This is the second article in a series about sexual assault accusations at Cornell and how they may change the Campus Code of Conduct. See the first one here.
Students who are accused of sexual assault at Cornell may soon face a very different system for deciding their cases than the one they now encounter.
The new system would likely involve an investigation into the sexual assault accusation conducted by a University official, who would then decide how the case should be resolved. Professors and administrators say the process would be modeled on, or perhaps incorporated into, the existing process used for faculty and staff who are accused of sexual assault.
Supporters of the proposed system say the change would make the process easier, fairer and more private for both accusers and the accused. But skeptics say they are worried that the new system would give too few protections to accused students, who can face punishments as severe as expulsion.
Although the details of the proposed system have not yet been finalized, some members of the University Assembly’s Codes and Judicial Committee — which makes recommendations to the U.A. about changes to the Campus Code of Conduct — said they would support moving sexual assault accusations against students into the existing framework that the University uses for faculty and staff who are accused of sexual assault, or into a new system based on that framework.
That existing system, known as Policy 6.4, currently gives the Office of Workforce Policy and Labor Relations the authority to investigate accusations of sexual assault or harrassment. WPLR then presents a report detailing its findings and “recommendations for any corrective actions” to the University administrator who oversees the accused faculty or staff member, according to the policy.
During WPLR’s investigation, representatives of the office interview relevant parties and witnesses and gather evidence. Accusers and the accused can seek advice from lawyers. However, unlike the Campus Code of Conduct system, which only applies to students, those lawyers may not cross-examine witnesses or advocate for their clients.
The Code of Conduct includes other protections for the accused — protections that 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, then makes a decision. The UHB is composed of members of the Cornell community, including students, who have received special training to sit on the board.
Eva Drago ’12, a Women’s Resource Center board member, said she supports a system in which students do not help decide the fates of fellow students.
“The idea is to make it a much more private process that’s conducted primarily by the administration, by individuals who are trained on these matters,” she said. “It seems like one of the biggest failings of the judicial system is that students are so involved.”
But one member of the Codes and Judicial Committee, which will meet Nov. 30 to decide whether to recommend a new system to the University Assembly, said he is unhappy with the idea of removing students from the decision-making process.
“We are students of one of the best and most renowned universities in the world, and the world looks to our students to help lead into the future. What does it say about us if we cannot even manage our own affairs?” Matt Campbell, a second year law student who sits on the CJC, said in an email. He said removing students from the process demonstrated “arrogance and paternalism.”
But Drago maintained that it is not appropriate for students to be involved in sexual assault cases.
“Should 18- or 19-year-old students be making decisions in rape cases? Should they have the power to expel students?” she said. “I believe in having the community involved, but at what point do you draw the line and say this is too much for students to take on?”
Prof. Risa Lieberwitz, collective bargaining, another member of the CJC, said she was concerned that removing students from decision-making roles could impact the broader university.
“I think that student participation is part of viewing universities as a democratic organization,” she said earlier this semester, not referring specifically to the idea of moving accusations to Policy 6.4. “So having a judicial system in which students have decisions made about them without having students in roles [creates] paternalism in terms of having authority over students and creates a system that’s rather undemocratic.”
Lieberwitz said that the solution to Drago’s concerns may be giving students additional training before they become involved in cases.
The debate over how to respond to sexual assault accusations has grown out of a temporary amendment to the Code of Conduct that was hurriedly passed last semester to ensure the University stayed in compliance with new Department of Education directives. The amendment lowered the burden of proof required in sexual assault cases, making it easier for a student to win a case against another student. It also gave the accuser the same rights as the accused student to appeal the decision.
The amendment resulted in a burden of proof in sexual assault cases that is lower than the burden in other cases in the Code of Conduct. The disparity created a philosophical question about whether it made sense to have different burdens of proof for different accusations, and it created a practical question about how a case should be decided if a student was accused of both sexual assault and another offense.
“I don’t think that it will work to keep it the way it is now,” said Judicial Administrator Mary Beth Grant J.D. ’88, referring to the differing standards of proof in the Code.
Grant said she thought removing sexual assault accusations from the Code of Conduct could work, but she added that references to sexual assault should remain in the Code because “we don’t want to have a situation where we tell students that the Code of Conduct is the place to go for all of their behavior requirements, then not include sexual assault.”
Drago said she was satisfied with the idea of moving sexual assault accusations to Policy 6.4.
The proposed move “reconciles all the problems that I had with the old system,” she said. “I think it’s to the benefit of both [the accuser and accused students] to make the process more private and professional and faster.”
Original Author: Michael Linhorst