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Investigator/Judge/Jury

The principle at the very core of Anglo-Saxon criminal jurisprudence is the right of accused persons to hear the accusations and testimony against them. A judge and a jury may receive no information that the defendant does not also receive; we allow no anonymous denunciations in a court of law, and accusers cannot speak to a judge and jury, nor submit evidence of any kind, without the defendant and counsel for the defense being present to listen to everything that is said and done.

In this light, the College’s proposed sexual assault policy is problematic in at least two essential ways. Firstly, it centralizes all investigative and decision-making power in the hands of only one person: the Sexual Assault Investigator. Who that person is, and what training he or she is to be provided, remains undefined in the proposal — though the Valley News reports that “lawyers, law enforcement professionals or others with experience conducting similar investigations at other institutions” are being considered. However, the potential for abuse in such a decision-making process is more than clear, as civil libertarian Alan Dershowitz writes:

Special sex prosecutors and special rape prosecutors are often agenda driven. Too often they believe they’re on a mission and treat the alleged victim in a way that’s different from how they handle any other crime. They’re zealots; I call them Nancy Grace prosecutors. She behaves on her TV talk show as if there’s no such thing as innocence; everybody arrested is guilty.

This proposition is hardly news to readers of this space: we have reported on the COS depredations of Assistant Dean of the College for Campus Life Kate Burke and the embarrassing prosecutorial opinions of Sexual Abuse Awareness Coordinator Amanda Childress. Neither seems motivated by anything resembling procedural or substantive fairness. In fact, they hardly seem familiar with the terms.

Secondly, even if a fair-minded investigator is chosen, the rules of investigation go squarely against our age-old, honored notions of honest process:

Sexual Assault Policy Comp.jpg

It seems that in the course of discovery, the proposed investigator will listen to one party and then the other, but it is up to the investigator’s own thoroughness, competence and sense of fairness to summarize and share with the person accused what the accuser has said. Easily rebuttable accusations and errors of fact might never be corrected if the complete record/recording of the accuser’s charges are not shared with the accused during the investigation — rather than after, as the present proposal states.

When the investigation ends, the investigator alone will make a finding of innocence or guilt, and this determination will be sent to a College committee that will order a punishment for the action in question. The Sanctioning Panel consists of the “Director of Judicial Affairs, the Title IX Coordinator, and the associate dean responsible for student affairs designated by the Dean of the College.”

This part of the procedure is also counter to the core notions of our historical sense of judicial fairness. The Panel will base its decision entirely on the investigator’s report — neither the accuser nor the accused will meet with it at any time. Expulsion is a likely outcome if the single investigator concludes guilt.

I can’t help but think that if/when litigation occurs regarding the due process merits of the College’s proposed sexual assault investigative structure, any competent judge will rule that the policy shocks the conscience of the court. Anyone holding even a passing familiarity with the due process safeguards of our legal system would agree with this view.

Addendum: The complexity of sexual assault prosecutions and the stakes for both parties are such that I tip my hat to the Freedom Budgeters, who proposed that the issue be taken entirely out of the hands of the administration:

Sexual Assault FB Proposal CompA.jpg

Though this proposal, like so many others in the FB, is not currently feasible (due to federal laws), perhaps President Obama’s successor will see less of a need to establish national standards for such local issues. Criminal law is generally in the purview of the states.

Meg Mcardle at Bloomberg argues forcefully for the same position.

Addendum: The NYT reports that Columbia has already changed its procedures so that two investigators take notes when interviewing students who complain of assault. And a column by Daniel Henninger in the Wall Street Journal details how Obama administration policy has driven the lowering of prosecutorial standards in the fight against sexual assault.

Addendum: The College’s move to use an investigator in matters of assault — and away from COS hearings — was motivated largely by the Obama administration’s recent ruling that attorneys may attend college disciplinary hearings. If an attorney were to witness the travesty of COS hearings at the College, Dartmouth would find itself in court immediately.

Addendum : Thomas J. Curphey’s letter in the Valley News details the broad range of due process violations inherent in the College’s policy.

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