IN TOO MANY Sex Assault Cases, Colleges Lack A Basic Understanding Of Fair Process. Specifically Clarion University
When a college authorizes someone to investigate whether or not a rape took place, the investigator should begin with a neutral mindset rather than an assumption that the accused student is guilty. The university’s position should be neither that the student is guilty or innocent until the university has been presented with the facts. However, a recent case involving Clarion University of Pennsylvania, a public university, shows how deeply confused universities and their attorneys can be about the basic elements of due process, even in a hearing involving a charge as serious as rape. The case was recently discussed in the blog “Academic Wonderland.”
There is a very good chance that the accused student will lose this case. That is because he chose not to attend the hearing at all. He made that decision because he was also being criminally charged and if he participated in the college hearing he would be effectively waiving his right to remain silent during the criminal investigation. This is a classic dilemma when there is both a criminal and civil case. To avoid such conflicts, judges in civil matters routinely delay the civil cases until the criminal cases are resolved. But colleges don’t do that because they want to resolve the matter quickly. Criminal prosecutors are well aware of this dilemma and use it to their advantage in order to circumvent the student’s right to silence. For example, at a 2015 meeting of the International Association of College Law Enforcement Administrators, Susan Riseling, the Chief of Police at the University of Wisconsin at Madison spoke about how to get around the right to remain silent and use Title IX proceedings to circumvent the student’s constitutional rights: “It’s Title IX, not Miranda -Use what you can.” Riseling said.
A final matter to consider is that the Clarion accused student is African American. According to the complaint, African Americans are drastically overrepresented among Clarion students tried for sexual misconduct. He remains expelled even though the charges were dropped by the police as a result of the DNA evidence that the college hearing panel never saw.
forbes -Evan Gerstmann
