People often wonder why college administrators try to adjudicate these fiendishly difficult cases, rather than putting them in the hands of the criminal justice system.
www.nytimes.com By Judith Shulevitz
The frenzy over college sexual assault now sweeping the nation was triggered by a specific event… our detour into madness might never have happened had those investigative journalists at NPR and the Center for Public Integrity resisted their “nightmare” narrative and just reported the truth.
www.thedailybeast.com By Christina Hoff Sommers
If there is a widespread perception that the balance has tilted from no rights for victims to no due process for the accused, we risk a backlash. It takes only a few celebrated false accusations of rape to turn the clock back….Indeed, feminists should be concerned about fair process, not just because it makes fact-findings more reliable and more credible, but for its own sake.
prospect.org By Nancy Gertner
One of the challenges of defending the falsely accused is that falsely accused college boys have many incentives to stay silent. Their entire future is at stake. Colleges demand confidentiality, and aren’t willing to advertise outcomes even in aggregate. So any report that provides hard data is helpful. EduRisk, part of United Educators, produced a report in 2011, titled: “Student Sexual Assault: Weathering the Perfect Storm.”
From 2006-2010, United Educators (UE) received 262 claims of student-perpetrated sexual assault, which generated more than $36 million in losses for UE and our members. The claims data show that students accused of perpetrating a sexual assault are just as likely to sue the institution as accusing students.
Colleges are doing such a bad job adjudicating that the accused are bringing half of the law suits. Even more surprising, is that they are costing the schools a lot more than that:
In UE’s five-year study, 96 percent of the student-on-student sexual assault claims involved acquaintances. Students accused of assault brought 54 percent of the claims and comprised 72 percent of the financial losses—composed of legal fees and payments to claimants.
The accused are winning their cases when they have a reasonable shot at due process.
But many are ending up in court after a botched adjudication:
Three-quarters of the student sexual assault claims resulted in litigation. Claimants argued that educational institutions:
- Did not follow their policies and procedures
- Had confusing or unclear policies and procedures
- Did not respond promptly or reasonably to an assault report
- Treated the victim or the perpetrator cruelly or unfairly
These four issues translated into the following causes of action (in order of frequency): negligence, breach of contract, Title IX violations, intentional infliction of emotional distress, and fraud. Less commonly alleged causes of action included defamation, due process violations, and breach of the covenant of good faith and fair dealing.
This is an impartial report coming from a school insurer which addresses the financial impact of lawsuits related to campus sexual assault. It should be noted that this was before the current set of unreasonable campus policies with a ‘preponderance of evidence’ standard and other directives that radically increased the likelihood of kangaroo courts doling out biased results. But it still shows the many problems with campus adjudications.
This seems to me to be as hard evidence as you can find that these case (at least up until 2010) are not getting resolved by schools, and that schools are incapable of resolving them in a way that doesn’t just end up in the courts anyway: making for a terrible experience for the accusers and the accused.
Update: news story that relates to this insurance issue for colleges:
Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation. Here our concerns include but are not limited to the following:
washingtonpost.com Signed by 28 Harvard lawyers