Here's The Logic Behind Letting Colleges Act As Judges And Juries In Rape Cases

Increasingly, colleges are being scrutinized for how they handle rape cases, even as more schools revise their policies to meet federal standards that require schools to conduct their own investigations of sexual assault.

Last year the Department of Education found both Princeton University and Harvard Law School had mishandled sexual assault complaints.

Many people believe colleges are inherently ill-equipped to handle sexual assaults, arguing that such investigations should be left up to police. Still, a federal law known as Title IX — which prevents gender discrimination in education — requires schools to conduct their own investigations even if police are looking into a campus rape.

We recently spoke to an expert about the benefits of having colleges conduct own sexual assault tribunals that are separate from criminal investigations. That expert, Wendy Murphy, a professor of sexual violence law at New England School of Law, has filed sexual assault policy complaints against several prominent universities, including Princeton and Harvard Law. She says it’s important to have both criminal investigations of alleged rapists and proceedings at schools.

Campus investigations have lower burdens of proof than criminal proceedings, and Murphy says the two can complement each other. On college campuses, students can be found responsible for rape if a “preponderance of evidence” demonstrates their guilt. Meanwhile, in criminal cases people have to be found guilty “beyond a reasonable doubt.”

The lower standard is necessary to protect students’ civil rights on campus, according to Murphy.

“The key issue is, when crime happens on campus, it is both a criminal justice problem and a civil rights problem. It’s ‘this and’ not ‘either or,'” Murphy said.

However, some educators say schools’ investigations demonize everybody who’s accused of rape and deprive them of the right to due process. In October, a group of 28 Harvard Law professors wrote in a Boston Globe op-ed that recent changes to their school’s policies “lack the most basic elements of fairness and due process.” Male students around the country who have been expelled for sexual assault — including a former Occidental College student  —  are now suing their former schools for allegedly disregarding due process before punishing them. 

However, Murphy argued in a Boston Globe op-ed in December these rights aren’t appropriate for campus proceedings:

Because Harvard is not the government, there is no right to “due process” for offenders. Harvard should be fair, of course, but “fair” in civil rights proceedings on campus is not the same as “due process” in real-world criminal justice proceedings. Indeed, many criminal due process standards cannot lawfully be applied on campus because they would violate victims’ federal civil rights.

Murphy has filed complaints with the DOE’s Office of Civil Rights against Princeton University, Harvard Law School, and the University of Virginia.

“My battle has been difficult because it is true that a lot of schools are invested in these wrong approaches,” she said, “and I’m asking them to turn their system upside down, because that’s what federal law requires.”

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