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Trial lawyers recommend changes to college sexual assault investigations

What happens on college campuses after a sexual assault has been reported has become increasingly scrutinized beyond the universities’ boundaries. The American College of Trial Lawyers is trying to bring some clarity by recommending new standards for campus sexual assault investigations, with a focus on ensuring fairness and due process for both the accuser and the accused.

The ACTL put together a task force to study the issue and make the recommendations, which were released Monday.

The task force concluded that current practices used by colleges and universities may go too far in investigating accusations, leading to an unfair process for the accused.

“We strongly support efforts to remedy the longstanding failure to adequately address the problem of sexual misconduct on college campuses,” said Pamela Robillard Mackey, the task force’s chair. “But we believe that in the well-intentioned effort to address the problem, the Department of Education’s Office of Civil Rights has established investigative and disciplinary procedures that in application are in many cases fundamentally unfair to students accused of sexual misconduct.

“Under the current system everyone loses: accused students are deprived of fundamental fairness, complainants’ experiences are unintentionally eroded and undermined, and colleges and universities are trapped between the two, while facing a potential loss of federal funding.”

One of the task force’s primary recommendations would change the standard of proof normally used in these proceedings.

Typically, the report said, colleges and universities apply a “preponderance of the evidence” standard, but the task force recommended a higher “clear and convincing evidence” standard.

“We expect that it will generate robust discussion and debate, both from victim advocates who may believe it should be lower, and representatives of accused students who may prefer a more stringent standard,” Mackey said.

The task force had seven recommendations on how colleges should proceed with sexual assault:

  1. Sexual misconduct investigations and hearings should be conducted with due consideration for any appearance of partiality, including that which might arise from the fact-finder’s other responsibilities or affiliations.
  2. The subject of a sexual misconduct investigation should promptly be provided with the details of the allegations and advised of his/her right to consult legal counsel.
  3. The subject of a sexual misconduct investigation has the right to be advised and accompanied by legal counsel at all stages of the investigation.
  4. The parties to a sexual misconduct investigation should be permitted to conduct some form of cross-examination of witnesses, in a manner deemed appropriate by the institution, in order to test the veracity of witnesses and documents.
  5. The subject of a sexual misconduct investigation should be provided with access to all evidence at a meaningful time and in a meaningful manner so that he/she can adequately respond to it.
  6. The standard of proof for “responsibility” should be clear and convincing evidence.
  7. Fact-finders in sexual misconduct investigations and hearings should produce written findings of fact and conclusions sufficiently detailed to permit meaningful appellate review.

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