Confidentiality and Fairness in Campus Sexual Assault Cases

Campus PathBy Judith Resnik, Alexandra Brodsky, & Claire Simonich

The Nation

An overdue public debate has erupted about how to address the widespread problem of sexual misconduct on college campuses. It’s clear from the many complaints filed, the number of schools under federal investigations, and the media coverage that universities have too often been slow or ineffective in responding to sexual assault and harassment.

As calls for reform grow louder and schools rethink their policies, lawyers close to the criminal justice system have raised questions about the fairness of university-based systems issuing judgments on allegations of misconduct. As a result, the press is now full of discussions about the fairness of colleges’ procedures and standards of proof.

We also need a robust debate on punishment. Given many schools’ continuing reluctance to investigate—let alone penalize—sexual misconduct, concern for proportionality in sanctions may seem premature. But retribution, deterrence, and incapacitation need to be balanced—both on campus and off—by compassion and generative ways to repair lives.

That’s why drawing lessons from the criminal justice system is useful. The criminal justice system does more than decide guilt; it also imposes punishments. While universities don’t put people in jail, they can expel, suspend, or fire them. To improve both systems, we need to know who is being punished, for what, and how.

One of the reasons we can learn so much from the criminal justice is because courts are required to operate in public. Public accountings have documented wrongful convictions, suicides in jails, and the horrors of years spent warehoused in isolation. That information—along with keen awareness of the costs to both people and the government—has galvanized bipartisan reforms aiming to fix a system now widely regarded as broken.

Some information is already available, but not much. Under various federal and state mandates, colleges issue periodic reports, listing the number of claims brought and their outcomes. A few universities offer more information. Yet even the most complete reports give only a few details about the type of offense, the kind of punishment imposed, and whether the parties were students or faculty, male or female.

What those reports don’t tell us is why, in one case, an individual is expelled, another given probation, and a third counseled. We don’t know what measures universities are taking to protect individuals against retaliation or the effect. We also can’t tell how the decision-makers reached their conclusions—how they parsed the evidence. And we can’t appreciate the challenges of making all of these decisions.

Continue to full article . . .

Picture: Famartin (Own work) [CC BY-SA 3.0 (, via Wikimedia Commons

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