Back in 2014 Michelle Goldberg published a thoughtful essay on the campus rape crisis in the Nation. As one would suspect, the crisis persists and under the Trump regime it might worsen as the new rules are alleged to protect the accused more than the survivors.
When a student is alleged to have sexually assaulted another student, the assault can be reported to the police or brought to the attention of the college (or both). For legal (and moral) reasons, colleges should not ignore such reports.
While colleges vary, it is common practice for colleges to handle allegations of sexual assault like academic misconduct hearings: a hearing is held with a panel composed of faculty members and administrators. Since the panel is not a court of law, it cannot impose criminal or civil penalties as an actual court could. Rather, the panel typically decides whether the accused student should be subject to disciplinary action, with the highest penalty usually being expulsion. As might be imagined, there are some obvious problems with this approach.
The first is a practical problem: while many schools do have their own police forces, faculty and administrators are generally not trained to investigate and judge sexual assaults. In my own case, I am a philosophy professor, not a detective, lawyer, or CSI professional. I would, if I was assigned to such a panel, do my best—just as a detective or lawyer somehow assigned to teach my class would presumably do their best.
There seem to be two main solutions to this problem. One, which seems the most sensible, would be for colleges to cede authority over these crimes to the legal system. That is, the role of the college would be to assist in reporting the crime to the police. Naturally, the college can also have an important role in providing support. There is, however, the concern that such crimes are not always properly addressed by the authorities.
The other would be for the college to ensure that those handling the incidents are trained professionals. This could be done by hiring such professionals or by training faculty and administrators to handle such cases. This would run into the practical concern about cost.
The second is a practical problem with a moral component. A college has a vested interest in protecting its reputation and protecting itself legally and financially. In a practical sense, this leads to a conflict of interest that could influence the rulings of a panel. In a moral sense, this can lead to justice not being done.
As before, there seem to be two solutions to the problem. One is to remove the handling of such cases from colleges. The other is to take steps to ensure that such internal panels act for the sake of justice rather than trying to protect the reputation of the college. I would say that the former option is the better choice.
The third is a moral problem with two aspects. One aspect is that survivors sometimes report that a college’s handling of their situation is yet another violation—a traumatic and harmful experience rather than professionally conducted justice. Obviously, subjecting someone to such an awful experience is morally wrong. The second aspect is that alleged perpetrators sometimes report that the college’s handling of the situation is a kangaroo court devoid of due process. While these might seem inconsistent, the experience could be both a trauma for the accuser and a kangaroo court for the accused.
Once again, there would seem to be two solutions. One is to have such cases handled by the actual legal system. There is, however, the problem that it is not uncommon for the legal system to handle sexual assault cases badly, which is yet another matter of moral concern and a serious problem. Some have even argued that colleges should continue to handle such cases because the legal system has failed so badly. That is, colleges might be bad, but they are sometimes better than the legal system. This points to the need to address the legal system—there is little sense in handing off such cases to a system that is no better or even worse.
The second is to rework the college system to try to ensure that it operates with proper respect while also ensuring that the alleged perpetrators are given a fair hearing. This would prove challenging—but it is a challenge that must be met if colleges are to continue in this role. If the legal system is doing a poor job, then it would be even more important for colleges to revamp their systems.
The third is a moral problem with legal aspects. As many critics of the current system have noted, there is the moral and legal concern with the basis for the college’s authority to handle these cases. As the usual argument goes, colleges do not handle cases in which a student murders another student—that is turned over to the police. By analogy, the same should apply to sexual assault—which is a crime. While a college does have academic authority over students as well as a degree of disciplinary authority, a college would seem to lack the legal and moral sovereignty needed to claim authority over a serious crimes (even if it had the resources and competence to run its own legal system). As such, a college would seem to be overreaching its authority. That said, there can still be a legitimate role for colleges to play in such matters.
While a college should not have the authority to impose criminal (or even civil) punishments on students, it does have some legitimate authority. A college should have a clearly defined sphere of authority based on the agreement between the student and the institution, as spelled out in the rules and policies of the college. The college also has the legitimate authority to impose certain penalties within a very limited sphere. The outer limit of these penalties is, of course, expulsion from the university.
Such authority is intended to allow colleges to some control over student behavior—after all, without the capacity to punish, authority means little. There is also the purpose of maintaining a safe and non-threatening learning environment. This is what justifies punishing students who disrupt this environment. In some cases, maintaining this environment can require expelling students.
Because of this legitimate function, a college can justly claim the right to hold a hearing for a student accused of sexual assault. However, this should not be in place of a criminal trial. Rather, it should be in addition to the criminal trial. The purpose of the college hearing would be to determine whether the alleged perpetrator should be, in addition to whatever punishment imposed by the legal system, subject to discipline by the college.
While it might be tempting to insist that an alleged perpetrator who is found innocent by a court of law should also be exempt from college discipline, it must be remembered that the requirements of a criminal court are (supposed to be) very rigorous, with an assumption of innocence and a standard of proof set at beyond a reasonable doubt.
It can be argued that the standard of proof for a college disciplinary hearing should be lower than that of a criminal court (as civil courts have a lower standard of proof). After all, the standard should be higher when a person might spend years in jail as opposed to being disciplined by a college. For example, an incident might be such that it seems reasonable to believe that something bad occurred, yet the evidence is not enough to establish proof beyond a reasonable doubt. In such a case, an alleged perpetrator might avoid jail yet perhaps be justly expelled from college.
If this view is accepted, then there are the practical and moral problems of determining the standards of evidence and the appropriate punishments. Some colleges accept a weak standard—that of “more likely than not.” That is, if the panel members believe that it is more likely that the alleged perpetrator committed the misdeed than did not, then the person is guilty. As might be imagined, some critics see it as far too weak and in stark contrast with the usual principle that it is better for the guilty to go unpunished than for the innocent to be unjustly punished.
There is also controversy over punishments. It could be argued that even the worst punishment that a college can offer (most likely expulsion) would not be enough. While this might be true, it would not be a good reason to grant colleges more power to punish—after all, if the punishments were sufficiently severe, then the standards would need to be equally high. It can also be said that some punishments, such as expulsion, would be too harsh given the weak standard.
It must be noted that sorting out the standard and the punishments is distinct from the issue of whether a college has legitimate authority to discipline students accused of sexual assault. A college has the authority to impose disciplinary action even on a student found not guilty by a criminal court—much as a civil court can impose a penalty on someone found not guilty by a criminal court. However, I have not given sufficient thought to the standard to be used and the punishments that would be just. It might be the case that the punishment should be linked to the standard, the weaker the standard, the weaker the punishment.
It can also be argued that there is behavior that is not covered by the law but can be justly covered by a college’s policies. For example, cheating on tests is usually not a criminal offense, but it does provide grounds for discipline in a college setting. Likewise, some sexual behavior might not be considered criminal yet still be legitimately regarded as problematic enough to warrant discipline from a college. That is, the behavior is not illegal, but not tolerable behavior for a student. To use an analogy, some colleges have dress codes that forbid attire that would not violate the laws relating to public indecency.
To close, colleges should obviously not be handling criminal cases; these should be turned over to the police and the actual legal system. However, colleges can legitimately hold hearings on allegations of sexual assault and subject students to disciplinary action up to and including expulsion. There are, however, important practical and moral considerations that must be addressed and these include:
- Ensuring the competence and impartiality of the college panel members conducting the investigation and hearing.
- Ensuring that the standard of proof adopted (such as “more likely than not”) is just.
- Ensuring that the punishments are just.
- Ensuring that the applications of the standards and punishments are just.
- Ensuring that both the alleged perpetrator and purported victim are treated with respect and get due process.
If these considerations can be properly addressed, then such a system can be legitimately regarded as just—at least within the specific context.
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