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

 Actually, I said exactly what alice writes about in my point about due 
process-- 

there are NO due process rights for students who commit disciplinary 
infractions or crimes UNLESS the matter involvs protected class issues, such 
as race, gender, ethnicity, etc -- 

this is precisely why i said an assault against a women DOES entitle HER to 
due process rights if, as is usually the case, she is assaulted "based on" 
gender -- but this is not true for the offender, unless he is being 
disciplined "based on" membership in a protected class -- 

the only other time due process is required is, as brett suggested, when 
government schools are involved (where you have state action -- unlike with 
private universities) but even there -- the definition of due process is such 
that not much is required even though the seminal constitutional case on due 
process in general, mathews v eldredge, says "notice and a hearing" is 
required -- the amount of process due varies based on the context and public 
schools have never been compelled by law to offer much by way of a "hearing" 
- 

all that said -- i am not saying anything about prosecuting and locking 
people up -- i'm only challenging the false premise that the accused student 
is the one entitled to due process -- as this idea developed not out of law 
but out of the disproportionate involvement of defense attorneys in the early 
development of school policy on these issues - 

victims didn't have attorneys in the beginning (they barely do now) but 
accused students often did -- so their voice carved a path the people called 
"due process" without ever exploring whether such a concept applied, as a 
matter of constitutional principle -

i'm also NOT saying that schools SHOULDN'T, as a matter of policy, give 
accused students due process -- 

fairness matters - whetehr it is constitutionally mandated or not -- and most 
schools do offer up some policies and procedures in this regard, but 
enforcement is more a matter of contract than constitutional law -- 

and in any case -- if there should be an imbalance, it should tip in favor of 
the victim in terms of who gets more process, and protection because in most 
cases it is the victim who had suffered a civil rights insult -- invoking 
constitutional concerns under title ix for all schools, private and public -- 
while the accused students can claim no constitutional weight or demand 
particular procedures as matter of law - -

this discussion is very important and i realize there's a lot of unpacking 
going on -- which is good -- 

ultimately, my concern is that schools have a selfish interest in using due 
process rhetoric to justify giving better rights and better treatment to the 
accused student shile treating the victim like a government witness with no 
rights -- 

this approach -- of using criminal cases to establish school-based policy -- 
has caused much harm and confusion and it is why when i teach about these 
issues i recommend first and foremost that victims be advised at the outset 
to contact outside private counsel FIRST -- even before talking to a 
counselor (to make sure the counselor they speak with has no conflict of 
interest issues) -- 

I don't typically recommend litigation or contentious disciplinary 
porceedings -- but I DO recommend that the victim insist on more than the 
typically available "support" and some degree of accountability alongside 
full disclosure of all her rights and the utmost respect for her safety and 
emotional well-being.? she can't learn in an environment where the response 
to gender-based violence is silence, intimidation, nothing -- or worse -- 
disbelief.

not all people always tell the truth -- and sexual responsibility is 
important to teach and promote on campus -- 

but when bad things happen, there's no beneift to characterizing a victim's 
failure to do better risk-reduction (she shouldn't have had so much to drink 
--etc.) as a justification for violence - 

i'm sure eveyone has read the studies that show how offenders intentionally 
use intoxicants to gain easy access to victims -- knowign that the victim's 
condition will work to their advantage - 

we need new bumper stickers that place more of the burden on the offender -- 
instead of "no means no" -- we need "know or it's NO" -- to clarify that 
unless you're sure you have the right to act, the presumption is you don't -- 
and if you act anyway - YOU bear the risk -- YOU act at your legal peril -- 

and how about "ALCOHOL + SEX = RAPE" - 

i know this is radical -- and not always practical (people enjoy sex with a 
buzz) -- but morrison torey suggested this to me at a panel discussion a few 
years back -- and i thought she was crazy - until she explained that it's a 
statement -- a message to the exploiters -- and it won't prevent truly 
consensual sex with a buzz because people will always do what they want 
behind closed doors -- 

but the message that the aggressor is in a super-risky situation in terms of 
disciplinary action if the recipient of the intended harm is not sober has 
never been the cornerstone of any school's policy on sexual assault -- 
it should be -- 

and to make this policy approach work, it would help if the message about who 
REALLY has due process rights would get out there at the same time!

wendy murphy


 





I think Wendy's statement that students have no due process rights might 
mislead 
a lot of folks. Rather than jumping into the FERPA discussion, I just want to 
clear up that one legal point. Students definitely do have some due process 
rights. In fact, the Supreme Court decision requiring that students a 
disciplinary hearing system was a due process case. It came out the civil 
rights 
struggles and arose in the context of two black university students being 
summarily expelled because there had been a civil rights demonstration (that 
they probably never even attended.) In law school one of the first things 
they 
teach you is that due process means notice and an opportunity to be heard. 
I'm 
about as prosecution-oriented as anyone but I don't have a problem with 
giving 
that to accused students. I think some very bad pro-abusive-student decisions 
have come down because those very basic principles were ignored. For example, 
if 
an accused student has not been allowed to call witnesses
  (and I mean actual witnesses not a string of character witnesses) whatever 
other points his lawyer raises on appeal are given more weight because the 
school's procedures are already questionable. FERPA has a tendency to 
complicate 
and confuse everyone, which makes it doubly important not to ignore the more 
basic legal principles that apply.

Alice Vachss 






 


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