NEW YORK, Sept. 28, 2015 /PRNewswire/ -- A recent Association of American Universities Campus Climate Survey reported that one in four undergraduate female students have experienced unwanted sexual contact sometime during their college experience. Overall, the study reported that 23 percent of undergraduate women at the participating universities said they had been physically forced — or threatened with force — into nonconsensual sexual contact or incapacitated when it happened. That included activities ranging from sexual touching or kissing to actual sexual intercourse.
Kimberly C. Lau, a partner at the law firm of Warshaw Burstein in New York City, has spent years defending students accused of sexual misconduct in over 40 cases. She has represented both male and female students who have faced life-altering consequences of expulsion, suspension, and branding as a sexual offender for kissing, touching and even requesting too many social media connections.
In an effort to prevent and stop sexual violence on college campuses, in 2011, the Office for Civil Rights (OCR) of the U.S. Department of Education issued a "Dear Colleague Letter" explaining a school's responsibility to respond promptly and effectively to sexual violence against students in accordance with the requirements of Title IX. Title IX forbids institutions that receive federal funding from sex discrimination in all university student services and academic programs. Under OCR's regulatory authority, schools that fail to comply with these mandates risk the loss of millions of dollars in federal funding. It further states that all public and state-supported schools must "provide due process to the alleged perpetrator", yet, it also states that "schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant." The overriding result is that colleges have taken the guidelines of "protecting the complainant" to an extreme and have facilitated a complete absence of due process for the accused students, who must now suffer the life-long consequences of "rulings" equivalent of those established by a court of law.
To make matters worse, the Department of Education also imposed a radically low standard of evidence for sex-assault cases: the "preponderance of evidence" standard. Some schools have defined this standard to mean "50% plus a feather." Under this model if an administrator believes that it is more likely than not that the alleged crime occurred, the student will be found guilty ("responsible") of sexual assault. This is further complicated by the lack of numerous other procedural safeguards and reliable methods of evidentiary examination.
According to Ms. Lau, "Rape and sexual assault are very serious crimes, ones that require lawful investigation and due process. Unfortunately, college employees lack the training and legal expertise to address these crimes and furthermore campus definitions of sexual assault are so broad they include everything from a kiss, rubbing up against someone, touching of private parts, grabbing, to forcible rape – all regarded under the same label, 'sexual misconduct.'"
Among Ms. Lau's cases was a private university that found a male student responsible of non-consensual kissing (violation of Sexual Assault Policy) and exchanging inappropriate text messages (violation of Discrimination and Harassment Policy). This student was sanctioned to a deferred suspension as a result, was banned from his graduation ceremony and is now branded as a sexual offender on his disciplinary record.
Another private university found a male student responsible of sexual misconduct (stalking) for sending multiple Instagram follow requests to a female student's Instagram account, and for a single incident of staring at the female student on campus. The male student's disciplinary record now reflects "sexual misconduct" and he was suspended for one year.
As these campus sexual assault cases obtain legal representation by the accused, they often settle before reaching the courtroom. Several colleges had to settle with the accused male student, including Duke, University of Virginia, Amherst, University of Michigan, University of Connecticut, Brown, Occidental College, CU Boulder and others. In the last five years, at least 70 male students accused of sexual misconduct brought lawsuits against their schools, alleging that their treatment violated their contractual or due process rights or was so biased as to constitute sex discrimination against them.
"Herein lies the problem with campus tribunals determining if a crime of sexual misconduct was committed – students can be wrongly accused because the accusation becomes the proof or, simply, because the definitions are too broad and too ambiguous; students can be accused months or even years after the incident; and those wrongly accused are denied due process," continued Ms. Lau. "The campus culture is that the accused is guilty and alcohol precludes the victim from cognitively giving consent to an inebriated act of sexual activity."
Kimberly Lau is also on the advisory board of FACE – Families Advocating for Campus Equality, and will be lobbying in Washington, DC for due process of government mandates involving sexual misconduct on October 1st. For more information, visit www.facecampusequality.org.
SOURCE Warshaw Burstein