College Judicial Consultants

Information on college, conduct, Greek life, advocacy, and fairness-published every Tuesday and Friday morning.

Archive for the tag “hearings”

Apples and Oranges—Sexual Assault as a Judicial Issue (pt. 2)

There is a lot of understandable outrage from sexual assault and interpersonal violence advocates about the way they see assaults mishandled on college campuses. The criticism I hear most often is that since sexual assault/rape is a crime it should be handled by the police and the criminal justice system. They worry that a college will mishandle things or pressure a victim, and that the victim will not be able to avail herself of the criminal courts. As a result, they fear that the rapists and assaulters on campus will go free or, if they are punished they will get a slap on the wrist compared to what would happen if things were handled “correctly.”

Let’s be clear—recent history has given these advocates a lot of cause for concern. I have already discussed investigations about the way very prestigious schools have mishandled sexual assaults and the reporting of incidents, and those failures (along with the other anecdotal ones any advocate can tell you) have engendered an understandable belief that schools are actively (or at least negligently) silencing reports to make themselves look better.  After all, they only have to report sexual assaults they know about so the less they know the fewer “occur,” and the safer their campus will seem to prospective students and their families. Since I do not know the actual story at any of these schools, I do not want to comment on their intention. I have already talked about how a bad system can hurt victims; however, the college judicial system is no worse than any other system and in some cases has distinct advantages for a victim. If you believe that the solution to the problems with some judicial systems on some campuses is to eliminate their ability to hear these cases, you will be hurting more victims that you help.

As a hypothetical, let’s say that a victim comes forward and says that she was sexually assaulted at a party in an off campus apartment. She says that she went there because she liked one of the guys that she knew from class, but since she was nervous she drank more than she normally does and got very drunk. While she remembers flirting with the guy she liked, she doesn’t remember much after she played a drinking game with “jungle juice” but that she woke up in his bed with him and knows they had sex. When she woke up and realized what happened, she freaked out because she would NEVER have had sex with him. In fact, she is known as a good girl, and that has made her somewhat of a challenge to the boys that know her. When the boy woke up he was being very nice as if nothing was wrong, and offered to take her to breakfast and asked if she would spend the day with him. She made up some excuse she can’t remember and went back to her dorm. A week later her RA brought her to the sexual assault advocate’s office when she heard what happened.

There are much more “horrific” cases that occur on a college campus, but do not be confused—this is sexual assault. Situations like this were the majority of cases that came to me as a judicial officer-ones where the extent of the sexual act was never a question, the victim and attacker knew each other (and often in a positive way prior to the assault), and alcohol was involved. In these cases a victim is often unsure about what she wants to happen to her attacker. There are times where she wants him thrown in jail, times where she wants him kicked off campus, and times where she only wants him to understand what he did to her so that she can “move on.” In fact, I have had more victims back out when they thought their attacker would be suspended or expelled than I have victims back out because of an uncertain outcome. So how do you advise her?

If she wants him held accountable there are three roads she can take. If she decides to go the criminal route she may be able to get him arrested, thrown in jail, and if the case is successful he may face time in prison. However, she has very little control over what happens in the case, it can take a long time, a victim is often kept out of the loop, and in the type of situation described above many DAs will not prosecute. She could decide to sue him, but this option is expensive and takes even longer. Finally, she could decide to bring him up on campus judicial charges. While this option would  result in a much smaller consequence for the attacker (i.e., even if he’s expelled that’s much better than prison,) but the hearing will likely be confidential, she will be allowed to dictate much of what happens, and she can surround herself by the resources set aside for victims in these cases. That is at least true in good systems. Most importantly, if she chooses to use the campus judicial system she can still decide to use the other two because choosing that option does not in any way prevent her from changing her mind and also using the criminal or civil systems.

I know there are many survivors, victims, and advocates that don’t think the above benefits make the judicial system worth it, and will never accept that the system is “effective.” However, I think “effectiveness” should be defined by how a victim’s desired outcomes are met, and by the level to which a system can avoid revictimization. If you want to look at the systems based on their failures, none of them are “effective.” If you want to look at them by their successes, each of them can be. However, I believe that if you look at them as distinct and often not mutually exclusive options, the campus judicial system has the most potential to be victim-focused, minimize revictimization, and meet the victim’s desired goals to allow her to continue healing.

Of course, that’s only true in good systems.

 ______________________________________________________________________________________________

 This is a plug. If you do not want to read a plug for services, stop now! We will still adore you.

For the 2013-2014 school year we are going to be offering a victim assistance package to advocacy offices on campus. This will include:

  1. Serving as an on-call judicial resource for unlimited complainants for one academic year.
  2. Allowing the extent and nature of the assistance to be completely determined by victim and/or the advocate including maintiaining as much anonymity as a victim desires.
  3. Helping the victim build the most effective case against the attacker possible.
  4. Allowing advocates to exclusively focus on support.
  5. Identifying situations that may require outside legal involvement (e.g. a denial of due process, forced mediation, etc.)
  6. Reviewing the sexual assault policies, and offering recommendations for improving them.

We are in the process of ironing out the details, but if you want to retain our services we will charge half of what we would charge when these services become publicized in August. For less than the cost of hiring an outside investigator for one case, we will help as many victims as possible build strong judicial cases. We believe this will increase the numbers of cases that are heard, help advocates prove there is a problem on their campus, and by removing much of this responsibility from the advocate it will increase the trust and support between them and the victim. Contact DaveK@CollegeJudicialConsultants.com with any question or to discuss costs.

The Road Confusingly Travelled–how an apple can look like an orange with college student misconduct.

One of the most confusing aspects of the college judicial/disciplinary system is how a college can adjudicate something that is a “crime.” If you’ve ever wondered how a college student can be “convicted” of assault and yet not be in jail, you are not alone. Colleges use terms for policies that are the same (or really close) as the state definition for crimes, and in some instances have the exact same language. That’s inherently confusing and I have known Deans and attorneys that can’t grasp that something can be a violation of a “crime,” and yet not mean that a student broke the law.  Let’s see if I can clear it up.Choose-a-path

The venue in which a case is heard and the standard of proof applied are different determine what a person is responsible for. With apologies to my law school professors for the simplification of my explanation, think of the world as broken down into 3 “courts.”

    • Criminal court—This is what most people think of when they think “crime.” In this court there are strict rules of evidence, extensive civil liberties, and the “state” brings the case against an individual. The prosecution (the “district attorney” or “DA”) must prove beyond a reasonable doubt that the accused (“defendant”) committed the crime with the necessary intent. This is an incredibly high standard of proof because if the DA is successful the defendant will be denied his or her liberty and will face incarceration. Think of this standard as >95% likely that the defendant did it.
    • Civil Court—If you sue someone for wronging you, you do it in civil court. In civil court the injured party/victim (“the plaintiff”) sues the accused person (“the defendant”) looking for a remedy for what he or she believes was damage done to him/her. The basis for this suit has to be among a group of torts (i.e. responsibilities or obligations that the defendant had to the plaintiff that were not met) and must show that the defendant did or did not do something, that action “injured” to the plaintiff, and that injury resulted in damages. The standard here is “clear and convincing” or somewhere around 80%. Once again, there are strict rules of evidence, and an attorney who speaks on their behalf almost always represents both parties. Civil courts can hear torts based on crimes with one of the most known examples being the OJ Simpson case where he was acquitted for a murder charge (i.e. he “didn’t commit” murder) but liable for a wrongful death tort (i.e. his actions lead to the death of two people.)
    • Campus judicial hearing—While schools all have a slightly different system, there are similarities that cut across them all. In general, a student (“the respondent”) is accused of violating a school policy by someone (e.g. another student, staff, or professor) called the complainant. All the complainant has to show is that there was a “preponderance of evidence” that the respondent violate a school policy. In other words, the complainant must show that it was more likely than not or >50% that a policy was violated. There are essentially no rules of evidence and in most cases the school’s only due process obligation is to have a system that is inherently fair and to do what they say they are going to do. So if $20,000 goes missing from a student club account, it is possible that the person accused of stealing it will be found not guilty in criminal court, not liable in civil court, but be responsible in a judicial case.

The “wrong” a person does can fall into one or more venues, and here is where it gets really confusing. When a student does something wrong, it is possible that that action can be against policy, a tort, and/or a crime. Without any exception I can think of, anything that would rise to the level of a prosecutable crime will also be against school policy. However, many of the things that are violations of school policy will not be prosecutable crimes even if the violation has the same name and similar elements of a crime.

A good, and fairly non-controversial, example of this is hazing. Almost every school has a “hazing” policy and many of them simply quote state law as their policy. This would imply that if you violate the hazing policy on campus that you’re violating state law, but that isn’t the case. Let’s say a fraternity has their new members (i.e. pledges) go on a scavenger hunt and while that hunt has some embarrassing elements to it, there is no theft, vandalism, forced consumption of alcohol, or injury to anyone. In fact, each pledge says it was the most fun they ever had and ask to do a similar thing again in the future. If you read the hazing law in most jurisdictions this would constitute hazing, but no DA is going to prosecute anyone for it. On campus, however, that fraternity would likely have a hearing and be found responsible for hazing. They might be sanctioned with probation or even a brief suspension for violating that policy. That would mean that they violated the school’s policy on hazing that has the same as the language of the state law, but it does not mean that they violated the law. They were not heard in criminal court, and there probably would not have been a guilty finding even if they were.

Does this make sense? On Friday, I will talk about how this works with the most controversial issue of all, campus sexual assault, and why a student who commits sexual assault on campus did not necessarily commit a crime and why a college campus may be the best place to hear these cases.

Let me know your thoughts or if you think I missed anything, and, for pete’s sake, don’t be afraid to like us on Facebook or follow us on Twitter.

The Disappointing Appeal Process (pt.2)-Systemic Unfairness

[Apologies for the lateness of this post. I had issues with scheduling, and decided that I would rather wait until today to post it than post on the weekend. Also, this one is LONG.]

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When you’re a student or Greek organization and you’ve been sanctioned with suspension or worse, your last hope is the appeal. If you can manage to find an argument within the very limited grounds of most systems that should result in reconsideration, it is still highly unlikely that you will be successful. There are reasons simply due to flaws within the systems, but those flaws do not influence the outcome in the majority of cases. The reasons why many appeals fail are simple:

  1. The respondent did it. If you did something wrong and you had a fair hearing, you were probably found responsible and sanctioned accordingly. The reason your appeal failed is because the outcome was not influenced by anything other than your actions. Accountability isn’t unfair.
  2. The respondent’s case was weak. It is possible that you did not do something or that you did not do everything for which you were found responsible, but you presented a bad case to the judicial board. The appeal is not there to give you a chance to make a better case so if you make mistakes in the hearing you are stuck with those mistakes. (This is the #1 reason why we want you to work with us before your initial hearing.)
  3. The sanction, while harsh to you, is fair in the context of the judicial system. There is no student that will be sent home for a semester or year and not think that the sanction was “harsh,” but the fact that there is a big impact on your present and future plans does not (necessarily) mean a sanction is excessive.

That being said, there are systems where an appeal is doomed to failure that have nothing to do with the “legitimate” reasons listed above.  While I hope (and still believe) that most schools are free from these flaws, I have found some or all of them more frequently than I would have thought.

  1. No infoThe decision letter does not offer sufficient explanation for the rationale and/or the sanction. The judicial system is supposed to be educational, but there are many judicial administrators who keep the sanction letter language minimal. There are many reasons for this, but without sufficient explanation for the decision it is almost impossible for a respondent to understand how a procedural error may have affected his case, whether all evidence was considered and applied correctly, or whether the sanctioning decision was reasonable in light of what was decided. Even worse, I have seen cases where the ambiguity of the decision letter caused the respondent’s appeal to be dismissed without evidence because the respondent was forced to supply an informed guess on the process that was simply negated by the hearing administrator or Chair. Even if their denials were true (and in some cases I know they were not) it leaves the respondent with an overwhelming sense of unfairness and lack of transparency that should be avoided.
  2. The appeals officer is in same division as the judicial officer, and often a direct superior. I have full faith in the ability of almost every student affairs administrator to be impartial and professional, but having such a direct link is patently unfair for everyone. If the Assistant Dean responsible for running a system and delivering a decision has that decision reconsidered on appeal by the Dean, how is a student to believe and have faith that the professional relationship had no bearing on the outcome? As someone who knows the type of communication that happens within a division (e.g. “critical students” meetings, on-call professional meetings, etc.) there is good reason to doubt the impartiality and fairness.

If there is a case with a potential outcome of suspension it is highly unlikely that the case was not discussed between the judicial officer and her superior prior to the actual hearing, and the outcome was most likely shared immediately after the hearing. What’s more, if there was a suspension or expulsion the respondent’s case was shared with other offices in order to plan for that student’s departure, and many of those offices are under the same umbrella. When the appeal gets to that superior, she has likely already considered the issues and has a position that consciously or subconsciously influences her analysis.

3. There is a belief that overturning a board decision either undermines or fails to support the board, and the students and/or faculty on that board. Serving on a judicial board is an incredibly difficult and thankless job, especially for students. Being a student that hears a case against another student (especially if you identify with the respondent in any way), makes a finding of responsibility, and then suspends or expels requires a level of personal development most “adults” don’t have. In addition, the judicial officer has worked with the board and has a strong personal relationship with them. When a respondent appeals the decision, the judicial officer often approaches that appeal from the initial position of wanting to “support” the board, and while understandable, it is an unfair approach. The Board should be trained to understand that their decisions cannot be personal, and therefore modification or reversals of that decision are also not personal. I have seen firsthand the frustrated response of hearing boards that have their decisions changed, but those feelings must not be part of an appeals officer’s considerations.

4. A higher standard is used in reviewing a board’s decisions no matter how close to the “than not” part of “more likely than not” the board’s decisions were. I know that’s a mouthful, but bear with me. On appeal, if a respondent can argue the findings of fact, the hearing officer almost always needs “clear and convincing” evidence that the finding was wrong. If a 5 person judicial board decides in a 3-2 vote that it is “more likely than not that a student stalked his ex- and one of the 3 was “barely” convinced, that decision is treated the same on appeal as if all 5 decided that he definitely did it. So if a hearing board (cumulatively) thought is was 51% likely a student did something or 99% likely, the same standard is used to decide whether they made a mistake. While one would like to think that there are not many cases where 51% likelihood would result in suspension or expulsion, that isn’t the case-especially in Greek misconduct cases or if the respondent has priors.

5. When considering an appeal, the person referred to for clarification is usually the one who made the initial decision. A respondent will raise many issues on appeal, and most of them will directly challenge a finding or make assumptions based on the outcome. If the case file isn’t sufficient to decide on those claims, the appellate officer must look somewhere for clarification, and that place is almost always the judicial administrator that oversees the system and/or the Chair of the judicial board. It is unlikely that their response will be one that supports the claim on appeal, because if they believed a mistake was being made or their actions were unfair they would not have done them.

6. The appellate body, either due to their own feelings or based on legal counsel’s advice, believes that an facebook_861744770-787913admission of error makes them more susceptible to litigation. While this is almost impossible to prove, I believe it to be true. Imagine a student that has been falsely accused of academic misconduct by a well-intended professor. At some point during the semester his professor has informed him that he cheated, and is failing the assignment and/or class and that the case will be referred to judicial affairs. Sometime later (days or weeks) he is called into the judicial affairs office where the case is explained, and he is told that he may be suspended if he is found responsible. He then scrambles to develop a response to these allegations to show his innocence, usually within one or 2 weeks of that meeting. A hearing is scheduled at the next opportunity, and the respondent has to plea his case to a board of strangers who are weighing his word against the professor’s who has an implicit authority and “no reason to lie.” Sometime in the next week he gets the decision telling him he’s suspended. He has a week to write an appeal, and sometime in the next 1-2 weeks he will get a decision. The whole time he’s stressed, anxious, and depressed. If the appeal goes his way he has still spent at least a month with major impacts on his life and his ability to be successful. Even worse, in many systems even finding him not responsible is not enough to change the professors decision regarding the grade, and even if it were the student has likely dropped the class or stopped going since the grade was predetermined. If the class is one that he needs to graduate on time this process, even if he’s found not responsible, has impacted his ability to graduate on time. If the appeals officer finds that there was a major procedural error or that there were other errors, that student has ammunition for a claim. The worse the mistake, the more the pressure to support the decision can be.

I want to reiterate that the reason most appeals do not “win” is because of the actual facts around a case, the respondent’ actions, and the sanction. Even where the other factors exist, I do not believe that most people are knowingly and intentionally participating in an unfair process. However, it is crucial that a school examine its appeals process, identify any obstacles to impartial consideration, remove any factors that can reasonably be seen as unfair or that impact transparency, and that students have a clear understanding of what goes into the decision making. Identifying and disclosing factors a respondent may object to is much better than leaving that same respondent believing that he was a victim of an unfair system.

What do you think? Are there other factors that influence a decision, or am I completely off base?

Coming up: Steps to improve the fairness of the appeals process that support the parties and the system itself.

A Surgeon With a Scalpel–Disciplinary Sanctions in College Judicial Cases pt. 1

When there is a judicial hearing, the judicial body performs a two-step process. First, they must determine whether the respondent (i.e. person or group accused) is responsible (i.e. “guilty.”) Then, if the respondent is responsible, the second step is deciding what sanction (i.e. punishment) should be given. I spend most of my time working with clients on the second step since if the respondent has actually done something “wrong” it is almost not worth the time to try and prove that he/she/they are not “responsible” since the standard of proof is almost always “preponderance of the evidence” (i.e. more likely than not.) As long as there is a negligible enough amount “evidence” more than a coin toss to show that the respondent is responsible (and there usually is) then the real goal is to provide the hearing body with the information it needs to justify the lowest sanction possible considering the violation. While this is neat in theory, it becomes much trickier to do in practice because the systems are not set up to be nuanced in the way they would need to be to truly be educational. While the judicial body and judicial administrators take the heat for this, it is not (usually) their fault. It is because in most cases they do not have the tools, systems, or support to sanction effectively.

Since this is going to be a busy time for judicial offices (and thus students) I thought it was worth explaining the sanctioning process to help people understand what may be happening, why they may seem more punitive than educational, and finally what can be done to fix it. Since that would be a super long blog I’m going to do the first part today and the rest on Friday. If you have any thoughts/questions before that post let me know and I’ll try to incorporate them.

Almost all judicial systems have (at most) 4 categories of sanctions-warning, probation, suspension, and expulsion.

  • Warning (a.k.a. disciplinary warning, disciplinary notice, informal probation, etc.)—This level usually means “you did something small you shouldn’t have, and don’t do it again.” It puts you on the radar, but should have essentially no impact on you.
  •  Probation (a.k.a. disciplinary probation, formal probation, change of student standing, etc.)—This is a more formal sanction that usually makes a notation on your record to put others who access that record on notice, usually a notation on your internal and/or external transcripts. This may stop you from being able to obtain certain positions on campus (resident assistant, orientation leader, student government office, etc.), but it is not meant to severely interfere with your ability to successfully continue with the complete student experience. If you stay out of trouble, the probation will go away eventually, the notation is usually removed, and you can move on with your life.
  • Suspension (a.k.a. holy crap, what am I going to tell my parents!)—This is a non-voluntary separation from the college or university for a defined period of time, usually between one semester and two years. While schools may say that returning is “conditional” they usually allow a person back after the suspension period is over. Some students decide to transfer, but being on suspension may limit the schools to which they can be admitted.
  • Expulsion (a.k.a. “this is probably the least of my worries.”)—This is forced permanent separation from the college or university with no possibility of return for that degree or any degree in the future (usually.)

In addition, there are “educational” sanctions that can be included as part of any decision. These include reflective essays, mandated counseling (although most counselors I know hate this,) community service hours, and other activities meant to inform a student about the impact of a violation, give him/her the tools to make better decisions in the future, and/or “restore” the larger community.

In theory these levels make sense—smoking cigarettes in a stairwell should not be treated the same as habitual plagiarism. I have already talked about how I think suspension is antithetical to the judicial process as an educational tool, since taking a respondent out of the campus community limits the type of education and oversight you can provide. However, the judicial administrators and hearing bodies did not cause this problem. Most judicial administrators I know really want the process to rehabilitate and enable the respondent to have success in the future. The problem is that with the more serious violations, the judicial administrator (who I would like to call “judicial educator”) needs a scalpel to carefully cut away a respondent’s developmental and personal failings that lead to the more serious violations, but all they have are the awkward clubs—suspension and expulsion.

If you have any questions or suggestions you possibly want considered in Friday’s conclusion, leave a comment or email me at DaveK@CollegeJudicialConsultants.com. Be good.

 

Getting Better Advisors–Why Administrators Are Wrong About Us, And Why That Mistake May Hurt You

At College Judicial Consultants we have tremendous respect for judicial officers, Greek advisors, and other administrators, but believe they should be less mistrustful of outside help during the campus judicial process. When that help is an attorney for the non-legal judicial process, that help can indeed hurt a student and cost the student thousands of dollars. While we understand that mistrust, we believe that when you look at the support offered on campus, we are not truly outside.

Fact 1: Every student discipline system allows a student or organization (“respondent”) to have an advisor, with most limiting that advisor to a non-attorney from the campus community.

Fact 2: Only a handful of schools have an organized advisor program where they train a few faculty and staff in how the system works and make those people available for students going through the process. These advisors are well intended and may help a few students each year. However, their job is to make sure the student understands the process and is connected to campus resources; not to “help” the student minimize the consequence or negate false accusations. In other words, they are there for emotional and psychological support only. That support is REALLY important (in fact we encourage every client to take advantage of it) but that type of advising is less than a respondent needs when they are innocent or the stakes are high.

When a respondent goes through the disciplinary process there are two essential parts of that process the respondent needs to understand—the procedure and the content. Judicial officers often say that their system is “different” and thus requires someone with specific training to understand it. While this is technically correct, ask your judicial officer if he or she can understand other systems and I’ll bet you $5 they won’t have a problem doing so. Judicial systems have slight differences, but they are similar enough that there are best practices, model codes, community assessment models, and uniform standards. More importantly, any system they have must be explainable AND in writing in a way to make it understandable. When you meet with the judicial officer he or she will explain it to you and that explanation is essentially the same “training” the advisors from the school receive.

The much more important part is developing the content where the respondent gets the chance to tell their side of the story and present evidence to show how their version is correct and the accusations are inaccurate. It is during this part of the process where respondents make mistakes that can get them found responsible when they are not, and make their sanction worse than it needed to be. It is in this arena that our consultants are miles ahead of any other “advisor” you will get from the school for two very important reasons:

  1. The least experienced of our consultants has seen at least 10 times the number of cases as the most experienced advisor from your school (with that number closer to 50 times more.) This means that your consultant has seen literally hundreds more responses than anyone you will find on campus, and are much more likely to have seen a case with similar facts to yours.
  2. Our consultants’ only goal is to make sure you are not found responsible for something you did not do and have the smallest consequence possible for what you did. We are not faculty who have opinions about plagiarism at your school. We are not administrators who have had to deal with “problem” students. In other words, we do not have any reason to protect the school, the community, or the system.

In other words, we are like the best advisor you might find on campus but with vastly more experience, and without any agenda other than giving a respondent the best chance for the best result. Why would anyone on your campus not want you to take advantage of that?

 Contact us for a free and completely confidential consultation to go over your case and see what we can do for you.

Insecurity and the Appeals Process in Judicial Cases

ImageWhen I was working in student affairs I believed, and told people working on student issues, that there were two types of situations that were the hardest for me.  The first was when someone I truly cared about did something wrong and had to be held accountable.  The second was when someone I didn’t like didn’t do anything wrong, and therefore could not be held accountable.  The first one is pretty obvious, but let me explain the second.

Administrators and faculty are usually experts in their field with extensive education, training, and experience that gives them the right to the positions they hold.  They’re also human.  That means that they think some people are great, some are brilliant, some are weird, and some are just plain jerks.  A mark of a professional is when their personal feelings are almost impossible to find.  I used to say that I was happy if both parties to a dispute though I was on their side or that I hated them, but I failed if only one felt either way. I meant that.  I would see people at their personal and interpersonal lowest, and the last thing they needed was the person they were forced to see (me) judging them.

The problem is that we all have bad days, hot button issues, and egos.  My hot button is when people are accused of sexual assault try to blame the victim, and when it happened it really made me want to launch into someone. However, even on those rare occasions I was paid to get over it and keep it to myself.  What I could do, and the only thing I SHOULD have done, was make sure that everything was in place for that person to go through our process and get the result he should.  That meant making sure he understood everything, that all the procedures were followed, and that there was no bias so that he could have no basis to dispute the outcome.  I might be able to “stack the deck” a little by selecting certain people to be on the hearing board, but for the most part the best I could do to get the outcome I wanted was make sure the people who make the decisions were properly trained and did the right thing.  In other words, when I didn’t like someone or I personally wanted a particular outcome, the most ethical thing I could do was make sure everything was as fair as possible, and hope for the result I wanted.  Unfortunately, that didn’t always work.

A judicial board hearing is an unreliable thing only if you’re looking for a particular outcome.  While “preponderance of the evidence” seems like a pretty low standard of proof (especially if you’re going through the hearing), I have found that boards are not likely to find someone responsible for an egregious violation (e.g. rape or sexual assault,) or for violations that would have a harsh sanction (e.g. suspension or expulsion) if the person is only a little “more likely than not” responsible.  I have actually debriefed with board members who told me that they thought someone likely did something, but that they weren’t sure enough to “end his career.”  Those conversations made me want to grow hair so I could pull it out, but I did the only thing I could and got over it before the next case.

Not everyone can or will move on.  There are people who are amazing professionals, but only as long as things go their way or they like the student in question. Once they have a student or a group they dislike, however, they become vested in the outcome and, consciously or unconsciously, do things to shape the outcome.  I believe that once a person responsible for impartial advocacy students (i.e. all athletes if you’re in athletics, or even the “party” fraternities if you’re in Greek life) then they have to maintain that advocacy no matter who’s involved.  That means if your favorite person says your least favorite person beat them up that an administrator MUST set aside her feelings and give both students the exact same access to the system and the exact same support.  If and administrator cannot do that, then it is her obligation to step aside, or take the proper steps to ensure that things remain fair.  A surprisingly large amount of people will not do that.

There are administrators and faculty who will definitely take steps to ensure that someone or a group they dislike gets “punished” more than others would.  That could meant that they bring charges against someone for something that they would otherwise let go, that they contact the people responsible for the discipline process (or that person’s boss) to make certain that they understand how “serious” they find the situation, or that they even try to influence the board directly to get an outcome they want.  Even in those cases, however, there are usually procedures in place that should protect a student or group from someone’s unethical behavior.

In almost every system there is an appeals process that is supposed to weed out unfairness, correct mistakes that come from someone’s accidental or intentional mistakes, and ensure that a student’s, or group’s, rights were protected throughout.  While that is great in theory, there are several problems with the appeal process as a fairness safeguard:

  1. The standard of review is a lot higher.  This is a little tricky to explain, but essentially the standard for determining whether or not a board or hearing officer made a mistake is higher than the “more likely or not” standard in a hearing.  So even if an appellate group thinks that there is a mistake, that mistake usually needs to be provable to a “clear and convincing” standard (i.e. 80ish percent.)
  2. There is usually a connection between the hearing board and appellate group that impacts the decision of the appellate group.  Usually the appellate group consists of someone one or more steps up on a hierarchy (e.g. if an undergraduate hearing board hears the first case, then administrators hear the appeal; if the Director hears the case, the Dean hears the appeal; etc.)  Worse, this “next step” frequently supervises the person involved in making the mistakes in the first place.  In some cases, this means that to them finding a mistake in the initial decision means that they themselves made a mistake. The more insecure the person (and, unfortunately, many administrators are very insecure) the less likely they will do anything that make them seem “wrong.” Worse, the same person hearing the appeal often had extensive discussions about the case as it was happening and has an opinion regarding it before they read a single fact on appeal.
  3. Sometimes the appellate group knows much less about the process, and therefore takes the opinions of the very people alleged to have made mistakes to help them make decisions.
  4. The appellate group, since most cases that get appealed are “serious” and/or “controversial,” not only considers the case, but also thinks about implications for the school if the student or group sues.  This means that they are much less likely to admit mistakes that could be used against the school than they would if they did not have to consider such things.
  5. Some people are incapable of understanding that a group can be both “responsible” for something and also have had their rights violated, with that violation making the decision unfair.  In other words, once an appellate group decides that the person or group appealing “did it,” then they give much less consideration to any claims of unfairness or violations of rights than they would without that belief.

Unfortunately, I don’t have a solution for these problems.  If you’re in a private school the “due process” owed to you is essentially that the school does what it says it will in its description of the process.  Any school worth its salt will write the process in a way that gives them enough discretion to save them from a law suit, so that route will not likely work in the long run.  Besides, law suits are slow and costly, and any damage done by a decision is likely to be felt before any case is concluded.

Even though I do not have a solution I do have a suggestion, an operating principle, that will help mitigate some of the human and systemic error that occurs:  make all decisions with all “ties” going to the accused party.  A system must be fair and impartial, or else it becomes a kangaroo court meant to punish rather than an educational system meant to uphold values and expectations.  If a person or group cannot be found responsible in a fair system where the only burden is that they “more likely than not” did something, then they should not be found responsible.  If you don’t allow a witness, if you violate the time proscriptions on submitting documents, or you do not allow someone to fully participate in the process the way the rules intend, then those actions CANNOT result in an outcome that would not occur without them.  If it does, you system is unfair, and no appeals process will save it.

Sexual assault and the judicial system–Advice for survivors (2 of 4)

When I was a judicial officer I was fortunate to work with an outstanding sexual assault advocacy team.  The team was me, a dedicated and highly-trained detective from Campus Police, and a Victim’s advocate from the Wellness office.  There were also several community resources available to survivors with BARCC (Boston Area Rape Crisis Center) and ATASK (Asian Task Force Against Domestic Violence) being our most common partners. The resources for survivors* were extensive, we had tremendous Chairs of the disciplinary committee that heard these cases, and I was as much of an advocate as I could be.  We had more resources available for survivors than most schools and everyone involved was dedicated to helping a survivor through the most difficult time of her** young life.  MIT received 2 Violence Against Women Act (VAWA) grants, and did great work during the time I was there.

But the system still sucked for survivors.

It wasn’t anyone’s fault (mostly), but since what happened to a survivor is so terrible, the systems in place to deal with it are inherently terrible to the person going through it.  No matter how kind we were and how sympathetic the people were, it was still an adjudicatory system that heard details about the worst night(s) in a person’s life, allowed a response to those details, and asked questions about those details.  There is a revictimization that comes with these hearings, and most judicial officers try to minimize that to the best of their ability.

Every single program on sexual assault tells people who support survivors that they need to do three things—believe them, help them understand that its not their fault, and give them as many choices as you can.  A judicial system, however, can’t do any of those things.  If it did, there wouldn’t be hearings because the converse of those things is that the accused is lying and it is totally his fault.  You could just find him responsible, expel him, and call it a day.

Of course that’s not in the least bit fair (or legally defensible) so you have to have a hearing, and that hearing process is going to be even more rigidly followed than normal cases because of the potential for litigation.  So not only do you have a system that says “prove it” to a survivor, but they have to do it in a certain way and only that way.  If someone is brave enough to come forward and initiate a judicial process, everything that has been done to return some power is then taken away so that they can attempt to have something done about the person who committed this crime against them.  Additionally, even after someone accepts that she will need to participate in the process, there is no guarantee of the outcome they desire.  In fact (and this is completely anecdotally) it is probably not going to be the outcome the survivor wants, with many accused found not responsible, or given a “light” sanction despite being found responsible for something.

The problems here do not even incorporate social pressures, the impact on academics, the disruption of a survivor’s life, and the hundreds of other things that assail them.  Even if a school’s response is amazing and there are escorts provided, the accused is moved out of a shared living situation and classes, and accommodations are made for academics, this person’s life is forever changed.  The Department of Education’s Office of Civil Rights put forth a “dear colleague” letter that attempted to “recommend” numerous steps that should be taken to ensure that sexual assault gets addressed properly and that survivors are protected, but none of us administrators have to live the survivor’s life.  [In my opinion, the best thing to have come from that letter is that schools are essentially “required” to have the lower “preponderance of evidence” standard in these cases as opposed to the “clear and convincing standard” many had for these cases.  (I wrote a piece about that earlier so I won’t go into it, but check it out if you’re curious.)]

There are way too many things that need “fixing” if a campus is going have a victim-focused response to sexual assaults, and most of those are outside the scope of this piece.  Instead I’m going to focus on a helping a distinct subset of survivors.  This piece is for those people who, in addition to whatever else they may be doing, are going to be bringing a case against a fellow student (or a student at a different school) using that school’s campus judicial system.  I wanted to provide some help for those people by offering some suggestions to help them proceed and to minimize the potential revictimization that comes with brining these cases.  In order to do so I’m making numerous assumptions that you should keep in mind as you read this.

  1. You will not use this for legal advice.  If you think “do I need a lawyer” you should either get one or contact the Victim Rights Law Center to figure it out.  This is procedural advice and strategy starting points for a campus judicial process only.
  2. I’m assuming that your campus is doing everything the way it is supposed to.  Sadly, this is not always the case.
  3. I’m assuming that some type of sexual act is not in question and the case is mostly about consent since this is the most common scenario in college cases.
  4. There are a few campuses that have independent investigators hired to handle these cases (e.g. Harvard) but I’m assuming that you have a system where some sort of hearing body handles these cases.
  5. I’m assuming you are safe.  If you believe (even if you only sort of believe and can not prove it or even explain it) that you are in current danger contact the police.  I would much rather you be wrong about the risk and have help than be right about it and do nothing.

That being said, here are some information and questions to consider that I believe will help you as you participate in your campus judicial process.  These general concepts should help you get started in most cases, but if you would like specific assistance for your particular case please contact us.

  1. Get a good support team for yourself.  I cannot know the particular resources on your campus, but let’s start with your unofficial support.  Think about your family, your friends, your sorority, your advisor, your RA, an administrator you like, your boyfriend/girlfriend, your particular spiritual guide (e.g. priest, rabbi, etc.), your roommate, etc.  From that group see if you can think of one or more people that can simply be there for you to make sure you’re okay.  Someone you can talk to, someone you can vent to, someone with whom you don’t have to be “professional” when you talk to him or her.  If you’re lucky there will be a person you can count on who has nothing to do with the process, and if you’re really lucky there will be a lot of them.  Regardless, if you can have someone there who’s only agenda is being your friend it will make the whole thing a lot easier.
  2. Get a good advocacy team for yourself. Once you have your personal support in place, make sure you like and trust your campus and community support resources.  Check your counseling center and wellness offices to see if there is anyone dedicated to these issues.  Check your community resources for centers that deal with these issues.  Look to national resources like the Victim Rights Law Center for help finding them, and/or to see what else they can offer.  Ask your RA who someone would speak to.  Ask your judicial officer.  There are going to be a lot of little things you may need, and these advocates should be able to fight for you so that you can focus on yourself and the case.  There are, or should be, many campus resources available to you and whoever you chose as this advocate should help you make sure you are getting all of them. Note that these people can be the same as your support team, but I separated them because I think there are 2 distinct roles to play.
  3. Understand each person’s ability to keep things “confidential.” Confidentiality is a tricky thing on college campuses.  Most people you speak with cannot promise to keep things completely confidential (i.e. they do not have legal protection) and some must report certain incidents to a central body.  You should be aware of each person’s willingness and ability to reveal only that information you want revealed so that you can make an informed decision of whom you are going to talk to.
  4. There is no rush (or at least not as much of a rush as you might think.)  Even in those judicial systems with a “statute of limitations” limiting the time you have to file charges, most of them allow for additional time for sexual assault cases.  Check the time in the policy, and take as much of it as you need.  Once you begin a case a school might have a timeliness requirement to resolve it (i.e. it must be heard within a certain (and brief) period of time after getting the complaint) so do not bring the case until you are ready.  Your policies should state clearly what that time is or the campus advocate should know, but don’t hesitate to ask (or have someone ask) the judicial office anonymously.  [I’ve had people create Gmail accounts with “anon30482” as their name and never hesitate to answer.] NOTE:  In some cases the accused may try to use the delay against you by claiming that you would have acted quickly if it “really happened.”  No board with any training should buy this, but you can always address it in your complaint.
  5. Understand why you are bringing the case.  This is not as obvious as it may seem.  Something bad happened to you, and I commend you for bringing the case, but know what you want out of it.  I’ve had people bring cases so that their boyfriend believed them.  I’ve had people bring cases forward so that they could know they were “right.”  I’ve had people bring cases for a number of reasons that were all valid, but you should know that the more specific the outcome you desire, the harder it will be to guarantee that the system will “work” for you.  You should bring a case for any and every reason you want, but if you will only feel good with one particular result, you may not get that result.  For example, if you want the person expelled the school may suspend him.  If you want him suspended, he may be expelled.  If you want him “punished” he may be found not responsible.  I do not know any system that can promise you a particular result, but they should ALL be able to promise you that you will be heard.  It is completely fair to expect the system to see the truth of your situation, but be careful about needing it to give you some validity.  What happened to you was terrible and in no way your fault, but systems (and people) are flawed.  Regardless of what a board decides, what happened to you is very real.
  6. What happened to you is not your fault, so what happens to the person who did it to you is not your fault either.  In my time I had many survivors say to me “I don’t to get him expelled or anything.”  My biggest problem with that is that the survivor was making it clear that she believed that if she brought a case and he was expelled that it was somehow her responsibility.  That could not be farther from the truth.  When you bring a case against someone for something they did, your job is to present the facts.  Once you do that the hearing body takes that information and decides what, if anything, can be done.  If the perpetrator is expelled it is no more your fault that it is if nothing happens to him.  The only thing you can control is the information you present.  What the board does with it is outside of your control.  While I understand that many sexual assaults occur between people with a previous relationship (i.e. they know each other) the fault for what happens to him lies with the person who committed the sexual assault.
  7. Don’t be afraid of pissing off administration.  You probably have an amazing administration that wants to do what they can for you, but not everyone is that lucky.  Administrators (especially those who can make real decisions) often have many factors they have to consider when making decisions, so they often can’t (or won’t) do what you’d like them to do.  Challenge them.  Push.  The worst thing that can happen is they get annoyed, but who cares?  This is where your advocate can really be helpful. Don’t assume that they are going to tell you everything they can do for you so if there’s something you want, ask.  They can only say no, but no matter how annoyed they get it won’t hurt your case. Something to consider is what you would like in the hearing to make you feel comfortable and safe.  Providing a screen between you and the respondent should be doable, but you may have to ask for it and then insist on it if you get pushback. If they are being REALLY unhelpful do not hesitate to suggest that you will get a lawyer.  While I normally do not like this tactic, I have no patience with people who are not willing to do simple things to mitigate the impact of this process.
  8. Know that you can pull out at any time.  This is your case.  If you decide at any point that you don’t want to do it anymore, you can quit.  While some systems may continue without you, pull out when you’ve had enough.  They can’t force you to continue, and if it isn’t doing what you want it to do what’s the point?  You have nothing to prove to anyone.
  9. Trust yourself. Dr. David Lisak’s work points out that predators create situations where they can assault someone with that very situation giving them protection from prosecution.  They isolate and intoxicate their victim so that there is self-blame and the details are hazier for the survivor than they are for them.  I have worked with many survivors who did not even realize they were “sexually assaulted” until well after the event, but they all knew that what happened was not right. If you know something bad happened to you, that’s enough. It is a completely normal feeling and very common.  It happened, it was not your fault, and it is not okay.
  10. You are going to have to tell your story, so decide how you want to tell it.  Most systems will have a written portion and a hearing.  During that time, people will make decisions based on what information they get from you and the accused.  If you do not tell them something, you can’t assume they will figure it out.  You will need to find a balance between giving them enough information to work with, and sharing information that they don’t need to know.  I used to advise people that they needed to share the outline of what happened, but that graphic details are not necessary if they made the complainant uncomfortable.  I also believe it is easier to write it out because the hearing itself is more of an unknown.  While you might be very comfortable in front of the hearing body, they might also be terrible terrible people.  If you have everything written out then you can simply reference what you wrote, and don’t have to say it out loud.  That way the information is there is something unexpected (and unwanted) happens at the hearing.
  11. Do not worry about the fact that you drank, did drugs, or anything else.  Most schools will not hold you accountable for minor violations if you are bringing a case forward.  Even if they do, those “minor violations” are usually why you were assaulted in the first place.  Do not try to cover them up. If the school really gives you a hard time, even a mediocre lawyer will make hash out of them.  The same holds true with downplaying what you did.  If you do not make it clear that you were intoxicated because you’re embarrassed or worried about getting in trouble, then the accused student can say that you were not intoxicated and therefore consented. I know there are some of you who have family or friends that may be very anti-alcohol or drugs, but if they can’t put it in perspective in this case they aren’t part of your support team.
  12. Prepare and practice. The worst part of any hearing is the surprise.  The more you can anticipate questions (even unacceptable personal ones) the better you will handle it in a hearing.  This is a REALLY hard thing to do, but if you have people you trust that you know support you, having them do it is a lot better than that 72 year old professor do it in a hearing.  This will not stop the revictimization, but it will lessen the impact.
  13. Bring the discussion back to you.  I have noticed that a LOT of cases and deliberation involve discussion on what was reasonable for the accused student to know and expect.  “She said she was drunk, but he said he didn’t know and I believe him.”  Most people put themselves in the mind of the accused and judge his actions in relation to how they would have acted.  People have a hard time coming to terms with sexual assault because they think that a lot of the problems are “common situations.”  This makes sense if you only think of sexual assault as “accidentally going to far” or “misreading cues.” However, just because it might make sense doesn’t mean it isn’t stupid.  Sexual assault is a crime and they need to think about what happened in terms of what was reasonable for you to know and expect.  I want the hearing body thinking “He said he didn’t know she was drunk, but it was 2am at a fraternity party and she only stayed over because he said she would get in trouble if she went back to the dorm.  That is not giving consent.”

Each time I work with a survivor, whether it was for a judicial issue or as an advocate, I am amazed by the strength and courage that they have.  This is not an easy process, but hopefully these points will give you a place to start.

Next:  Advice for respondents

*Note that I use “survivors” to refer to the victims of sexual assault.  There is a move back to using “victims,” but I still prefer to think of them as survivors.

**I am also using the feminine pronoun when I refer to the survivor and masculine when I refer to the attacker.  While as many as 1 in 10 men are sexually assaulted, all of my experience is with female survivors with all but 1 respondent being male. In no way is this meant to minimize the plight of the male victim or the very real problem with same-sex sexual assault.

More on fairness (i.e. why I’m not talking to you in particular.)

Some former colleagues of mine (who shall remain nameless) wrote me about my last blog because they thought I was insulting judicial systems as a whole, and they took offense at what they thought was my aggressive tone.  I went back and forth with them for a while, but it quickly became clear that they could not separate themselves from their systems. They also could not understand how a system where the participants are not representing themselves to the best of their ability is inherently unfair; a fact I found particularly troubling.  I don’t think most administrators (and certainly not the ones I know) try to be unfair, but it’s inevitable the way things are.

I am obsessed with fairness.  I started College Judicial Consultants because I realized when students were either accused of something or wanted to hold other students accountable within the judicial system that the ancillary issues to the actual hearing made the process unfair no matter what I, or any other judicial officer, did.  I had the privilege of working with an amazing disciplinary committee filled with dedicated and compassionate people who were extensively trained by a devilishly handsome judicial professional.  They were thoughtful, took their time, and tried to understand each student who came before them.  In short, they were the best any student brought before them could have hoped for.  That being said, at least one out of every three students who came before them (estimated) was unable to either defend him/herself adequately, focused on the wrong issues, or made other completely understandable mistakes that either made or could have made the outcome completely unfair. The committee is not to blame, but the truth is what they were being held accountable for and the extent to which they were accountable were not solely based on the incident.  This was even truer those times when one student accused another student of something.  Most of these cases were sexual assault cases and the victim bringing the charges had to not only get past her own issues during the case and revictimize herself, but she also had to overcome sexual and gender issues of the people who listened.  Again, the committee was excellent, but very few of us truly understand our subconscious beliefs enough to identify them and not let them influence our decision.  (That’s a whole other issue that I’ll discuss later, so I’m really going to focus on respondents here.)

This is not unique to discipline systems.  Look at America’s courts.  If every person who went to criminal or civil court had the exact same amount of money and the exact same quality of attorney, our system would be as close to perfect as it could be.  A corporation could not outspend you, a clever defense attorney couldn’t say, “if it doesn’t fit, you must acquit” and get you off the hook for brutally murdering 2 people, you wouldn’t be executed if you were clinically dysfunctional, etc.  The facts of a particular case and all relevant details surrounding them would be the basis for the outcome, and I will take that system every time.  But that’s not the case so the poor, the uneducated, and the subordinated groups (i.e. those without equal access to power and privilege; the “oppressed”) face greater incarceration, have less effective legal defense of their rights, and are victims of unfair systems much more than their privileged counterparts.

The same is true in judicial cases.  An accused student in a disciplinary case is almost always accused by someone with more inherent authority than them, whether it the appointed authority of an RA or the positional authority of a dean or professor.  They almost always have less knowledge of the subject in contention than the person accusing them so defending themselves is an uphill battle. (See my earlier blog on fairness for more discussion on this.)  They do not know the system as well as the person accusing them since it is almost always their first time in that system where the person accusing them has either been trained in the system, has accused other people, or can call on colleagues with greater institutional memory to help them navigate the system.  Perhaps worst of all, they are compromised by the stress of the hearing, the potential implications of being found responsible, the shame that comes with being accused, and the fear of failing and having to face everyone you know.  That agitated state can make them seem cold, distant, and dishonest when they could simply be scared, and that influences a committee’s decision-making. It’s not intentional, it’s not personal, and it’s not a reflection on the ethics of any individuals; but it is unfair.

People may not be as concerned with fairness as I am, and that’s not necessarily because they are trying to be unfair.  When I ran a system I had to be concerned about procedural consistency, legality, regulatory compliance, institutional commitments, departmental support (or lack thereof), and messaging as well as fairness.  I did the best I could, and I believe others do the best they can, but many of those “goals” conflict with fairness as it relates to the individual going through the system.  (e.g. I could not point out where the committee may have made a mistake during an appeal.) Fairness does not mean that people in the system get what they want, but it should they get what they deserve and for the right reasons.

I don’t think any system can empower the students in the disciplinary process for many reasons and those reasons are almost never about the competency and professionalism of the administration. That’s why I created College Judicial Consultants-to help respondents and complainants have the outcome be fair. In CJC we can take all the time a client needs to help them because that is what we do, and all that we do.  We have no professional conflicts that limit our ability to assist a student to the extent they need, and college judicial systems do.  We say we give people their “best chance for the best result” and what that really means is the best chance for a fair result.

That’s not personal.  That’s fact.

Why We Should Be A Judicial Office’s Best Friend (and Why I Don’t Care If We Aren’t)

I am a firm believer in accountability. If you do something you know is wrong, and you get caught, I do not want you “getting away with it.” When I was at MIT it used to make me crazy when someone who did something horribly unethical (like cheating on a test) went unpunished because the staff or faculty who caught them chose not to do anything. Sure, it was hard for me to be part of a system that meted out different punishments depending on who caught the student, but the worst part was that I would have to put students through our process who were often much less responsible than the others, and then watch them frequently work themselves into a suspension. I know that I can’t do anything about faculty and staff autonomy (nor do I think everything needs to be punished), but what I can do, and why I started College Judicial Consultants, was to ameliorate the difference in response when someone is brought into a system.

I was heavily involved in judicial affairs and believe that a good system can be transformative, really force someone to be reflective, and, ideally, help them get to a place where they won’t make the same mistake again. Sure, there are some people who are just dirtbags and the only thing they will try to learn is how to not get caught, but for the most part these are good young men and women who, for one reason or another, made a bad choice. Most of the time nobody else got hurt. Most of the time there isn’t a victim or intended victim. Most of the time it’s a person who had a melt down, and as a consequence took a shortcut. That being said, I believe academia should be an idealistic society that people strive for, so when someone violates the foundation of that society they should be accountable. The actual form of that accountability doesn’t matter really–fail a test, fail a paper, have a record, be on probation, be limited in the types of roles they can have within that community, etc. Some may even need to be sent away for a while to really come to terms with what’s important to them, and develop some coping tools to help make sure that a similar thing doesn’t happen again. The most important thing here is that the extent and nature of the accountability should fit the act and the actor—more than is needed for either is inherently unfair.

But how does a judicial board learn what sanction will be the most appropriate in each case? In reality, there are usually two ways that a hearing board can get to know a person and assess what happened. There is the written part (the complaint and the response) and the hearing. Assuming they carefully read and digest the written part, and at hearing ask every question worth asking, that usually takes around two hours (not counting deliberation). Two hours spent getting to know a person and understanding what makes them tick so the board can understand what went wrong. Two hours of reading a paper written while overcome by nerves, regret, and self-doubt, and 2 hours of watching some scared person in a room trying to speak to strangers about what is likely the lowest point in her or his life. Considering how little time that is, boards in general do a really good job and I remain impressed by the different ones I’ve come across over the years. Because it’s a hard job the boards are given things like school precedent and policy guidelines to help them make the best decision they can. Even then, it’s two hours to decide on something that will affect someone for the rest of his or her undergraduate career (and in some cases longer.)

Here’s the surprising part: two hours would be enough if the students going through the system were able to participate at their best.

A judicial officer should ideally be able to guide someone, or refer a person to someone who can guide them, through every step so that they can be ready to give the board enough information to make an accurate decision in the time they have. However, as I’ve said before, as long as a judicial officer is responsible for the system and accountable to the school, they cannot risk doing anything that could be seen as skewing a hearing one way or the other. As long as there are two parties (and there are always at least two parties) the “other” party would likely find the system unfair and that is the foot in the lawsuit door. Also, even if the judicial officer will help the student write his piece, there are potentially going to be facts that may not be relevant, but about which the judicial officer is obligated to act (e.g., drug use.) Even if the judicial office can be completely neutral, act only on what the student tells them to act upon, and can help them write the best response, the student has to believe that so that he or she can provide the right information. That’s a lot to ask of everyone, is, frankly, almost impossible, and judicial officers know that’s impossible so many of them have created resources to help students “outside” their office.

There are peer advocates, faculty/staff advisors, and other similar resources that students can use. Some of these are really good, but they are inherently flawed if the intention is to place the students on equal footing. Even when there is a really good advocate/advisor, their experience is with one or two cases (or even 10) in front of different boards with little likelihood of the cases being similar (e.g., fighting vs. plagiarism.) Plus, no matter how small the connection, the resources and the system are connected which, at best, will give a student going through it pause when it comes to being completely open. As an example, I had a student go through my system who was being accused of dealing marijuana that I’ll call Mark. His faculty advisor was a pretty big deal and intimidated a lot of the administration (which was only relevant leading up to the actual hearing.) He decided to use his academic advisor as his hearing advisor and that guy made my life hell advocating for Mark. He called my office yelling, accused me of racism (turns out Mark was Latino), and threatened to create a committee to look at the way I do things. He was sure the guy was innocent and when he helped him write his response it was an aggressive testimony to that innocence. It challenged the police conduct, subsequent investigations, and, naturally, me. It said that just by bringing the case to the hearing board we were risking ruining the life of this innocent man, and that we should be ashamed.

While this type of advocacy might have worked in some cases, the problem was that Mark was responsible. He was dealing, but he was dealing to friends so that he could make a little money and smoke for free. I knew that, the police knew that, and the board eventually learned that (because they were excellent). But now, because he had been so adamant in his denial, when he revealed his responsibility he became a liar. When he then tried to tell the board he “would never do it again” they had no reason to believe him. I do not know what dealing to his friends would have gotten him, but lying about it got him suspended for a year and cost him a substantial scholarship.

The problem is that Mark was stuck. He could go to a stranger for help and not know their obligations or motives and trust that he would get good advice, or he could go to someone he knows and with whom he has a relationship who would fight for him. Mark chose the later, but when he was talking to his advisor he couldn’t bring himself to admit he was buying in bulk. He admitted to occasionally smoking, but he was not willing to risk his relationship with the professor and that lead him down a path he did not need to take.

We are the solution to this type of problem. We know judicial systems, we have no obligation to anyone other than the client, and we can help the client maximize the impact of what gets seen in those two hours so that the board has the best chance to fully understand what happened. In other words, we give a student the tools he needs to get the right result in a system that works. The judicial officer handles the system and we make sure that the people using it are doing so correctly. We filter out redundancies, red herrings, assumptions masked as facts, bad tones, surprise and other elements that affect outcomes. We make it as pure as possible and then trust that the board hearing the issue does their job correctly so that the accountability matches the act AND the actor. We are the oil that stops the gears from grinding, and we are good at what we do.

Yet, when I tell former colleagues and faculty about it I am frequently met with “you’re going to help students get away with X” or “you’re going to teach them to beat Y!” Most of them, even when they aren’t negative, are cold to me because of what I’ve created. I get it. They have a hard job and the thought of someone “cheating” the system makes them angry. But that’s not what we’re doing. What we do is make sure that someone going through a good system gets the right (i.e., best for them) result for what they did wrong. If a judicial officer has done his job and has the support of his school, he has nothing to worry about. The point of a judicial system is to educate (as opposed to punish) so if someone gets less of a sanction than they could, but learns the same lesson everyone wins. (I would be HORRIBLY remiss if I didn’t point out that, to a person, the judicial officers I worked with are extraordinary, care deeply, and run good systems.)

However, if your system is flawed, biased, or unfair we will probably reveal those flaws. If a student’s rights are violated we will help our client point it out. If the other side is making it personal and trying to use their position to intimidate, we will help our client identify that, point that out, and demand equal treatment. If procedure is inherently unfair or not followed, we will help our client point it out. In other words, if your system is unfair we will do what we can to make sure the student doesn’t suffer because of it.

While we do not work at your school, we are essentially experienced advisors who understand the pedagogy and development theory in discipline systems and we use reflective interviewing to help the students do the right thing throughout the process. (Plus we talk to the parents!!!) Using us should allow the judicial officer to spend less time dealing with minutia, and free her up to focus on improving the system, doing programming, expanding your alternative resolution offerings, etc. We should be a judicial oficer’s best friend, and I’m always amazed when people can’t see that. Well, I’m not amazed when the people in positions of authority knowingly trample student rights and allow unjust outcomes can’t see it, but so far those have been the minority (although, that minority is a much bigger percentage than I anticipated.)

So, judicial officers, we are here. We have the same goal. We want a fair and impartial system to apply the facts of a case to each individual student to decide if anything happened which violated policy and, if so, applies the proper sanction. If we get involved we free you up to focus on the reasons you probably got into student affairs in the first place. Use us. Recommend us to those students who are either in serious trouble, or who keep asking you for things you cannot do. We know we can be good friends, but if you think we’re a threat then we probably are…and that’s okay. It’s probably your fault anyway.

Preponderance of Evidence standard in sexual assault cases.

When I show former colleagues our site, if they respond negatively, they usually do so because they think our job is to get “guilty” people out of trouble.  I knew that was going to be a common reaction when I started College Judicial Consultants, but that’s really not what we do.  We try to make sure that people who are not responsible are found not responsible, and that those who are responsible receive the minimum sanction possible given all of the facts (i.e., the best result for that student).  One would then think that we would like a higher standard of proof than the common one used by judicial boards because it would make our job easier, but the opposite is actually the case.  The lower standards may result in more people being found responsible, but it allows boards to use discretion and the needs of the people involved to determine sanctions.

(Before I continue I want to define the terms I’m using so we’re on the same page.  The criminal standard is the one we all know from shows like Law and Order, and that’s “beyond a reasonable doubt.”  For all intents and purposes, think of it as a reasonable person’s 100%.  The lower standard used in civil cases and in some judicial cases is “clear and convincing,” (C&C) which, depending on who you ask, is about a 75-80% standard.  The most common one (and the one I believe in the most) is the preponderance of the evidence (POE) standard, which, when I was at MIT, I described to students as “50% + a butterfly’s wing.”)

I came across this article the other day on The College Fix  http://www.thecollegefix.com/post/9713 which describes how Patrick Leahy is dropping requirement that colleges use the standard of preponderance of evidence in sexual violence cases.  This is simply the wrong move, as it will actually wind up hurting accused students while further increasing the chilling affect of accountability systems on the survivors.

There are many reasons why not using the preponderance of evidence rule is harmful to all parties involved and the system itself:

  1. It furthers the adversarial nature of the hearings, revictimizes the survivor, and discourages the survivor from seeking accountability for the perpetrator.  Judicial hearings, in theory, are supposed to be non-adversarial and most schools work hard to get as close to this as possible.  When the standard is POE, it doesn’t make any sense to attack the accuser.  If an accused student’s defense is to attack the person accusing them and not tell the story from their perspective, the boards are left with the question “is this a good person” which is (or should be) totally irrelevant to the hearing.  Even if a survivor is a terrible person, he/she can still be a victim.  POE forces the parties to talk about what happened and keep discussions of the other person’s character to the facts relatable to the situation itself.  If, however, it’s the C&C standard, then why not spend all of your efforts attacking the character of the accuser?  There are no rape shield laws and there are no rules of evidence to follow, so why not bring up all those rumors you “heard?”  A survivor will have to spend time proving that he/she is not lying, not a whore, etc.  This will clearly revictimizes the person much more than the traditional system where they only have to deal with what happened.  Because of the increase in the revictimization (and what they will need to do to prepare for the hearing) this will have an even stronger chilling effect on survivors and even fewer cases will be heard.  If you believe the current literature about perpetrators, this means that more predators will escape accountability and will be much more likely to do it again.  (See Dr. David Lisak’s “The Undetected Rapist.)
  2. It decreases (or should decrease) the sanction range available to a hearing board. This is going to get a little convoluted so bear with me.  The logic with using the C&C standard is that there are a lot of students who, in the course of being a regular college student (i.e., drinking, using drugs, trying to get laid) students will find themselves in situations that may meet the “technical” definition of sexual assault or rape, but are not done with the intention behind those policies.  The image is of a young Dave Kennedy drinking his way through numerous beer pong games who meets a young lady and, eventually, hooks up.  If the woman is also intoxicated then poor Dave unknowingly committed sexual assault because she did not have the capacity to consent.  It’s a very sympathetic scenario because whether the board is faculty, staff, students, or a combination people have either been in that situation before or know someone who has.  The only real problem with that scenario is that it’s complete nonsense.Keep in mind, the question isn’t whether the act violated the policy, it’s whether the person in question brings a case forward.  In otherwords, there are no hook up police who assess each scenario and then accuse someone of sexual assault.  The party involved has to feel that they were violated without his/her consent.  There is a HUGE difference between feeling that way and “regretting” hooking up.  It is a rare case where someone goes forward and sees the case through without believing that he/she was assaulted.  While it’s true that C&C will have a chilling effect on those people and may indeed prevent those rare cases from moving forward, it will also stop people who do not think they can “prove” their case (i.e. meet the “beyond a reasonable doubt” standard.)Even assuming that there is not a chilling effect, most sexual assault on campus involves drinking or drug use by one or both parties so how “clear and convincing” can a person be?  The more drunk a victim is the more likely their memory will be shaky, and the less likely they will be able to prove their case.  On those rare times when a survivor does meet that standard, a board would  not be able to justify any sanction less than a lengthy suspension or expulsion.  If you find someone 75% a rapist, how do you justify keeping them on campus?  The lower standard allows a well-trained board to account for any actual ignorance on the accused’s part and temper the sanction accordingly.
  3. It perpetuates the notion that people raising these claims are “liars.” This one’s much less complicated.  Students understandably think of judicial hearings as determining “guilt” and “innocence.”  If you are accused of something and not found responsible, then you aren’t guilty, and therefore the person accusing you was lying.  We can know this isn’t true all we want, but students will still think this way.  A higher standard lowers the number of cases heard and lowers the percentage of findings of responsibility.  This will make it falsely seem like fewer sexual assaults are occurring and that “most” of those that do come forward are not true.  More chilling.
  4. Board members aren’t idiots.  There is a big difference between finding someone responsible for something and sanctioning them.  A student can be responsible for something in a “technical” or “negligent” sense and there should be a way to both find them responsible and not interrupt their studies while they are reformed.  A simple truth about these cases is that if a board is on that 50% line for responsibility they are not going to find someone responsible.  I have been at over 20 hearings on interpersonal violence and not once has someone been found responsible for a heinous offense because of a technicality.  Train your board correctly and include other violations at hearing so that your board can do the right thing all around.  For some reason colleges and universities build systems around an imaginary innocent person instead of around very real and identifiable predators.  No system that was equally concerned with both parties would ever use a standard other than POE.
  5. It puts the accused student at much greater risk for civil or criminal sanctions.    This is also easy.  One of the best things about a college disciplinary system is that it is separate from both the civil and criminal systems.  This means that a school can hold it’s citizens accountable without it meaning that they are “guilty” in some larger societal sense.  However, when a school uses a standard of proof the same as one of those parallel systems it puts the accused student at risk for additional penalties.  Afterall, if you can prove someone committed an act of sexual violence by the C&C standard, why not then sue them?  You’ve already proven the case.  An accused student would also not be able to move on because the victim would have some statutory period in which to bring these claims which would keep a gun at the student’s head well after the school is done with the matter.  I can hear all you advocates saying “good” out there, but it is easy to see how this specter of future legal consequences would encourage character assassination and lying to ensure that the case won’t be transferrable as easily.  In other words, if you make the experience as bad as you can for the victim, they are less likely to want to do it again.

I believe that we are thinking about these issues in the wrong way.  Our systems should be set up to encourage the discovery of the truth.  The lower standard minimizes someone’s ability to use cleverness to evade responsibility while allowing for a more appropriate sanctions when responsibility is found.  If a school has a trained and experienced board hearing these issues, then the standard will not matter.  Centering the argument around the standard implies strongly that a judicial board is nothing more than a machine which follows flow charts to determine how to handle situations and not capable of using higher thinking to come to a resolution that sanctions, educates and restores.  That’s not an implication I accept.

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