August 13, 2017

Experts see flaws in how colleges handle sexual assault allegations

It happens too often on American college campuses. A female student accuses a male student of sexual assault. And then comes the dilemma: Now what?

Who should investigate the allegation – local police or the college itself? Should there be a hearing? And if the accusation is proved, what is the appropriate punishment?

A panel of experts debated the issue Aug. 12 at the ABA Annual Meeting in New York City. They agreed that the system for handling campus sexual assault allegations is flawed, but they did not agree on the solution, or even what causes the problem. The event was titled “Issues of Sexual Violence on College Campuses and Beyond: Balancing Privacy, Constitutional and Civil Rights,”

Andrew Miltenberg, a New York lawyer who has represented more than 100 students accused of committing sexual assaults, said colleges mean well, but they lack the training and expertise to handle the cases fairly. Campus investigators, he said, are not objective fact-finders, and hearing panels accept investigative findings too readily.

“I challenge anyone to sit in on the process and say, ‘Wow that was fair and reasonable,’” Miltenberg said. “We need a much tighter process, more transparent, more equitable, to get to the truth of what may have happened.”

But Nancy Chi Cantalupo, a law professor at Barry University in Orlando, Fla., said she sees a different problem. She has served as faculty counsel to student accusers. She said college hearings are not even-handed because they imitate the criminal justice system, where defendants are represented but victims are not.

“That creates inequalities – severe inequalities between the two parties,” Cantalupo said. “What I found is these hearings are very unfair. I would argue they are unfair to the victims.”

Lynn Hecht Schafran, senior vice president of Legal Momentum, a women’s rights group in New York, argued that the problem is rooted in stereotypes and myths about sexual assault. She cited several famous quotes and reports, from 1904 to the present, which questioned the validity of women’s rape claims.

“The myth that false rape accusations are rampant is rampant,” Schafran said. She said research shows 2 percent to 8 percent of rape claims are false, yet a 2010 study by the National Institute of Justice found that city and campus law enforcement officers estimated that 10 percent to 95 percent of rape claims are false.

“All too often, the people who are charged with investigating these cases and making decisions about these cases don’t know anything about sexual assault. Making it worse, they’re sure they know everything,” she said.

Tina Tchen, former executive director of the White House Council on Women and Girls under President Obama, said it is going to take time for college “to get smarter” and invest proper resources to deal with sexual assault cases.

She called sexual assault on college campuses “an epidemic” and said she worries that the Trump administration will roll back progress on the issue and “campuses will be not safe places for our kids.”

Jane Sovern, vice chancellor for legal affairs at the City University of New York, does not share those fears. Instead, she said she sees reason for hope: “There is no question this is hard, that managing these hearings is a difficult endeavor, it is complex. But I think campuses and universities are making progress. Campuses are getting better at it.

“Training and education take a long time…I think those efforts are bearing fruit, things are getting better. When you have adjudicators who hear more cases, you get more perspective. You get the perspective that everything is not either a lie or the worst thing that’s ever happened in the world.”

The program was co-sponsored by the ABA Section of Litigation and the National Conference of State Trial Judges.