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Betsy DeVos’s New Sexual Misconduct Rules Miss The Mark

By Jonathan Cook

Sayer, Regan & Thayer, LLP

As student defense attorney, I regularly represent both complainants and the accused in sexual misconduct disciplinary proceedings at colleges and universities across the United States. The first thought that came to mind after reading the recent New York Times story, “New U.S. Sexual Misconduct Rules Bolster Rights of Accused and Protect Colleges,” was just how far removed from the trenches Ms. DeVos and her advisers are to make real change. The new rules fail to address the biggest problem with sexual misconduct proceedings:  from the investigation process to the hearing, it is the glaring absence of evidentiary safeguards.

To better illustrate this problem, I will use very broad strokes to explain how sexual misconduct disciplinary proceedings generally play out. A student is “charged” with violation(s) of the code of conduct, typically rape or sexual assault. The school conducts an investigation, which is often led by an investigator(s) with noticeably little (if any) training in the investigation of sexual misconduct allegations. An investigation report is produced and given to the parties and hearing panelists.

Next is the hearing. Students and parents are nervous, anxious, and fearful. Many do not have student defense attorneys and are woefully ill-prepared for what awaits them. Procedure and rules are read aloud, present parties introduced, and the tension in the air can be cut with a knife. There are hearing panelists who are effectively jurors. A chairperson weighs in on evidentiary issues, typically objections from attorneys like me. If necessary, a meeting outside of the hearing room with general counsel follows.

To better illustrate this problem, I will use very broad strokes to explain how sexual misconduct disciplinary proceedings generally play out. A student is “charged” with violation(s) of the code of conduct, typically rape or sexual assault. The school conducts an investigation, which is often led by an investigator(s) with noticeably little (if any) training in the investigation of sexual misconduct allegations. An investigation report is produced and given to the parties and hearing panelists.

Next is the hearing. Students and parents are nervous, anxious, and fearful. Many do not have student defense attorneys and are woefully ill-prepared for what awaits them. Procedure and rules are read aloud, present parties introduced, and the tension in the air can be cut with a knife. There are hearing panelists who are effectively jurors. A chairperson weighs in on evidentiary issues, typically objections from attorneys like me. If necessary, a meeting outside of the hearing room with general counsel follows.

Each party makes a statement, presents a case and is cross-examined by the panelists. The parties are subjected to questions often calling for speculation, character evidence, hearsay evidence, and even evidence of past sexual history.

Herein lies the heart of the problem. All of it is admissible. Think about what that means. Based on hearsay alone, a student can be expelled, labeled a sexual predator, and face consequences just as serious as a criminal conviction, based on untested second-hand information.

Improper evidence and questions can revictimize survivors and prejudice their case. For example, at a hearing not too long ago, the accused party asked how often my client had sexual intercourse with his fraternity brothers. I objected, but the chairperson said that the panel could “judge for themselves what was relevant.” Consequently, similar lines of questioning ensued in front of the panel and as the saying goes, you can’t un-ring the bell.

None of the proposed new rules will ensure a fair process for complainants or the accused until universal fundamental rules of evidence are established and gatekeepers are trained to implement them.

Jonathan Cook of Sayer, Regan & Thayer, LLP has represented over 150 students at Colleges and Universities nationwide.

These materials have been prepared by SRT for informational purposes only and are not intended and should not be construed as legal advice.


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