American Bar Association Task Force Seeks Balance in College Sexual Assault Disciplinary Proceeding

Tim Burke, Manley Burke, tburke@manleyburke.com

In June of 2017, the American Bar Association’s Criminal Justice Section Task Force on College Due Process Rights and Victims Protections released two related documents, a Report and Recommendations on resolving allegations of campus sexual misconduct.  The fifteen-member task force was appropriately diverse, including private practice attorneys, representatives from advocate groups for both survivors and accused, as well as representatives from six major universities.  As the Task Force’s report itself describes, their recommendations were a product of compromise and consensus.  The Task Force recognized that a one-size-fits-all approach is not appropriate.

The Task Force notes that campuses are using two basic approaches to determine responsibility for sexual misconduct – the investigatory model and the adjudicatory model.  The investigatory model typically involves a member of the college administration conducting an investigation and issuing a report.  That investigation may include interviews with complainants and respondents (the terms the Task Force used to describe victims or survivors and the accused), but there is typically no opportunity for confrontation of any kind between the parties.  The investigatory model has the investigator issuing a report that summarizes and evaluates the facts that the investigator has determined.  There is no hearing.  In current use, on some campuses the investigator makes a determination as to whether or not a violation of campus policy has occurred; on other campuses the investigator makes a report to another individual who makes the determination whether a violation has occurred based on the investigator’s report.

The adjudicatory model is perhaps the model which has received the most attention in court litigation.  It provides for a hearing in front of one or more panel members who consider the evidence presented and make a determination of responsibility.

With brief discussion, the Task Force considers the role of law enforcement, noting:

“schools should be able to determine whether a violation of school policy has occurred regardless of whether there has been a violation of criminal law.  Where police investigation has been initiated, schools should work cooperatively with law enforcement to the extent permissible by state and federal law.”

The Task Force specifically rejected the argument that universities should be forbidden from addressing sexual assault allegations until and unless there was a criminal investigation.

“The Task Force was concerned that if a campus proceeding were tied to the criminal justice system that many instances of sexual misconduct would never be addressed.  The Task Force believes it is appropriate for schools to resolve allegations of campus sexual misconduct for the protection and betterment of the campus community, as long as they do so fairly.”

Much of the Task Force’s recommendations should not be controversial at all, for example:  “A prompt, fair and impartial investigation;” “guard against improper disclosure of confidential information;” and “protect all parties from retaliation.”

The Task Force does “encourage” the use of non-mediation alternatives to resolving complaints, such as the Restorative Justice (RJ) process.  However, it does recognize that RJ is only appropriate where the offender does not pose an ongoing danger and both parties agree to participate and have the right to withdraw from the process.  The RJ process “is geared toward reintegrating the transgressing student back into the community, it is also dedicated to helping the victim heal and move forward.”  RJ affords the victim the opportunity “to tell their own stories about their own experiences, obtain answers to questions, experience validation as a legitimate victim and observe offender remorse for harming them (and) receive support that counteracts isolating and self-blame.”  It is a process that may be appropriate in some circumstances, but it is not a process which can be forced on either party.

The Task Force makes clear its preference for the adjudicatory model.  The Task Force clearly was concerned that relying only upon a single investigator makes implicit bias a more serious threat, which is particularly true if the investigator also serves as the decision maker.  As a result, the Task Force specifically recommends that those universities using an investigatory model should separate the investigator from the decision maker.

For those universities using the adjudicatory model, the Task Force recommends the hearing panel consist of at least three people, none of whom are the investigator.  However, the investigator may be a witness.  The Task Force recommends that in order to find violation of university policy, the panel should be unanimous.  Where there is insufficient credible, reliable and relevant evidence, the student “must be found not responsible.”

One of the more interesting aspects of the recommendations is that in spite of the fact that the Task Force is from the American Bar Association and made up principally of attorneys, it specifically rejects the beyond a reasonable doubt standard as inappropriate.  Further, it declines to use either of the other traditionally used terms to define the standard of proof – preponderance of the evidence or clear and convincing evidence.  Instead, struggling with this issue, the Task Force points out that:

“specifically, some Task Force members did not agree with the common interpretation of preponderance of the evidence as requiring a mechanical weighing of the evidence in which a mere feather is enough to tip the scales towards a finding of responsibility.  At the same time, other Task Force members felt ‘clear and convincing evidence’ is a vague standard and thus easily subject to abuse.”

Instead of relying on either of those terms, standards which have been time tested in courts, the Task Force provides this guidance, for an adjudicatory process:

“The decision-makers should first evaluate the quality of the evidence.  The decision-makers should consider all of the evidence regardless of who provided it.  Any evidence the decision-makers find to be of high quality should be given more weight than any evidence the decision-makers find to be of low quality.  Quality may, or may not, be identical with quantity, and sheer quantity alone should not be the basis for a finding of responsibility.  The testimony of a single party or witness may be sufficient to establish a fact.”

“After assessing the quality of the evidence, the decision-makers should only find the respondent responsible for alleged misconduct if the evidence unanimously convinces them to reasonably conclude that a finding of responsibility is justified.  That is, the decision-makers should find that there is sufficient evidence that is relevant, probable and persuasive to convince them that the respondent engaged in the alleged misconduct and that the evidence supporting a finding of responsibility outweighs any evidence that the respondent is not responsible for the alleged misconduct.”

The Task Force specifically recommends that where there is only one decision-maker, there should be a higher standard of proof, and notes that this recommendation is not consistent with the 2011 Dear Colleague Letter, which mandated the use of the preponderance of the evidence standard.  In defining that higher standard of proof, the Task Force recommends essentially the same standards recommended for an adjudicatory panel except that the single decision maker must be “firmly” convinced.

The Task Force does also recommend that both parties have access to all evidence or reports prior to the hearing, that both parties have the right to at least hear each other, even if they cannot see one another.  For example, a complainant may be in a different room.  The Task Force does not recommend direct cross-examination, but does recommend that the parties have the opportunity to submit questions to the panel to be asked of the other party or witnesses.  Evidence should be kept relevant, bearing on the facts of the case or reflecting on the credibility of a testifying party or witness in a material way.  Character or reputation evidence should be excluded from the decision-making stage.  Specifically, the Task Force recommends “evidence of the past sexual history of the parties should be disfavored and admitted only when it provides compelling evidence on a disputed issue of relevance to the misconduct charge or its defense.”

At the very least, the recommendations of the Task Force are a helpful addition to the continuing national discussion on how to best balance the protection of survivors with a process that allows the accused a fair opportunity to dispute charges.

The full report can be viewed here:

https://www.americanbar.org/content/dam/aba/publications/criminaljustice/2017/ABA-Due-Process-Task-Force-Recommendations-and-Report.authcheckdam.pdf