Student groups must consider due process in sexual misconduct policies
By Andrew Miltenberg, Esq.
On college campuses across the country, there has emerged a trend of student activists taking the issue of prosecuting sexual assault into their own hands. It is a dangerous when rule of law is bypassed for vigilante justice as we saw on January 6th. As important civic institutions, colleges must ensure due process for all students involved. Not doing so will destroy the reputations of those who otherwise might be innocent.
For instance, at Tulane University, a controversial Instagram account @boysbeware.tulane, was created to publicly report unverified alleged sexual assaulters to the student body. At Syracuse University, students have provided the administration with a six-page list of demands on how to handle sexual misconduct matters.
Indeed, many colleges and universities have turned a blind eye for far too long to sexual misconduct on their campuses. However, as these well-meaning movements grow and gain momentum, we have also seen a disturbing trend of intermingling reasonable calls for thoughtful reform, with unabashed, anti-democratic demands, usually in the form of expecting all those accused of misconduct be punished, even in some cases specifying the punishments against individuals, often based on little more than rumor, gossip, and speculation.
At Syracuse, the student organization Stand with Survivors Syracuse is demanding that anyone accused of sexual misconduct be immediately excluded from places on campus and excluded from most campus activities, without the opportunity for due process or a full Title IX investigation. That is a presumption that is profoundly unfair and biased, and a stark departure from the essence upon which our judicial system and our founding principles are based. If you combine the rumor with someone being moved off campus, they are presumed responsible. That is a stain from which it is exceedingly difficult to recover for a student, even if they are later found not responsible.
At Tulane, the removal of the anonymous Instagram account, @boysbeware.tulane, created an outrage among some student activists, who thought it was their right to make anonymous reports about alleged perpetrators outside of the Title IX reporting system. “Vigilante Justice” is the name of another unverified list of alleged sexual assailants that was circulated throughout Tulane on Nov. 17 but has also been removed, containing the names of both past and present Tulane students. While some students may feel these accounts help protect students from potential abusers, these lists create a dangerous environment for life-altering character defamation with no accountability and no opportunity for due process.
As an attorney who handles Title IX due process cases throughout the country, including many cases at Syracuse and Tulane, I am acutely aware of the need to protect students from all forms of sexual misconduct and sexual violence on campus. Universities must make continual, renewed commitments to protecting the welfare, safety, and rights of all students. With that commitment comes a solemn responsibility to safeguard transparency, equity, fairness, and recognition of due process. These concepts are not at odds, both can and should be accomplished. Complainants should be able to expect that their university will be sensitive to their issues, offer counseling and academic accommodations, enforce no contact orders, protect against retaliation and ensure a thorough, unbiased and efficient investigation. And, these are the exact same principles the a university must protect an accused. To allow retaliation, essentially frontier justice in the form of rumors or defaming someone while hiding behind anonymity, is to allow retaliation against an accused for merely for being, well, accused. If you are not sure about this, spend some time reading about McCarthyism in the early 1950’s. Then, you will understand.
To be clear, I wholeheartedly support the goal of making college campuses safer for all. And in the interest of justice, punishment must be served. Sexual violence has no place in society, let alone on our college campuses. However, it is important not to sacrifice fairness for expedience. We must not confuse justice with vengeance. We cannot equate “accused” with “guilty.” Universities must commit to continuous, conscientious implementation of policies and procedures that are transparent, fulsome, and equitable to all parties involved.
Andrew Miltenberg specializes in Title IX and campus assault due process. He can be reached at AMiltenberg@nmllplaw.com.
