Tuesday, September 19, 2017

Due Process

An Assistant Professor of the University of San Francisco School of Law wants us to cool our jets, step on the brakes, and hold our horses before condemning the Secretary of the Department of Education..

Oddly for someone defending Betsy DeVos, she is right.

DeVos has made it clear that she will replace the guidelines of the Obama Adminstration pertaining to campus sexual assault. Lara Bazelon maintains

... the Obama guidelines created a new class of victims: students expelled and branded sexual assailants based on a disciplinary process that deprive themof crucial rights. Without those basic rights- to some form of cross examination, to see the witness statements against hem, to a standard of proof higher than a preponderance of t he evidence (meaning a finding against them was required if there was a  50.01 percent chance that the charges were true, rather than by clear and convincing evidence or betond a reasonable doubt)- these students lacked the tools to expose the substantial questions that exist in some of these cases, particularly he-said, she-said encounters where one or both parties was under the influence of alcohol or drugs.

Let's stipulate: there are cases of abuse of the Obama regulations (one such described by Bazelon, another to which she links) and the majority- probably vast majority- of accusations are legitimate (justified requiring a higher standard).

Bazelon recommends

The standard of proof should be raised from a preponderance of the evidence to clear and convincing evidence to protect against findings that often seem like a coin toss. The accused should be entitled to a hearing at which both sides can present evidence and before that hearing, to see the statements of everyone interviewed in connection with the complaint. At the hearing, the accused should be entitled to an advocate who can pose questions to the witnesses against the accused, subject to reasonable limitations. The school officials assigned to handle these complaints should be required to undergo training so that they treat survivors and accused offenders with sensitivity and fairness. There should be an appellate process that is independent and thorough, rather than the rubber stamp that exists at too many colleges and universities today.

Hopefully, no one would disagree that considerable training for officials assigned to handle complaints is good and that rubber stamps are bad. That leaves three substantive, controversial proposals: a) raising the standard of proof to "clear and convincing evidence;" b) permitting the accused a hearing and discovery; c) allowing the accused an "advocate" who can question the accuser at the hearing.

The individual (hereafter "he") should not be entitled to a lower standard of proof than the preponderance of evidence currently required.  This is not a court of law in which guilt beyond a reasonable doubt must be demonstrated and the accused, if found guilty, will face incarcerationor a period of supervision (usually probation, which can end in incarceration). It is often difficult to determine whether an alleged case of sexual assault took place; we must go where a majority of the evidence takes us.

But cards should be placed on the table.  The individual charged deserves a hearing. He deserves to be shown the evidence against him. And it is not too much to expect someone making a serious charge with significant and possibly life-changing ramifications to have to answer questions.  With properly trained investigators and hearing officers, that can be done professionally, discreetly, and sensitively.

There is injustice when an individual can be severely penalized without seeing the evidence against him or in which he is unable to have a qualified representative, within established guidelines and in a proper setting, question the accuser. No one should be expelled from a college under cover of darkness with transparency assiduously avoided.  It is a faux feminism when the rights of a woman are seen as obtainable only if basic rights are denied to another.

That makes the USF professor mostly right and in this case, two out of three ain't bad.

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