This is the first article in a series about sexual assault accusations at Cornell and how the University may change the Campus Code of Conduct in response to pressures from victim advocacy groups and the federal government.
A temporary amendment to the Campus Code of Conduct that was approved in May is sparking a debate about how Cornell should treat students who are accused of sexually assaulting other students.
The amendment, which came in response to pressures from the federal government, lowered the required burden of proof in sexual assault cases, making it easier for accusers to win their cases. It also gave the accuser — who is formally referred to as the “complainant” — the same rights as the accused student to appeal the decision.
The ensuing debate has pitted victim advocates, who are concerned about protecting students who have been sexually assaulted, against those who worry that the changes may lead to the expulsion of innocent students.
The changes have raised questions about whether sexual assault accusations should be treated differently than accusations involving other offenses under the Code of Conduct, and whether the complainants and the accused should be given equal rights. More broadly, students and administrators have questioned whether the University should focus on protecting students from being wrongfully punished — with sanctions that can include expulsion — or protecting victims from becoming further hurt by a contentious judicial process.
In a meeting on Wednesday, the University Assembly’s Codes and Judicial Committee debated how Cornell should resolve those issues.
The CJC is charged with making recommendations to the U.A. about proposed changes to the Code of Conduct. After a two-hour discussion Wednesday, the committee postponed deciding on a recommendation until its next meeting.
However, in an unusual move, the U.A. passed last semester’s amendment without waiting for the CJC to make a recommendation.
That amendment — which was intended to be temporary but will remain in effect until another amendment is passed — was hurried through the voting process by administrators who argued that Cornell could not wait for the CJC to analyze the proposal.
An office within the U.S. Department of Education issued a letter to schools and universities in April that, those administrators argued, required the University to make immediate changes to its process for dealing with sexual assault accusations to stay in compliance with Title IX — a federal law that prohibits discrimination on the basis of sex in educational programs funded by the federal government.
If Cornell did not make the changes quickly, the administrators said, it would be “out of compliance” and could be sanctioned by the Education Department.
The Department of Education made it clear that a system, such as Cornell’s, that does not give equal rights to the victim and the accused is not fair and equitable, Nelson Roth, deputy University counsel, said at CJC’s meeting.
In an interview earlier this semester, Judicial Administrator Mary Beth Grant J.D. ’88, who investigates accusations against students and decides whether to pursue cases, said she was pushing for the amendment to be passed quickly because until the changes were made, she was in an “untenable position.”
The letter “pointed out to us that our system is unfair,” she said, but “my obligation and my job is to follow the code.”
The discrepancy between the government’s letter and Cornell’s Code of Conduct “was a disaster waiting to happen” and had to be resolved quickly, Grant said. “I don’t want to be in a position where I know something is unfair and I’m being forced to do it,” she said.
Some members of the CJC, though, said that there would not have been any negative consequences for taking more time to analyze the amendment.
“There was, in fact, no rush whatsoever,” said Prof. Kevin Clermont, law, a member of the committee. “It’s unprecedented, as far as I know, this kind of stepping in and circumventing [the CJC].”
The amendment the U.A. eventually passed states that cases of sexual violence or sexual harassment must be proven by a “preponderance of evidence” standard. With that burden of proof, if the facts indicate the accused student is “more likely than not” to have committed the offense, then that student is found guilty of the accusation, administrators said.
The “preponderance of evidence” standard is lower than the previous standard of “clear and convincing evidence” — meaning that, with the lower standard, it is easier for an accuser to win the case.
The cost for an accused student of losing a sexual assault case — which is decided at Cornell independently of any criminal investigation that police may be conducting — can be as high as suspension or expulsion from the University.
Victim advocates applauded the lower standard, which they had been pushing for before the Department of Education letter was released.
Laura Weiss, director of the Women’s Resource Center, said sexual assault cases are often based on “he said, she said” testimony and include little physical evidence. At the same time, such assaults can be devastating and may ruin the victim’s experience at Cornell, she said.
“Cornell is not a right; it’s a privilege to be here,” Weiss said. “We can have a higher standard for being here, and in having a higher standard, we can have a lower burden of proof. I think those things are compatible.”
But the lower requirement for evidence created several uncertainties, according to administrators and professors involved in the judicial process.
They questioned whether it made sense to treat accusations of sexual assault differently from accusations of any other offense under the Code of Conduct.
“If we’re going to treat something as unique in its content, we need to understand whether it is,” said Prof. Risa Lieberwitz, collective bargaining, who is a member of the Codes and Judicial Committee. “If there were some kind of racially motivated assault, that’s also very serious,” but under the current system, it would require a higher standard of proof.
Prof. Clermont, who is also on the CJC, agreed.
For some serious offenses we have one scheme, and for other offenses we have another scheme,” he said. “So we’ve got this careful unitary code, and then we’ve got this slapdash set of requirements laid on top of it.”
Additionally, it is unclear what should happen if a student is accused of sexual assault in addition to another offense, such as robbery, that still bears the higher “clear and convincing” requirement.
The amendment’s other requirement, that accusers be given the same rights to appeal as the accused receive, also prompted disagreement.
Victim advocates said that it makes sense to create an equal right to appeal, since the Campus Code of Conduct is not the criminal justice system, and it’s possible for mistakes to hurt either the accuser or the accused.
Laura Weiss, of the Women’s Resource Center, added that preventing a sexual assault victim from appealing a decision reinforces a perception that victims are often wrong.
“As a culture, we’re so inclined to not believe survivors to begin with,” she said. “When we listen to accounts of sexual assault, very often our response is, ‘You misinterpreted it.’”
But one advocate for accused students argued that it is not fair to force the accused to defend themselves again.
Kyle Hogan grad, a law student who heads the Office of the Judicial Codes Counselor, said that allowing claimants to appeal could subject accused students to double jeopardy.
Compared to its peer universities, Cornell is in an unusual position regarding the implementation of the new evidence standard and appeal rights.
Unlike many other universities, Cornell’s Code of Conduct is based on the criminal justice system — it affords a variety of rights and protections to accused students.
“We normally accord certain kinds of procedural protections to people who have been charged with serious offenses,” Prof. Lieberwitz, from the CJC, said. “There’s a certain incongruity to saying that these serious charges should have lower standards of proof.”
The CJC will meet at the end of the month to create a recommendation for the University Assembly.