Mimesis Law
16 October 2019

When Professors Play Prosecutor

Nov. 24, 2015 (Mimesis Law) — On Sunday night, CNN aired The Hunting Ground, which is a highly controversial “documentary” that focuses on “date rape” on college campuses.  The show received critical acclaim at the Sundance Film Festival and painted a very frightening portrait of college campuses as a haven for date rapists.  The title of the show, alone, invokes imagery of predators roaming the halls of Academia, stalking their prey.

Date rape is a real phenomenon, and the phrase “no means no” has been a part of the American culture since the 1980s.  However, according to the premise of the show, colleges across the country not only condone, but often cover up sexual assaults in order to preserve the school’s reputation.  The movie was originally released in February of this year and drew intense criticism for misrepresenting the facts of the individual cases profiled in the show, as well as the statistics surrounding sexual assault on college campuses.

Regardless of whether or not the statistics cited in the show are accurate, the show dramatically calls universities to task for their failures to properly punish those accused of sexual assault.  Campuses across the country are blasted for failing to expel accused assaulters and administrations are accused of “not caring” about sexual assault.  Approximately thirty minutes into the show, they begin to explore the duties of colleges under Title IX.

Title IX of the United States Education Amendments of 1972 states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

As noted in CNN’s article announcing the airing of The Hunting Ground, “the Department of Education interprets Title IX to say that sexual harassment is a form of sex discrimination and therefore schools could be held responsible if they don’t investigate and adjudicate these cases.”  This questionable interpretation puts a requirement on universities to investigate claims of sexual assault, which is something universities are ill-equipped to handle.

The procedures vary widely.  Most schools hold disciplinary hearings, often made up of teachers and students, some with little training, acting as prosecutor, judge and jury.

The phrase “some with little training” is troubling, because it begs the question “just how little training are we talking about, here?  It is probably safe to assume that an undergraduate student acting on a disciplinary panel hasn’t gone to law school.  In the event that one of the faculty members actually holds a law degree, the chances are slim that he or she has put it to use in some time.  Rules of evidence and criminal procedure have no place in these hearings.

The CNN article details a disciplinary hearing held by the University of California-San Diego where the accused was allowed to have an attorney, but the attorney was not allowed to speak during the proceedings.  The accused wasn’t allowed to object to questions under the logic that a disciplinary hearing was not a criminal proceeding.  After ultimately being suspended for a semester, his punishment was increased every time he appealed.

While the problem of date rape may be real, that does not automatically call for a response that ignores civil rights, and it certainly does not call for a complicated case being investigated and then tried by amateurs.  Mind numbingly, the show seems to act as if the idea of calling the police prior to calling the school’s guidance counselor isn’t an option.

Those who defend the schools’ methodology for investigating and trying these cases seem to unabashedly embrace the idea of discarding an accused’s due process.  It seems lost on the producers of the film that they are advocating the denial of an accused’s constitutional rights.

The criminal justice system is not always an option for these victims, [Clery Center for Security on Campus’ Alison] Kiss says, because often these are “he said, she said” situations, where alcohol is involved and too much time has passed for police to have enough evidence to prosecute.  In addition, criminal cases take a long time to prosecute, leaving victims feeling vulnerable about running into the people who they say assaulted them on campus.

Yes, those annoying catch phrases like “proof beyond a reasonable doubt” and “innocent until proven guilty” are problematic, and they certainly slow down a school’s ability to punish someone without a complete picture of what happened.  As serious as allegations of date rape are, there must be a balance between protecting individuals from sexual assault but all the while protecting the rights of the Accused.

Lawsuits have been filed around the country by students who have been suspended or otherwise punished by a university due to allegations of sexual assault.  Texas A&M University is currently under investigation by the Department of Education for suspending a male student for allegedly assaulting a female student.

The male student denied abusing the female student; a police investigation resulted in no criminal charges.  But after a university disciplinary hearing, the male student was suspended for seven months.  He complained to the school – and later the Department of Education – that A&M’s system for investigating allegations of sexual violence was “flawed” and that he was penalized based on “lies.”

In a 2014 open letter to the Boston Globe Harvard Law faculty called for a revamping of disciplinary hearings at the school, advocating that the committee “use an independent, law-enforcement trained investigator, have an independent appeal process and have lawyers on both sides – even paying for the if the students can’t afford them.”

“When you have unfair procedures it delegitimizes the process, it makes the whole process seem like a joke.  And people don’t actually believe in the accuracy of the result when the process itself is unfair,” [Harvard Law Professor Jeannie] Suk said.

Towards the end of the movie, The Hunting Ground takes the viewer through a “Hall of Shame” of university presidents around the country whose schools did such things as “allowed a basketball player twice accused of sexual assault to play for the school” or “allowed a football player accused of rape to play for two full seasons.”  It targets Brady Deaton, Chancellor of the University of Missouri for allowing a “star football player accused of sexual assault to play for two more seasons, until he was convicted of sexually assaulting another student,” as if affording the student the presumption of innocence was shameful.

The Hunting Ground ends by posting another questionable statistic that is designed to invoke fear and outrage:

If nothing changes, more than 100,000 college students will be sexually assaulted in the upcoming school year.

While taking nothing away from the reality and seriousness of date rape, this type of fear mongering cannot be treated as an excuse to form a lynch mob mentality that deprives the rights of the accused.  Although college life has often referred to as life in a bubble, that does not make it immune from outside concepts like “innocent until proven guilty.”

No statistic, whether accurate or inaccurate, trumps that.

2 Comments on this post.

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  • Laura
    24 November 2015 at 9:21 am - Reply

    If the college actively discourages victims from contacting the actual police (as opposed to campus police), the college is culpable; but waiting on a conviction also seems a bit unnerving. Do you think, once an indictment is filed, it would be wrong to suspend a suspect pending the outcome of the case? The in loco parentis rules make the college responsible for the safety of their students under the age of 18, and allowing a student under indictment for rape to be on campus may be seen as irresponsible. I know most college students are not under 18, but there are some and the college has a special responsibility to them.

    • Joseph D
      30 November 2015 at 12:54 pm - Reply

      But what if the suspect actually didn’t do it? What that indictment and the subsequent suspension causes a suspect to lose a necessary scholarship and cannot afford to complete their education? What if that suspect is a college athlete with a chance of going on to the big leagues, but due to a several month suspension misses that opportunity? What if the mere label means that every time a future employer searches for the subject’s name on the internet they see “accused of sexual assault”?

      Most people aren’t vindictive enough to use such power against another person, but please don’t confuse most with all.