Burden of Proof Lowered for Sexual Assault Cases

After nearly a year of contentious debate [5], changes to the system for resolving sexual assault accusations against students were unanimously approved by the University Assembly Tuesday. Under the new system, lawyers will not be allowed to advocate for the accuser or the accused, and the standard of proof will be lower than it is for other offenses.

The changes are intended to meet Department of Education guidelines published on April 4, 2011. The new system was also championed by victim advocates, who argued that it will result in a fairer process for students who have been sexually assaulted.

Sexual assault accusations against students will now be moved into the process that is already used for accusations against faculty and staff. That existing system, known as Policy 6.4, calls for an investigator to gather the facts relating to the accusation, decide whether the alleged assault occurred and then recommend corrective actions.

The Policy 6.4 process is markedly different from the one currently in place for accusations against students. The existing system, under the Code of Conduct, includes a variety of protections for the accused — which are modeled after the criminal justice system — that Policy 6.4 does not incorporate. Among them is the use of the University Hearing Board, which hears arguments by the opposing sides and then makes a decision. The UHB is composed of members of the Cornell community, including students, who have received special training to join the board. Under the Code, both sides of the dispute can also bring in outside lawyers to help argue their cases.

After a two-and-a-half-hour debate on Tuesday — which followed numerous discussions dating back to September — the U.A. voted 11 to zero, with three abstentions, to approve moving the sexual assault accusations into Policy 6.4.

The changes were endorsed by the University Counsel’s Office and are expected to be approved by President David Skorton.

Under Policy 6.4, which already applies to faculty or staff who face accusations, the Office of Workplace Policy and Labor Relations investigates lodged complaints. WPLR’s investigators interview the opposing sides and witnesses, and they decide whether they believe a violation occurred, according to Alan Mittman, WPLR director.

WPLR is an “independent and neutral party whose only mission is to determine, from the credible evidence, just what has occurred,” Mittman said at the U.A. meeting. Once the investigators reach a conclusion, they must submit a report to the dean or vice president who oversees the accused faculty or staff member. That administrator then decides whether to accept WPLR’s conclusion and the type of disciplinary action to pursue.

 “Our office, as investigator, does not make a final decision as to whether discipline is imposed,” Mittman said.

In the system approved by the U.A. on Tuesday, the Office of the Judicial Administrator, rather than WPLR, will conduct investigations into accusations against students, but the process for those investigations will remain the same as the one used by WPLR. Instead of a dean or vice president making the final disciplinary decision, the J.A.’s findings will be submitted to a new decision-making administrator, Mittman said, who will ultimately determine the accused student’s discipline.

Unlike the system in place under the Code of Conduct, the accused student’s attorney will not be able to cross-examine the accuser. Several U.A. members expressed concern during the assembly’s discussion that this lack of cross-examination — and the broader lack of an adversarial system — would endanger accused students’ ability to defend themselves.

“Cross examination plays just such an important role in drawing out the truth,” Kyle Hogan grad, a law student who heads the Office of the Judicial Codes Counselor, told The Sun last semester. “In cases [like sexual assault] in which the most important part of the case is the testimony of the complainant, the cross examination is really the most important part for the accused.”

But at Tuesday’s meeting, Mittman defended the Policy 6.4 system.

“There is not a lack of cross-examination,” he said. “We do cross-examine witnesses,” but the questions are asked by a neutral investigator, not an attorney, he said.

“I find no evidence” that an attorney in an adversarial system is more effective at discovering the truth than an independent investigator is, Mittman said.

At the meeting, University Counsel James Mingle also responded to recent accusations that the University Counsel’s Office endorsed the move to Policy 6.4 solely to avoid confrontation with the Department of Education.

“If we think the federal government has taken a very unreasonable … stance on an issue, we’ll push back,” he said. “They haven’t here.”

“We really are sensitive to the rights of both the parties in developing these policies,” Mingle added.

The debate over how to respond to sexual assault accusations grew out of a temporary amendment to the Code of Conduct — which will remain in effect until the changes approved Tuesday are implemented — that was hurriedly approved last spring to ensure the University stayed in compliance with the new U.S. Department of Education directives.

An office within the Department of Education issued a letter on April 4, 2011, to schools and universities that, Cornell administrators argued, required the University to make immediate changes to its process for dealing with sexual assault accusations in order to remain in compliance with Title IX — a federal law that prohibits discrimination on the basis of gender in educational programs funded by the federal government.

If Cornell did not make the changes quickly, the administrators said, the University would be “out of compliance” and could be sanctioned by the Education Department.