Below is the Disciplinary Procedure for Sexual Misconduct, taken verbatim from the Office of Sexual Misconduct Prevention and Education website. Text from the Policy looks like this. Comments on the Policy appear as normal text.
This page demonstrates vague wording, dangerous aspects of the Policy, and reservations that different groups and/or people have expressed about the policy.
The University's Policy on Sexual Misconduct requires that standards of sexual conduct be observed on campus, that violations of these standards be subject to discipline, and that resources and structures be sufficient to meet the physical and emotional needs of individuals who have experienced sexual misconduct. Columbia University's policy defines sexual misconduct as non-consensual, intentional physical conduct of a sexual nature, such as unwelcome physical contact with a person's genitals, buttocks or breasts. Lack of consent may be inferred from the use of force, threat, physical intimidation, or advantage gained by the victim's mental or physical incapacity or impairment of which the perpetrator was aware or should have been aware.
The most dangerous phrase in the entire document may well be in this first paragraph:
Lack of consent may be inferred from the . . . victim's mental or physical incapacity or impairment of which the perpetrator was aware or should have been aware.Feminists for Free Expression, "an organization of diverse feminists with a double agenda -- freedom of expression and women's rights," has condemned this portion of the agenda in particular, stating that:
We are also concerned that the approach of the Policy casts too wide a net. The inference of lack of consent when the accused "should have been aware" of "mental . . . impairment or incapacity" opens the door to a wide variety of potentially spurious accusations against which defense might be difficult. Such a red flag could be countered by a rigorous attention to fundamental precepts of due process, but it is not.
It is also worth noting that Columbia University's policy defines sexual misconduct as non-consensual, intentional physical conduct of a sexual nature, such as unwelcome physical contact with a person's genitals, buttocks or breasts, a definition that Rutgers professor Norman Levitt (concerned parent of two Columbia graduates) criticized because "in most cases, the charges involved will be tantamount to allegations of outright criminal behavior." Columbia is defiantly walking down a dangerous path, by treating one of the worst crimes a person can commit with the "short shrift" of Columbian due process (rather, lack thereof).
A student charged with a violation of the University Policy on Sexual Misconduct is entitled to notice of the specific charges, an opportunity to be heard, and an opportunity to appeal a disciplinary decision to the Dean of his or her School.
As we'll see below, a student accused of a violation does have the right to notice of the specific charges, but not necessarily adequate notice. The accused is entitled to be heard, but analysis shows that the student is not entitled to mount any effective defense. Also, the student has the right to appeal a disciplinary decision, but such an appeal is "illusory" at best.
Ordinarily, a disciplinary proceeding begins with a written communication from the Coordinator of Sexual Misconduct Prevention and Education, requiring the student to attend a disciplinary hearing to respond to a specified charge. Charges shall be timely if brought while the accused student is still enrolled in the same school as at the time of the alleged violation, but in no case longer than five years after the occurrence. In rare cases, the proceeding may begin with an oral communication requiring the presence of the student at a hearing. The hearing is held before two deans and one student, from a pool of specially trained individuals not affiliated with the school attended by either party unless otherwise mutually agreed. The student member may be excluded by agreement of the complainant and the accused, and either student may object to the membership of any specific panelist on the basis of acquaintance or other conflict. Either party may be accompanied by a nonparticipating member of the University community as support. The hearing must commence within 10 days of the Coordinator's receipt of the complaint, unless the University is not in session.
The Policy stated that students accused of violations are entitled to notice of the specific charges, [o]rdinarily . . . with a written communication. Unfortunately, the Policy allows for deviations from written notice without stating what the standard for deviations will be: [i]n rare cases, the proceeding may begin with an oral communication requiring the presence of the student at a hearing. What possible motivation can there be for such a strange deviation from an otherwise intelligent part of the Policy? And why is this justification not stated anywhere in the Policy?
Other questions raised by this paragraph are numerous. First, is ten days enough time to mount a defense? What if the alleged incident happened five years ago? Will the University help locate witnesses who graduated four or five years ago? A student probably wouldn't be able to. And one can contrast this with the essentially unlimited time a student has to prepare for an accusation, five years, and also question whether ten days is good enough. And furthermore, ten days is the maximum limit, not the minimum--the minimum is an oral communication requiring the presence of the student at a hearing, which could conceivably be an hour's notice. Or perhaps we should ask the other question: is five years too long?
FIRE has raised objections to the language regarding student panelists:
[t]he hearing is held before two deans and one student, from a pool of specially trained individualsFIRE asks what "specially trained" means. Why isn't this specified in the Policy? It could easily mean showing panelists a few statistics about false allegations in the criminal justice system and claiming that statistics show that victims don't lie or allegations only have a two percent chance of being false. Even more dangerously, it could mean one thing this year and something entirely different in the next. Also, the presence of a special tribunal to handle this class of disciplinary infraction necessarily creates a climate of hostility to the accused, since this tribunal is not just in place for fairness' sake, but to remedy a social ill. Or, as FIRE writes:
This sense of "special mission" is precisely the problem raised by critics of specialized courts such as "drug courts," or, indeed, of special tribunals in the days of witchcraft trials. Judges and jurors in such "special" courts assume that it is their mission to eliminate a widespread and specific social problem rather than to achieve justice for individuals.
The hearing is not an adversarial courtroom-type proceeding; the student does not necessarily have the right to be present to hear other witnesses and does not have the right to cross-examine witnesses or prevent the consideration of relevant evidence. In addition, although students are always free to consult with an attorney, they are not permitted to have an attorney present during a disciplinary hearing or at any appeal. Confidentiality about identifying information regarding the participants in the hearing must be maintained by all individuals involved.
The hearing is not intended to be adversarial. Unfortunately, by nature, it is nothing but adversarial--it involves allegations of what amounts to criminal offenses, and the results of a finding against the accused effectively ruin that student's academic future, future employment, reputation, and life. There will be blood on the hands of this tribunal.
But to the technical details of this paragraph, the accused does not have the right to confront the accuser, OR ANY WITNESSES THE ACCUSER CALLS. In fact, the accused doesn't have any right to cross-examine the accuser or witnesses, or even suggest questions to ask those witnesses. The mention of evidence in this paragraph lacks any standards of what constitutes evidence, or what constitutes relevant evidence.
Attorneys are not permitted inside the Policy's disciplinary procedeedings. The rationale behind this is that the process is not adversarial, merely fact-finding and educational. But unfortunately, the records of the campus disciplinary procedure can be subpoenaed by criminal courts at any point during or after the Columbia proceeding. This means that a statement made in the Columbia proceeding, without the advice of a lawyer present during the proceeding, can get the accused student convicted in a criminal court, after potentially being expelled (or cleared of guilt).
The complainant bringing the complaint must inform the hearing panel of the facts of the situation, and answer any questions from the panel. The accused student is informed of the evidence that led to the charges against him or her and asked to respond. The student may offer his or her own evidence. This includes the student's own appearance at the hearing and may include the appearance by others on his or her behalf and any written submission or relevant documents the student may wish to submit. Each party will be informed of statements made and evidence presented by the other party, and by witnesses, and will have a full opportunity to respond.
The full opportunity to respond is nowhere specified in the Policy. This full opportunity is, once again, subject to interpretation, and therefore can mean one thing in one case and something else entirely in another. Fairness demands consistency, something this Policy, in practice, will lack.
After the panel has heard testimony from both students and any others, and has considered all of the evidence, it reaches a determination and notifies both parties in writing of that decision. Both deans on the panel must agree on the determination. The panel will also submit a written report, summarizing the evidence and its findings to the Dean of Students of the accused student's school, and recommending a penalty. If the student member of the panel disagrees with the determination, he or she may write a dissenting opinion, which will be submitted to the Dean of Students together with the written report. If the accused student is found to have committed a disciplinary infraction, the penalty can include probation, suspension, or dismissal, and may include a prescribed educational program. Both students will be informed in writing of the Dean's decision, and the penalty imposed.
The student has the right to appeal a decision that results from a disciplinary hearing to the Dean of his or her School. The appeal must be made in writing within thirty days of the time he or she is notified of the decision, and it must clearly state the grounds for appeal. Normally, on such an appeal, the Dean of the School relies solely upon the written record and does not conduct a new factual investigation. However, the Dean is free to discuss the matter with the panelists if questions about process or proof are raised by the appeal. The Dean focuses upon whether, in the Dean's view, the decision made and the discipline imposed are reasonable under all of the circumstances of the case. There is no further right to appeal within the University.
The right to appeal under this procedure has been characterized as "illusory" by none other than Dr. Vivian Berger, CU Law professor emeritus and authority on campus disciplinary procedure:
It fails to provide for a tape or transcript of the proceedings -- thus rendering any appeal illusory.The Policy relies solely upon the written record and does not conduct a new factual investigation. This means that an appeal is merely a review of the proceedings, proceedings which are not even recorded in detail in any fashion. The appeal process is, shockingly, even more ineffective and unfair than the original proceeding.
Breaches of the confidentiality of the proceedings, or retaliation against any person bringing a complaint, will constitute separate violations of the Sexual Misconduct Policy.
If the accused student does not have the right to freely discuss the allegations against him with those who might speak on his behalf, how can the accused student mount any sort of defense without violating the Policy's confidentiality clause? As Vivian Berger states:
Given the Policy's strict confidentiality requirements, the student may also be chilled in approaching potential witnesses. (The Policy does plainly state that breaches of confidentiality "will constitute separate violations of the Policy.") Significantly, the respondent has a very strong interest in conducting his own investigation since he is not entitled to receive advance notice of the evidence.Or as some might ask, why even bother asking the accused to show up?
Last edited: $Date: 2000/12/07 21:05:40 $