Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

In a message dated 10/29/04 11:02:13 AM, 

 
writes:

<< Does anyone have a guide or support person that informs the accused of
his/her rights and informs them about legal/campus processes? >>

I hope you already have in place an effective form that informs the victim of 
his/her rights -- including the right to seek outside legal counsel and the 
right to file various types of legal actions, etc.

too often victims are advised of their counseling options rather than their 
rights -- and they have MANY rights at stake -- 

colleges and universities need to appreciate that being presumed not 
responsible as a matter of school regulation in a college tribunal is not on 
par, 
morally, with being an innocent victim as a matter of fact.

the seeming thumb on the scale for the victim that I'm endorsing is not 
unjust, it's simply a way of having, as a baseline matter, a system that 
encourages 
reporting by presuming that the person reporting the matter has been harmed.  
This does not mean the burden of proof changes IN THE ADMINISTRATIVE 
FACT-FINDING VENUE, but the school culture must have a policy that chooses 
between 
believing the victim and not believing the victim (all policies have 
exceptions 
-- but there needs to be a publicly announced clear policy one way or the 
other) 

clearly, it is reasonable to choose to support and believe the victim -- 
because to choose instead to support some form of presumption of innocence is 
to 
say you choose to have a system that presumes the victim is lying -- there's 
no 
honest way to do both.

the option of choosing to support the presumption of innocence causes 
additional harm to an already injured person - whereas the alternative causes 
no harm 
as it is not harmful to take steps assuming a victim is telling the truth .  
The harm only comes if and when a punitive administrative decision has been 
made -- -- 

and if you want to argue about the harm that could come to one who is falsely 
accused, i understand, but the remedy for this is not to cause harm to all 
real victims on the off chance a claim is false, but to find ways of 
redressing 
the small percentage of false claims with better deterrence, stronger public 
dissemination of the truth -- etc.

remember, because liberty is not at stake for the accused, the presumption of 
innocence has no real place per se -- even though the goal of ensuring 
fairness is valid - 

so the real issue is -  is it morally appropriate to develop a system around 
a premise that is at best a rare possibility that a person is falsely accused 
-- or is it morally appropriate to develop a system around the well-known 
reality that allegations are almost always true - 

i think the answer is obvious -- and it is exemplified by the reasonable 
reaction most parents would have if a man indicted but not convicted of child 
rape 
moved in next door - 

how many parents would send their kids over for milk and cookies because of 
the presumption of innocence -??  this doesn't mean that jurors who sit in 
judgment should ignore the rules and condemn the guy without a fair trial-- 
but it 
does mean that the accusation -- especially after formal charges are brought 
-- is not nothing.

the rules of criminal law and procedure - especially the presumption of 
innocence -- don't work in university settings -- and female students in 
particular 
suffer terribly because of the well-developed myth that they should.

in fact, ironically, because there's no liberty at stake for the accused 
student, the accused has no constitutional claim at all -- while the female 
victim 
- because of Title IX, has a clear constitutional claim if the assault 
violates her right to an equal educational opportunity - 

thus -- if there should be concerns about constitutional rights, let your 
brochure tend first to the legal needs and rights of victims -- because their 
interests have constitutional heft --- and let your brochure care second 
about 
the rights and interests of the accused - 

of course, my position assumes the goal is prevention of sexual violence and 
protection for women's equal education rights --- 

folks less cynical than i argue that certain institutions prefer to protect 
male entitlement more than gender equality -- 

policies around promoting and protecting rights tend to reflect the values of 
the institution on this issue--

wendy murphy