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Due process and justice on college campuses: The Rights of the Accused in the Trump Era

Recently, defense lawyer Justin Dillon of KaiserDillon PLLC, published a piece in the Chronicle of Higher Education with the title, “Thank God for Betsy DeVos.”

(If this is behind a firewall for you, email us at rjcenterberkeley@gmail.com and we’ll send you a copy).

Dillon’s law firm, KaiserDillon has made a name for itself in defending respondents or people accused of sexual misconduct on college campuses. Their guide for parents helps the accused and their parents navigate campus adjudication processes. It’s clear for these defense lawyers that more “due process” elements within campus processes, including the use of cross-examination in live hearings, will improve the chances for their clients. That’s why we should all thank God for Betsy DeVos.

But, will more cross-examination really bring more fairness and justice?

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It would seem obvious that more due process would bring about more fair and judicious outcomes. But in sexual violence cases, we see the opposite. Adjudication systems for such cases in the US are influenced by pernicious gender norms shaped by religious and other beliefs around male and female sexuality. These include the framing of  female sexual identity as limited to either Madonna or Whore for example, or that women must carry the burden of men’s self-control, as well as patriarchal worldviews in which the female person and the female body is considered the property of the male. These perceptions of the female voice, female sexuality, the female as property, have negatively influenced the ways in which police, prosecutors and courts have treated women who accuse men of sexual harm. Let’s not forget that marital rape was not outlawed in all 50 states until 1993, and in some states is still semi-legal.

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These ideas may seem of the past, but they persist. A few years ago, a US Congressman expressed a widespread belief that a woman will not be impregnated by rape if she fights back. This is known as the “legitimate rape” concept, that rape is only legitimate if a woman fights her attacker (thus producing a mysterious hormone that prevents pregnancy). This myth was pervasive in courts of law, until the recent past:

A victim was expected to resist a sexual attack physically so that the attacker would have to use force, and so that the ensuing struggle would create corroborative evidence of the attack. The nonconsent element was also hard to meet because so much behavior could imply consent. Silence or passive acquiescence to sexual penetration was sufficient to imply consent. Moreover, a victim’s lack of chastity or behavior that violated traditional gender-based norms was also sufficient to imply consent .

Further, a victim’s own testimony was not enough, and required corroboration by others, even though this was likely impossible in situations of sexual assault.

On top of all this, judges were required to caution jurors to weigh the testimony of “complainants” (women making accusations) with skepticism.

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Despite countless studies to show otherwise, there is still a widespread perception that women are prone to making false accusations of sexual assault. Perhaps this is because stories of false accusations get a lot of media attention.

Data shows that between 2% and 10% of officially reported cases of sexual assault are false. The majority of studies find between 5 and 7%. Remember, we’re talking about officially-reported cases, which are already a tiny percentage of what studies show people are actually experiencing and not reporting. One study looked at 136 cases over a ten-year period, and coded 8 of those cases as containing false accusations. Another study, that looked at 2059 cases, classified 140 of them, or 7% as false.

These views continue to influence courts, judges, and juries:

Despite substantial progressive reform of rape law, the criminal justice system continues to fail to address the most common form of rape: non-stranger rape without traditional physical force. Even today, there is little chance of obtaining a conviction in an acquaintance rape case without extrinsic physical injury. Disbelief and disregard are common.

In brief: Obama Era Reforms try to find a remedy

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Long story short: in the 2000s, activists on college campuses began to look into and protest these dynamics as they were operating within campus systems of investigation and adjudication. During the Obama administration, the Office of Civil Rights and Department of Education pushed campuses to create conditions in which the person making the accusation would be more likely to be heard, validated and believed. Campuses would implement civil law approaches to complaints that allowed for “preponderance of the evidence,” rather than “reasonable doubt” evidentiary standards of criminal law.

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As a compromise for the lesser evidentiary standard, punishments for those found guilty would be much reduced from the standard. Rather than incarceration and a lifetime status as a sexual offender, those found guilty would likely be suspended or expelled.

Feeling pressure from both activists and the federal government, some campuses, including the UC system, implemented rules that were meant to protect the safety of victims/survivors, and raise the stakes of consequences for those found guilty, such as minimum 2-year suspension rules for any kind of penetration.

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This compromise has not worked well, for the most part.  There are many examples of campus adjudication processes that fail to meet standards, doing harm to all involved. Complaints of those who feel they’ve been falsely accused and forced to leave campus without proper adjudication have led to the backlash that we’re now talking about. Several reports have suggested that colleges and universities are more likely to suspend or expel men of color. Campuses have not done due diligence in making sure those who have committed harm won’t do so again on another campus. People with means can find their way to new campuses by reinventing themselves with help from experts.

Long story short: campus tinkerings with evidentiary standards and disciplinary sanctions have not led to people feeling that they are experiencing more justice, and they have not solved the problem of campus sexual assault. (Other changes, around consent, support for survivors and prevention education have had a much more profound impact.)

“They’ll Paint Her as Confused and Crazy”

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Defense-strategist Dillon’s column, along with his guide to defense strategies for college students accused of SVSH, suggests we’re heading right back to the 1990s or maybe the 1950s.

It’s not surprising that defense lawyers want you to assume that the accused are absolutely innocent—that’s their job. The problem is that, to do this requires you to believe that the accuser is the guilty party—this is the defense strategy of choice in court or a campus hearing. In the Kaiser Dillon world, not only are accusers making up false accusations, but they are doing so to cover up their own crazed-revengeful, or over-sexed-cheating nefarious behaviors:

If the charge is brought right after a breakup, the answer suggests itself: the accuser may be angry about the breakup.

 

Sometimes an accuser who is dating someone else will hook up with someone and later accuse that person of rape to cover up that hook-up.

 

Sometimes there was cheating involved, and the accuser needs a reason for their boyfriend or girlfriend to believe it wasn’t the accuser’s fault.

In the world of this Guide, when consent is mentioned, it’s like a weapon, rather than a tool for better communication and relationships:

Sometimes an accuser can genuinely regret what you did together, perhaps after drinking, and that regret can morph over time into convincing herself that it wasn’t consensual.

The assumption here is that consent is always granted, that sex is simply “what we did together.” But then, after the fact, “she” can rescind that consent, out of vindictiveness, fear, or ambivalence (“regret”).

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Under Trump-era rules for campus adjudication processes, according to Dillon, false accusations will be reduced because accusers will have an evidentiary burden which is ”heavy and hard to carry.” For him, this burden is a social good, protecting the innocent.

Dillon does not address the ways in which this burden is made impossible to carry in a system distorted by pernicious gender norms, how easy it is to inject a little “reasonable doubt” into a cross-examination, by virtue of the questions alone, how devastating this experience is for a person harmed by sexual assault. “Jane Doe” of the the Stanford Brock Turner case made this real, in her list of questions she was asked throughout the investigation and cross-examination process:

How old are you? How much do you weigh? What did you eat that day? Well what did you have for dinner? Who made dinner? Did you drink with dinner? No, not even water? When did you drink? How much did you drink? What container did you drink out of? Who gave you the drink? How much do you usually drink? Who dropped you off at this party? At what time? But where exactly? What were you wearing? Why were you going to this party? What’d you do when you got there? Are you sure you did that? But what time did you do that? What does this text mean? Who were you texting? When did you urinate? Where did you urinate? With whom did you urinate outside? Was your phone on silent when your sister called? Do you remember silencing it? Really because on page 53 I’d like to point out that you said it was set to ring. Did you drink in college? You said you were a party animal? How many times did you black out? Did you party at frats? Are you serious with your boyfriend? Are you sexually active with him? When did you start dating? Would you ever cheat? Do you have a history of cheating? What do you mean when you said you wanted to reward him? Do you remember what time you woke up? Were you wearing your cardigan? What color was your cardigan? Do you remember any more from that night? No? Okay, well, we’ll let Brock fill it in.

Dillon proposes that cross-examinations in campus hearings be done by lawyers or “advisors” who know how to strike an “appropriate balance between skepticism and respect.” Jane Doe’s experience shows the reality of the “skeptical but respectful” investigation and cross-examination.

Such questions shift the focus from the actions of the accused during the events in question to the morals and lifestyle of the victim. The success of this defense strategy is not in the skill of the questioner, but the deeply ingrained gender norms it uses to best effect.

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As we’ve seen, it doesn’t matter if you’re a college professor or prominent lawyer, reasonable doubt can be easily conjured simply by suggestions that you’re “a little nutty, a little slutty.” David Brock, the regretful architect of the nutty and slutty defense strategy in the case of Anita Hill correctly predicted what we’d see in the Christine Blasey Ford hearing:

 What they’ll cook up is that she’s confused… She’s misremembered. That sort of leads you to the idea that she might be a little crazy. … Instead of being “overtly aggressive and prosecutorial to her,” Republicans will “adopt a respectful stance” while simultaneously working to “undermine her credibility.”

We would like to ask those who are recommending more due process through cross-examination address  the use and abuse of pernicious gender norms in defense strategies. We would like them to explain how the heavy evidentiary burden brings more justice both for the accused and for those who have experienced sexual violence or assault. That balance has to be the goal moving forward.

Among those who advocate for the accused, and those who advocate for survivors, let’s talk more, not less about what we’ve learned over these past several years, about how people experience harm through sexual assault and harassment, about who is committing sexual assault on campus and why, about the power of affirmative consent, and about alternatives like restorative justice and fostering cultures of accountability to create systems that work to meet everyone’s needs.

 

 

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