An excerpt from this article: http://cognoscenti.wbur.org/2014/05/05/due-process-and-sexual-assault-wendy-kaminer
“Not Alone,” the White House entitled its task force report on campus sexual assaults. “Believe the Victim,” the report might as well have been called. It reflects a presumption of guilt in sexual assault cases that practically obliterates the due process rights of the accused. Students leveling accusations of assault are automatically described as “survivors” or “victims” (not alleged victims or complaining witnesses), implying that their accusations are true.
When you categorically presume the good faith, infallible memories and entirely objective perspectives of self-identified victims, you dispense with the need for cumbersome judicial or quasi-judicial proceedings and an adversary model of justice. Thus the task force effectively prohibits cross-examination of complaining witnesses: “The parties should not be allowed to cross-examine each other,” the report advises, denying the fundamental right to confront your accuser.
Every student accused of a crime or disciplinary infraction has an equal right to due process and fair adjudication of charges.
Alleged victims are supposed to be protected from “hurtful questioning.” The impulse to protect actual victims from the ordeal of a cross-examination by their attackers is laudable. But by barring cross-examination, you also protect students who are mistaken or lying, and you victimize (even traumatize) students being falsely accused.
School officials are also encouraged to substitute a “single investigator” model for a hearing process, which seems a prescription for injustice. As the Foundation for Individual Rights in Education points out, pursuant to this model, “a sole administrator would be empowered to serve as detective, judge and jury, affording the accused no chance to challenge his or her accuser’s testimony.”
These “reforms” exacerbate an already dangerously unreliable approach to evaluating charges of assault. In 2011, the Department of Education issued guidelines requiring colleges and universities to employ a minimal “preponderance of evidence” standard in cases involving allegations of harassment or violence. This is the lowest possible standard of proof, which merely requires discerning a 50.01 percent chance that a charge is more likely than not to be true. It facilitates findings of guilt, which will be merited in some cases, and not others. For students wrongly accused, the consequences of a guilty finding can be as dire as a not guilty finding for students actually victimized.
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