February 26, 2012

Committee Seeks to Change Sexual Assault Reporting

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Cornell’s system for resolving sexual assault accusations against students will soon be transformed if a resolution passed by the Codes and Judicial Committee is approved. Despite a debate stretching across several months, the practical effects of the resolution — which the CJC passed Friday by a vote of five to one — will likely be very similar to those of a proposal rejected by the committee in November.

Friday’s resolution aims to move accusations against students into a system comparable to the process already in place for faculty and staff members. The changes must still be approved by the University Assembly and President David Skorton before taking effect.

The resolution, which is an attempt to bring Cornell into compliance with new directives from the U.S. Department of Education, first states that the CJC would prefer to make no changes to the Campus Code of Conduct beyond several smaller alterations the committee approved on Feb. 10.

But CJC members conceded that Skorton, on advice from the University Counsel’s office, is not likely to accept that system, so they built an alternative into the resolution. If Skorton rejects the first choice, the document says he should transfer the process of resolving sexual assault accusations from the Code of Conduct to University Policy 6.4, “contingent on an administrative overhaul of that policy.” That second option mirrors a proposal that the CJC rejected in November by a vote of six to three.

Policy 6.4, currently used for accusations against faculty or staff, calls for an investigator to gather the facts relating to the accusation, decide whether the alleged assault occurred, and then recommend corrective actions.

The process created by that policy, which will likely be adjusted before it is used for students, 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 — 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 and then makes a decision. Under the Code, both sides of the dispute can also bring in outside lawyers to help argue their cases.

In response to a letter issued by the Department of Education in April, the University Assembly passed an amendment last spring that kept sexual accusations against students within the Code but lowered the burden of proof required for the accuser to win the case. Pursuant to the Department of Education’s directive, the amendment also gave accusers the same rights to appeal the decision as the accused receive.

The University Assembly’s amendment was intended to be temporary and remain in place only until the assembly and the CJC crafted a permanent response to the Department of Education’s directive.

That permanent response was approved by the CJC on Friday. The resolution included two choices “to say what we thought the University ought to do, but also to say, if the University was unwilling to do that, what we thought it should do,” according to Prof. Rachel Weil, history, who helped craft the final resolution.

If the Cornell administration chooses to pursue the first choice presented in the resolution, no additional changes will be made to the Code of Conduct. That would mean the repeal of last spring’s emergency amendment and a return to the higher burden of proof — known as the “clear and convincing evidence” standard — for sexual assault accusations. But it would keep in place four changes to the Code the CJC approved at its Feb. 10 meeting.

Those four changes were created to address some of the concerns of victim advocates. The changes included an option for either the accuser or the accused in sexual assault cases to request that they face a Hearing Board composed of only faculty and staff, not students. They also added a requirement that cross-examination of the accuser be conducted by “written questions submitted in advance or in real time, including follow up questions,” that are read aloud by the chair of the Hearing Board.

Although the first option included in Friday’s resolution addresses several concerns raised by victim advocates about Cornell’s current system, it does not include the lower standard of proof advocates say is necessary in sexual assault cases, which often include no evidence beyond the testimony of the accuser. The advocates also argue that the so-called Dear Colleague letter from the Department of Education in April requires the lower standard of proof — known as the “preponderance of the evidence” standard.

“A proposal that does not include the Dear Colleague letter changes would likely be rejected for legal and policy reasons by the University,” Nelson Roth, deputy University counsel, told the CJC on Friday. He added that the lower standard of proof had been required by the Education Department even before the April letter.

Several members of the CJC said they did not want to include sexual assault in the Code of Conduct if the standard of proof for those offenses would be lower than the standard for all other offenses in the Code. They said the two standards could introduce confusion and complication into the Code.

Judicial Administrator Mary Beth Grant J.D. ’88 told the committee that including two different standards in the Code would create difficulties in cases that include sexual assault charges alongside other accusations.

Largely because of these concerns, committee members agreed that if the standard of proof for sexual assault charges must be lowered to “preponderance of the evidence,” the charges should be moved out of the Code.

“If we want to do this, give it to [Policy] 6.4,” Prof. Kevin Clermont, law, said at the committee meeting. “Retrofitting the Code means the end of the Code.”

The second option contained in the CJC’s final resolution will move sexual assault accusations into Policy 6.4 and will include the lower burden of proof. Although similar changes were rejected in a CJC vote in November, subsequent discussions within the committee and with the University Counsel’s Office seemed to convince many committee members that the Policy 6.4 option was the only choice Cornell administrators found acceptable.

Clermont conceded that the first option presented in Friday’s resolution was unlikely to be implemented.

That option, which would not have lowered the burden of proof, “has no practical effect because they’re going to ignore it,” Clermont said. “But it’s a nice statement that we care” about rights of accused students, he said.

The resolution next must be approved by the University Assembly.

Original Author: Michael Linhorst