Views expressed in this article are not necessarily that of any individual associated with the college.
If someone commits sexual assault, the full wrath of the criminal justice system should be levied. Instead, colleges have put their own reputation over community safety. Panels of college employees forming ‘tribunals’ are complicit in the transferring of assaulters to new institutions and workplaces.
We must have detectives present at the scene once the crime has been reported. Just as the case with any felony, those most experienced in evidence collection and chain of custody, must investigate this thoroughly from beginning to end. Different from the current tribunal system, this crucial use of detectives would prevent the accused from evading apprehension or evading conviction on a technicality. Campus safety, Title IX coordinators, and tribunal administrators are less experienced than police, victims’ advocates, and real judges. These employees are less experienced and more inconsistent in punishments; their actions contribute to the reinvention of common law, in order to satisfy their employers.
There is a concern of victims not being able to overcome the barrier to pursue proper action in the courts; however, schools exacerbate the hurdle. Rather than work with state victim advocates and state attorneys, schools do not educate students on the criminal justice process and resources. Further, some claim that survivors of sexual assault should decide who has jurisdiction over their case. But this argument does not consider the next victim or a past victim who has feared not coming forward. For example, the accused is not immediately jailed until a bond hearing, therefore, the attacker can continue to perpetrate potential victims. The accused is not under oath and can freely lie to the investigation or tribunal as well as being free to roam around the campus or vicinity. The accused is not removed from society when found in violation; and there is no criminal record or registry of offenders.
Removing tribunals altogether would be difficult under our current law. The recently revised Title IX regulations by the Department of Education are an alternative. In part, they require for cross examination of the accused. This bend toward due process of law is more truthful. In a congressional hearing on March 20, 2017, former FBI Director, James Comey said, “[…cross examination is] the crucible out of which you get truth. It is the single best way to elucidate the truth.” The Supreme Court in California v. Green 1970, also recognized, “Confrontation: (1) insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.”
The following are other missing components from many tribunals that would increase truth finding: jury trial, discovery, separation of prosecution from judge, presence of experienced, impartial, and legally educated judges, rules of evidence, confronting one’s accuser(s), double jeopardy, subpoena/cross-examine witnesses under oath or affirmation, appeals, attorney representation, and the privilege to remain silent. All of these components have been established in the courts of Connecticut and United States to get to the truth, rather than a panel of college employees, who have a powerful incentive to arrive at biased conclusions that is most convenient for their employer, not victims.
Colleges must educate truth, states must prosecute it, and juries must decide it.
