Are students accused of campus sexual assault being treated fairly?

Andrew Miltenberg, an attorney who has represented dozens of college students accused of sexual assault, says the new standard of proof used in campus sexual assault cases is an attempt to respond to victims’ rights groups at the cost of the rights of the accused.  “It essentially shifts the burden to the accused to prove their innocence as opposed to having guilt or responsibility proven against them.”  In a 2011 open letter, the Department of Education’s Office for Civil Rights (ORC) lowered the standard for investigating sexual assault charges from “clear and persuasive” evidence to a “preponderance of evidence,” which is often used in civil cases. It means there is a 50.01% chance or greater that an accusation is true.

The shift is part of the White House’s effort to “root out sexual violence and assault" on college campuses. President Obama and Vice President Joe Biden often invoke a statistic on the prevalence of the issue, derived from a 2007 study conducted for the Justice Department. The study found that about 1 in 5 women in college are sexually assaulted, a number that is challenged by other analysts. However, a recent Kaiser Family Foundation-Washington Post poll came up with similar results.

That sexual assault on college campuses is a serious issue is disputed by few. Whether the new process of adjudicating these cases is fair has been questioned by many including 28 current and retired Harvard Law School professors and 16 University of Pennsylvania law professors.  In an open letter, they raised many concerns including “the absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.”

Djuna Perkins, a former Assistant District Attorney in Boston, currently serves as an independent sexual assault investigator for several colleges in Massachusetts including Harvard, Tufts, the University of Massachusetts at Amherst and Williams College.  She says the new standard set by the ORC is fair and if there is any unfairness, it's in the implementation and the execution of the federal guidelines.  Miltenberg agrees that the lack of uniformity is part of the problem as he’s seen “cases at the same school within the same semester with different investigators where it’s been handled completely differently.”

Miltenberg adds that uniformity and fairness are especially important because so many of the cases involve alcohol which he says blurs everybody’s ideas of what’s going on at any given moment. He argues that it is wrong "to imprint upon the future of a young man, an expulsion from a school because of a 'yes' subtly or not-so-subtly becoming a 'no' in the middle of an event that may be fueled by alcohol."  Perkins doesn't see it that way. She says when it comes to the accused, alcohol is not relevant just like it's not relevant in other types of cases. “If you had a drunken bar brawl, nobody says, 'Well, he was drunk so he shouldn’t be punished for, you know, hitting the guy over the head.' "

Annie Clark filed a complaint with the ORC after she reported being sexually assaulted while a student at the University of North Carolina-Chapel Hill in 2007 and was asked by a school administrator “what would you have done differently in that situation?” Clark thinks the current adjudication process is a step in the right direction and refutes the idea that alcohol makes these cases “fuzzy” because “rape is very clear.”

Tune in for the debate

Are students accused of campus sexual assault being treated fairly? Andrew Miltenberg, Djuna Perkins and Annie Clark join us for the debate Sunday.  Tune into Third Rail at 6PM ET/3PM ET on Al Jazeera America.

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