By Katie Feifer
It's back to school time and at campuses across the country college students are getting "orientations" about sexual assault along with talks on alcohol and the computer systems. It seems that this year, more loudly than in the past, pundits and attorneys are weighing in about the "outrageousness" of the processes campuses are required to follow to pursue complaints of sexual assault. We find that many of these pieces are full of falsehoods and backwards thinking. It tends to make us feel that we're living in an Alice in Wonderland kind of world. One egregious example of getting it wrong appeared in the Wall Street Journal recently. Our friends at the Victim Rights Law Center responded with a letter to the editor, not published by WSJ. We think it's worth hearing the response, so we're posting it here.
"Peter Berkowitz’s op-ed (“College Rape Accusations and the Presumption of Male Guilt,” Aug 20, 2011) is rife with misinformation. At the Victim Rights Law Center, a nonprofit dedicated to meeting the needs of rape and sexual assault victims; we have worked with hundreds of victims who are pursuing their education rights. We serve these victims every day and know all too well what happens in school disciplinary hearings. We can assure Mr. Berkowitz that not only is there “no presumption of male guilt”, but rather the discrimination often runs in the exact opposite direction. Mr. Berkowitz cavalierly suggests that the hearings are biased against men, however, we have had fact-finders inquire about the preferred sexual positions of our victim-clients, their sexual orientations, their manner of dress and “could [she] demonstrate how [she] danced that night?” As if any of this is relevant to whether a victim was raped. Of course, similar questions are never leveled at the accused.
Mr. Berkowitz is also terribly confused about the definition of due process. Under the law, due process is the right to notice and a fair hearing. Nothing less and nothing more. The April 2011 “Dear Colleague” letter in no way diminishes or encourages schools to diminish the due process rights afforded to both parties. It is simply wrong to suggest otherwise.
Ironically, it is Mr. Berkowitz who criticizes a process that helps ensure due process – the right to an appeal. Education cases are governed by civil, not criminal, law. In any civil case, both parties have equal rights to pursue an appeal. The double jeopardy clause applies only to criminal prosecutions and the Dear Colleague letter does not pertain to criminal cases. If Mr. Berkowitz were familiar with how campus cases are routinely handled, he would know that many campuses and universities allow only the defendant – and not the complainant – to appeal the outcome. Some schools do not even inform the victim that an appeal has been filed or new “evidence” submitted, thereby denying the victim any opportunity to respond.
As to whether the “accused should be able to question or cross-examine the accuser,” Mr. Berkowitz misses the mark by one important word – “directly.” The “Dear Colleague” letter strongly discourages schools from allowing the defendant to question or cross-examine the complainant directly. It in no way suggests that the defendant be prohibited from questioning the complainant. Rather, it recommends that questions be addressed to a neutral third party, so as to eliminate the potential for harassing or intimidating behavior.
Finally, Mr. Berkowitz once again confuses the civil and criminal laws when he criticizes the burden of proof required. Civil matters routinely require a “preponderance” showing, in contrast to the criminal justice system’s “beyond a reasonable doubt.” Schools cannot hold a rapist or sex offender criminally liable for his acts. They do not incarcerate defendants, impose jail or prison time, or otherwise inhibit a defendant’s fundamental rights.
Mr. Berkowitz complains that the preponderance standard allows the campus disciplinary board to become “judge and jury.” This is a routine practice in administrative proceedings throughout the United States. There are hearings everyday in state and federal agencies conducted in this manner with as high stakes. Are the standards and procedures employed in hearings that address legal issues such as the right safe housing, retirement benefits, or keeping ones job not good enough for college and university academic disciplinary hearing? We think they are.
As victim attorneys, we do not ask that everyone agree with our perspective, deliver victim-centered services or put victims first. We do not ask that colleges and universities favor one party over the other. What we demand is fairness. We demand that both parties be allowed their due process – and rather than mask irrelevant and degrading questions about sexual positions, sexual orientation and the color of the victim’s underwear – we demand that campuses and universities provide balanced and equitable responses to both parties. In other words, we expect them to follow the law.
Stacy Malone, Esq., Executive Director, and the attorneys of the Victim Rights Law Center- Boston, MA and Portland, OR"