Have Colleges and Universities Overcorrected in Response to Campus Sexual Assault Allegations?

by Shanlon Wu

The recent expulsion from Yale University of Jack Montague – captain of the men’s basketball team – puts the university squarely in the center of the national debate over campus sexual assaults and how they are adjudicated.

In many cases, there is an overcorrection in the response of colleges and universities to campus sexual assault allegations. In recent years, schools have hastily enacted scores of new sexual misconduct codes and procedures, primarily in reaction to 167 pending Title IX investigations, pending federal legislation, and recommendations from the White House Task Force report on combating campus sexual assault. While well-intentioned, these brand new conduct codes and procedures can pose grave dangers to accused students.

The Lack of Meaningful Threshold Determinations

As a former sexual assault prosecutor, I know firsthand that prosecutors and police both consider sexual assault investigations to be among the most difficult cases to investigate and prosecute. The cases do not get any easier in a campus setting, which probably accounts for the reluctance of many prosecutors to take on criminal cases that involve college students. Police and prosecutors are particularly leery of cases where alcohol may have rendered one or both parties poor witnesses. In all criminal cases, both experienced police and prosecutors make careful threshold determinations as to whether a case is strong enough to warrant going forward to a trial. Such a threshold determination is missing in most campus sexual assault cases.

While college sexual misconduct codes may contain provisions that require a threshold review of allegations to determine whether they warrant moving on to a hearing, these determinations are theoretical only. In practice, nearly every allegation goes forward to a hearing.

Dangers of Going Forward in Every Case

Going forward to a hearing in a campus sexual assault case means that these complex and difficult cases are most often decided by panels of students and administrator/faculty representatives who function as both judge and jury. Colleges and universities claim that these panelists receive training, but the extent and caliber of this training — and who conducts it — remain largely unknown. In any event, no amount of training given in a university environment could realistically prepare student and faculty panelists to adjudicate these most difficult of cases.

Hearings such as these also lack the important safeguards that the presence of attorneys typically provides. This is because colleges and universities almost universally prohibit attorneys from speaking at or otherwise participating in panel hearings.

In the Montague case, Yale issued a statement of statistics regarding the number of its hearings that result in findings of responsibility. What would be far more telling would be the percentage of Yale’s campus sexual assault allegations that go forward to hearings.

Sending nearly every college student accused of campus sexual assault to a hearing is an abdication of responsibility. Colleges and universities owe it to their students to review and investigate each allegation of sexual assault professionally and thoroughly — prior to sending it forward to a panel hearing. While every case deserves investigation, not every case deserves a hearing.