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Sexual Assault Part II: The New Policies on College Campuses

by  on  News & Resources

One would be hard-pressed not to notice the evolution of sexual assault policies that has been taking place on college campuses. As your Denver personal injury attorney discussed in Part One, complaints and lawsuits filed under Title IX alleging discriminatory treatment in the handling of sexual assault reporting and disciplinary procedures on campuses led to widespread federal investigations of colleges across the country. 

The investigations, which are still ongoing, have already resulted in many schools reforming their policies. The media picked up on the hot-button issue, focusing scrutiny on the role of alcohol and fraternities in an alarmingly high rate of sexual assaults among college students. The presence of Greek life at universities was called into question, and rushing and hazing–long hallmarks of induction into fraternities and some sororities–was ended on various campuses. 

State legislatures and governors got involved, and affirmative consent became the law in California, as well as on all Southern University of New York campuses, and is being considered by other state legislatures. The “yes means yes” policy has been adopted by Dartmouth, Yale and other schools. 

But all of these changes have not been without controversy. Your personal injury lawyer presents a few of the most important legal challenges to the new policies on sexual assault below.

Denial of Due Process

The root of this challenge began in 2011 with what is referred to as the “Dear Colleague” letter. The letter was sent to colleges across the country and required them to investigate and adjudicate all claims of sexual assault. In addition, the schools were told to lower the standard of proof in disciplinary hearings to a “preponderance of the evidence.”

While a school’s hearing is technically a civil proceeding, since there is no threat of criminal conviction or jail, the charge against the accused is the same as a criminal charge–assault or rape. Therefore, using a civil standard of proof–clear and convincing evidence or a preponderance of the evidence, the latter being the lowest standard, to hold someone accountable for a basically criminal charge is problematic at best. (The criminal standard of proof is beyond a reasonable doubt.)

So problematic in the fact that Harvard Law School professors recently wrote a statement protesting Harvard’s adoption of the new standard of proof as a result of the federal investigation into Harvard’s policy on sexual assault. The statement condemned Harvard’s new policies and procedures, saying that they lack the most basic elements of fairness and due process. The professors are not alone. Among men who have been found responsible for sexual assault on campuses with similar policies, over three dozen lawsuits have been filed against the schools in the last three years.

A Shift in the Presumption of Innocence

The adoption of affirmative consent has been challenged as well, both practically and legally. Practically, requiring affirmative consent at every step of sexual interaction is not consistent with most people’s experience of sexual relations. Furthermore, existing policies already made it clear that anyone incapacitated by alcohol would not be able to consent, nor would alcohol be an excuse for behavior. 

Legally, the concern with affirmative consent policies is that it shifts the presumption of innocence away from the accused. In disciplinary hearings, the accused would have to present evidence of consent rather than the accuser presenting evidence of assault, the latter being the traditional form of proving guilt. 

Speak to an Attorney Today

Sexual violence is a serious problem on college campuses that needs to be handled correctly. Everyone must be afforded the rights to which they are entitled. Contact Jordan Levine at the Levine Law Firm to discuss your legal rights.