred, but they would be wrong,” the lawyers stated. “This determination was carved in stone the day the university's president, in response to a hail of local and national criticism, all but declared these young men guilty and dismissed them from the team.”

Whether or not the students are guilty, Renda, of the University of Virginia, said the premise of suspending accused students rather than expelling them is a flawed compromise to begin with.

“The sanction leaves the possibility that a hostile environment will return to campus with that perpetrator once the survivor leaves,” Renda said. “In essence, what's to say that student won't come back and attack more students?”

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